STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

BLACKHAWK QUARRY COMPANY OF FLORIDA, INC.,

Petitioner,

vs. Case No. 85-4366

STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION,

Respondent.

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FINAL ORDER

The record in this proceeding and the Recommended Order of the Hearing Officer have been reviewed. Respondent, Florida Department of Transportation (FDOT), has filed exceptions to the Recommended Order and Petitioner has filed a response thereto.

FDOT's exceptions are considered and addressed below.1

The Findings of Fact set forth in the Recommended Order are considered correct and are incorporated as part of this Final Order with the following exception. The Hearing Officer noted that FDOT's appeal of DOAH Case No. 87-0621R, is currently pending before the First District Court of Appeal. This is incorrect. The matter is pending before the Fifth District Court of Appeal.

FDOT's exceptions to Findings of Fact numbered 4, 7, 8, 9,

16, 23, 26, 27, 28, and 34 are rejected as an impermissible attempt to supplement the Hearing Officer's findings. Inverness Conval. Ctr. v. Dept. of H.R.S., 512 So. 2d 1011 (Fla. 1st DCA 1987); Cohn v. Dept. of Professional Regulation, 477 So. 2d 1039 (Fla. 3d DCA 1985).

FDOT takes exception to the Findings of Fact number 24, claiming , in paragraph 1, that there is a lack of substantial record evidence that material from Merritt Island mine No. 70-1 tested less that the minimum carbonate requirement. However, closer examination of the exception reveals that the foundation of the claim lies in the Hearing Officer's omission of certain

language contained in the Gammage memo of September 30, 1969. As noted above, the Department cannot supplement the Hearing

Officer's finding. Consequently, paragraph one of the exception must be rejected. Similarly paragraph two, going to omitted facts must be rejected as well.

The Hearing Officer's Finding of Fact number 25 is essentially a summary of Blackhawk's Exhibit 13 and is supported by competent substantial evidence. Consequently, FDOT's exceptions thereto are rejected.

FDOT also takes exception to Finding of Fact number 29, Claiming first that there is competent substantial record evidence to support the finding that FDOT has never conducted a study to document the necessity of the 50 per cent carbonate requirement. Respondent is mistaken. The record reflects that FDOT personnel and their expert gave testimony indicating that such specific research had never been conducted. (TI 348, 434, 435, 480; TII 24, 71) FDOT's second and third complaints being predicated upon the omission of facts, must also be rejected.

FDOT's exception to Finding of Fact number 30 is rejected because the record reflects that Dr. Eades testified that as used in this state, LBR is the indicator of the ultimate strength of the material. (TI 412, 434)

FDOT's exception to Finding of Fact number 31 amounts to a challenge t the Hearing Officer's weight and credibility determinations regarding Dr. Bromwell's testimony, and consequently must be rejected. Heifetz v. Dept. Of Business Regulation, 475 So. 2d 1277 (Fla. 1st DCA 1985).

FDOT's first two paragraphs in its exception to Finding of Fact number 32 constitute challenges to the Hearing Officer's credibility determinations, the inferences she drew from the evidence, and her failure to rely upon or cite certain facts as opposed to others. As noted above, exceptions predicated on these types of grounds must be rejected. The third paragraph of this exception must also be rejected because record testimony clearly demonstrates that Bill Wisner testified that the Merritt Island mine was in existence for three to five months -- a very short period of time. (TI 52)

FDOT's exception to Finding of Fact number 35 is rejected as being immaterial to the ultimate disposition of this matter.

FDOT's exceptions to Findings of Fact numbers 36, 38, and 40, in the final analysis, represent challenges based upon the credibility and weight determinations of the Hearing Officer, and the inferences drawn from the record evidence. Since weight and credibility determinations cannot be disturbed, and since the inferences drawn, while not palatable, are nonetheless arguably reasonable, these exceptions must be rejected. Heifetz v. Department of Business Regulation, supra.

CONCLUSIONS OF LAW

Pursuant to Section 120.57(10), the Hearing Officer's conclusions of law are rejected and the following are advanced in lieu thereof.

1. Section 337.11, Florida Statutes, provides the authority for FDOT to enter into contracts for the construction and maintenance of all roads designated as part of the State Highway System or any roads under its supervision. Chapters 334 through 337, Florida Statutes, provide authority for FDOT to require pre-approval of material and their sources. Specifically, FDOT is empowered pursuant to Section 334.044(10(19), 334.24, and 36.04(1) to develop and adopt uniform standards for construction of roads and bridges in Florida. Nothing in those chapters directly addresses the approval of material sources. No rules have been adopted by FDOT to address the standards or procedures for approval.

   
   

2. Until this case FDOT utilized the Standard Specifications for Road and Bridge Construction and written procedures for approval of material sources (SOP) as the procedure for approval of material sources to be incorporated into FDOT construction projects. The Standard Specifications are adopted by reference to each Department construction contract. FDOT had not considered the material source approval process to be subject to Section 120.57, Fla. Stat. Hearings.

   
   

   FDOT placed the Blackhawk Quarry in Suspended Approval Status on July 29, 1985, and on November 12, 1985, FDOT reaffirmed that the 50% calcium and magnesium carbonate requirement would not be waived for Blackhawk. A hearing was requested to contest this decision. This hearing addressed the propriety of a waiver of the 50% carbonate requirement under the specification in effect at that time.

   
   

3. FDOT acknowledges that Section 915 of the Standard Specifications which sets forth the composition, gradation,

   plasticity, and limerock bearing ratio requirement for Cemented Coquina Shell material has not been formally adopted as a rule. The only requirement at issue in this proceeding was the minimum percentage of carbonates of calcium and magnesium allowable in the material to be approved for use on FDOT projects.

   
   

   In the absence of promulgated rules, the agency's policy must be established and may be challenged by proof. The agency must fully and skillfully expound its nonrule policies by conventional proof methods which are subject to the analysis and critique of the Hearing Officer. McDonald v. Department of Banking and Finance, 346 So. 2d 569, 582-583 (Fla. 1st DCA 1977). That has been done in this case.

   
   

   The Hearing Officer has appropriately concluded that the evidence supports a finding that some level of carbonate content is necessary for effective performance by cemented coquina roadbase. The evidence reflects that FDOT's standard of 50% carbonate has been used successfully and resulted in no known failures of road base material. The Hearing Officer however has concluded that the evidence presented by FDOT has not supported a finding that 50% is the required level which must be attained to assure a successful product.

   
   

4. The Hearing Officer has found that Blackhawk can consistently produce material averaging 45% carbonates, so there is factual basis for the Department to waive the 50% carbonate requirement for the Blackhawk mine under the specification waiver provision, but establish the minimum percentage of carbonates of calcium and magnesium in the cemented coquina material for this mine at 45. No waiver below this level need be made.

Based on the foregoing Findings of Fact and Conclusion of Law it is,

ORDERED that Blackhawk Quarry be reinstated to full approval status under a waiver of the carbonate content requirement so long as the material continues to work and perform satisfactorily and the following requirements set forth in Section 915 of the Standard Specifications are met.

1. The material shall not contain loose shell or silica sand in sufficient quantity to prevent proper bonding. Material which shows a significant tendency to flake or undergo chemical or physical change on exposure to weather will not be acceptable;

   
   

2. The minimum percentage of carbonates of calcium and magnesium in the material shall be 45;

   
   

3. At least 97 percent (by weight) of the material shall pass a 3 1/2 inch sieve, not more than 20 percent, by dry weight, of the material shall pass the 200 sieve by washing;

   
   

4. The portion of the material passing the No. 40 sieve shall be nonplastic; and

   
   

5. The material shall have an average Limerock Bearing Ratio (LBR) value of not less than 100. The average LBR value of material produced at the Blackhawk quarry shall be determined in accordance with an approved quality control procedure.

DONE AND ORDERED this 14th day of March, 1988.

KAYE N. HENDERSON, P.E.

Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32399

ENDNOTE

1/ Citations to the transcript of hearing held on June 29 and 30, 1987, will be indicated parenthetically as "TI"

with the appropriate page number(s). Citations to the transcript of hearing held on July 15 and 16, 1987, will be indicated parenthetically as "TII" with the appropriate page number(s).

The following information is required by law to be included in all final orders:

Judicial review of agency final orders may be pursued in accordance with Section 120.68, Florida Statutes, and Florida Rules of Appellate Procedure 9.030(b)(1)(c) and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the

Department's Clerk of Agency Proceedings, Haydon Burns Building, MS 58, 608 Suwannee Street, Tallahassee, Florida 32399-0458, and with the appropriate District Court of Appeal within thirty

(30) days of the filing of this Final Order with the Department's Clerk of Agency Proceedings. The Notice of Appeal filed with the District Court of Appeal should be accompanied by the filing fee specified in Section 35.22(3), Florida Statutes.

Copies furnished:

Mary Clark, Hearing Officer Division of Administrative hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Harold F. X. Purnell, Esquire Gertel & Hoffman, P.A.

P.O. Box 6507

Tallahassee, Florida 32314-6507

Larry Scott, Esquire Thomas Cassidy, Esquire

Department of Transportation Haydon Burns Building, MS 58 Tallahassee, Florida 32399

Mr. J. Ted Barefield, Chief

Bureau of Contracts Administration Department of Transportation Haydon Burns Building

Tallahassee, Florida 32399

Docket for Case No: 85-004366

Orders for Case No: 85-004366