STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing officer, K. N. Ayers, held a public hearing in the above-styled case on November 5, 1986, in Bartow, Florida.

APPEARANCES

For Petitioner: Vernon L. Whittier, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

For Respondent: C. Michael Fischer, Esquire

170 South Broadway Bartow, Florida 33830

By letter dated January 10, 1986, the Department of Transportation (DOT), Petitioner, advised Eyal Sade/E & S Construction, Respondent, that his authority to be issued permits to move houses over state highways was being suspended for 60 days from the day of his last move until January 26, 1986. As grounds therefor, it is alleged that during a house movement on November 19, 1985, the building became wedged on the bridge over the Hillsborough River, was parked so as to encroach on the pavement of the state road, and on November 27, 1985, the building had inadequate clearance to pass over the Blackwater Creek bridge on SR 39 and kept the highway blocked for over one hour and "these actions demonstrate your company's disregard for the laws and regulations governing movements of buildings on state highways." This was alleged to be the second violation of regulations by

Respondent, the first being in November 1984. Respondent stipulated to the November 1984 violation. By letter dated June 20, 1986, E & S Construction Company, by and through its attorney, requested an administrative hearing to contest the alleged violation of regulations. This request was forwarded to the Division of Administrative Hearings on August 5, 1986, and this hearing was scheduled. At the hearing, Petitioner called four witnesses, Respondent called four witnesses, and five exhibits were admitted into evidence.

Proposed findings have been submitted by the parties.

Treatment accorded those proposed findings is contained in the Appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. By Application for Permit to Move Building over State Roads dated November 1, 1985, Eyal Sade, on behalf of Sade Housemovers applied for a permit to move a dwelling over state roads some 32 miles in Tampa and vicinity. Although this application showed the width of the building to be 32.2 feet, including eaves, E & S Construction/Sade Housemovers, was issued regular Permit No. B17531 on November 6, 1985 (Exhibit 1). Width, excluding eaves, was left blank on this application.

   
   

2. This permit provided the building would be moved over state roads between the hours of 12:00 midnight and 6:00 A.M. and be escorted by local police.

   
   

3. The application showed utility companies TECO, GTE and WRec [sic] had been notified of the move and the move had been cleared by the Florida Highway Patrol without comment regarding the need for escort. Also Seaboard railroad system had been notified (Exhibit 1).

   
   

4. This move commenced shortly after midnight, November 19, 1985, with escorts from the Hillsborough County Sheriff's Department. The building had to be jacked up on the platform on which it rode and required a 90 degree turn to commence its trip south on Nebraska Avenue (U.S. 41). This delayed the start of the movement down Nebraska Avenue approximately 30 minutes.

   
   

5. Shortly after the trip started, the portable generator that provided lighting on the building stopped functioning and the escorts told Mr. Sade he had to get the lights on the building. Sade attempted to have the generator repaired as the move progressed.

   
   

6. When the movers stopped for approximately five minutes to repair the generator, the police escorts testified that the crew

   moving the building stopped working to eat. This was denied by Sade and the members of his crew who all testified that the sandwiches that Sade procured were eaten as the move progressed.

   
   

7. The two deputies from the Sheriff's Office who escorted the move considered the move to be progressing slowly and told Sade several times that he should be ready to park the building before 6:00 A.M.

   
   

8. Sade had spent three days surveying the route before November 19, and had taken measurements of all bridges and the elevation of lights. Mrs. Sade had contacted by telephone the City of Tampa Utilities Department to advise them of the move as well as Pasco County officials for the portion of the route in Pasco County.

   
   

9. There was a conflict in the testimony of the deputies and Sade regarding the presence of a man on top of the building to clear traffic lights as the building passed under these lights. Sade testified he had a man on the building during the time the building was in the City of Tampa. The deputies testified they told Sade he needed someone on the top of the building.

   
   

10. The bridge over the Hillsborough River on SR 39 was some twenty miles from the commencement of the trip and the building arrived at this bridge around 5:30 A.M. The escorts had told Sade several times that he should not be on the road after 6:00 A.M. and that hour was approaching. Sade was aware of a large lot on which the building could be parked off the highway located about one mile south of Hillsborough River bridge and decided to cross the bridge to get to that location.

    
    

11. While crossing the Hillsborough River bridge, the building got stuck on the guardrail and had to be backed off. Sade's winch broke down but they were able to obtain a bulldozer from a business adjacent to the bridge which helped get the building off the pavement and along the right of way as demanded by the escorting officers. While this was going on, the traffic was totally blocked for about 20 minutes and delayed with one way traffic having to proceed past the building until the building was finally moved completely off the roadway. Even then the overhang of the building extended offer the road to the white line along the edge of the pavement. Sade's testimony that this eave was 17 feet above the pavement was not disputed; however, William Ledden opined that a semi-trailer would hit the roof of the building if it attempted to pass under this eave. By the time the building was parked along the right-of-way, it was approximately 8:40 A.M. and traffic had been stopped and delayed for almost three hours.

12. The problem of getting the building stuck on the bridge, the resulting delay past 6:00 A.M. and that the building was still on the road was reported to Petitioner, and William Ledden, a certified officer employed by DOT as a weights and safety inspector, was dispatched to the scene. Ledden looked at the permit issued Sade for the move, saw it was a regular permit, saw that it expired at 6:00 A.M. and directed Sade not to move the building until a proper permit was issued. Ledden was present during the time the wrecker relocated the building alongside the paved road on the shoulder.

    
    

13. For a building exceeding 30'6" in width a Special Permit is required (Rule 14-63.03, Florida Administrative Code). Ledden testified he made it clear to Sade that the building was not to be moved without a valid permit.

    
    

14. On the morning of November 20, 1985, after midnight, the building was moved without incident across Hillsborough River bridge to the large lot south of the bridge that Sade had hoped to make the night before.

    
    

15. Sade reapplied to DOT for a permit to move the building to its intended destination and on November 25, 1985, Special Permit No. B17546 (Exhibit 2) was issued to Respondent. This permit indicated all necessary parties were notified of the move.

    
    

16. Shortly after midnight, November 27, 1985, the movement of this building recommenced pursuant to the Special Permit. The move progressed satisfactorily until the bridge on SR 39 over Blackwater Creek was reached. Petitioner's witness testified the building hit the rub rails on both sides of the bridge. Photograph admitted on Exhibit 4 shows one side of the building rubbing on the guardrail. Respondent acknowledged that the clearance was close and that to clear the guardrail on one side, the building had to be raised on that side. The driver of the towing truck acknowledged that he initially got off line and one

    side of the building touched the guardrail and it was necessary to back off the bridge to get realigned. To raise one side of the building to enable it to clear the guardrail on the right side, 2 x 12 planks were placed on the roadway for the right wheels of the carriage to ride on. These planks had to be moved continuously as the building progressed across the bridge. This materially slowed the progress across the bridge. Other than the initial rubbing of the guardrail, the only complaint of Petitioner regarding this part of the move is that the bridge was blocked to traffic for one and one-half hours while the building crossed the bridge. Sade testified the building was on the bridge for only 30 to 45 minutes; however, the longer period is deemed more reliable.

17. After clearing the bridge, the building struck some tree limbs alongside the road and a railroad stop sign over the road which had to be realigned. This realignment was done by the moving crew and no safety hazard resulted.

    
    

18. The carriage for the building had been raised as much as possible to clear the bridge guardrails and still be low enough to clear the overhanging traffic signals, hence the need to raise one side of the carriage to clear the guardrail at the Blackwater Creek bridge.

    
    

19. The November 27 move was completed prior to 6:00 A.M. in accordance with the permit.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

21. Section 316.550, Florida Statutes (1985) authorizes the DOT to issue Special Permits for the movement of vehicles exceeding the maximum size provided in Chapter 316 upon such terms and conditions as it deems necessary. Pursuant to this authority, Chapter 14-63, Florida Administrative Code, was promulgated to enumerate the guidelines governing the issuance of building moving permits. Pertinent provisions of this chapter are:

    
    

    14-63.03 Size Limitations. Building structures to be moved must conform to the dimensions listed below.

    1. Maximum overall building width should not exceed (30) feet six (6) inches (excluding eaves) except as approved by Special Permit.

       
       

       14-63.04 Movement Restrictions. Movement will not be permitted during the following times.

       1. Movement will not be permitted at nighttime, except (1) in local municipalities or counties which require, by ordinance, that moves be made at night; and (2) in specific areas, designated by the District Office, in which the proper local governmental agencies have otherwise authorized nighttime moves. For purpose of this rule, "night" is defined as that period of time which begins one (1)

          hour before sunset and ends one (1) hour after sunrise.

          In all cases the mover shall assume responsibility for providing adequate traffic control and for defraying any expenses which result from the fulfillment of that obligation.

          
          

       2. Movements shall be prohibited from crossing any "bascule" or "lift type" bridge structure, except as provided under Special Permit.

       3. Movements shall be prohibited on any portion of the limited or controlled access facilities. (Approved by the Director of Road operations). Buildings may be permitted on any road passing over or under the Interstate and at interchange overpasses

          or underpasses, when it has been determined that satisfactory vertical and lateral clearances exist.

       4. Permits shall not be issued for the movement of any building which has not been completed and occupied in one location for a period of one year or more, except as provided under Special Permit Item A.

       5. Inter-Department of Transportation District Movement will be approved in the district of trip origin, with concurrence of other affected districts.

       14-63.05 Special Permits. Special Permits may be granted by the District Engineer for the following structures: (1) buildings wider than thirty (30) feet six (6) inches; (2) buildings longer than sixty-five (65) feet; (3) frame houses over movable bridges; and (4) government- owned buildings when application is made by appropriate governmental unit, or privately- owned buildings on public property.

       (1) Applicants for Special Permits must furnish a written request outlining exceptions to standard policy. Prior to granting of Special Permits, it must be determined that reasonable effort to minimize the hazard has been exhausted; that the move will be well planned and escorted; and that proper and safe equipment will be utilized. Past violations of any part of these regulations will be deemed adequate reason

       to deny issuance of Special Permits.

       
       

22. Rule 14-63.08 headed Traffic Control provides generally for escort vehicles in front of and behind the building, for the movement unit to pull off the road at a maximum of one mile

    intervals to let traffic pass, for a minimum of three moving personnel and be in attendance at all times with any structure restriction [sic] from moving due to breakdown, accident, or unforeseen delay.

    
    

23. Rule 14-61.09 provides the mover shall cooperate with all utility companies having lines crossing over the proposed route, make satisfactory arrangements with utility escorts, and cooperate with any railroad company with at-grade crossings on the proposed route by notifying the respective company and making satisfactory arrangements.

    
    

24. Rule 14-63.10 entitled Application Procedures outlines the various steps an applicant for permit to move buildings over state roads must follow. The evidence submitted indicates Respondent complied with all of those requirements.

    
    

25. The above provisions of Chapter 14-63 are quoted because Respondent was charged, in the letter dated January 10, 1986, which imposed a suspension of issuance of future permits for sixty

    (60) days, with violating Rule 14-63.11, Florida Administrative Code, which provides:

    
    

    Failure to comply with these regulations shall be adequate reason to deny issuance of future permits for up to any twelve-month period as follows:

    
    

    Period Non-Issuance

    Violation Future permit

    
    

    1st 30 days

    2nd 60 days

    3rd 12 months

    
    

26. It is noted that the charging letter (Exhibit 3) did not provide Respondent with a time frame within which to petition for hearing to contest the 60 days suspension which expired January 26, 1986. Accordingly, Petitioner did not contest the timeliness of Respondent's Request for a Formal Administrative Hearing.

    
    

27. It is not clear exactly which of the provisions of Chapter 14-63, Florida Administrative Code, Respondent is alleged to have violated. The evidence will support a finding that, due to getting stuck on the Hillsborough River bridge and having to be extricated therefrom, Respondent had the building on the road after 6:00 A.M. on November 17, 1985, which was subsequent to the time for which the permit was issued. The charging letter alleges the building was on the road one-half hour after the permit allowed movement.

28. The initial permit issued to Respondent was for a building 32 feet 2 inches wide. Rule 14-63.03(1) above quoted requires a Special Permit for a building this size. This Permit was issued by Petitioner upon accurate information provided by Respondent and it cannot be said Respondent violated this provision.

    
    

29. Rule 14-63.04 quoted above, requires the mover to assume responsibility for providing adequate traffic control. Both moves here involved were conducted with police escorts.

    
    

30. No evidence was presented regarding the nature of Hillsborough Bridge which, if a bascule bridge, would require the issuance of a Special Permit. Since a Special Permit was required due solely to the width of the building being moved, this fault, if one existed, cannot be attributed to Respondent. Rule 14-63.06 applies to fees and no evidence was presented that Respondent failed to pay the appropriate fee for the permit issue. Also no evidence was submitted that Respondent was not properly bonded as required by Rule 14-63.07. Nor was evidence presented that Respondent failed to provide the traffic control as required by Rule 14-63.08.

    
    

31. Both applications for permits submitted by Respondent indicate notification was given to utility companies TECO, GTE and WRec, to the Seaboard System Railroad, and clearance was obtained from the Florida Highway Patrol. Respondent's witness, Mrs. Sade, testified that she notified the City of Tampa utility office and Pasco County utility office of the moves. This is competent and admissible testimony. The testimony of Petitioner's witness that he was told by the City of Tampa Utility Department that they were unaware of the move was objected to as hearsay testimony, which it is. This is not competent evidence, it does not supplement competent evidence, and no finding can be based on such evidence. Section 120.58(1)(a), Florida Statutes.

    
    

32. Finally, no evidence was presented that Respondent failed to submit a proper application as required by Rule 14- 63.10.

    
    

33. Petitioner has the burden to prove, by a preponderance of the evidence, the infractions alleged. Balino vs. Dept. of HRS, 348 So.2d 349 (Fla. 1st DCA 1977). This burden Petitioner has failed to sustain. Nowhere in Chapter 14-63 is it provided that sanctions are authorized because a mover exceeded the time limits of the permit due to circumstances over which he had control or over which he had no control. Since the building crossed the Hillsborough River bridge without apparent problem during the early morning hours of November 18, 1985, it is clear

    that Respondent's attempt to move the building across this bridge at 5:30 A.M., November 17, 1985, was not a gross miscalculation especially in view of the obviously good layover place on the south side of this bridge.

    
    

34. Finally, no evidence was submitted that Respondent violated Chapter 14-67, Florida Administrative Code, when he moved the building from the right-of-way along the road north of the Hillsborough River bridge to a much better site south of this bridge on November 18, 1985, under the initially issued but incorrect permit. In fact, no direct evidence was submitted regarding this move.

    
    

35. The clearance on the bridge across Blackwater Creek was obviously very slight and this fact was known to the DOT Permit Engineer, who issues building moving permits. Before any Special Permit was issued to Sade, the Permit Engineer discussed with Sade the clearances problem he would face on the Blackwater Creek bridge. Although no one testified to the substance of this discussion it would be expected that Sade explained that he would clear the guardrail by lifting one side of the carriage and, on the basis of this explanation, the Special Permit was issued. In any event, the building traversed the bridge with one side of the carriage wheels riding on 2 x 12 planks. The fact that this move was very slow and blocked traffic is not a ground noted in Chapter 14-63, Florida Administrative Code, for which a suspension of issuance of future permits may be founded.

    
    

36. From the foregoing it is concluded that Petitioner has failed to prove, by a preponderance of the evidence, that Respondent violated any provisions of Chapter 415, Florida Administrative Code, during the morning of November 17, 1985, or November 27, 1985. It is

RECOMMENDED that the charges against Eyal Sade and E & S Construction involving the movement of a building on November 17, 1985, and November 27, 1985, be dismissed.

ENTERED this 29th day of December, 1986, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1986.

APPENDIX

Treatment Accorded Petitioner's Proposed Findings

1. Accepted insofar as included in HO #1, 2 and 3.

2. Accepted insofar as included in HO #4, 7.

3. Accepted insofar as included in HO #10, 11.

4. Included in HO #5, 16 and 17.

Treatment Accorded Respondent's Proposed Findings

1. Included in HO #1 and 15.

2. Rejected insofar as the November 19 move is concerned.

3. Included in HO #3 and 8.

4. Accepted but irrelevant.

5. Accepted but irrelevant.

COPIES FURNISHED:

Vernon L. Whittier, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

C. Michael Fischer, Esquire

170 S. Broadway Bartow, Florida 33830

Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

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AGENCY FINAL ORDER

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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

STATE OF FLORIDA,

DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. CASE NO. 86-2947

E & S CONSTRUCTION,

Respondent.

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FINAL ORDER

The Record in this proceeding has been reviewed along with the Recommended Order of the Hearing Officer, copy attached.

Petitioner, FLORIDA DEPARTMENT OF TRANSPORTATION (Department) has filed Exceptions to Recommended Order which are considered and addressed in this order.

The Findings of Fact in the Recommended Order are adopted.

The Conclusions of Law in the Recommended Order are accepted insofar as the Hearing Officer concluded that the Department would have the authority to suspend issuance of permits to Respondent upon proof of violation of Chapter 14-63, Florida Administrative Code. Contrary to the conclusions of the Hearing Officer, the Department considers the actions of Petitioner to be sufficient to constitute violations of Chapter 14-63 regulating building movement over state highways. However, the Department will apply this interpretation prospectively. An agency, such as the Department, may interpret its own administrative rules.

S.120.57(1)(b)9, Florida Statutes. The Department accepts the legal conclusion of the Hearing Officer that Petitioner did not prove that Respondent violated Chapter 14-63, F.A.C. References to the transcript will be made by the use of abbreviation "Tr" followed by the appropriate page number.

CONCLUSIONS OF LAW

1. Section 316.550, Fla. Stat. (1985) authorizes the Department to issue special permits for house moving, in its discretion, upon application, for good cause, if not contrary to the public interest. By the statutory authority of S.316.550, F.S., as condition for issuance of the permit, the Department may limit or prescribe the conditions of operation of such oversized loads.

2. Pursuant to the authority of S.316.550, F.S., Chapter 14- 63, Florida Administrative Code was promulgated to further govern operations of building moving. The following standard applies to the entire Chapter.

   
   

   These permits are issued only under certain limiting regulations which are intended to reduce minimum any inconvenience to the highway user. (emphasis added)

   
   

   Rule 14-63.002 F.A.C.

   
   

3. Further pertinent provisions of the Chapter include Rule 14-63.005, Florida Administrative Code which provides:

   
   

   1. Applicants for Special Permits must furnish a written request outlining exceptions to standard policy. Prior to granting of Special Permits, it must be determined that reasonable effort to minimize the hazard has been exhausted; that the move will be well planned and escorted; and that proper and safe equipment will be utilized. Past violations of any part of these regulations will be deemed adequate reason to deny issuance of Special Permits. (emphasis added)

      
      

4. Rule 14-63.004, Florida Administrative Code provides in pertinent part:

   
   

   Movement will not be permitted during the following times: (1) on Saturdays, Sundays and legal holidays; (2) between 7:00 a.m. and 9:00

   a.m.; nor (3) between 4:00 p.m. and 6:00 p.m.

   1. Movement will not be permitted at nighttime, except (1) in local municipalities or counties which require, by ordinance, that

   moves be made at night; and (2) in specific areas, designated by the District Office, in which

   the proper local governmental agencies have otherwise authorized nighttime moves. For purposes of this rule, "night" is defined as that period of time which begins one (1) hour before sunset and ends one (1) hour after sunrise. (emphasis added)

5. Rule 14-63.011, Florida Administrative Code provides:

   
   

   Failure to comply with these regulations shall be adequate reason to deny issuance of future

   permits for up to any twelve month period as follows:

   
   

   PERIOD

   NON-ISSUANCE

   VIOLATION FUTURE PERMIT

   
   

   1st 30 days

   2nd 60 days

   3rd 12 months

   
   

6. The Department disagrees with the Hearing Officer's legal conclusion that Chapter 14-63, F.A.C. is not violated when a mover exceeds time limits of a permit. On November 19, 1985, Respondent did not complete the building moving operation within the time period of 12:00 A.M. to 6:00 A.M., which was prescribed by the Department. Therefore, it shall be considered a violation of Rule 14-63.004, F.A.C. as well as S.316.550, F.S. to continue movement of a structure on the roadway between 7:00 A.M. and 9:00 A.M.

   
   

7. Respondent violated Rule 14-63.005 F.A.C. November 27, 1985, by blocking Blackwater Creek Bridge to users of SR 39 for 1_ hours. Respondent did not use reasonable efforts to minimize hazard to the public when Respondent did not elevate the structure on the carriage. The move was not well planned as shown improper equipment and abuse to public property including signs, traffic signals, trees, and bridges. This shall be considered a violation of these regulations and shall be adequate reason to deny issuance of subsequent Special Permits.

   
   

8. Respondent repeatedly breached the intent of Rule Chapter 14-63 as expressed in the standard "to reduce to a minimum any inconvenience to the highway user." Examples of this violation are as follows:

   
   

   1. Respondent failed to clear Hillsborough River Bridge and blocked traffic for 2-3 hours during the morning rush hours after the permit time limitation had expired.

   2. The building remained an obstacle to traffic when parked on the right of way

      on November 19, 1985.

   3. Respondent did not elevate the house on the carriage in order to clear Blackwater Creek

      Bridge with reasonable speed thereby, blocked the bridge for highway users, including possible emergency vehicles, for 1_ hours. As found by the Hearing Officer, Respondent materially slowed the progress across the bridge.

   4. Inadequate planning and inadequate

   equipment continually slowed the progress of the subject move. The problems included a rented generator that did not function properly, an inoperable winch truck, dragging traffic, lights, lack of elevation of the building on the carriage, striking tree limbs, and striking a railroad stop sign.

   
   

   Actions of this type shall be considered violations of Rule 14-63.

   
   

9. In the future actions as shown by the Respondent in this case shall be considered as violations of Rule 14-63 and Section 316.550, Fla. Stat. The Department accepts the Hearing Officer's conclusion that Petitioner failed to prove, by a preponderance of the evidence that Respondent violated Chapter 14-63, F.A.C., during November 19, 1985 or November 27, 1985.

Accordingly, it is

ORDERED that the charges against Eyal Sade and E&S Construction involving the subject movement of a building be dismissed.

DONE and ORDERED this 6th day of March, 1987.

KAYE N. HENDERSON

Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

COPIES FURNISHED TO:

K. N. AYERS, HEARING OFFICER DIVISION OF ADMINISTRATIVE HEARINGS THE OAKLAND BUILDING

2009 APALACHEE PARKWAY

TALLAHASSEE, FLORIDA 32301

VERNON L. WHITTIER, ESQUIRE DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING, MS-58 TALLAHASSEE, FLORIDA 32399

C. MICHAEL FISCHER, ESQUIRE

170 SOUTH BROADWAY BARTOW, FLORIDA 33830

Judicial review of agency final order 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, 605 Suwannee Street, MS 58, Tallahassee, Florida 32301-8064, and with the appropriate District Court of Appeal within 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.

Docket for Case No: 86-002947

Orders for Case No: 86-002947