STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 85-1362

)

NATIONAL FREIGHT, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida on June 12, 1985, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The appearances were as follows:

APPEARANCES

For Petitioner: Charles G. Gardner, Esq.

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32301

For Respondent: Martha Harrell Hall, Esq.

Lewis State Bank Building Suite 410

Tallahassee, Florida 32301

This matter arose on Petitioner's notice that it intends to revoke certain oversize semitrailer permits held by Respondent. The parties submitted proposed findings of fact pursuant to Subsection 120.57(1)(b)4, Florida Statutes. A ruling on each proposed finding of fact has been made either directly or indirectly herein, except where such proposed findings have been rejected as subordinate, cumulative, immaterial, or unnecessary.

FINDINGS OF FACT

1. Respondent is engaged in the business of trucking, and has its principal Florida office in Orlando.

   
   

2. Respondent utilizes truck tractor and semitrailer combinations. Some of its semitrailers exceed 48 feet in length.

   
   

3. One hundred of the National Freight semitrailers which exceed 48 feet in length operate with permits issued to National Freight by Petitioner in October, 1983. These 100 permits are assigned numbers M57683 through M57779 and M57678 through M57680.

   
   

4. In 1983, the Florida Legislature amended Section 316.515(3)(b), Florida Statutes (F.S.). The amendment, which became effective July 1, 1983, prohibited the operation of semitrailers over 48 feet in length except for those in operation on Florida highways as of December 1, 1982.

   
   

5. Petitioner's representative initially stated that Respondent and at least one other trucking company would be allowed to obtain operating permits for the oversize semitrailers provided they were on order as of December 1, 1982, and in operation on Florida highways by July 1, 1983. This policy was unwritten and has never been formalized by rule.

   
   

6. In September, 1983, Petitioner informally requested Respondent to furnish a list of such trailers assigned to Florida. Respondent's list of the 100 trailers at issue here was provided and the permits were subsequently issued.

   
   

7. None of the 100 trailers listed by Respondent were in Florida on July 1, 1983. Although Respondent's reply did not state they were in operation, neither did the reply suggest these trailers had not been delivered by July 1, 1983.

   
   

8. Petitioner did not require proof of registration at that time. However, by letter of January 16, 1985, Petitioner demanded such proof, which Respondent was unable to provide.

   
   

9. Petitioner's letter of January 16, 1985, also advised Respondent that its permits would be revoked if the proof of registration were not provided. This letter and Respondent's demand for hearing are the basis for these proceedings.

   
   

   CONCLUSIONS OF LAW

   
   

10. Section 316.515(3)(b), F.S. establishes the maximum length of semitrailers operated in combination with a truck

    tractor as forty-eight (48) feet. This section further provides:

    
    

    A semitrailer which exceeds 48 feet in length and is used to transport divisible loads and which was registered in this state in accordance with s. 320.08(5) and was in operation on the highways of this state on December 1, 1982, by virtue of a permit issued in accordance with s. 316.550 may continue to operate by virtue of such permit for the remaining life of the vehicle or until January 1, 1990, whichever is sooner, provided such trailer meets the requirements of this chapter relating to vehicle equipment and safety.

    
    

11. The above provision does not authorize operation of any semitrailer exceeding 48 feet unless it was in operation on Florida highways as of December 1, 1982. Thus, the unwritten DOT policy of allowing vehicles delivered after December 1, 1982 was improper and not authorized by this statute.

    
    

12. Section 316.550, F.S. does, however, provide Petitioner with the following authority:

    
    

    The Department of Transportation, with respect to highways under its jurisdiction, or a local authority, with respect to highways under its jurisdiction, may, in its discretion and upon application and good cause shown there for that the same is not contrary to the public interest, issue a special permit in writing authorizing the applicant to operate or move a vehicle or combination of vehicles of a size or weight of vehicle or load exceeding the maximum specified in this chapter, or otherwise not in conformity with the provisions of this chapter, upon any highway under the jurisdiction of the authority issuing such permit and for the maintenance of which the authority is responsible. . . .

    
    

13. Petitioner does not rely on the above provision for its proposed action in this matter. However, this appears to be the only basis on which the December 1, 1982 statutory cut-off

    date could have been extended to July 1, 1983 (or any other date).

    
    

14. Petitioner failed to provide Respondent with a written statement of its policy on oversize trailers in 1983. Petitioner also failed to attempt serious enforcement of that policy by records verification.

    
    

15. Petitioner's attempt now, to enforce its unwritten policy through these selective revocation proceedings is improper.1 Not only was the policy unwritten, it was apparently misunderstood by Respondent at the time arrangements were made to bring oversized semitrailers to Florida after the statutory cut-off date. Petitioner must formalize its policy on the issue of oversized trailers before taking any action to revoke Respondent's existing permits.2

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that Petitioner rescind its stated intent to revoke Permits M57683 through M57779 and M57678 through M57680.

DONE and ENTERED this 13th day of August, 1985 in Tallahassee, Florida.

R. T. CARPENTER, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1985.

ENDNOTES

1/ See Section 120.60(6), F.S. which provides in part:

No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the entry of a final order, the

agency has served, by personal service or certified mail, an administrative complaint which affords reasonable notice to the licensee of facts or conduct which warrant the intended action and unless the licensee has been given an adequate opportunity to request a proceeding pursuant to s. 120.57.

2/ See Section 120.52(15), F.S., which provides in part: "Rule" means each agency statement of

general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. . . .

COPIES FURNISHED:

Charles G. Gardner, Esq. Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32301

Martha Harrell Hall, Esq. CARLTON, FIELDS, WARD, EMMANUEL,

SMITH & CUTLER, P.A.

Post Office Drawer 190 Tallahassee, Florida 32302

Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32301

Docket for Case No: 85-001362

Orders for Case No: 85-001362