STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CONSOLIDATED FREIGHTWAYS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1562

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on May 23, 1991, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Andrew J. Gay, Jr.

Safety Supervisor Consolidated Freightways 5625 Carden Road

Orlando, Florida 32810

For the Respondent: Charles G. Gardner, Esquire

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399 STATEMENT OF THE ISSUES

The issue for consideration herein is whether Petitioner, Consolidated Freightways, application for a tandem tractor truck route on State Road 50, between I-75 and its terminal in Brooksville, Florida should be granted.

PRELIMINARY STATEMENT

By letter dated January 15, 1991, David K. Buser, P.E., Respondent's Operations Engineer, denied Petitioner's application for a tandem trailer truck route, (application 313). On February 1, 1991, Petitioner requested a formal hearing on the denial and thereafter, on March 7, 1991, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. By Notice of Hearing dated April 18, 1991, after neither party had timely responded to the Initial Order entered herein, Hearing Officer J. Lawrence Johnston set the matter for hearing in Tampa on May 23, 1991, at which time it was held as scheduled by the undersigned to whom the file had been transferred in the interim.

At the hearing, Petitioner presented the testimony of its safety supervisor, Mr. Andrew J. Gay, Jr., and introduced Petitioner's Exhibits 1

through 8. Respondent presented the testimony of Mr. Kevin Dunn, a civil engineer in its Tampa District Office, and David K. Buser, a professional engineer and Respondent's District VII Traffic Operations Engineer. Respondent also introduced Respondent's Exhibits A through G.

A transcript was provided but subsequent to the receipt thereof, neither party submitted Proposed Findings of Fact.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Respondent, Department of Transportation, (Department), was the state agency regulating the utilization of the state highway system by commercial vehicles. The Petitioner, Consolidated Freightways, (Consolidated), is a long haul interstate carrier operating in forty-eight states, including Florida. It has a freight terminal in Brooksville, Florida, a city approximately 11 miles west of I-75 which it has used since December 1, 1986.

   
   

2. On October 24, 1990, Andrew J. Gay, Jr., Petitioner's Southern Area Safety Supervisor, requested tandem trailer access to its terminal facilities in Brooksville, via a route over State Road 50 from its intersection with I-75 to the old Dade City highway, then over that road to the terminal. The

   application indicated the proposed route would be used for on the average of 10 round trips per 7 day week, during the approximate hours of from 2:00 AM to Noon.

   
   

3. Upon receipt at the Department, the file was forwarded to the District Operating Engineer in the Department's District VII office in Tampa, that office responsible for supervision of operations in the pertinent area, where it was given to Kevin Dunn, an assistant civil engineer, for evaluation. This was the first evaluation such as this that Mr. Dunn had made. In accomplishing the evaluation, he relied upon a department directive, TOPIC NO. 750-010-050-C; effective November 21, 1990, good to May 21, 1991, entitled, EVALUATION OF PROPOSED TANDEM TRAILER TRUCK ROUTES, in which, at PROCEDURE; (4)(B) 1 & 2, rejection criteria, including vehicular safety and highway safety considerations, are listed.

   
   

4. Section (4) of the Directive deals with Terminal Access Route Evaluation Standards, and provides that when an operator of a terminal facility located more than 5 miles from the tandem trailer truck highway network submits a request for access routing, it shall be for the shortest route available, and shall be evaluated utilizing the rejection criteria outlined which indicate that a request may be rejected when one of the criteria for rejection are met, but shall be rejected when two or more are met.

   
   

5. Mr. Dunn considered that one of the vehicular safety considerations was met as was one of the highway safety considerations. The former, he felt, authorizes rejection when:

   
   

   1. The total combined length of high accident locations exceeds 15% of the total length of the proposed route.

      
      

6. In analyzing the stretch of highway involved, Mr. Dunn compared it with similar highway sections throughout the state for its accident frequency record. He found that each year there was a segment along the proposed route which appeared as a high accident segment area. He added these up to get the total

   length of high accident highway and got a figure that was 13% of the total route. Though the directive considered a minimum of 15% as disqualifying, Mr. Dunn concluded that 13% was close enough to qualify. The figure arrived at was not the required 15%, however.

   
   

7. Mr. Dunn also considered that Highway safety consideration which read:

   
   

   d. The route does not provide a minimum passing sight distance of one-half mile at a maximum of three mile intervals.

   
   

8. To qualify as a safe segment, there must be passing areas with a 1/2 mile sight distance, within 3 miles of each other. This road does not comply with that criterion. Mr. Dunn made field measurements of the route in question and found that heading westbound, the first passing zone started at mile 1.3 and ended at mile 1.8; the second started at mile 2.4 and ended at mile 2.5; and the third started at mile 4.1 and ended at mile 4.8. After that, westbound, there were no more 1/2 mile passing zones within the 3 mile maximum separation. Evaluating that stretch, while the 1.3 - 1.8 segment is 1/2 mile in length, it is not within 3 miles of the next qualifying passing segment. The same can be said for zone 4.1 - 4.8. Passing segment 2.4 - 2.5 is no good because it is not 1/2 mile in length.

   
   

9. Looking at the eastbound route, there is one qualifying passing zone, between mile .4 and mile 1.0 and one between mile 3.8 and mile 4.3, but there are no more 1/2 mile passing zones within 3 miles of each other, so, in his opinion, the eastbound route does not qualify, either.

   
   

10. Sometime later, Mr. Dunn measured the highway again based on information presented to him that the route had been re-striped. His second evaluation indicated the situation is now worse that it was before since fewer areas are now striped for passing. A 1989 report of the Transportation Research Board of the National Research Council, supports the method of evaluation Mr. Dunn used here. It increases the minimum passing distance to 3040 feet, a distance much greater than the 2640 feet, (1/2 mile) utilized in the Department's criteria. In addition, the Manual on Uniform Traffic Control Devices, published by the Federal Highway Administration, supports a 900 foot passing distance for passenger cars passing passenger cars. That's a much shorter distance than is needed for cars passing large trucks.

    
    

11. Mr. Dunn concluded that taken alone, the passing distance rejection criteria would have been enough to disqualify the Petitioner's application, and when it was considered along with the close issue of the high accident percentage, he was satisfied that rejection was clearly appropriate. However, he did not make any recommendation to his supervisor as to what should be done with this application. He merely reported his findings to his supervisor, Mr. Buser, who made the decision to deny approval. Mr. Buser has serious doubts was to whether the intersection of State Road 50 and I-75 is a trouble spot. The high number of accidents utilized by Mr. Dunn in his analysis all took place at or near the intersection, a point argued by Mr. Gay. Mr. Buser is of the opinion that even if that intersection is not a trouble spot, the Department could prohibit tandem trailer trucks from exiting the interstate there in any case. This has not been done, however.

    
    

12. According to Petitioner's representative, Mr. Gay, the requirement to break down the tandem rigs and tow them individually over the route to the terminal creates additional traffic and a resultant increased risk of accident.

    It also requires increased fuel usage, utilizes increased mileage, and results in increased environmental pollutions. Costs increase, wear to the equipment increases and the result is a loss in productivity. Allowing tandems to traverse the route to the terminal intact would, he claims, reduce traffic and avoid the other undesirable consequences he cited. No doubt it would.

    
    

13. On May 13, 1991, Mr. Gay covered the route from I-75 to the terminal. He got behind a truck at I-75 and by the time they got to the first passing zone, the truck was doing 55 mph in a 55 mph zone. After that, there was no reason to pass, since 55 mph is the maximum speed permitted. This presupposes that all drivers observe the speed limit. Travel on the highways of this state show this to be an unjustified presumption. On May 20, 1991, he repeated the experiment and followed a truck to the first passing zone, by which time he was going 49 mph. These two experiments do not have major evidentiary value.

    
    

14. Mr. Gay also noted some other pertinent facts regarding permitted activities on State Road 50, which went uncontradicted by the Department. Mobile homes up to 85 feet in length may be towed by a tractor; trailers up to

    57.6 feet in length with a 12 month permit, (when the tractor is added, the total length is 68.6 feet); large boat haulers are allowed; and tandem trailers for household movers are allowed anywhere. Only tandem long haulers are not allowed on highway 50. These tandems trailers are 28 feet long each, with a 4 foot dolly between them. When a tractor is added, the total length is 71 feet, which is 2 1/2 feet longer than a large tractor and trailer.

    
    

15. In light of the above, Mr. Gay contends that since all these other units are allowed, his should be allowed as well. He admits, however, that mobile homes and other oversize loads generally have escort vehicles preceding and following. He also recognizes that the handling characteristics of the tandem rig are different than those of the single unit trailer. Nonetheless, based on his research, he contends there are sufficient passing zones all along the route to make it safe. State guidelines, however, indicate to the contrary.

    
    

16. Nothing above is intended to indicate that Petitioner is operating other than in a satisfactory manner. In its most recent rating by the United States Department of Transportation, the company was awarded a satisfactory evaluation. In addition, there is no doubt that numerous commercial enterprises served by the Petitioner would consider the opportunity to carry more cargo beneficial to their operations.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

18. Under the provisions of Section 316.515(3), Florida Statutes, the Department is authorized to regulate the operation of trucks, semi-trailers and tandem trailer trucks over the highways of this state. Under subsection 2 a of that provision, a terminal operator whose facility is located away from the highways on which tandem trailer trucks are authorized to operate may seek to obtain access for such rigs by petition to the Department.

    
    

19. Here, the Petitioner, Consolidated Freightways, petitioned the Department for permission to operate the tandem trailer rigs, in tandem configuration, to its terminal in Brooksville, some miles west of I-75, over State Road 50, without breaking them down at the Interstate intersection as they

    now do. Upon evaluation of this request, the Department denied the request on the basis of two criteria found in its Evaluation of Proposed Tandem Trailer Truck Routes, a directive promulgated under its legislatively delegated regulatory authority, which are listed on paragraphs 5 and 7 of the Findings of Fact herein and which the Department representatives felt had not been met.

    
    

20. Both provisions deal with safety consideration. The first, found at paragraph (4)(b)a considers as a factor contributing to denial of such a petition a combined length of high accident locations on a proposed route which exceeds 15% of that route. Applying the Department's figures to this route resulted in a determination that the high accident portion constituted 13% of the total route, slightly below the Directive standard.

    
    

21. The other consideration relates to vehicle passing distance and requires a minimum passing sight distance of one-half miles at a maximum of 3 mile intervals. Review of the requested route reflected this criterion was not met.

    
    

22. Petitioner's representative provided substantial argument regarding the safety of the proposal and recited numerous indications of transport, larger than the tandem trucks, which are afforded access to the roads prohibited to it.

    
    

23. Applying the Departmental standards involved here demonstrates that the high accident percentage does not come up to that level whereby it would, by itself, constitute basis for denial. The Directive provides for 15% and 13% is not equivalent. The passing criteria, however, is applicable and the evidence of record establishes that the minimum criteria are not met. When that factor which, taken alone, may support rejection is considered along with the fact that the high accident rate closely approaches the rejection factor level, it is clear that the denial of Petitioner's request by the Department is neither unjustified nor without basis.

    
    

24. The interpretation an agency gives to its own rules, absent a showing of arbitrariness and unreasonableness, will be given great weight. Here, it is clear that under similar conditions, tandem trailer trucks pose a greater safety threat to other motorists than do regular trucks or semi-trailers. As such, the Department may regulate how and under what conditions they may be operated on the roads of this state.

    
    

25. If underlying legislation to support this Directive is in effect at the time of Departmental action, and neither the supporting legislation nor the Directive has expired, it may and should be enforced.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that if such action is consistent with then existing legislation, the Petition by Consolidated Freightways, for a tandem trailer route over State Road 50 from I-75 to its terminal near Brooksville, Florida be denied.

RECOMMENDED this 11th day of July, 1991, in Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

COPIES FURNISHED:

Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1991.

Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, MS - 58

Tallahassee, Florida 32399-0450

Andrew J. Gay, Jr. Safety Supervisor Consolidated Freightways 5625 Carden Road

Orlando, Florida 32810

Ben G. Watts Secretary

Department of Transportation Hayden Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams General Counsel D.O.T.

605 Suwannee Street

Tallahassee, Florida 32399-458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 91-001562

Orders for Case No: 91-001562