STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUICE BOWL PRODUCTS, INC., ) and FLORIDA CITRUS PACKERS, )

)

Petitioner, )

)

vs. ) CASE NOS. 91-6804RP

) 91-6805RP

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was conducted in this case at Tallahassee, Florida, on February 19 and 20, 1992, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances at the hearing were as follows:

FOR PETITIONERS; W. Robert Vezina, III, Esquire

Mary M. Piccard, Esquire Cummings, Lawrence & Vezina, P.A. 1004 DeSoto Park Drive

Post Office Box 589

Tallahassee, Florida 32302-0589

FOR RESPONDENT: Charles G. Gardner, Esquire

Carolyn Holifield, Esquire Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES

The issues in this case are (1) whether the Florida Department of Transportation ("FDOT") acted arbitrarily and capriciously in deciding to repeal Rule 14-26.0131, Florida Administrative Code, and (2) whether the proposed repeal is invalid because the economic impact statement was inadequate.

PRELIMINARY STATEMENT

Petitioners challenge FDOT's preliminary decision to repeal Rule 14- 26.0131, Florida Administrative Code, as an invalid exercise of the agency's delegated legislative authority. At the formal hearing, Petitioners presented the testimony of Greg Nelson, Billy Lee Heller, Jr., Richard Miller, George Herndon, and Richard Kinney. Petitioners also presented the expert testimony of Dr. Robert Behr, economist for the Florida Department of Citrus. Petitioners introduced exhibits 1 through 16.

Respondent FDOT presented the testimony of Reynold Meyer and Frank Carlile.

Respondents introduced no exhibits.

A transcript of the hearing was filed with the Hearing Officer and thereafter, following disposition of motions regarding post-hearing exhibits, all parties filed proposed final orders containing proposed findings of fact and conclusions of law on May 1, 1992. The Petitioners also filed a memorandum of law in support of their position. All of the parties' post-hearing submissions have been carefully considered during the preparation of this Final Order.

Specific rulings on all proposed findings of fact proposed by all parties are contained in the Appendix to this Final Order.

FINDINGS OF FACT

Facts admitted by all parties

1. FDOT adopted Rule 14-26.0131 in August 1989.

   
   

2. Since 1986, FDOT has had a policy of authorizing special permits for ocean-going sealed containerized cargo units as expressed in the policy statement effective March 13, 1986.

   
   

3. FDOT recognizes that Florida's competitive position in world trade is important to the economy of the State of Florida as a whole.

   
   

4. FDOT did not consider Florida's competitive position in world trade as a governing factor in determining to repeal Rule 14-26.0131.

   
   

5. FDOT decided to repeal Rule 14-26.0131 because it determined that the rule was unconstitutional.

   
   

6. FDOT decided that the rule was unconstitutional because it provided a benefit to transporters of ocean-going sealed containerized cargo units which benefit was not available to transporters of domestic containerized cargo units.

   
   

7. The decision to settle the lawsuit brought by the Florida Trucking Association did not lead to repeal of the rule. Rather, the decision to repeal the rule led to the decision to settle the lawsuit.

   
   

8. In determining that the rule was unconstitutional, the effect that repeal of the rule would have on Florida's competitive position in world trade was not a controlling consideration.

   
   

9. FDOT recognized at the time it decided to repeal the rule that those competing in world trade would suffer increased cost by the repeal.

   
   

10. FDOT decided to repeal the rule before it prepared the written economic impact statement.

    
    

11. Based on the information in the Department's possession regarding the detrimental effects upon industry, FDOT still decided to repeal the rule.

    
    

12. Other than review of the report referenced in the economic impact statement, FDOT did not analyze the economic impact repeal of the rule would have on transporters of ocean-going sealed containerized cargo units.

    
    

13. FDOT did not estimate the benefit repeal of the rule would provide to transporters of nonocean-going sealed containerized cargo units.

14. FDOT issued the following number of overweight permits in the years 1986 through 1991:

the following were for vehicles transporting oceangoing seal containerized cargo units:

Year Trips Blankets

1. The FHWA authorizes states to permit vehicles weighing more than 80,000 pounds carrying loads which cannot be easily dismantled or divided.

   
   

2. FHWA has advised the states that the determination of whether a load can be easily dismantled is one to be determined at the state level as expressed in the correspondence dated August 30, 1968, to Governor Riley of South Carolina.

   
   

3. As stated in the August 30, 1986, memorandum, the FHWA has no difficulty in construing containerized cargo involved in international trade as nondivisible loads.

   
   

4. Citrus is a major economic industry of Florida.

   
   

5. Florida citrus packers compete for the European and Asian markets with other citrus producing countries and other fruit commodities.

   
   

6. FDOT published an economic impact statement.

   
   

7. FDOT complied with publication and hearing requirements.

   
   

   Facts established by evidence at hearing

   
   

8. The FDOT policy which immediately preceded the subject rule was expressed as follows in a policy statement effective March 13, 1986:

   
   

   Sealed containerized cargo units will be considered as nondivisible loads and special permits will be issued to operate vehicles hauling such units on the state highway system of this state, subject to the following restrictions:

   1. Such containerized cargo units must be part of international trade and be moved on the highways due to importation from, or exportation to, another country.

      
      

   2. The operators of such units shall at all times have in their possession the international bills of lading to verify that such units are being operated pursuant to this policy.

      
      

   3. A special permit issued for the hauling of any containerized cargo units covers only transport with the unit's contents as originally loaded onto a vehicle, and becomes invalid once the original contents are added to, dismantled, or divided.

      
      

   4. The gross weight imposed on the highway by the wheels of any one axle of a vehicle operating under such special permit shall not exceed 25,000 pounds, and the total weight with load imposed upon the highway by all the axles of the vehicle shall not exceed 95,000 pounds.

      
      

      As of the effective date hereof, this policy will serve as the Department's position and practice until such time as appropriate guidelines are incorporated into rules promulgated under the Florida Administrative Code.

      
      

9. The Department's 1986 policy statement was grounded in the Federal Highway Administrator's letter to the then-Governor of South Carolina, Richard

   W. Riley, which stated, inter alia, that ". . . based on the needs of international commerce and possible tax implications for bonded cargos, we [the FHWA] have no difficulty in construing containerized cargo involved in international trade as a nondivisible load" for purposes of authorizing such cargos as one of the exceptions to the 80,000 pound weight limit contained in 23

   U.S.C. 127.

   
   

10. The Department's 1986 policy statement was codified as Rule 14- 26.0131, Florida Administrative Code, effective August 2, 1989. The subject rule reads as follows, in pertinent part:

    
    

    1. This rule is being adopted to allow state regulations to conform to the permitted provisions of the memorandum of the Director, Motor Carrier Transportation, Federal Highway Administration (FHWA), dated December 30, 1985. Subject: "Vehicle Size and Weight". Ocean-going sealed containerized cargo units, to include such cargo units with wheels installed and such cargo units without

       wheels, will be considered as non-divisible loads (as defined in 23 U.S.C. 127) and may apply for permits exempting them from the State's overall gross vehicle weight limit

       of 80,000 pounds. Movements in which the sealed containerized cargo unit does not actually travel in international waters or the

       container is to be opened in any manner during movement between the origin and destination, other than for customs inspection, are not eligible for permits under this rule.

    2. Because of the very heavy nature of the load to be carried and the potential for increased damage to the highway from vehicles so loaded, no straight truck, as defined in Section 316.003(70), Florida Statutes, shall

       be eligible for a permit pursuant to this rule.

    3. Criteria for issuance of permit. The applicant must submit proof of the following:

       1. That the container for which the permit is sought, is in direct transit to or from an international seaport, for purposes of import or export of the container on an ocean-going vessel;

       2. That the container is part of international trade or trade to or from a

          U.S. jurisdiction outside the continental limits of the United States;

       3. That the container must be moved over roads on the State Highway System of the State of Florida, as defined in Chapter 334, Florida Statutes; and

       4. A statement swearing that the container for which permit is sought is the container

    to be directly exported or imported; that the contents of such container are as originally loaded; that the container has not been opened during movement between origin and destination; and that the original contents are not to be added to, dismantled, opened, or divided until they reach the identified final destination.

    
    

11. Federal law places a weight limit of 80,000 pounds on all trucks traveling the highways within the state of Florida. Failure by the Department to enforce the law to the satisfaction of the Federal Highway Administration (FHWA) could result in the state's being declared ineligible for a portion of the federal transportation funds allocated to it. While federal and state law authorizes the Department to grant special permits to overweight trucks, it does not require or contemplate that the Department will as a matter of policy allow all sealed containerized cargo to exceed the statutorily-prescribed 80,000 pound weight limit.

    
    

12. In December of 1989, the Florida Trucking Association and others filed a lawsuit in Federal District Court challenging the constitutionality of Rule

    14-26.0131, Florida Administrative Code. The Department sought to have the

    lawsuit dismissed, but the Federal Magistrate denied the Department's motion to dismiss. Following the denial of the motion to dismiss, a Department staff attorney, Mr. Reynold Meyer, was asked to review and assess the Department's position in that lawsuit. Mr. Meyer summarized his view of the matter in a memorandum dated October 2, 1990, in which he stated, among other things:

    
    

    On December 8, 1989, the Florida Trucking Association filed the above-referenced law suit challenging the constitutionality of the Department's Containerized Cargo Rule. Thus, the Florida Trucking Association is not only directly attacking the Department's Containerized Cargo Rule but is also indirectly attacking the Federal Highway Administration's policy as stated by

    Mr. Barnhart.

    
    

    The complaint alleges the Department's Containerized Cargo Rule violates the constitution by (1) placing an undue burden upon interstate commerce; (2) discriminating against intrastate and interstate commerce; and (3) denying the plaintiffs equal protection of the law.

    
    

    If this case goes to trial, Judge Stafford will decide three legal issues. The first legal issue is whether the rule promotes safety upon Florida's highways and conserves their use. The second issue is whether the safety and conservation purposes of the rule outweigh the interference with interstate commerce. The third issue is whether the rule's distinction between international containerized cargoes and all other types of containerized cargoes is rationally related to a legitimate state interest.

    
    

    The first two issues should be decided in the Department's favor. The third issue, however, may not be decided in the Department's favor. Any unfavorable decision on the third issue will be the result of the Department's lack of a rational basis for distinguishing between international containerized cargo and all other types of containerized cargo. Because the rule, in essence, discriminates between international containerized cargo and all other types of containerized cargo the Department's chances of prevailing at trial are forty percent (40%) or less.

    
    

13. The Department's General Counsel agreed with the opinion that there was a substantial risk that the rule would be found to be unconstitutional. The Department's General Counsel discussed the matter with the Assistant Secretary for Transportation Policy and with the Secretary of the Department. Ultimately,

    it was concluded by the Secretary, because of the substantial risk that the rule would be found to be unconstitutional, and because the rule appeared to give an unfair advantage to some shippers that was denied to others, that the rule should be repealed. In reaching this conclusion, the Secretary relied on the advice of counsel and on the recommendation of the Assistant Secretary for Transportation Policy.

    
    

14. After deciding to repeal the subject rule, the Department negotiated a settlement of the Federal lawsuit challenging the validity of the rule. An essential aspect of that settlement is that the Department would take the necessary action to repeal the rule.

    
    

15. As part of the required rule repeal process, the Department prepared and published a summary of the estimate of economic impact of the proposed rule repeal reading as follows:

    
    

    1. There will be the normal costs associated with processing a rule repeal under the Administrative Procedure Act. These costs include: Legal review and analysis, word processing typing support, publication of notice and rule text in the Florida Administrative Weekly (Currently 64 cents a line), staffing/coordinating costs, and scheduling or conducting a public hearing.

       There will be no increased operational costs.

       
       

    2. The repeal of the rule may increase the cost to some operators by reducing the cargo volume, thus potentially increasing the ultimate price to the consumer of those products. The Department has received a report of the effect the repeal of the rule will have upon the Florida Citrus Packing Industry. The Department has considered this report in its attempt to estimate the cost

       or benefit of the repeal of the rule. However, the Department does not adopt or reject the facts within the report. The Department does not have sufficient data to determine to any degree of specificity the actual economic impact of the repeal of the rule.

       
       

    3. The repeal of the rule promotes competition by equally protecting those carrying cargo units of international, interstate, or intrastate origin or destination.

       
       

    4. These economic impact statements were based upon material provided by the Department's State Permits Engineer, the Settlement Agreement, and discovery responses in the above mentioned case, the

    report of the Florida Citrus Packing Industry.

16. The Department considered an economic report from the Florida Citrus Packing Industry, data furnished by the Department's State Permits Engineer, and discovery responses from the Florida Trucking Association in developing the economic impact statement in question. The report from the Florida Citrus Packing Industry was actually prepared by the Florida Department of Citrus. Prior to initiating rulemaking, the Department contacted Mr. Kinney, a representative of Florida Citrus Packers. During that contact, the Department became aware that the industry was preparing an analysis of the impact of the rule repeal on the citrus industry and requested a copy of the report from Mr. Kinney.

    
    

17. The Department recognized and considered the fact that the rule repeal would cause some adverse impact to the Florida Citrus Industry but regarded the fact as noncontrolling. In essence, the Department's economic impact statement concluded that the rule repeal would increase the cost of transporting cargo for those who now rely on the rule but that the Department lacked sufficient data to determine the actual economic impact. In developing its economic impact statement, the Department was concerned about the impact on all industries that rely on the rule. The Department believed the entire Florida economic base must be considered in developing any economic impact statement, and concluded that it did not have sufficient data to determine to any degree of specificity the actual economic impact of the repeal of the rule.

    
    

18. After the rule is repealed, Petitioners will not be prohibited from applying for overweight permits. Such permits will be afforded consideration on their individual merits. It is, nevertheless, to be expected that after the repeal of the rule the Petitioners will not be granted as many overweight permits as they have been able to obtain with the rule in effect.

    
    

19. Repeal of Rule 14-26.0131 will result in a significant 1/ increase in the transportation costs for shipment of Florida citrus to international markets. As a result of those additional costs either the demand for the fruit and fruit products will be adversely affected if the costs are passed along to the buyers or the profitability of the transactions will be reduced if the sellers absorb the additional costs.

    
    

20. The Petitioners regularly ship fresh Florida citrus fruit and frozen Florida citrus fruit products to international markets. They regularly transport such products over Florida highways in containerized loads that have a gross weight exceeding 80,000 pounds. Repeal of the subject rule will cause the Petitioners to incur increased transportation costs.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Sec. 120.54 and Sec. 120.57(1), Fla. Stat.

    
    

22. In Section 334.035, Florida Statutes, the Legislature charged the Department with the responsibility of administering, implementing, and enforcing the Florida Transportation Code, stating,

    
    

    The purpose of the Florida Transportation Code is to establish the responsibilities of the state, the counties, and the

    municipalities in the planning and development

    of the transportation systems serving the people of the state and to assure the development of an integrated, balanced statewide transportation system. This code is necessary for the protection of public safety and general welfare and for the preservation of all transportation facilities in the state.

    
    

23. Section 334.044, Florida Statutes, describes the responsibilities of the Department with respect to administering, implementing, and enforcing the Florida Transportation Code. Among its prescribed powers and duties, the Florida Department of Transportation is charged with adopting rules, procedures, and standards for the conduct of its business operations and the implementation of any provisions of law for which the Department is responsible. Specifically, Section 334.044, Florida Statutes, provides that:

    
    

    The Department shall have the following general powers and duties:

    
    

    * * *

    
    

    (2) To adopt rules, procedures, and standards for the conduct of its business operations and the implementation of any provision of law for which the department is responsible.

    
    

24. The Florida Department of Transportation is responsible for enforcing Section 316.535, Florida Statutes, which sets forth the maximum weights which may be imposed by vehicles traveling on the Interstate Highway System and highways not in the Interstate Highway System. Specifically, Section 316.535(6), Florida Statutes, provides that "[t]he Department of Transportation shall adopt rules to implement this section, shall enforce this section and the rules adopted hereunder. "

    
    

25. Section 316.535(7), Florida Statutes, provides that "[e]xcept as herein provided, no vehicle or combination of vehicles exceeding the gross weights specified in subsections (3), (4), and (5) shall be permitted to travel on the public highways within the state." Subsections (4) and (5) both state that "[s]uch overall gross weight of any vehicle or combination of vehicles may not exceed 80,000 pounds, including all enforcement tolerances." The maximum weight limits established by Section 316.535, Florida Statutes, reflect the requirement of the federal law on weight limits, contained in 23 U.S.C. 127.

    
    

26. 23 U.S.C. 127 provides an exception to federal scrutiny of vehicle weights for nondivisible loads having special permits from states. Specifically, ". . . overall gross weight may not exceed 80,000 pounds, including all enforcement tolerances, except for those vehicles and loads which cannot easily be dismantled or divided and which have been issued special permits in accordance with applicable State laws. "

    
    

27. Under the provisions of Section 316.550, Florida Statutes, the Legislature charged the Department with the responsibility for the issuance of permits authorizing the operations of "a vehicle or combination of vehicles of a size or weight exceeding the maximum amount specified in this chapter." That section further provides:

    The Department of Transportation or local authority is authorized to issue or withhold such permit at its discretion or, if such permit is issued, to limit or prescribe the conditions of operation of such vehicle or vehicles; and the department or local authority may require such undertaking or other security as may be deemed necessary to compensate for any injury to any roadway or road structure. The Department of Transportation or such local authority is authorized to promulgate rules and regulations concerning the issuance of such permits. . . .

    
    

    The rulemaking authority granted by the statute is permissive, not mandatory.

    
    

28. Rule 14-26.0131, Florida Administrative Code, applies to certain vehicles traveling over public highways in the state, and sets forth criteria under which permits can be issued, allowing vehicles to weigh in excess of the statutorily prescribed weight limit of 80,000 pounds. Specifically, the rule establishes a blanket policy allowing overweight permits for any sealed container which (1) is in direct transit to or from an international seaport, for purposes of import or export of the container on an ocean-going vessel, (2) is part of international trade or trade to or from a U.S. jurisdiction outside the continental limits of the United States; and (3) has to be moved over the roads of the State Highway System of the State of Florida.

    
    

29. The Petitioners claim that the Department's proposed repeal of Rule 14-26.0131 is an invalid exercise of delegated legislative authority, as that phrase is defined in Section 120.52(8), Florida Statutes, and may thus be determined invalid according to Section 120.54(4)(a), Florida Statutes. Specifically, Petitioners claim that said proposed repeal goes beyond the powers, functions, and duties delegated by the Legislature in that: (a) the Agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54, and (b) the proposed repeal is arbitrary and capricious.

    
    

30. Since the Petitioners are challenging the validity of the Department's proposed rule repeal, they have the burden of proving in this proceeding that the proposed repeal constitutes an invalid exercise of delegated authority under Sections 120.52(8)(a) and (e), Florida Statutes. Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978), cert. den. 376 So.2d 74 (Fla. 1979).

    
    

31. As grounds for its assertion that the Department has materially failed to follow the applicable rulemaking process, Petitioners assert that the Department has failed to comply with the requirements of Section 120.54(2)(b), Florida Statutes, which requires that an agency provide "information on its proposed action by preparing a detailed economic impact statement." Specifically, the Petitioners complain that the economic impact statement is not sufficiently detailed and that it does not include dollar amounts of economic impact.

    
    

32. The summary of the estimate of economic impact prepared by the Department specifically stated:

    The Department has received a report of the effect the repeal of the rule will have upon the Florida Citrus Packing Industry. The Department has considered this report in its attempt to estimate the cost or benefit of the repeal of the rule. However, the Department does not adopt or reject the

    facts within the report. The Department does not have sufficient data to determine to any degree of specificity the actual economic impact of the rule.

    
    

33. The language quoted immediately above is sufficient to demonstrate that, whatever imperfections there may be in the economic impact statement, there has been no impairment of the fairness of the rulemaking proceedings. The obvious purpose of the statutory requirement that agencies prepare economic impact statements is to require rulemaking agencies to consider the economic consequences of their proposed action. That purpose has been achieved here because the agency has clearly considered the economic information submitted on behalf of the Petitioners and others similarly situated. Whether the agency accepts or rejects the accuracy of that information is irrelevant to the sufficiency of the rulemaking proceedings. As noted in Health Care and Retirement Corp. of America v. Dept. of Health and Rehabilitative Services, 463 So.2d 1175 (Fla. 1st DCA 1984), at 1178:

    
    

    Appellant contends that the economic impact statement is insufficient because it fails to address the economic consequences to a particular applicant resulting from its

    failure to comply with the rule's requirement to serve letters of intent on local health councils. Section 120.54, Florida Statutes (1981), sets forth the requirements for an economic impact statement in connection with an agency's promulgation of a rule. Nothing in that statute specifically requires a determination of the economic impact of the failure to follow the rule, and we specifically decline to construe the statute as imposing such a requirement in the preparation of economic impact statements.

    A rule will not be declared invalid merely because the economic impact statement may not be as complete as possible; any deficiency in the statement must be so grave as to have impaired the fairness of the proceedings. Plantation Residents' Assn., Inc. v. School Board of Broward County, 424 So.2d 879 (Fla. 1st DCA 1982). The statement accompanying this rule addressed all of the statutory criteria. Appellant has failed to show any deficiency in the economic impact statement that impaired the fairness of the rulemaking proceedings in this instance.

    
    

34. For the reasons summarized above, it must be concluded that the economic impact statement prepared in conjunction with the proposed repeal of

    Rule 14-26.0131 does not afford a basis for invalidation of the proposed repeal of the rule. Like many before it, it may have its share of imperfections, but there is no persuasive evidence that anything contained in or omitted from the economic impact statement has impaired the fairness of the rulemaking proceedings in this instance.

    
    

35. Petitioner has also asserted that the Department's decision to repeal the rule was arbitrary and capricious. To prevail on this claim, the Petitioners have the burden of showing that the decision was taken without thought or reason, or irrationally or despotically, or that it was not supported by facts or logic. Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1978). The burden is a stringent one indeed. Agrico, supra. The nature of the Petitioners' burden was described by Hearing Officer Kiesling in Venice Hospital, Inc. et al. v. Department of Health and Rehabilitative Services, et al., DOAH Case Nos. 90-2383R, et al. (Final Order Issued October 31, 1990) as follows:

    
    

    If a proposed rule does not exceed the agency's statutory authority and is reasonably related to an appropriate purpose of the statutes, it should be sustained.

    State, Marine Fisheries Commission v. Organized Fisherman of Florida, 503 So.2d 935 (Fla. 1st DCA 1987); Agrico Chemical Co. v.

    DER, 365 So.2d 759 (Fla. 1st DCA 1978). An

    agency's construction of the statute it administers is entitled to great weight and is not to be overturned unless clearly erroneous. Pan American Airways, Inc. v.

    Florida Public Service Commission, 427 So.2d 716 (Fla. 1983); Department of Professional Regulation v. Durrani, 455 So.2d 515 (Fla.

    1st DCA 1984)(agency rule upheld as a valid exercise of delegated legislative authority). Moreover, the agency's interpretation of a statute when developing a rule need not be the sole possible interpretation or even the most desirable one; it need only be within the range of possible interpretations.

    Humhosco, Inc. v. Department of Health and Rehabilitative Services, 476 So.2d 258 (Fla. 1st DCA 1985); Department of Professional Regulation v. Durrani, supra.

    
    

    The various standards for applying Section 120.52(8) have been established by case law. A rule is vague or fails to establish adequate standards for agency decisions when its terms are so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application. State v. Cumming,

    365 So.2d 153 (Fla. 1978). A rule vests unbridled discretion in an agency when it fails to establish adequate standards and reserves to the agency the arbitrary power to determine private rights. Barrow v.

    Holland, 125 So.2d 749 (Fla. 1960). Arbitrary and capricious actions are defined in Agrico, supra, as follows:

    
    

    A capricious action is one which is taken without thought or reason or irrationally.

    An arbitrary decision is one not supported by facts or logic, or despotic.

    
    

    See, Adam Smith Enterprises v. Florida Department of Environmental Regulation, 553 So.2d 1260 (Fla. 1st DCA 1989).

    
    

    The burden is on the Petitioners to show by a preponderance of the evidence that the rule is arbitrary and capricious. Agrico, supra. Petitioners have the burden to prove that a proposed rule is an invalid exercise of delegated legislative authority. It is a stringent burden of proof. Id. at 763. (Emphasis added)

    
    

36. More recently, in Dravo Basic Materials Company, Inc., v. State, Dept. of Transportation, 17 FLW D1673 (Fla. 2d DCA July 8, 1992), the court noted:

    
    

    When a proposed rule is challenged before a hearing officer, it is the role of the officer to determine whether the rule is arbitrary or capricious. See Sec. 120.56(1), Fla. Stat. (1989); Sec. 120.52(8)(e), Fla.

    Stat. (1989). This is usually a fact- intensive determination. A proposed rule is "arbitrary" only if it is "not supported by fact or logic." Agrico, 364 So.2d at 763.

    It is "capricious" if it is taken "without thought or reason." Id. The party challenging the rule must prove its invalidity by a preponderance of the evidence. Id.

    
    

37. And in a footnote to the foregoing (See footnote 3 at 17 FLW D1674), the Dravo court further explained:

    
    

    Indeed, Agrico even suggests that an administrative decision is not arbitrary unless it is "despotic." 365 So.2d 763. Webster's New World Dictionary suggests that an arbitrary decision is one that is "whimsical." Webster's New World Dictionary (V. Neufeldt 3d College ed. 1988). Likewise, "capricious" is defined in Agrico as "irrational" Such definitions add color and flavor to our traditionally dry legal vocabulary, but do not assist an objective legal analysis. If an administrative 1decision is justifiable under any analysis that a reasonable person would use to reach

    a decision of similar importance, it would seem that the decision is neither arbitrary nor capricious. Cf. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980)("The trial

    court's discretionary power is subject only to the test of reasonableness, but that test requires a determination of whether there is logic and justification.") (Emphasis supplied.)

    
    

38. Where, as here, proposed rulemaking is challenged as being arbitrary and capricious, the question is not whether the agency has made the best choice, or even whether the agency has made a correct choice, but only whether the agency has made a reasonable choice. The agency's decision in this case meets the reasonableness standards summarized in Dravo, supra. The agency had logical and legitimate concerns about the constitutionality of the subject rule and about the possible consequences to the agency if the rule were to be determined to be unconstitutional. Regardless of whether the subject rule might ultimately be found by a court to pass constitutional muster, there was a very real risk that a court might determine the matter otherwise. The nature of that risk was doubtless brought home to the agency when the agency's motion to dismiss the federal lawsuit was denied. It was logical and reasonable for the agency to take action to relieve itself of further exposure to that risk. 2/ In view of the Department's responsibility to enforce federal and state laws regarding overweight vehicles and the Department's judgment that the subject rule was unconstitutional or at risk of being found to be unconstitutional, the decision to repeal the rule cannot be deemed arbitrary and capricious. Rather, the Department made a reasonable decision after considerable internal debate and after consideration of basic notions of fairness. The Department also determined that the existing blanket policy of granting permits for all sealed containerized cargo going overseas did not comport with the spirit of the Federal law regulating permit exceptions for nondivisible cargo. Absent a statutory requirement to adopt a rule, an agency has the sole discretion whether to adopt a rule at all. Free v. State Department of Health and Rehabilitative Services, 436 So.2d 964 (Fla. 3rd DCA 1983). Citizens of Florida v. Mayo, 357 So.2d 731 (Fla. 1978). There is no statutory requirement that the Department adopt a rule authorizing blanket overweight permits for any class of cargo. The fact that these Petitioners and others have enjoyed a special benefit during the life of the subject rule does not give them a vested right to special treatment in perpetuity. The fact that they will now be given equal treatment, rather than special treatment, is not arbitrary and capricious.

On the basis of all of the foregoing, it is ORDERED:

That the Petitioners have failed to establish the invalidity of the Department's proposed repeal of Rule 14-26.0131, Florida Administrative Code, and the petitions in these consolidated cases are hereby dismissed.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of August 1992.

MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SC 278-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of August 1992.

ENDNOTES

1/ I have not made any findings of fact regarding the dollar amount of the economic impact of repealing the rule because I do not have much confidence in the figures that were provided at the hearing. In any event, exact dollar amounts are irrelevant. All of the parties agree that the repeal of the rule will have significant economic impacts on those who have been enjoying the benefit of the rule.

2/ The question of the rule's constitutional validity aside, it was also reasonable and logical for the agency to decide to repeal a rule that appears to the agency to be giving special treatment to one segment of the trucking industry, while denying it to others.

APPENDIX TO FINAL ORDER IN CASE NOS. 91-6804RP AND 91-6805RP

The following are my specific rulings on all proposed findings of fact submitted by all parties in these consolidated cases.

Findings proposed by Petitioner:

To facilitate a better understanding of the following rulings on the proposed findings of fact submitted by the Petitioners, I feel constrained to note that, on the whole, I have not found the Petitioner's evidence to be very persuasive on matters related to the scope of the economic consequences of the proposed repeal of Rule 14-26.0131. Not only is much of the evidence presented in terms of generalities, rather than specifics, but it is also fraught with unexplained inconsistencies. I have accepted the general proposition that repeal of the subject rule will have a significant impact on the economic interests of the Petitioners and others who currently enjoy the benefit of the rule. My specific rulings are as follows:

Paragraphs 1 through 6: Accepted in substance.

Paragraph 7: Rejected as constituting an inference not warranted by the evidence. The proposed finding may be an effect of the rule, but the evidence does not show it to be a purpose of the rule.

Paragraph 8: Rejected as constituting an inference not warranted by the evidence and somewhat at odds with the evidence. (For example, Petitioners' Exhibit 11 states: "Our [DOT's] records indicate that Florida's citrus products

move in both 20 foot and 40 foot containers with approximately 60 percent of the permits issued for 20 foot containers.")

Paragraph 9: First sentence rejected as contrary to the greater weight of the evidence. I am convinced that 40 foot containers are commonly used in international shipment of bulk products, but the evidence is unpersuasive that

40 foot containers are "a unit of trade." The remainder of this paragraph is rejected as subordinate and unnecessary details.

Paragraphs 10, 11 and 12: Rejected as not supported by persuasive competent substantial evidence; there is evidence to the effect proposed, but there is also other evidence that suggests the matters are otherwise. (See discussion of Paragraph 9, above.) Paragraphs 13, 14, and 15: Rejected as subordinate and unnecessary details.

Paragraph 16: Accepted that transportation costs will increase, but remainder is rejected as incomplete.

Paragraphs 17 through 20: Rejected as subordinate and unnecessary details.

Paragraph 21: Rejected as inaccurate. For example, the gross vehicle weight of a truck hauling 1260 cartons when the fruit is heaviest weighs approximately 92,940 pounds. (1260 x 44 pounds 55,440 pounds + 37,500 pounds of truck and container)

Paragraph 22: Rejected as subordinate and unnecessary details.

Paragraph 23: Rejected as inaccurate estimate of the increase in transportation costs. (Depending on the weight of the fruit, which varies from

39 to 44 pounds per carton, and on whether the loads are 24 pallets of 49 cartons or 18 or 20 pallets of 63 cartons, the total load weights can be reduced to 80,000 pounds or less by reducing the number of pallets by as little as 5.5% to as much as 20.8%)

Paragraph 24: Rejected as in part contrary to the greater weight of the evidence and as in part not supported by persuasive competent substantial evidence.

Paragraph 25: Rejected as not supported by persuasive competent substantial evidence. The Petitioners' facts and figures in this regard appear to be flawed.

Paragraph 26: Rejected as contrary to the greater weight of the evidence. Before they had the benefit of the subject rule the Petitioners and others were shipping Florida citrus in international trade and it is most probable that they will continue to do so after the repeal of the rule. If they continue to ship in refrigerated containers, their transportation costs will increase. But there may be other ways for them to achieve savings in transportation costs. The evidence about the shortcomings of alternative methods of transportation was particularly unpersuasive.

Paragraph 27: Rejected as subordinate and unnecessary details.

Paragraphs 28, 29, 30, and 31: Rejected as being contrary to the greater weight of the evidence. (See language quoted in discussion of Paragraph 8, above.)

Paragraphs 32, 33, and 34: Rejected as subordinate and unnecessary details.

Paragraph 35: Rejected as not supported by persuasive competent substantial evidence. (There was testimony to the effect proposed, but it was not persuasive.)

Paragraph 36: Rejected as subordinate and unnecessary details.

Paragraph 37: Rejected as not supported by persuasive competent substantial evidence. (As noted above, the Petitioners' facts and figures in this regard appear to be flawed.)

Paragraph 38: Rejected as incomplete, because it addresses only one of several possibilities.

Paragraph 39: Accepted in substance.

Paragraph 40: Rejected as subordinate and unnecessary details. Paragraph 41: Accepted in substance.

Paragraphs 42 and 43: Rejected as constituting a misstatement of the pretrial stipulation. (The exact text of the pretrial stipulation has been included as a finding of fact.)

Paragraphs 44 through 47: Accepted in substance.

Paragraph 48: Rejected as subordinate and unnecessary details. Paragraphs 49 and 50: Accepted in substance.

Paragraph 51: Rejected as constituting a misstatement of the pretrial stipulation. (The exact text of the pretrial stipulation has been included as a finding of fact.)

Paragraph 52: Accepted in substance.

Paragraphs 53 through 55: Rejected as subordinate and unnecessary details.

Paragraph 56: Rejected as constituting an inference not warranted by the evidence. (Although there is a small amount of testimony close to what is proposed here, the totality of the evidence compels a different view of the matter.)

Paragraph 57: Rejected as primarily constituting argument, rather than proposed findings of fact. The portions that do not constitute argument are subordinate and unnecessary details.

Paragraph 58: Rejected as constituting argument, rather than proposed findings of fact.

Paragraph 59: Rejected as irrelevant to the issues in this case.

Paragraph 60: Rejected as constituting conclusions of law, rather than proposed findings of fact.

Findings proposed by Respondent:

Paragraphs 1 through 15: Accepted in substance.

Paragraph 16: Rejected as subordinate and unnecessary details. Paragraphs 17 through 24: Accepted in substance.

Paragraphs 25 through 27: Rejected as subordinate and unnecessary details. Paragraph 28: Accepted in substance.

COPIES FURNISHED:

W. Robert Vezina, III, Esq. Mary P. Piccard, Esquire

Cummings, Lawrence & Vezina, P.A. 1004 DeSoto Park Drive

Post Office Box 589 Tallahassee, Florida 32302-0589

Charles G. Gardner, Esquire Carolyn S. Holifield, Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams, General Counsel Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0458

Liz Cloud, Chief

Bureau of Administrative Code Room 1802, The Capitol Tallahassee, FL 32399-0250

Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, FL 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 91-006804RP

Orders for Case No: 91-006804RP