85-002280 Alterman Transport Lines, Inc. vs. Department Of Transportation Status: Closed Recommended Order on Thursday, February 20, 1986.

Summary: Access for tandem trailers in excess of 123 miles over US 1 denied. Contrary to intent of statute, and health, safety, and welfare of public.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALTERMAN TRANSPORT LINES, INC., }

)

Petitioner, )

)

) CASE NO. 85-2280

vs. }

)

DEPARTMENT OF TRANSPORTATION, }

)

Respondent. )

_____________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly designated Hearing Officer, W. Matthew

Stevenson, held a formal hearing in this case on October 29, 30

and 31, 1985 in Tallahassee, Florida.

APPEARANCES

For Petitioner: Mark Freund, Esquire

John Radey, Esquire

Aurell, Fons, Radey, Hinkle

Suite 1000

Monroe-Park Tower

Tallahassee, Florida 32301

For Respondent: Judy Rice, Esquire

James Anderson, Esquire

Florida Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32301

The primary issue at the final hearing was whether the

Petitioner's request for Department of Transportation

designation of a route for twin tandem trailer "terminal access"

operations beyond the approved tandem trailer highway network

between Petitioner's Opa Locka trucking terminal and its

Rockland Key terminal located just north of Key West at the

southern extreme of the Florida Keys peninsular should have been

granted.

PROCEDURAL BACKGROUND

Alterman Transport Lines, Inc., by letters dated January

21, 1985 and February 5, 1985, applied to the Department of

Transportation for "terminal access" to its Rockland Key

terminal by the use of twin twenty-eight (28) foot trailers in

combination with a truck-tractor over the only route available -

- U.S. Highway 1. The Department of Transportation denied

Alterman's request by letter dated March 13, 1985. On March 22,

1985, Alterman requested that the Department reconsider its

denial. By letter dated June 19, 1985, the Department again

denied the application for "terminal access" submitted by

Alterman Transport Lines, Inc. Thereafter, the Petitioner

challenged the denial of its application and requested a formal

administrative hearing pursuant to Section 120.57(1), Florida

Statutes (1983).

This cause came on for final hearing on October 29, 30 and

31, 1985. By mutual agreement among the parties, the Respondent

presented its case first. The following witnesses testified on

behalf of Respondent: Bob McCullough, Bureau Chief of

Transportation Statistics, FDOT; George W. Herndon, Public

Transportation Specialists III, FDOT; Ralph Hartsfield,

Administrator of Highway Statistics, FDOT; William A. Wahl,

Project Manager for Traffic Signals, FDOT; Patrick Brady, Safety

Improvement Program Supervisor, FDOT and accepted as an expert

in the area of safety statistics; and Fred Hanscom, President of

the Transportation Research Corporation and accepted as an

expert in the field of traffic safety studies and traffic

operational impacts of large trucks. The Petitioner presented

the following witnesses: William E. Johns, Managing Director of

Technical Services, American Trucking Association, member of the

board of directors of the National Safety Council and accepted

as an expert in the areas of semi-trailer and tandem truck

operational safety; Edward Toppino, Key West citizen since 1940

and member of the Key West Chamber of Commerce; Thomas B. Webb,

Jr., Managing Director of the Florida Trucking Association,

prior Secretary of the Department of Transportation, FDOT, and

accepted as an expert in highway construction, maintenance and

safety; and, Sidney Alterman, president of Alterman

Transportation, Inc. In addition to the testimonial evidence

presented at the hearing, Joint Exhibits 1-6, Petitioner's

Exhibits 101, 103, 104, 109-111, 123, 124, 134 and 139-144, and

Respondent's Exhibits 1-18 were duly offered and admitted into

evidence.

FINDINGS OF FACT

Based upon my observation of the witnesses and their

demeanor while testifying, the documentary evidence received and

the entire record compiled herein, I hereby make the following

findings of fact:

THE PRESENT OPERATION

1. Petitioner, Alterman Transport Lines, Inc. is a common

carrier engaged in the business of transporting freight within

Florida and throughout the continental United States. The

company's main office is in Opa Locka, Florida, where it has a

large shipping terminal, repair facility, and a driver training

school. The Petitioner also has terminals in several other

Florida cities including Rockland Key near Key West, Florida.

From these and its other terminals outside of Florida,

Petitioner transports frozen, dry and perishable commodities in

intrastate and interstate commerce. The company is not

authorized to carry any type of explosives.

2. The Petitioner presently conducts two types of trucking

operations in the Florida Keys--its Upper Keys operation, north

of Marathon, and its Lower Keys operation, south of Marathon.

For both operations, freight is collected at the Opa Locka

terminal before movement to the Florida Keys. In the Upper Keys

operation, the Petitioner utilizes a tractor pulling a 45-foot

semi-trailer, or a 42-foot semi-trailer, to deliver freight to

its consignees every few miles along U.S. 1 from Homestead

through Ocean Reef and into Key Largo. After the deliveries are

made the tractor-trailer returns north on U. S. 1 to pick up

freight from shippers. The Upper Keys operation deliveries are

made from and the consignments are received into the Opa Locka

terminal. The Petitioner does not intend to alter its Upper

Keys operation even if the petition is granted.

3. In the Lower Keys operation, the Petitioner utilizes a

tractor with a 45-foot semi-trailer to transport freight from

its Opa Locka terminal to its Rockland Key terminal. At the

Rockland Key terminal, a portion of the freight is off loaded

from the transporting semi-trailer and transferred to other

vehicles. The freight which is not off-loaded is delivered by

the transporting tractor semi-trailer. When the transporting

tractor semi-trailer has made its deliveries and received

freight from consignors, the tractor semi-trailer returns to the

Rockland Key terminal and receives any additional freight that

has been brought to the terminal by other vehicles. When the

tractor semi-trailer is fully loaded, it departs the Rockland

Key terminal for the Opa Locka terminal. The Petitioner, if its

request is granted, intends to utilize tandem trucks in the

Lower Keys operation only.

4. In its Florida Keys operations, the Petitioner

transports frozen and perishable commodities as well as general

commodities. These items cannot be mixed. Depending upon the

type of perishable commodity which is being shipped, the

refrigerated trailer must be kept at one of three temperatures:

zero, thirty-five to forty or sixty-five degrees. It is not

possible to mix "refrigerated" freight with the " unrefrigerated"

general commodities in the same trailer. However, it is

possible to insert a bulkhead or divider in one trailer to have

two different "refrigerated" temperatures. It is not

technically feasible to mix frozen and perishable commodities

with general commodities. Therefore, in transporting freight

from the Opa Locka terminal to the Rockland Key terminal, the

Petitioner must use two different tractor semi-trailers, one for

"refrigerated" freight and one for "non-refrigerated" freight.

THE PROPOSED ROUTE

5. The route over which Petitioner proposes to transport

freight utilizing "doubles" to its Rockland Key terminal is as

follows:

From the Opa Locka terminal at 128th Street

and Lejeune Road travel North on Lejeune

Road to 135th Street (Road 916); then travel

West on 916 to the Palmetto Bypass (Road

826); then South on 826 to Road 874; then

Southwest on 874 to the Florida Turnpike

Extension; then South on the Turnpike

Extension to where it meets U. S. Highway 1

at Florida City; then South on U. S. Highway

1 to the Rockland Key terminal.

6. No part of the Department of Transportation's

preliminary decision to deny Petitioner's application for access

to its Rockland Key terminal was predicated on the roadway

capability, safety or public convenience of the portion of the

proposed route that is north of the intersection of U. S.

Highway 1 and the south end of the Florida Turnpike Extension

near Homestead. The Respondent did not challenge the

appropriateness of the northern portion of the access route at

the formal hearing. Therefore, references made herein to the

proposed route will be primarily confined to a consideration of

the challenged portions only.

6. The Rockland Key terminal directly abuts U. S. Highway

1 and access to the terminal is provided by way of a 50 foot

driveway leading directly from U. S. Highway 1 to the terminal

building.

7. The proposed route is approximately 123 miles long and

passes through southern Dade County and Monroe County on U. S.

Highway 1, passing through the cities of Key Largo, Tavernier,

Islamorada, Marathon, Big Pine Key and several other towns to

mile marker 8.5 of highway map Section 90020. The route

proposed by Petitioner is the shortest most direct route between

the existing tandem network and the Rockland Key terminal.

Transport from the Rockland Key terminal would be over the same

route, but northbound.

8. The route traverses the following Sections or portions

thereof of the general highway map prepared by State Topographic

Office for the Division of Planning and Programming, State of

Florida, Department of Transportation: 87020; 87010; 90060;

90050; 90040; 90030; and 90020.

THE PROPOSED OPERATION

9. When two trailers are joined together by a dolly and

pulled by a truck-tractor, the vehicle is described as a

"double" or "tandem". These vehicles are also referred to as

twin tandem trailers, double bottoms or tractor-semi-trailer

trailer combinations. Different types of doubles are described

by the lengths of the trailers pulled by the truck tractor. The

"Rocky Mountain double" has a tractor with a 45 or 48 foot long

trailer followed by a 28 foot long second trailer and an overall

length of approximately 90 feet. The "turnpike double" has two

45 or 48 foot long trailers connected together and an overall

length of 105 to 115 feet. The "western double" has two 28 foot

long trailers connected together and an overall length of

approximately 70 feet.

10. The Petitioner proposes the operation of twin twenty-

eight foot semi-trailers, i.e. "western doubles". The tandem

proposed for use by Petitioner has an overall length of 69 feet

11 inches from the front of the tractor to the rear of the

second trailer and a width of 96 inches. Presently, semi-

trailer trucks having a width of 102 inches, a trailer as long

as 48 feet, and a tractor in excess of 20 feet may be operated

on U. S. 1 without the Department of Transportation's approval.

11. The Petitioner proposes to operate its tandems to

Rockland Key as a "closed door" operation. A closed door

operation means that there would be no pick-ups or deliveries of

freight between the Opa Locka and Rockland Key terminals. The

rear trailer of the double would be uncoupled only after arrival

at the Rockland Key terminal. The tractor and the front trailer

would then be used to make deliveries and pick-ups in Key West

or throughout the Lower Keys. The rear trailer would be used

with another tractor for deliveries, or the freight from the

rear trailer would be off loaded for delivery by other vehicles.

After the tractor and front trailer have made deliveries and

pick-ups of freight they would then return to the Rockland

terminal. There, the tractor and front trailer would be

recoupled with a rear trailer and return directly to the Opa

Locka terminal. The returning double would make no pick-ups or

deliveries.

12. The Petitioner further proposes the following

restrictions on its hoped-for tandem operation to the Rockland

Key terminal.

A. The operation would be closed door;

B. No doubles would be operated on

Saturdays or holidays or during other week

days between the hours of 7:00 A.M. to 9:00

A.M. and 4:00 P.M.-to 6:00 P.M.;

C. No private carrier or other common

carrier would be permitted to use Altermans'

terminal at Rockland Key for any double

operation;

D. Petitioner's doubles would not pass

other vehicles along the route unless those

vehicles were stopped and blocking traffic

or the tandem driver would be directed by a

law enforcement

officer to pass another vehicle;

E. A sign would be placed on the back of

the double that states that the vehicle is a

70 foot long double;

F. There would be no convoying on the route

(two or more doubles operating together);

G. The drivers would be experienced and

specifically trained to operate doubles.

ROADWAY FACILITY CAPABILITY CONSIDERATIONS

13. U. S. Highway 1 (SR-5) was constructed in accordance

with the American Association of State Highway Officials

Standards. U. S. Highway 1 has over 95 miles of two lane only

road. The lanes are substantially all 12 foot wide, although

there are some portions of the highway that have 11 foot lanes.

In those parts having 11 foot lanes, paved shoulders are

provided to prevent drop-offs (eroded sections which may cause

an automobile driver to drop a wheel off of the pavement and

result in trouble controlling the vehicle). Some of the two lane

portions of U. S. Highway 1 also have turning lanes to avoid

congestion for "through" traffic.

14. Generally, the proposed route has adequate shoulders

for the traffic carried along the road. The paved shoulders

along the 11 foot wide lanes are from 3 to 4 feet wide.

Shoulders along the 12 foot wide lanes are either paved or

partially paved. There are a few areas with sharp drop-offs and

no shoulders on either side. There is consistent construction

and maintenance by the Department of Transportation for the

purpose of repairing drop-offs and maintaining adequate

shoulders. Overall, shoulders along the proposed route, with a

few exceptions, provide enough room for a truck or automobile to

pull off safely and stop.

15. The majority of U. S. Highway 1 was built over or

adjacent to the railroad embankment that originally connected

the Keys to the Florida mainland. The roadway is essentially

straight and flat. Curves on U.S. Highway 1 are three degrees

or less. There are no vertical curves (hills) of any

significance, with the exception of vertical rises on some of

the bridges to allow boats to pass underneath. The three-degree

curves match the degree curve maximum that was used in the

design of the interstate highway system in Florida (which was

designed for 70 mile an hour traffic). The absence of extreme

vertical curves and sharp curves in the roadway makes the road

less hazardous. Much of U.S. Highway 1 is under construction

for widening and other improvements: 61 accidents in 1984 were

attributed to the condition of the road.

16. Over 40 bridges occur along the proposed route,

totalling between 18 and 19 miles of bridges. With the

exception of two short bridges in North Monroe County, all the

bridges are at least 36 feet wide and some are 44 feet wide.

Most of the bridges were renovated or replaced during an

extensive program to upgrade the bridges on the Keys. The width

of 36 feet was selected to allow enough room on the pavement to

provide as much as 12 feet for an emergency stop by a vehicle

while still maintaining two 12-foot widths of pavement for

traffic movement.

17. Stalled vehicles are not a problem on the narrow

bridges because they are so short that a vehicle can roll

forward off of the bridge if mechanical difficulties develop.

The seven mile long "Seven Mile Bridge" is typical of the other

bridges along U. S. Highway 1 and is 36 feet wide. Vehicles are

permitted to "pass with caution" along most of the Seven Mile

Bridge, except for the extreme southern portion where there are

some "no passing zones".

18. The geometric characteristics of U. S. Highway 1 are

favorable for the safe operation of tandems.

19. There are approximately 18 high accident sections

occurring along the length of the proposed route. High accident

segments are specifically located areas within broader

Department of Transportation mapped sections with a safety ratio

over 1:0. A safety ratio greater than 1:0 indicates greater

accident experience than would be expected for that type of

road. High accident areas occur along the proposed route in

both rural and urban sections and along the 7 mile bridge area.

However, the safety ratio for the entire length of the proposed

route is below the 1:0 safety ratio margin, despite the

inclusion of the 18 high accident sections. Accident statistics

show a high number of accident and injuries occurred along U. S.

Highway 1 in 1984. Over the proposed route, 1,316 accidents

occurred in 1984, 1381 persons were injured and there were 44

fatalities. In 1984, the following types of accidents occurred

along the proposed route: collisions with pedestrians, head-on

collisions, rear-end collisions, left and right turn collisions,

angle collisions, side-swipes, backing-up collisions, overturns,

truck jack-knifes, and hitting bridge rails. Rear-end accidents

predominated with a significant number of pedestrian pedacyclist

and moped accidents. In addition, drunk drivers pose a serious

problem in the Keys.

20. Forty-four (44) fatalities occurred on the U. S.

Highway 1 portion of the route in 1984. The majority of the

fatal accidents along the route occur on weekends.

Section Fatality Rate (per 100 mill VMT)

90020 4.26

90030 8.42

90040 6.03

90050 3.25

90060 5.48

97010 4.33

21. The unit 100 mill VMT, one hundred million vehicle

miles traveled, is a standard exposure measure. The fatality

rate in 1984 for all Florida roads was 3.4 fatalities per one

hundred million VMT. U. S. Highway 1 has a slightly higher

fatality rate over the majority of its length.

22. Overall, heavy trucks (single unit trucks greater than

10,000 pounds unloaded, semi single units and semi double $

units) are not involved in a higher number of accidents

(involving injuries, fatalities and/or property damage) over the

length of U. S. Highway 1, disproportionate to the number of

heavy trucks on the roadway.

23. Overall, heavy trucks are not involved in a higher

number of fatal accidents over the length of the proposed route,

disproportionate to the number of heavy trucks on the roadway.

24. The speed limit for the majority of the route is 45

miles per hour. Speed limits of under 30 mph occur on only 20`

of the route. The speed limit is confined because of the

development up and down the route. On approximately 4.5 miles

of the U. S. Highway 1 portion, vehicles operate at the open

highway speed. U. S. Highway 1 crosses through at least 4 school

zones ranging from high school to elementary school. During

morning and afternoon hours, certain school crossings across U.

S. Highway 1 are subject to 30 mile per hour speed restrictions.

25. There are some areas of the proposed route where four-

lane sections narrow down to two-lane sections, necessitating

travel to funnel into the remaining lanes. However, the number

of such instances on the proposed route is not significant.

26. Generally, only the four-lane sections of the proposed

route provide for separation of opposing traffic. Thus, the

majority of the proposed route does not provide a median strip

to divide opposing traffic.

27. From Key Largo on south, there is almost continuous

development along the highway on both sides. There are frequent

drive-ways, intersections, rather lengthy strip commercial

developments, and numerous access points to parks, boat ramps

and other facilities which are not controlled by traffic lights.

Because of the recreational nature of the area and the drivers

(i.e. many tourists), vehicles frequently pull on and off the

road.

28. During the peak traffic hours, heavy volumes of traffic

currently utilize the proposed route. Presently, many two-lane

sections are being converted to four-lane sections because they

meet standards set by the Department of Transportation for four-

lane conversion. (Traffic volume of 10,500-12,000 average

annual daily traffic warrants a four-lane facility).

affic volume reduces substantially between midnight

and 6:00 A.M. At other times of the day traffic is heavy and the

roadway is congested. Friday afternoons when travelers are

heading into the Keys and Sunday afternoons when travelers are

leaving are peak hours when the road is congested. In addition,

the roads are particularly congested between 7 and 8:30 A.M.

30. The potential for conflicts between tandems and other

modes of travel is great during peak travel periods, i.e. after

6:00 A.M. and before 12:00 midnight. The proposed route

traverses an extremely popular tourist area in south Florida.

Some problems are created by the heavy volume of slower moving

tourist traffic along U. S. Highway 1. Problems associated with

this type of traffic are related to tourist inattention to

driving while sight-seeing, looking at the water, and trying to

find lodging or recreational facilities. Many of the tourists

are not familiar with the road and many are pulling campers or

boat trailers. In addition to automobiles, the proposed route

usually contains a good mixture of vehicles including semi-

trailers, dump trucks, automobiles with travel trailers or boats

and other recreational vehicles. Safety problems arise along U.

S. Highway 1 when the stream of recreational vehicles and boat

trailers are combined with truck and bus traffic to form a

caravan which may frustrate drivers and lead them into making

poor passing decisions. Many drivers are intimidated by large

trucks and hesitate to pass them. Large trucks may create

certain visibility restrictions, especially if the truck is

being followed too closely. The driver of the rear vehicle

would have to swing out into into traffic across the line to get

a clear view of the road ahead. However, the proposed route

contains numerous road signs reassuring motorists and advising

them to: "Be patient - passing zone - three minutes ahead".

31. The entire mix of vehicles on the road interact to

affect overall roadway safety. A decreased number of vehicles on

a roadway will usually account for greater safety conditions.

TANDEM OPERATIONAL CONSIDERATIONS

32. The accident involvement experience and the accident

severity experience of tandems and tractor semi-trailers are

substantially the same, with the fatal accident rate of the

tandem being slightly higher. Thus, tandems and singles have

essentially the same accident characteristics. The slightly

higher fatality rate of the double is not statistically

significant in the instant case when One considers that the

Petitioner proposes to reduce the total number of vehicle trips

taken if tandems, vice singles, are utilized.

33. Operationally, doubles have characteristics which are

comparable to singles, although in some areas singles perform

better and in other areas doubles perform better.

34. The typical western double is more maneuverable than

the single. The double would experience less low speed off

tracking. Low speed off-tracking of a truck or truck combination

is the distance that the rear tire deviates inward from the path

of the corresponding tire on the front axle. Because of better

tracking, tandems would cause less damage to the highway's

shoulders than singles.

35. The double will experience greater high speed off-

tracking than the single. At high speeds, the rear wheels of

combinations can track outward on curves. The restricted speed

limits and gentle curves of the proposed route cause this

operational difference to have little significance on the

proposed route.

36. Rearward amplification is a characteristic of multi-

unit trucks where the lateral acceleration of the truck is

amplified rearward to the rear trailer. The tractor semi-

trailer exhibits an amplification ratio of 1.0 which means that

there is no amplification-- the driver feels what the trailer

feels. The double on the other hand, has an amplification ratio

of approximately 2.0, which means that the trailer experiences

twice the lateral acceleration of the tractor. This can result

in the driver making an evasive maneuver that feels safe but can

cause the rear trailer to roll over. However, a new type of

dolly has been developed that significantly reduces rearward

amplification.

37. There is no perceptible difference in braking ability

between doubles and singles because their brake systems are

designed to provide the required torque for the loads carried.

38. There is less splash and spray with a double than

there is with a single. Splash and spray is the undesirable

condition a motorist faces when a truck is passed and there is a

lot of water on the roadway. The twin trailer vehicle uses

single axles instead of the tandem axle design normally found on

a conventional semi-trailer. The tandem axle arrangement, used

on singles, with one tire directly ahead of the other, sets up

an interaction which greatly increases the amount of spray

kicked up from the road surface.

39. Cross-winds are less likely to affect a double than a

single because of the separation between the double's two

trailers. Wind currents hit the broader surface of the single

harder and have no place to escape, whereas the distance between

the tandem units will provide an escape. However, generally

neither singles nor doubles are affected by the wind if the

vehicles are carrying a load.

40. The rate of acceleration of a single and double from a

stoplight are the same. Generally, tandems, due to their low

weigh-to-horsepower ratio tend to slow down on grades much more

than do semi-tractor trailers. Due to the flat design of the

proposed route, this difference would not be significant.

41. The western double proposed for use by Petitioner

would be approximately 12-1/2 feet longer than the 45 foot semi

tractor-trailer currently used. The longer double would require

a longer passing time because drivers take longer to pass longer

vehicles. The specific amount of extra roadway required to pass

a longer vehicle depends upon several factors: acceleration

behavior on the part of the passing vehicle and overall relative

passing speeds. If the type of double proposed for use by

Respondent were traveling at 55 mph and a vehicle wanted to pass

it at 60 miles per hour, the passing vehicle would be in the

passing lane for an additional 1.7 or 1.8 seconds than it would

be were it passing a single. At 60 miles per hour, a vehicle

travels approximately 88 feet per second. The additional

passing time and roadway necessary to pass a double does not

present an unsafe factor. In addition, along U. S. Highway 1

there are long two-lane sections in which no passing is allowed

at all.

42. Twin trailers spread distribution of weight over a

greater distance, therein providing less stress to bridges and

highway pavements.

43. Overturned or disabled trucks can completely blocks

traffic, especially on bridges. Currently, there is only one

wrecker in Monroe County which is capable of moving an

overturned or disabled truck. When semi-trailer trucks are

involved in accidents, there are problems of clearing the

roadway because the truck may have jack-knifed or the trailer

may have overturned. Because a double has smaller trailers, and

the trailers can be detached from each other, it may be easier

to clear an accident involving a double than a single. By

detaching each of the double's trailers, each trailer can be

maneuvered more easily than a 48 foot trailer.

actor semi-trailers presently operate on U.S.

Highway 1 without restriction as to their overall length and may

be 70 to 71 feet long. While the length of the semi-trailer

cannot exceed 48 feet, there is no limitation on the length of

the cab or tractor which pulls the semi-trailer. Semi-trailers

as well as buses are permitted to be 102 inches wide.

45. When a driver initiates a pass around a truck, there

may be a surprise and intimidation effect as the driver

discovers that he is passing a truck with more than one trailer.

The driver does not know, in initiating his pass, the length of

the truck ahead. A clearly designated sign on the rear of the

second trailer would help alleviate the "surprise and

intimidation" effect of passing a tandem.

46. There are no operational characteristics which would

make doubles less safe than singles to operate on the portions

of U. S. Highway 1 material to Petitioner's application.

47. There are no operational characteristics of doubles

which would prevent them from operating safely on the portions

of U. S. Highway 1 material to Petitioner's application.

48. The Petitioner's utilization of doubles on U. S.

Highway 1 would reduce the number of truck trips that are

required to its Rockland Key terminal. Without the availability

of tandem trucks, two trucks may be sent to the Rockland Key

terminal when, if using tandem trucks, one truck could carry the

weight and volume carried by two trucks. Tandem trailers, each

being a separate environment, provide greater efficiency as to

what mix of cargo one tractor can pull. Generally, the

Petitioner proposes to use tandem trailers with one of the

double's trailers refrigerated and the other not refrigerated.

Thus, the operation of tandems by Petitioner would have the

effect of reducing the overall number of vehicles on the road,

which is a major consideration in highway safety.

49. The City of Key West has narrow streets which cause

traffic congestion and delivery problems in the downtown area.

The use of 28 foot trailers, because they are more maneuverable

than longer semi-trailers, would make deliveries more convenient

and less hazardous in the City of Key West. However, the use of

the 28 foot trailer would not be an improvement over the 22-24

foot "straight-job trucks", designed for local delivery use, or

the 12 foot econo vans, both of which are presently used by

Petitioner to make local deliveries in Key West.

50. The Florida Keys have a very high cost of living

because all of the necessities and conveniences must be shipped

to the Keys by truck. The Keys have no railroad transportation

and only negligible amounts of freight are transported by

aircraft or ship. The use of doubles may have the effect of

lowering transportation costs. The lowering of transportation

costs may eventually flow through to consumers in the Florida

Keys.

51. The percentage of total traffic by large trucks

presently using the proposed route ranges from 6% to 7%.

52. Considering the statutory criteria contained in Rule

14-54.013, F.A.C., and the mandated overriding concern for

safety, roadway facility capability and public convenience, the

proposed route on U. S. Highway 1 may be safely utilized by

Petitioner's tandem operation, but only between the low traffic

periods between 12:00 midnight and 6:00 A.M., excluding weekends

and holidays.

CONCLUSIONS OF LAW

53. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

these proceedings pursuant to Section 120.57(1), Florida

Statutes (1983).

54. The burden of proof is on the Petitioner. In

accordance with the general rule applicable in court

proceedings, "the burden of proof, apart from statute, is on the

party asserting the affirmative of an issue before an

administrative tribunal". Balino v. Department of Health and

Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

Because the Respondent is partially relying on it's non-rule

policy to exclude tandem trailer operations from two-lane

routes, the Respondent has the burden of creating a record

foundation for the rationality of such policy choice.

Nevertheless, the Petitioner bears the initial and ultimate

burden of proving that it meets all the statutory or regulatory

criteria and standards for permit approval. Department of

Transportation vs. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st

DCA 1981). The Petitioner must demonstrate by a preponderance

of the competent and substantial evidence that it meets and

complies with the statutory and regulatory criteria and

standards for approval.

55. The Federal Surface Transportation Assistance Act of

1982, enacted on January 6, 1983 provides for the operation of

twin tandem trailer trucks on interstate and certain specified

Federal-Aid Primary System Highways. These roads are currently

designated in 23 CFR Part 658.21 and referred to as the National

Network. The national tandem network is described on a state by

state basis in regulations adopted by the Federal Highway

Administration; many states have listed all two and four lane

Federal-aid highways while other states have listed specific

roadways. 23 CFR Part 658, Appendix A. In Florida, this system

of interstate and certain designated highways are known as the

Basic Network. The portions of highway U. S. 1 proposed for use

by Respondent to its Rockland Key terminal are not a part of the

National Network nor the Basic Network.

56. Prior to adoption of the designated National and Basic

Network, the Federal Highway Administration in 1983 proposed an

interim designation system of routes which essentially listed

all Federal-aid highways. The federal proposal originally

included U. S. Highway 1 from Key West to Homestead, because it

was a road which had been built with federal money

participation. The State of Florida did not participate in the

development of the proposed interim system of routes.

Immediately following the federal register proposal, the State

of Florida appealed the proposed U. S. 1 route designation. In

deference to the State of Florida, the Federal Highway

Administration withdrew the proposed designation of U. S.

Highway 1, and the designation never went into effect.

57. The Florida Uniform Traffic Control Law, Chapter 316,

Florida Statutes (1983), provides for use of tandem trailer

trucks on Florida roadways. Tandems or doubles, are

specifically defined in Florida as a tandem trailer combination

consisting of a truck tractor, first semi-trailer, dolly and

second semi- trailer. In addition, no semi-trailer unit shall

exceed 28 feet extreme overall dimension, measured from the

front of the unit to its rear. Rule 14.54.03, F.A.C.

58. Section 316.515(3), Florida Statutes (1983) provides

in pertinent part:

(c) Tandem Trailer Trucks -

1. Except as otherwise provided in this

section, tandem trailer trucks may operate

only on routes on the tandem trailer truck

highway network. Such network shall consist

of all highways on the interstate federal

system; those sections of the federal-aid

primary system which are divided highways

with four or more lanes and full control of

access except sections on which truck

traffic was specifically prohibited by law

on January 6, 1983; and other designated

routes consisting principally of four or

more lanes and full control of access. Such

other routes may be designated by the

Department of Transportation if such routes

are a part of the state highway system. The

Department of Transportation may restrict

the days and hours of operation of any

segment of the tandem trailer truck highway

network based on considerations of safety,

roadway facility capability, and Public

convenience. (Emphasis added)

2. Except as otherwise provided in this

section, tandem trailer trucks shall be

afforded access to terminals to terminal

facilities which provide qualifying

activities. along highways on the state

highway system, but only in accordance with

the standards established in this

subsection. Access routes defined in the

subsection shall be approved, individually,

by the Department of Transportation.

a. In a rural area, access may be afforded

to such activities located within one mile

of an interchange of a tandem trailer truck

route, as designated by the Department of

Transportation, along a two lane highway on

the state highway system and within 3 miles

of such an inter-change along a four lane

highway on the state highway system. In an

urban area, access may be afforded to such

activities located within 1 mile of an

interchange of a tandem trailer truck route,

as designated by the Department of

Transportation, along a highway on the state

highway system which has lane widths of 12

feet or more. The Department of

Transportation may restrict the use of

interchanges for reasons of safety, roadway

facility capability, or public convenience

of the minor roadway.

b. An operator of a terminal facility

located along the state highway system

outside the limits prescribed in

subparagraph a. may seek to obtain access

for tandem trailer trucks by submitting a

petition for such access to the Department

of Transportation. Such petition shall

include a recommendation as to the shortest

reasonable route or routes of ingress and

egress to serve the terminal facility. A

separate petition must be submitted for each

facility requesting access for tandem

trailer trucks, and each petition shall be

prepared in accordance with rules of the

Department of Transportation. The

Department of Transportation shall, in

accordance with its governing rules, and

after consideration of safety, roadway

facility capability, and public convenience,

approve or disapprove such petition.

Rule 14-54, F.A.C., provides in pertinent part:

14-54.01 Purpose and Scope. This rule

chapter sets forth the regulations governing

the use of tandem trailer trucks within the

state of Florida.

14-54.01(2) Definitions

(1) Qualifying activities: Approved access

to terminals, facilities for food, fuel,

repairs, and rest, and points of loading and

unloading.

(4)(c) Off-system terminal facility routes:

access routes, designated by the Department,

to terminal facilities which provide

qualifying activities.

PART I SELECTION OF ROUTES FOR TANDEM

TRAILER USE

14-54.01 Standards for selection of the

network.

(1) The Department's designation of the

Network is constrained by the State's

overriding concern for safety, roadway

facility capabilities, and public

convenience. Accordingly the Department

shall use the following criteria in

approving, restricting, or disapproving

roads or portions of roads to the network.

(a) The number of lanes;

(b) The condition of the pavement;

(c) The number, adequacy, and control of

points of access;

(d) The adequacy of the width of the

driving lanes;

(e) The number of bridges and over-passes;

(f) The number and type of accidents

occurring on the road;

(g) The number of fatalities occurring, on

the roads;

(h) The shoulder conditions and widths;

( i) The average daily volume of traffic;

(j) The volume of traffic during peak

periods;

(k) The peak hour operating speed of

traffic;

(1) The number of traffic signals per mile;

(m) The number of miles of road that

vehicles operate below open highway speed;

(n) The number of miles with speed

restrictions;

(o) The continuity of routes between

states;

(p) The frequency of necessary vehicular

lane changes;

(q) The availability of emergency lanes;

(r) The method of separating opposing

traffic;

(s) The potential for conflicts with other

modes of travel;

(t) The presence of sight restrictions;

(u) Bridge width and condition;

(v) Number of trucks using facility.

14-54.017 Selection and approval of Off-

System Routes to Terminal Facilities-State

Highway system.

(1) Operators of terminal facilities

located along roads on the State Highway

System outside the establish

ed limits of approved access routes on the

State Highway System may petition the

Department for approval to use such route

for tandem trailer truck access to that

facility. A separate petition shall be

submitted for each terminal facility for

which tandem trailer truck access is desired

. . .

(2) Within 90 days after receipt of the

petition or receipt of any requested

additional information, the Department

shall:

(a) Approve the petition;

(b) Approve the petition with restrictions;

(c) Disapprove the petition.

The Petitioner has shown by clear and convincing evidence

that its petition for access to its Rockland Key terminal, using

the route proposed therein, should be granted. The evidence

established that Petitioner's Rockland Key terminal is a

terminal facility within the meaning of Chapter 316, Florida

Statutes, given its exclusive use for commercial transportation

activities. Respondent's position that the petition for access

is invalid because it was originally stated as a petition for

access from terminal to terminal is without merit. The petition

was in substantial compliance with the requirements of Rule

54.017, F.A.C. and the petition is by necessity a petition for

access from the approved tandem trailer highway network to the

Petitioner's Rockland Key terminal. The Petitioner may

certainly proceed from its Opa-Locka terminal to the end of the

tandem -trailer highway network towards its Rockland Key

terminal with no additional approval required. In consideration

of the factors listed in Rule 14-54.013, F.A.C., as addressed in

the Findings of Fact, the Respondent has met its burden of

satisfying the requirements of the governing statute, Section

316.515(3)(c)2.b., Florida Statutes and the implementing rule,

Rule 14-54.017, F.A.C. Upon consideration of safety, roadway

facility capability, and public convenience factors, it is clear

that the proposed route is capable of accommodating tandem truck

operations, and, the public convenience in the Keys area will be

served as a result of lower cost and more efficient and better

service. Further, it has been established by clear and

convincing evidence that the Petitioner's proposed tandem truck

operations could safely operate on U. S. Highway 1. Certainly,

the evidence established that certain restrictions should be

placed on the operation of tandems on U. S. Highway 1.

Primarily, the evidence established that the periods between

6:00 A.M. and 12:00 midnight would be the most inappropriate

times for tandem trucks to operate on U. S. Highway 1. Because

of the congestion occurring during peak time periods occasioned

by the infusion of tourist and local traffic, the operation of

tandems may indeed negatively impact on safety and public

convenience.

The evidence clearly established that the introduction of

tandem trucks during certain restricted hours onto the sections

of U. S. Highway 1 proposed in the instance case, would not

cause safety conditions to worsen. Perhaps tandem trucks could

be safely utilized over the proposed route during certain low

traffic mid-day periods and not decrease the safety factor of

the roadway. However, in light of the mandated overriding

concern for public safety, prudent caution would dictate that

any tandem operation be limited to periods of the day when the

proposed route is definitely less congested.

The Petitioner's use of tandems to its Rockland terminal

will not negatively affect roadway safety conditions because use

of tandems will reduce the number of vehicle trips and the

tandems proposed for use are operationally as safe as semi-

trailer trucks (which, Petitioner presently uses and may

continue to use regardless of the outcome of these proceedings).

Under the current circumstances, without the availability of

tandem trucks, the Petitioner sometimes sends two trucks to its

Rockland Key terminal despite the fact that by weight and

volume, one truck could carry the cargo now carried by two

trucks. In addition, the evidence established that the public

convenience will be served by granting permission to Petitioner

to use tandems to reach its terminal because roadway wear will

be reduced, fuel savings will be realized, transportation costs

will be otherwise reduced and deliveries to the City of Key West

will be facilitated by use of shorter trailers. The primary

factor affecting the safety of the proposed route result from

the tourist attractions, parks and recreation areas adjacent to

the roadway which contribute a stream of recreational vehicles

and boat trailers, which when mixed with the buses, trucks and

cars using the roads results in frustrating and potentially

dangerous passing situations. The utilization of tandem trucks

over U. S. Highway 1 during off-peak hours would lessen the

potential for conflict between the tandems and the existing

traffic, while decreasing the number of singles which Petitioner

would need to utilize during peak hours.

RECOMMENDATIONS

Based on the foregoing Findings of Fact and Conclusions of

Law it is RECOMMENDED THAT:

1) Alterman Transport Lines petition for an off-system

terminal facility route as requested therein be approved with

restrictions; and that,

2) The restrictions on the approval of tandem access to

the Rockland Key terminal be as follows:

(a) the operation must be closed-door;

(b) no tandems may be operated on Saturdays, Sundays,

holidays or during other days of the week between the hours of

6:00 A.M. to 12:00 midnight;

(c) the Petitioner may not permit any other private

carrier or other common carrier to use the Rockland Key Terminal

for any double operation;

(d) the Petitioner must place signs on the back of all

doubles stating that the vehicle is a 70 foot long double;

(e) each double must be operated as a separate vehicle; and

may not be convoyed--two or more doubles operating--together

along the route.

DONE and ORDERED this 20th day of February, 1986 in

Tallahassee, Leon County, Florida.

___________________________________

W MATTHEW STEVENSON

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

[phone]

FILED with the Clerk of the

Division of Administrative Hearings

this 2Oth day of February, 1986.

APPENDIX

Petitioner's Proposed Findings of Fact

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 2.

3. Adopted in Finding of Fact 2.

4. Adopted in Finding of Fact 3.

5. Adopted in Finding of Fact 4.

6. Adopted in Findings of Fact 9 and 45.

7. Adopted in Finding of Fact 9.

8. Rejected as immaterial.

9. Addressed in Conclusions of Law.

10. Rejected as immaterial.

11. Not included because unnecessary.

12. Addressed in "Procedural Background" section.

13. Adopted in Finding of Fact 10.

14. Adopted in Findings of Fact 5 and 7. Matters not included

therein are rejected as subordinate.

15. Adopted in Finding of Fact 11.

16. Adopted in Finding of Fact 12.

17. Accepted but not included because subordinate.

18. Partially adopted in Finding of Fact 6 Matters not

contained therein are rejected as a recitation of testimony.

The last sentence is rejected as legal argument.

19. Adopted in Findings of Fact 7, 13 and 14.

20. Adopted in Finding of Fact 16.

21. Adopted in Finding of Fact 15.

22. Partially adopted in Finding of Fact 17. Matters not

contained therein are rejected as argument and a recitation of

testimony.

23. Partially adopted in Findings of Fact 29 and 30. Matters

not included therein are rejected as argumentative and a

recitation of testimony.

24. Rejected as subordinate and unnecessary.

25. Partially adopted in Finding of Fact 30. Matters not

contained therein are rejected as argumentative and/or a

recitation of testimony.

26. Rejected as argumentative, subordinate and/or a recitation

of testimony.

27. Partially adopted in Finding of Fact 30. Matters not

included therein are rejected as argument.

28. Not included because subordinate.

29. Adopted in Finding of Fact 42. Matters not contained

therein are rejected as subordinate.

30. Adopted in Findings of Fact 31-39 and 44.

31. Adopted in Finding of Fact 46.

32. Rejected as argumentative and subordinate.

33. Adopted in Finding of Fact 46.

34. Adopted in Findings of Fact 20 and 21.

35. Adopted in Finding of Fact 41.

36. Adopted in Finding of Fact 46.

37. Partially adopted in Finding of Fact 47. Matters not

contained therein are rejected as subordinate.

38. Partially adopted in Finding of Fact 48. Matters not

contained therein are rejected as argument and/or subordinate.

39. Adopted in Findings of Fact 39 and 40.

40. Rejected as subordinate.

Respondent's Proposed Findings of Fact.

1. Adopted in Findings of Fact 5 and 7.

2. Partially covered in "Procedural Background" section.

Matters not contained therein are rejected as subordinate.

3. (a) Partially adopted in Findings of Fact 13. Matters not

contained therein are rejected as a recitation of testimony

and/or subordinate. The proposed finding that "the route is

unacceptable because it is primarily two lanes" is rejected as

contrary to the weight of the evidence.

(b) Adopted in Findings of Fact 14, 15 and 26.

(c) Partially adopted in Findings of Fact 25 and 28. Matters

not included therein are rejected as subordinate and/or a

recitation of testimony.

(d) Rejected as misleading, but covered in Finding of Fact 13.

The finding that the "narrow lanes are a special safety concern

with the off tracking of tandem trailers" is rejected as not

supported by the weight of the evidence.

(e) Adopted in Findings of Fact 15, 16 and 41.

(f) Partially adopted in Findings of Fact 18 and 19. Matters

not contained therein are rejected as a recitation of testimony

and/or subordinate.

(g) Adopted in Finding of Fact 19.

(h) Partially adopted in Finding of Fact 14. Matters not

contained therein are rejected as not supported by the weight of

the evidence, subordinate and/or a recitation of testimony.

( i) Partially adopted in Finding of Fact 26. Matters not

contained therein are rejected as subordinate and unnecessary.

(j) Partially adopted in Findings of Fact 26 and 27. Matters

not contained therein are rejected as a recitation of testimony.

(k) (None)

(l) (None)

(m) Partially adopted in Finding of Fact 22. Matters not

contained therein are rejected as a subordinate and/or

unnecessary.

(n) (None)

(o) (None)

(p) Adopted in substance in Finding of Fact 23.

(q) Addressed in Findings of Fact 13 and 18; rejected as stated

because misleading.

(r) Partially adopted in Finding of Fact 24. Matters not

contained therein are rejected as subordinate.

(s) Adopted in Findings of Fact 28 and 29.

(t) Partially adopted in Finding of Fact 28. Matters not

included therein are rejected as misleading and/or a recitation

of testimony.

(u) Adopted in Findings of Fact 16 and 41.

(v) Partially adopted in Finding of Fact 49. Matters not

contained therein are rejected as subordinate.

4. Rejected as findings of fact, but addressed in Conclusions

of Law.

5. Rejected as a conclusion of law.

6. Rejected as immaterial and/or a conclusion of law.

7. Rejected as not supported by the weight of the evidence

and/or unnecessary.

8. Rejected as irrelevant.

9. Partially adopted in Finding of Fact 11. Matters not

contained therein are rejected as subordinate and/or a

recitation of testimony.

10. Partially adopted in Finding of Fact 2. Matters not

contained therein are rejected as a recitation of testimony

and/or subordinate.

11. Partially adopted in Finding of Fact 47. Matters not

contained therein are rejected as subordinate and/or not

supported by the weight of the evidence.

12. Partially adopted in Findings of Fact 30, 33, 34 and 39.

Matters not contained therein are rejected as recitation of

testimony, subordinate and/or not supported by the weight, of

the evidence.

COPIES FURNISHED:

Judy Rice, Esq.

Department of Transportation

Haydon Burns Bldg. - M.S. 58

Tallahassee, Florida 32301-8064

Mark Freund, Esq.

John Radey, Esq.

Suite 1000

101 North Monroe Street

Post Office Drawer 11307

Tallahassee, Florida 32301

Hon. Thomas E. Drawdy

Secretary,

Department of Transportation

Haydon Burns Bldg.

Tallahassee, Florida 32301

=========================================================

========

AGENCY FINAL ORDER

================================================================

=

STATE OF FLORIDA

DEPARTMENT OF TRANSPORTATION

ALTERMAN TRANSPORT LINES, INC.,

Petitioner,

vs. CASE NO. 85-2280

DEPARTMENT OF TRANSPORTATION,

Respondent.

_______________________________/

FTNAL ORDER

This matter was heard on the petition of Alterman Transport

Lines, Inc. for authorization of tandem trailer truck access

from its Opa Locka terminal to a terminal located at Rockland

Key, just north of Key West, and over 123 miles of highway not

included in the tandem trailer truck highway network. The

resolution of this petition involves two critical policy issues:

First, it must be determined whether it is the intent of Section

316.515(3)(c)2, Florida Statutes, to allow tandem trailer truck

acces£ off the tandem trailer truck highway network for such a

great distance when it has already been established by federal

regulation that the route is not proper for tandem trailer truck

traffic. Second, if it is determined that it is within the

intent of the Florida Legislature to allow such an extensive

deviation from the authorized network, then has reasonable

assurance been given by petitioner that such a route should be

granted considering safety, roadway facility capability, and

public convenience?

A clear legislative intent is evidenced to restrict

terminal access to very short distances off the authorized

network given the mileage limitations in Section

316.515(3)(c)2a, Florida Statutes. To extend the distance from

the 1-3 mile restriction to over 123 miles would render the

statute meaningless. This would lead to ever-increasing

extensions to the authorized network, and the route would no

longer be merely a terminal access route. A logical extension

of the argument asserted by the petitioner would allow tandem

trucks to travel over any state roads in Florida so long as a

terminal were located at each terminus point. This would defeat

the clear legislative intent to limit tandem trailer trucks to

interstate highways and federal-aid primary highways with four

or more lanes. U.S. 1 in the Keys does not meet the basic

statutory requirement that tandem trailer trucks only be

operated on "Those sections of the federal-aid primary system

which are divided highways with four or more lanes and full

control of access," Section 316.515(3)(c), Florida Statutes,

since approximately 77 percent of the route is two lane. (Tr.

285)

The precedent which would be set by granting the terminal

access route to Alterman Transport Lines, Inc. would also open

the door to granting terminal access routes to other transport

lines. To limit the route for Alterman's use only as envisioned

by the Hearing Officer, would create a virtual monopoly for one

line, which would give a definite commercial advantage and raise

legitimate antitrust concerns. Indeed, Mr. Sydney Alterman

noted that Alterman Transport is presently "eliminating"

carriers because of Alterman's new Rockland Key terminal ( T.p.

493). Moreover, Mr. Alterman noted that Alterman Transport can

create their own ,prices now, ( T.p. 499) and that if Alterman

Transport were able to run tandem units to its Rockland Key

terminal when no one else could ( T.p. 493) that Key West

businesses would "favor" Alterman as a carrier ( T.p. 511). As

other petitions are submitted and granted, a de facto extension

of the tandem trailer network would result. This result is

contrary to the intent of Section 316.515(3), Florida Statute,

and contrary to the health, safety, and welfare of the public.

As to the second point concerning whether reasonable

assurances have been given by Petitioner, a complete review of

the entire record in this matter has been made. The recommended

order of the Hearing Officer is attached and those Findings of

Fact and Conclusions of Law which are not rejected or modified

herein are considered to be correct and are hereby adopted.

The following abbreviations are used herein:

"T" for transcript

"p" for page

"R" for respondent

"P" for petitioner

"Ex" for exhibit

Finding of Fact 10 is modified to include the fact that the

tandem trailer combination of two 28 foot trailers proposed for

use by Alterman is longer than the statutory limit of 48 feet

for single unit semitrailers which can operate on U.S. 1 without

a special permit from the Department. See Section

316.515(3)(b), Florida Statutes.

Finding of Fact 13 is rejected as not being supported by

competent substantial evidence to the extent that such finding

maintains that all parts of U.S. 1 which have 11 foot lanes have

paved shoulders ( T.pp. 48-49, 52, 545). Moreover, some sections

of U.S. 1 which have 11 foot lanes and paved shoulders, have a

mere one foot of paved shoulder ( T.p. 572).

Finding of Fact 14 is rejected to the extent that the

finding implies a tandem trailer unit can safely exit U.S. 1

onto a shoulder when there is either no shoulder or only one

foot of paved shoulder. There is competent, substantial

evidence which shows that there are a number of areas with

insufficient shoulders for safe recovery by tandem trailer

combinations (T. pp. 48-49, 51-53, 572).

Finding of Fact 16 is rejected as not being supported by

competent substantial evidence to the extent that such finding

indicates that 38 of the 40 bridges which occur over the

proposed route provide 12 feet for an emergency stop by a

vehicle. The bridges consist of two twelve foot lanes with six

foot emergency lanes on either side, not 12 foot emergency lanes

as reflected by the Hearing Officer. These six foot emergency

lanes would not accommodate the proposed tandem units which are

at least eight feet wide.

Finding of Fact 17 is rejected because there is competent

substantial evidence to indicate that ~.S. Highway 1 is not safe

for the safe operation of tandems ( T.P. 143, 148, 178, 184), and

such an ultimate finding of fact is a policy decision to be made

by the Department.

Finding of Fact 9 is modified to indicate that U.S.

Highway 1 has a higher fatality rate over the majority of its

length than do Florida roads in general.

Finding of Fact 26 is rejected to the extent that it

implies that the proposed route is being converted to four lane

sections. Most of the proposed route is two lane road (R. Ex.

11, R. Ex. 16). There is no competent, substantial evidence to

support the finding that "many two-lane sections are being

converted to four lane sections." Much of the widening involves

the widening of substandard width lanes to 12 foot lanes without

adding additional lanes ( T.p. 567).

Findings of Fact 32 and 34 are modified to indicate that

rearward amplification is a characteristic of multi-unit trucks.

Moreover, there is no evidence to indicate that Alterman

Transport possesses the "new dolly" as referenced by the Hearing

Officer. This dolly supposedly alleviates the problem of

rearward amplification. There is no evidence to show that this

dolly can be used immediately on the proposed route; therefore,

the rearward amplification of the proposed tandem trailers

would, in a11 probability, occur.

Finding of Fact 35 is rejected as not supported by

competent substantial evidence. As noted in P.EX. 123,

"Vehicles with more articulations are more likely to become

unstable if their wheels lock up, although this has never been

quantified." It is also important to note that the proposed

route indicates many areas where a sudden application of brakes

has occurred ( T.pp. 48-64).

Finding of Fact 39 is rejected as to the conclusion

contained therein that, "The additional passing time and roadway

necessary to pass a double does not present an unsafe factor,"

because that conclusion does not coincide with the facts

recited. The facts recited demonstrate that the additional

passing time and roadway necessary to pass a tandem unit, given

the limited passing areas on U.S. 1, only reduces the safety

factor for drivers for this road.

Finding of Fact 41 is rejected because there is not

competent substantial evidence to show that it is easier to

clear an accident along the proposed route when such accident

involves a tandem unit versus a single unit, and the Hearing

Officer's finding is at best speculative.

Finding of Fact 43 is rejected to the extent that it

maintains a sign on the back of a tandem unit would alleviate

the "surprise and intimidation" effect of passing a tandem.

There was no competent substantial evidence presented which

indicates that either "surprise" or "intimidation" would be

alleviated and the hearing officer's finding is at best

speculative.

Findings of Fact 44 and 45 are rejected as not being

supported by competent substantial evidence. Rearward

amplification, less maneuverability in case of brake lock up,

more time and roadway requirements during passing would make

tandem trailers less safe than single units.

Finding of Fact 46 is rejected as not being supported by

competent substantial evidence, since it only speculates as to

what might happen in the future. Alterman Transport makes trips

which will meet customers' demands for daily delivery; thus

trips over the proposed route may increase; especially, if this

gives Alterman a competitive advantage.

Finding of Fact 50 is rejected as not being supported by

competent substantial evidence and is the ultimate policy

decision to be made in this proceeding.

Conclusions of Law

The Hearing Officer in the instant case has maintained that

the Petitioner has "shown by clear and convincing evidence that

its petition for access to its Rockland Key terminal . . .

should be granted." The issue is not whether the evidence is

clear and convincing, but whether there is competent substantial

evidence to justify the Department's position. This is true

because the ultimate policy decision to grant the proposed route

based on the statutory criteria is a matter reserved to agency

expertise and interpretation. See Reedy Creek Improvement

District v. State of Florida, Department of Environmental

Regulation, 11 F.L.W. 814 (1st DCA, April 4, 1986).

The Hearing Officer notes in Finding of Fact 50 in his

Recommended Order that the Department has an "overriding concern

for the safety, roadway facility capability and public

convenience." The recognition that the Department has an

"overriding concern" for safety is again noted in the hearing

Officer's Conclusion of Law (p. 22 Recommended Order). This

referenced "overriding concern" is mandated by Rule 14-54-013,

Florida Administrative Code and by Sections 334.044 and 316.515,

Fla. Stat. It is therefore recognized that it is the specific

statutory duty of the Department to determine when a portion of

the state transportation system is safe. This is important

because an agency may not reject or modify a hearing officer's

findings that are based upon competent substantial evidence (see

Section 120.57(1)(b)(9), Fla. Stat.) unless the ultimate fact

decided is an opinion infused with policy insights for which an

agency has special responsibility. Westchester General Hospital

v. Department of Health and Rehabilitative Services, 419 So. 2d

705 (Fla. 1st DCA, 1982). The dispositive facts also must not

be susceptible to ordinary methods of proof and the decision of

the agency must be one which impacts or. the public health and

safety. Harac v. Department of Professional Regulation, Board

of Architecture, 11 F.L.W. 631 (1st DCA, March 11, 1986).

In the instant case, the Department has the special

responsibility as per Section 334.044, Florida Statutes, for

determining the safety of the state transportation system. This

special responsibility has been noted by the Hearing Officer in

this case and is further evidenced by the fact that the Federal

Highway Administration has acquiesced to the Department's

position that U.S. Highway l should not be included in the Basic

Network over which tandem trailers are allowed to run ( T.pp. 84-

94). Moreover, the dispositive fact of the comparative safety

of tandem trailers versus single units is not susceptible to

ordinary methods of proof. This is evidenced by the conflicting

results of the studies which the Petitioner and the Department

have utilized in support of their respective positions.

Deference must be given to an agency's interpretation of an

operable statute as long as that interpretation is consistent

with legislative intent and is supported by competent,

substantial evidence. Public Employees Relations Commission v.

Dade County Police Benevolent Association 467 So 2d 987 (Fla.

1585).

Therefore, because the Hearing Officer has maintained that

the proposed route has been shown by the Petitioner to be "safe"

by "clear and convincing" evidence, without regard as to whether

the Department's position has been demonstrated by competent,

substantial evidence, the Conclusions of Law which maintain that

U.S. Highway l is "safe" for tandem trailer operation are

rejected because the Department's position has in fact been

demonstrated by competent, substantial evidence.

There is no question that the various studies and the

expert opinions in the record are at best inconclusive

concerning the issue of whether tandem trailers are more safe,

less safe, or as safe as the single unit trailers. The State of

Florida and the Federal Highway Administration have already

determined that U.S. l through the Keys is not and should not be

part of the tandem trailer network. The Department must closely

consider the health, safety, and welfare of the public and the

integrity of the State Highway System before agreeing to allow

tandem trailer access through the Keys. Even though the

restrictions recommended by the Hearing Officer appear to be

insignificant, the ramifications of granting this first terminal

access would be more far-reaching than a minor intrusion or

extension to the network, as explained earlier in this order.

There are a number of factors which are not in dispute

concerning the proposed route. U.S. 1 is mostly a two lane

facility, and the clear legislative intent is to limit tandem

trailers to interstates and four lane federal aid primary

facilities, with short 1 to 3 mile excursions permitted off the

network for food, fuel, rest, and terminal access. Many areas

along the proposed route have drop offs, insufficient shoulders,

or small emergency lanes which do not provide enough room for

evasive action by vehicles. The area through the Keys has many

intersections and locations where vehicles pull on and off the

road and move in and out of traffic. U.S. 1 already has more

fatal accidents than the statewide average, and certain segments

along the route exceed the statewide average for fatal

accidents.

Additionally, tandem trailer truck combinations have

certain features or attributes which could increase the safety

deficiencies for traffic on U.5. 1. Because tandem units are

longer than single unit semitrailers, the passing time for

vehicles is increased, which only decreases the safety factor

for the passing driver. Rearward amplification is also a

characteristic of tandems, which means the trailer experiences

twice the lateral acceleration of the tractor, which in turn

increases the potential for roll over when evasive action must

be taken. Tandem trailer combinations are more likely than

single units to become unstable if the wheels lock up, which

also reduces the safety factor for drivers on U.5. 1. The

evidence shows many intersections, turn ins and turn outs, and

stop and go traffic. This only increases the opportunities for

dangerous situations and the potential for trucks to lock their

brakes when taking evasive action.

The Hearing Officer has also assumed an overall length of

70 feet for the tandem trailer combination to be used by

Alterman, but has not made this a restriction for operation over

the route. The evidence reflects that the tractors may vary in

length and no statutory limitation exists for the length of the

tractor itself. Therefore, many of the assumptions of the

Hearing Officer are invalid, if a longer combination is assumed.

The tandem trailer characteristics mentioned above are only

exacerbated when considering a longer combination.

Alcohol consumption is a major factor in many serious

accidents along U.S. 1, and no competent substantial evidence

was presented to show that alcohol consumption is any less of an

accident factor between 12:00 midnight and 6:00 A.M.

As can be shown by these factors, to allow tandem trailer

combinations on U.S. 1 at any time would only serve to reduce

the safety parameters for drivers on U.S. 1. To reduce the

safety attributes of a highway which already has a fatality rate

higher than the statewide average would be unacceptable and

contrary to the public's health, safety, and welfare. Given the

geometric characteristics and roadway facility capability of

U.S. 1, the safety factors mentioned, and considerations of the

general convenience to the public, the Department does not

believe that sufficient reasonable assurances have been given by

Petitioner to show that it would be in the public's interest to

allow terminal access for tandem trailer combinations along U.S.

1 through the Keys.

ACCORDINGLY, IT IS OPDERED that the petition by Alterman

Transport Lines for off-system terminal facility access by

tandem trailer units from Opa Locka, Florida, to Rockland Key,

Florida, for a distance in excess of 123 miles over U.S. Highway

1 is hereby DENIED.

DONE AND ORDERED this 21st day of May, 1986 in

Tallahassee, Florida.

_____________________________

THOMAS E. DRAWDY, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32301

Judicial Review of agency final orders may be pursued in

accordance with Section 120.68, Florida Statutes, and Florida

Rules of Appellate Procedure 9.030(b)(1)(c) and 9.110. To

initiate an appeal, a Notice of Appeal must be filed with the

Department's Clerk of Agency Proceedings, Haydon Burns Building,

MS 58, 605 Suwannee Street, Tallahassee, Florida 32301-8064, and

with the appropriate District Court of Appeal within thirty (30)

days of the filing of this Final Order with the Department's

Clerk of Agency Proceedings. The Notice of Appeal filed with

the District Court of Appeal should be accompanied by the filing

fee specified in Section 35.22(3), Florida Statutes.

Copies furnished:

Judy Rice, Esquire

Department of Transportation

Haycon Burns Building, MS-58

605 Suwannee Street

Tallahassee, Florida

Mark Freund, Esquire

John Radey, Esquire

Suite 1000

101 North Monroe Street

Post Office Drawer 11307

Tallahassee, Florida 32301

W. Matthew Stevenson

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkwav

Tallahassee, Florida 32301