Alterman Transport Lines, Inc. v. Department of Transportation

519 So. 2d 1005, 12 Fla. L. Weekly 2568, 1987 Fla. App. LEXIS 10916, 1987 WL 1328
CourtDistrict Court of Appeal of Florida
DecidedNovember 10, 1987
DocketNo. BN-412
StatusPublished
Cited by1 cases

This text of 519 So. 2d 1005 (Alterman Transport Lines, Inc. v. Department of Transportation) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alterman Transport Lines, Inc. v. Department of Transportation, 519 So. 2d 1005, 12 Fla. L. Weekly 2568, 1987 Fla. App. LEXIS 10916, 1987 WL 1328 (Fla. Ct. App. 1987).

Opinion

ERVIN, Judge.

The appellant, Alterman Transport Lines, Inc. (Alterman), seeks review of the final order issued by the Florida Department of Transportation (department), rejecting the hearing officer’s recommended order and denying Alterman’s petition for approval of a proposed access route for its tandem trailer trucks. We affirm as to all four issues raised on appeal,1 addressing only the fourth issue, whether Alterman is entitled to approval of its petition by default, in that the department failed to render an order approving or denying the route within the statutorily mandated time established in Section 120.60, Florida Statutes.

Section 316.515(3)(c), Florida Statutes, provides for the operation of tandem trailer trucks on a specific highway network in Florida. Under the statute, the tandem trailer trucks may also travel on approved access routes that are within specified distances from the network, so as to afford access to terminals, facilities for food, fuel, repairs, and rest, and points of loading and unloading. Subsection (3)(c)2.b. also provides that any operator of a terminal facility located outside the prescribed distance limitations of access routes may seek access by submitting a “petition for access” to the department, which may, “after consideration of safety, roadway facility capability, and public convenience”, approve or disapprove the petition. Section 316.-515(3)(c)2.b.

Pursuant to the above subsection, Alter-man submitted a petition for terminal access of its tandem trailer trucks, requesting approval of an access route over an extensive portion of U.S. Highway 1, approximately 123 miles in length, from the company’s headquarters in Opa Locka to its terminal in the lower portion of the Florida Keys at Rockland Key. The department summarily denied the petition, and Alterman submitted another, asking the department to reconsider. The department again denied the request, “primarily because most of the requested route, which is over 100 miles long, is only two lanes.... Our basic policy is to exclude two-lane routes ... due to limitations related to passing requirements, stopping sight distances, much higher accident rates, and other safety related factors.” Alterman then requested a formal hearing pursuant to Section 120.57, Florida Statutes, and the matter was referred to a DOAH hearing officer.

The hearing officer found that Alterman had established by clear and convincing evidence that its proposed tandem truck [1007]*1007operations could safely operate on U.S. Highway 1, and recommended approval of the petition, with restrictions as to the hours of operation, number of vehicles, and other safety requirements. In its final order, however, the department rejected several findings of fact and conclusions of law made by the hearing officer, concluding:

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.

Alterman argues that its “petition for access” is an application for a “license”, within the meaning of Sections 120.52(8) and 120.60, Florida Statutes, and, as the final order was rendered more than 45 days after the recommended order was submitted to the department, its petition should be “deemed approved”.2 If, on the other hand, the department’s approval of the proposed route cannot be considered a license, Alterman’s application would be governed by the provisions of Section 120.-59, Florida Statutes, providing that an agency’s final order shall be rendered within 90 days after the recommended order is submitted. The department’s final order was in fact rendered within the time limitations of section 120.59, and it is this statute which the department argues controls the issue at bar.3 We agree with the department that a “petition for access”, under section 316.515(3)(c)2.b., is not a “license”, as defined by section 120.52(8), and that the final order was therefore timely rendered in accordance with section 120.59.

Section 120.52(8) defines a license as a “franchise, permit, certification, registration, charter, or similar form of authorization required by law.” This definition encompasses “all administrative acts, whether mandatory or discretionary, related to privileges conferred by the state.” Reporter’s Comments on Proposed Administrative Procedure Act for the State of Florida, reprinted in 3 A. England and L. Levinson, Florida Administrative Practice Manual at 11. Although it is not specifically stated in the statutory definition, it is clear from the case law interpreting section 120.60 that the “privilege” conferred by the state necessarily entails a licensing procedure which is personal in nature. See, e.g., National Freight, Inc. v. State, Department of Transportation, 483 So.2d 742 (Fla. 1st DCA 1986); Gonzalez v. Department of Health and Rehabilitative Services, 418 So.2d 1128 (Fla. 1st DCA 1982); Wasserman v. Florida State Board of Architecture, 392 So.2d 345 (Fla. 1st DCA 1981). Licensing includes the issuance of professional and occupational licenses to an individual or a corporation, as well as the grant of licenses for such privileges as the obtainment of a bank charter, the sale of liquor, or the issuance of a certificate of need for the operation of a medical facility. See generally Florida Administrative Practice Chapter 6 (2d ed. 1981).

The procedure for a “petition for access” under 316.515(3)(c)2.b. however, does not, in our judgment, confer a “privilege” or “license” to any individual or entity, within the meaning of sections 120.52(8) and 120.-60, to perform an act which, without it, is barred to others. Instead, the statute provides for the approval or denial of a particular roadway, which, if approved, is added to an existing network of accepted roads upon which tandem trailer trucks may op[1008]*1008erate. Section 316.515(3)(c)2.a. states that tandem trailer trucks may operate along approved access roads that are located within one to three miles of an interchange of a tandem trailer truck route. If an operator of a terminal facility located outside the designated distance limits desires to obtain approval of a longer route, he must submit a petition for access to the department. Significantly, Rule 14-54.-0017, Florida Administrative Code, setting forth the rules governing the petition, is entitled, “Selection and Approval of Off-System Routes to Terminal Facilities” (e.s.). Obviously, it is the approval of the route which is sought, not the permitting of specific trucking lines.

Alterman argues that although the petition involves approval of a specific route, the privilege for same remains personal to it, as only truck drivers working for Alter-man will utilize the route to reach their terminal. There are, however, no provisions in the statute precluding drivers employed by other trucking lines from utilizing the route, regardless of Alterman’s claim that this would be unlikely. Indeed, once an access route is approved, the route remains in existence unless it is specifically suspended or revoked by the department.4

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Bluebook (online)
519 So. 2d 1005, 12 Fla. L. Weekly 2568, 1987 Fla. App. LEXIS 10916, 1987 WL 1328, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alterman-transport-lines-inc-v-department-of-transportation-fladistctapp-1987.