Dravo Basic Materials Co., Inc. v. State, Dept. of Transp.

Decision Date08 July 1992
Docket NumberNo. 91-03012,91-03012
Citation602 So.2d 632
Parties17 Fla. L. Weekly D1673 DRAVO BASIC MATERIALS COMPANY, INC., Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.
CourtFlorida District Court of Appeals

Stanley H. Eleff and Robert D. Sanchez of Trenam, Simmons, Kemker, Scharf, Barkin Frye & O'Neill, P.A., Tampa, for appellant.

Thornton J. Williams, General Counsel, and Gregory G. Costas, Asst. General Counsel, Florida Dept. of Transp., Tallahassee, for appellee.

ALTENBERND, Judge.

Dravo Basic Materials Company, Inc. (Dravo), appeals a hearing officer's determination in a rule-challenge proceeding brought pursuant to section 120.54(4), Florida Statutes (1989). At the administrative hearing, Dravo argued that a proposed Department of Transportation (DOT) rule governing the quality of limestone aggregate used in road construction was arbitrary and capricious. The hearing officer upheld the validity of the proposed rule. In light of this court's limited scope of review and Dravo's difficult burden of proof before the hearing officer, we must affirm the challenged order. See Adam Smith Enters., Inc. v. Department of Envtl. Reg., 553 So.2d 1260 (Fla. 1st DCA 1989); Agrico Chem. Co. v. Department of Envtl. Reg., 365 So.2d 759 (Fla. 1st DCA 1978), cert. denied sub nom. Askew v. Agrico Chem. Co., 376 So.2d 74 (Fla.1979).

Dravo operates a limestone mine in the Bahamas. It imports high quality limestone aggregate to redistribution terminals in Tampa and Jacksonville, Florida. Dravo has sold limestone aggregate to DOT in the past for use in road construction and wishes to do so in the future.

For many years, DOT has restricted the percentage of fine material in limestone aggregate used for road construction. 1 There is no dispute between Dravo and DOT that an excessive amount of fine material in limestone aggregate is unacceptable for road construction. Long-standing DOT specifications required that limestone aggregate have 3.75% or less fine material at its point of use. In 1988, these specifications were held invalid because they had not been promulgated as rules under the procedures set out in section 120.54, Florida Statutes (1987). Department of Transp. v. Blackhawk Quarry Co. of Florida, Inc., 528 So.2d 447 (Fla. 5th DCA 1988).

DOT proposed new rules to replace the specifications invalidated in Blackhawk. The proposed rules are similar in many respects to the old specifications and provide similar methods to test and assure product quality under those specifications. Limestone aggregate is still required to meet the 3.75% standard at the point of use. DOT has proposed a relatively complex testing and quality assurance program to insure that its limestone suppliers meet that standard. The complexity of this program is a consequence, at least in part, of the nature of limestone and the location of the suppliers' mines.

It is undisputed that limestone aggregate breaks down when handled. As a result, the percentage of fine material present in limestone aggregate increases in rough relationship to the extent that the limestone is moved or handled. Thus, DOT is legitimately concerned that limestone delivered from more distant mines will contain more fine material than that delivered from nearby mines.

Moreover, for many practical and economic reasons, DOT wishes to avoid inspecting each truckload of limestone at the point of use. Thus, it has developed a program to test limestone aggregate at the mine or at redistribution terminals. Since DOT anticipates that the limestone will further degrade when it is transported from the mine or redistribution terminal to the point of use, the limestone must meet a more stringent test at those points. The limestone must not exceed 1.75% fine material at the mine or at the redistribution terminal.

The proposed rules classify limestone mines into three "types," depending upon their location. Type I mines are mines which are located either in Florida or within a four-hour drive of a DOT district materials office. Type II mines are out-of-state mines more than four hours from, but within an overnight drive (eight hours) of, such an office. Type III mines are out-of-state or international mines which cannot be reached by an overnight drive. Although other Type III mines may wish to compete in Florida in the future, it is undisputed that Dravo is currently the only Type III mine seeking approval from DOT.

The three mine classifications were created primarily to control the cost of state inspection. DOT has logically concluded that it is easier and more economical to conduct on-site inspections of limestone at mines that are in or near Florida. It has therefore devised different inspection and testing procedures for each of the three types of mines. Type I mines are inspected weekly by DOT and are allowed to ship either to a point of use or to a redistribution terminal. Type II mines are inspected quarterly and also may ship either to a point of use or to a redistribution terminal. Type III mines are inspected annually and must ship to a redistribution terminal. They do not have the option of shipping directly to the point of use.

Any limestone passing through a redistribution terminal from any of the three types of mines must meet the 1.75% standard at the terminal. Dravo complains, however, that Type I and II mines can avoid the use of terminals and are therefore effectively subject to the 1.75% standard only at the mine, while Type III mines are forced to also meet the 1.75% standard at the terminal. 2 Dravo maintains that it can meet the 1.75% standard at its mine and can also meet the 3.75% standard at the point of use, but that it cannot also competitively meet the 1.75% standard at the redistribution terminal. Thus, it believes that DOT is arbitrarily keeping it from competing in the Florida market.

Dravo's frustration is understandable. It may well be that it could provide a quality product to the point of use under...

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6 cases
  • Painter v. Ballard
    • United States
    • West Virginia Supreme Court
    • June 8, 2016
    ...is apt to change suddenly or is freakish or whimsical.” Blank , 564 N.W.2d at 140 ; see also Dravo Basic Materials Co. v. State, Dep't of Transp. , 602 So.2d 632, 634 (Fla. Dist. Ct. App. 1992) (stating that a rule is capricious if it is “without thought or reason”). We have also held that ......
  • St. Johns River Water Management Dist. v. Consolidated-Tomoka Land Co., CONSOLIDATED-TOMOKA
    • United States
    • Florida District Court of Appeals
    • July 29, 1998
    ...See Agrico Chem. Co. v. State, Dept. of Envtl. Regulation, 365 So.2d 759 (Fla. 1st DCA 1978); Dravo Basic Materials Co., Inc. v. State, Department of Transp., 602 So.2d 632 (Fla. 2d DCA 1992). Although these principles continue to apply in a proceeding to challenge an existing rule, see sec......
  • Board of Trustees of Internal Imp. Trust Fund v. Levy, 94-2764
    • United States
    • Florida District Court of Appeals
    • June 27, 1995
    ...Co. v. State Dept. of Environmental Regulation, 365 So.2d 759, 762 (Fla. 1st DCA 1978); Dravo Basic Materials Co., Inc. v. State, Dept. of Transportation, 602 So.2d 632 (Fla. 2d DCA 1992). Thus, the issue before the hearing officer was whether the preponderance of the evidence demonstrated ......
  • ACN v. State, 98-2183.
    • United States
    • Florida District Court of Appeals
    • March 3, 1999
    ...supported by competent substantial evidence. See L.O. v. State, 718 So.2d 155, 157 (Fla.1998); Dravo Basic Materials Co., Inc. v. Department of Transp., 602 So.2d 632, 635 (Fla. 2d DCA 1992); see generally Philip J. Padovano, Florida Appellate Practice, § 9.6 (West In the instant case, the ......
  • Request a trial to view additional results
2 books & journal articles
  • The 2003 amendments to the Florida APA.
    • United States
    • Florida Bar Journal Vol. 77 No. 9, October 2003
    • October 1, 2003
    ...(18) 2003 Fla. Laws ch. 94 [section] 3, amending FLA. STAT. [section] 120.56(3)(a). (19) See also Dravo Basic Materials Co., Inc. v. DOT, 602 So. 2d 632 (Fla. 2d D.C.A. 1992); Agrico Chemical Co. v. DER, 365 So. 2d 759 (Fla. 1st D.C.A. (20) FLA. STAT. [section] 120.56(2)(d). In addition, ex......
  • Who goes first and what is "competent, substantial evidence" in a proposed rule challenge?
    • United States
    • Florida Bar Journal Vol. 73 No. 1, January 1999
    • January 1, 1999
    ...WL 558983 at *4. [17] McDonald, 346 So. 2d at 579-580. [18] See, for example, Dravo Basic Materials Co., Ina v. State, Dept. of Transp., 602 So. 2d 632,634-635 (Fla. 2d D.C.A. 1992): "When a proposed rule is challenged before a hearing officer, it is the role of the officer to determine whe......

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