STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

McARTHUR FARMS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 77-1151

)

FLORIDA DEPARTMENT OF ) TRANSPORTATION and SEABOARD ) COASTLINE RAILROAD COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held in the above styled cause at the Fourth District Right of Way Office, Conference Room, 1317 N.E. 4th Avenue, Fort Lauderdale, Florida, at 2:00 P.M. on July 12, 1977, before Delphene

1. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration.

   
   

   APPEARANCES

   
   

   For Respondent: Philip S. Bennett, Esquire

   Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

   
   

   For Petitioner: Harry K. Bender, Esquire

   Nicholson, Howard, Brawner & Lovett

   131 Dade Federal Building

   119 East Flagler Street Miami, Florida 33131

   
   

   ISSUE

   
   

   Whether there should be an opening of a public at-grade railroad crossing by New Rail Line Construction in the vicinity of: 1420 feet west of Mile Post SX 904, Seaboard Coastline Railroad (Northwest 9th Street), Okeechobee County, Florida.

   
   

   FINDINGS OF FACT

   
   

   1. A railroad grade crossing application was submitted by Petitioner, McArthur Farms, Inc., for "opening a public at-grade rail highway crossing by New Rail Line Construction" in an unincorporated area of Okeechobee County on Northwest 9th Street and Seaboard Coastline Railroad, Railroad Mile Post 1420 feet west of Mile Post SX 904, west 900 feet, east 686 feet. The type of roadway is an existing paved two-lane road. The proposal is for a single track spur to serve one (switcher) train per day at a speed of 4 miles per hour. The cost estimate is $5,000 with the cost of the installation charged to the

      applicant. The cost estimate for annual maintenance is $800 with the cost of annual maintenance charged to the applicant.

      
      

   2. The signal installation is to be performed by the applicant and is a "warning sign." The cost of the installation is to be charged to the applicant.

      
      

   3. The application was submitted on February 18, 1977 and received departmental approval on February 21, 1977.

      
      

   4. The parties submitted a joint exhibit which is the letter from the Respondent, Seaboard Coastline Railroad Company, stating:

      
      

      "Further reference is made to your letter of February 21, 1977, and my reply of

      February 25 which had to do with application of McArthur Farms, Inc., for a crossing at grade of existing 15th Street by an industrial spur track at Okeechobee, Fla.

      
      

      This Company will have no objections to this proposal with the understanding that all ex- pense in connection therewith, including cost of signals or other warning devices which may be required, will be assumed by the Industry.

      
      

      Presume we shall be given notice of the hear- ing on this application.

      
      

      Yours very truly,

      
      

      T. B. Hutchenson Assistant Vice President"

      
      

   5. The following statement was made by the attorney for the Respondent, Florida Department of Transportation, and concurred with by the attorney for the applicant:

      
      

      "In summary, Madam Examiner, the applicant made application for a spur line, located between other spur lines, across a two lane road in a rural area. The crossing will be used to service a feed mill. The movements will be in the daytime. There

      are less than 5,000 motor vehicles presently using the two lane roadway, traveling at less than 30 miles per hour. The roadway

      is two lanes.

      
      

      The characteristics of the highway in ques- tion are conducive to manual flagging and stopping of traffic. There will be no night movements of the train. And it meets the factual requirements that fall within an exception to any requirement for active signalization inasmuch as the exception within which it falls is in the afore cited

      provision of the Florida Administrative Code. (Chapter 14-46.03(3)(g)2., F.A.C.)

      
      

      The applicant will pay for the installation of the crossing and the necessary cross-bucks as minimum signalization, and there will be provided manual flagging for the crossings.

      
      

      So need has been established, safety pre cautions have been arranged and the crossing itself falls within the exceptions to active signalization."

      
      

   6. The Hearing Officer further finds:

      
      

      1. The need has been established for the crossing.

      2. Safety precautions needed have been arranged.

         
         

         CONCLUSIONS OF LAW

         
         

   7. Section 338.21(3), Florida Statutes, provides:

      
      

      "(3) The department shall have regulatory au- thority over all public railroad crossings in the state, including the authority to issue a permit for the opening and closing of such crossings."

      
      

   8. The need has been established inasmuch as the crossing will serve an industry. The proposed safety devices have been approved by the Florida Department of Transportation.

   9. Rule 1446.03(3)(g)2., Florida Administrative Code, provides: "(g) Exceptions

      * * *

      2. A new (opening) grade crossing over an industrial spur track may be considered for a delay in the installation of active grading crossing traffic control devices when the train movements are two trains per day or less, provided that the operating railroad company specifies that the grade crossing will be manually flagged and the Department determines that the characteristics of the highway traffic is conducive to stopping action by a flagman; (e.g.; highway is 2 lanes or less, less than 5,000 ADT, less

      than 30 mph operating speed and, if train movements are at night the grade crossing must be illuminated.)"

      
      

   10. The parties have stipulated that the subject crossing adheres to the requirements of this rule.

RECOMMENDATION

Grant the permit upon the applicant's submitting an agreement with the Respondent railroad for the installation of the crossing and the signalization.

DONE and ORDERED this 15th day of September, 1977, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Harry K. Bender, Esquire Nicholson, Howard, Brawner & Lovett

131 Dade Federal Building

119 East Flagler Street Miami, Florida 33131

Eugene R. Buzard, Esquire

Seaboard Coastline Railroad Company

500 Water Street Jacksonville, Florida 32202

Docket for Case No: 77-001151

Orders for Case No: 77-001151