STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BP OIL CP COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4724RU

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled cause on August 23, 1990, in Tallahassee, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Susan S. Oosting, Esquire

3000 Independent Square

Jacksonville, FL 32202

For Respondent: Charles Gardner, Esquire

Department of Transportation 605 Suwannee Street

Tallahassee, FL 32399-0450 STATEMENT OF THE ISSUES

At issue is whether the stated reason contained in Respondent's correspondence to Petitioner denying the access permit sought by Petitioner constitutes an invalid rule. If Respondent's denial is determined to constitute a rule, secondary issues to be resolved include whether Respondent failed to follow applicable ruling making procedures required by Section 120.54, Florida Statutes, with regard to rule promulgation; and whether the alleged rule is an invalid exercise by Respondent of delegated authority.

PRELIMINARY STATEMENT

On July 30, 1990, Petitioner filed a Petition To Determine The Invalidity Of A Rule with the Division Of Administrative Hearings pursuant to provisions of Section 120.56, Florida Statutes. Subsequently, the matter was set for hearing before the undersigned on August 23, 1990.

At the final hearing, Petitioner presented the testimony of one witness.

Respondent presented the testimony of one witness and two evidentiary exhibits. Both parties joined in presenting one composite exhibit. Counsel for both

parties stipulated to waiver of the provisions of Section 120.56(3), Florida Statutes, requiring the issuance of a final order within 3() days of the final hearing.

The transcript of the final hearing was filed with the Division Of Administrative Hearings on September 5, 1990. Proposed final orders were submitted by the parties and are addressed in the appendix to this final order.

FINDINGS OF FACT

1. Respondent is the state agency responsible for regulation and control of vehicular access, including connections

   for ingress and egress, to the State Highway System.

   
   

2. Respondent has adopted, pursuant to Rule 14-15.013, Florida Administrative Code, the publication entitled Policy and Guidelines for Vehicular Connections to Roads on the State Highway System, as a rule. The parties stipulated at final hearing that the validity of this rule, inclusive of Respondent's policy as codified in the publication, is not at issue in these proceedings.

   
   

3. Petitioner is the owner of certain real property abutting State Road 5, Phillips Highway, in Duval County, Florida. Petitioner proposes to construct a commercial establishment on the property consisting of a gasoline station, inclusive of a 700 square foot area for the sale of foodstuffs, and a "drive through" car wash for gasoline customers. The current posted speed limit on State Road 5 in the area where Petitioner's property abuts that highway is 55 miles per hour (mph).

   
   

4. On March 19, 1990, Petitioner applied to Respondent for a permit for driveway access to State Road 5, a part of the state highway system, from Petitioner's property.

   
   

5. By letter dated June 5, 1990, Respondent's representative denied Petitioner's application for a singular direct access driveway and required that all ingress and egress between Petitioner's property and State Road 5 be accomplished through the joint use of another proposed driveway of an adjacent property owner. The adjacent property driveway borders Petitioner's property. In the letter, Respondent's representative stated:

   
   

   This special requirement is due to the Department's [Respondent's) policy that the spacing of access drives on a state road should be based on the operating posted speed

   (i.e. for 50 mph, the spacing is 275 feet from

   P.T. to P.C.). Currently a maximum speed of

   55 mph is posted on State Road 5 in this area.

   
   

6. The current version of the publication, Policy and Guidelines for Vehicular Connections to Roads on the state Highway System, adopted by Respondent in Rule 14-15.013, Florida Administrative Code, provides on page 33 of the publication that "the desireable recommended spacing along arterial highways between driveways" should be based upon speed limits where feasible. This statement is followed by a listing of recommended distances between access driveways based upon speed limits, ranging from 20 mph to 50 mph, for vehicular

   traffic. As speed limits increase, the spacing between driveways also increases. The recommended spacing for access driveways, where the arterial highway speed limit is 50 mph, is 275 feet.

   
   

7. The text of the publication adopted by Respondent also acknowledges on page 33 that "it may be difficult or impossible to achieve desireable recommended spacing" for access driveways. In this regard, the publication establishes minimal distances between driveways based upon classification of the connection being sought. On page 29, a minimum distance of 150 feet, and a standard of 275 feet, is required between driveways meeting the classification of the roadway connection sought by Petitioner, a class 3 rural connection.

   
   

8. While Respondent's formal rule policy establishes minimum required distances between driveways, those minimums are qualified to include greater distances, based upon established speed limits, where feasible. In Petitioner's case, that greater distance, based on the existing speed limit, amounts to a requirement of 275 feet between access driveways. The application by Respondent's representative of this requirement of the rule effectively denies the permitting of the access driveway sought by Petitioner.

   
   

9. Respondent's formally promulgated rule policy for the approval of applications seeking access driveways to the state highway system does not conflict with the stated basis for denying Petitioner's application, i.e., existing vehicular speed limits. Nevertheless, Respondent's policy or approval or denial of such applications is not based solely on existing speed limits and the rule contemplates consideration of other factors, e.q., the type of project for which access is sought; the estimated number of vehicles which will use the project; possible access alternatives; and whether the project is located on an urban or rural road.

   
   

10. The spacing table, based on existing speed limits and incorporated in the rule, is not a contradiction to other parts of the validly adopted rule's minimal spacing requirements. Further, utilization of that one criterion by Respondent's lay representative and his failure to remark on other criteria, in a less than artfully drawn denial letter, fails to demonstrate that the agency has decided to apply one criterion to the exclusion of others; at least to the extent of establishing that the new policy is being substituted, un-promulgated, for the existing criteria. The stated grounds for denial of the requested access does constitute an isolated incident which, in a proceeding pursuant to Section 120.57, Florida Statutes, could be challenged as a misapplication of criteria through failure to examine the application in the context of all the rule's criteria.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.54(4)(a), Florida Statutes.

    
    

12. Petitioner bears the burden of establishing entitlement to the relief it seeks. Florida Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 779 (Fla. 1st DCA 1981).

    
    

13. Agencies are to be accorded wide discretion in the interpretation of a statute which it administers. That interpretation will not be overturned unless clearly erroneous and without the range of possible interpretations. The Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So. 2d 515 (Fla. 1st DCA 1984).

14. Petitioner's argument that Respondent's denial letter, stating that distances between access driveways should be based upon established speed limits, amounts to the application of a table of theoretically desireable spacing in contradiction to the validly adopted rule's minimal spacing requirements, is unpersuasive. Notably, the reference in the denial letter, to spacing between driveways on the basis of established speed limits, appears to be a paraphrase of a portion of the very rule which Petitioner stipulates is not the subject of any challenge in this proceeding.

    
    

15. The allegedly illicit rule that Petitioner challenges is, absent a showing of Respondent's general application of such a policy, merely the application by Respondent's representative of one of the rule's driveway spacing criteria; the spacing table set forth in the publication entitled Policy and Guidelines for Vehicular Connections to Roads on the State Highway system, formally adopted by Respondent pursuant to Rule 14-15.013, Florida Administrative Code. Petitioner has failed to prove the existence of a statement of general applicability applied and intended to be applied with the force of a rule of law. State, Department of Administration v. Stephens, 344 So.2d 290, 296 (Fla. 1st DCA 1977); McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). Whether the rule has been correctly applied by Respondent's representative is an issue to be resolved elsewhere, i.e., formal proceedings conducted pursuant to Section 120.57, Florida statutes, where both parties would have an opportunity to consider permit rights in the context of all applicable rule criteria.

Based on the foregoing, it is hereby

ORDERED that a single interpretation by one official of an existing rule in which, by his correspondence to Petitioner, he ignores major portions of the rule, is not agency policy; and this attempt to over turn agency policy is not a rule. Therefore, the petition is denied.

DONE AND ORDERED this 21st day of September, 1990, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-4724RU

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.

Petitioner's Proposed Findings.

1. Rejected, unnecessary.

2.-5. Adopted in substance, though not verbatim.

6. Rejected, unnecessary. 7-8. Adopted in substance. 9-18. Rejected, unnecessary.

19-21. Rejected, not supported by weight of the evidence.

22. Adopted as to 1st sentence, remainder rejected as unnecessary or not supported by weight of the evidence.

Respondent's Proposed Findings: 1-2. Addressed.

3-5. Rejected, unnecessary.

6-7. Adopted by reference.

COPIES FURNISHED:

Charles Gardner, Esquire Department of Transportation 605 Suwannee street

Tallahassee, FL 32399-0450

Susan S. Oosting, Esquire 3000 Independent Square

Jacksonville, FL 32202

Liz Cloud, Chief

Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, Florida

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, FL 32399-0250

Thornton J. Williams, Esq. General Counsel

Department of Transportation 605 Suwannee Street

Tallahassee, FL 32399-0450

Ben G. Watts Secretary

Haydon Burns Building 605 Suwannee Street

Tallahassee, FL 32399-0458

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

Docket for Case No: 90-004724RU

Orders for Case No: 90-004724RU