STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6473

)

JAMES D. YOUNG, PRESIDENT, ) APOSTOLIC LIGHTHOUSE MISSION, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on April 29, 1994, in Key West, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties were as follows:

APPEARANCES

For Petitioner: Paul Sexton, Esquire

Assistant General Counsel Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

For Respondent: Edward W. Horan, Esquire

Horan, Horan & Esquinaldo 608 Whitehead Street

Key West, Florida 33040 STATEMENT OF THE ISSUES

The basic issues in this case concern whether the Respondent is required to obtain a permit for access from its property to U.S. Highway #1 and whether, if the Respondent fails to obtain a permit, the connection between Respondent's property and U.S. Highway #1 should be closed.

PRELIMINARY STATEMENT

On August 23, 1993, the Petitioner provided notice to James D. Young, as President of Apostolic Lighthouse Mission, Inc., that, pursuant to Sections 335.182(1) and 335.187(1), Florida Statutes, the Department was initiating action to require that a permit be obtained for the connection in question. The written Notice went on to state that if a permit was not obtained, the connection "may be closed pursuant to Fla. Stat. Section 335.1825(3), and Florida Administrative Code, Rule 14-96.012." The Notice further indicated that the Department was taking this action "because a significant change has occurred

in the use, design or traffic flow of the connection and because the Department has determined that your existing connection causes a safety or operation problem on the State Highway System."

At the time of the formal hearing on April 29, 1994, the Petitioner, in its opening statement, indicated that it was arguing for closure of the connection due to safety concerns and the fact that subsequent submissions to the Respondent and the Hearing Officer had widened the scope of the issues to be presented at the formal hearing. The Respondent moved that the issues in the hearing be limited to those outlined in the notice to Apostolic Lighthouse Mission, Inc., of August 23, 1993, and that the matter at issue in the formal hearing should only be that of whether the Respondent should be required to apply for a permit for the subject connection. The Hearing Officer granted the Respondent's motion on the basis that due process would not be afforded to the Respondent if the issues were to be expanded beyond those set forth in the notice of August 23, 1993.

At the formal hearing the Petitioner presented the testimony of six witnesses. The Respondent presented the testimony of its President and five other witnesses. Both parties offered several exhibits. 1/ At the conclusion of the formal hearing the parties requested, and were granted, ten days from the filing of the transcript within which to file their proposed recommended orders. The transcript was filed with the Hearing Officer on May 16, 1994. On May 26, 1994, the Petitioner filed a timely proposed recommended order containing proposed findings of fact and conclusions of law.

On June 3, 1994, the Respondent filed a motion seeking an extension of time until June 10, 1994, within which to file its proposed recommended order.

Grounds for the motion were that the Respondent had not received a copy of the transcript and had not been notified that the transcript had been filed. By order dated June 7, 1994, the Respondent was allowed until June 10, 1994, within which to serve its proposed recommended order. On June 9, 1994, the Respondent served its proposed recommended order, which was received and filed on June 13, 1994. The parties' proposed recommended orders have been carefully considered during the preparation of this Recommended Order. Specific rulings on all proposed findings of fact submitted by all parties are contained in the Appendix hereto.

FINDINGS OF FACT FACTS BASED ON STIPULATION OF PARTIES

1. The Respondent, Apostolic Lighthouse Mission, Inc., owns property immediately adjacent to and south of State Road 5, U.S. Highway #1, at approximately Mile Marker 30.5 with said property being recorded at Book 864, Page 183 of the Official Records of Monroe County, Florida.

   
   

2. Ingress and egress to Respondent's property as well as to the vending area for the Big Pine Key Flea Market is effected through the use of an existing connection to State Road 5.

   
   

3. The Big Pine Key Flea Market is open on a seasonal basis between the months of October and May on weekends, and normally operates between 8:00 a.m. and 2:00 p.m. on Saturdays and Sundays.

   
   

4. The Big Pine Key Flea Market has been in existence for a period of more than one year prior to July 1, 1988.

5. For a period of more than one year prior to July 1, 1988, the existing connection has been used (and continues to the present to be used) primarily to gain access to the Big Pine Key Flea Market.

   
   

   FACTS BASED ON EVIDENCE ADDUCED AT HEARING

   
   

6. During periods when the Flea Market is not operating, the subject connection has been used on a regular basis for church members to get to their activities, to get to a nursery, and for ingress and egress for those owning or visiting other properties to the south of the Respondent's property.

   
   

7. The connection between the Respondent's property and State Road 5, U.S. Highway #1, has been in continuous use since 1982.

   
   

8. The Big Pine Key Flea Market has been utilizing the subject connection through Respondent's property since it began operating in 1982.

   
   

9. The operation of the Big Pine Key Flea Market significantly impacts the traffic on State Road 5, U.S. Highway #1. For reasons that are not explained in the record of this case, the traffic impact is much greater on Saturdays than on Sundays.

   
   

10. State Road 5, U.S. Highway #1, is the sole primary highway for the entire Keys. It is the only route from Key to Key. There are center left-turn lanes at the intersection of Chapman Street and State Road 5. In the Big Pine Key area State Road 5 is a two-lane road and it has no auxiliary lanes in the vicinity of the Flea Market. Southbound traffic on State Road 5 seeking to turn into the Big Pine Key Flea Market must turn left, and in doing so obstructs cars attempting to travel further south when there is a delay in making the left turn. Northbound traffic seeking to turn into the Flea Market must turn right and in doing so obstructs cars attempting to travel further north by slowing down to enter the unpaved entrance to the Flea Market. Cars attempting to travel further north are also obstructed when northbound cars stop to allow southbound drivers to make left turns into the Flea Market.

    
    

11. During the periods of the worst traffic congestion in the vicinity of the Big Pine Key Flea Market law enforcement vehicles and other emergency response vehicles are impeded in their ability to move quickly through the congested area. 2/ This potential for delay of a law enforcement or other emergency response has been a concern since the Big Pine Key Flea Market first opened in 1982.

    
    

12. During the periods of the worst traffic congestion in the vicinity of the Big Pine Key Flea Market there are long lines of stop-and-go traffic, sometimes stretching a mile or more from the Flea Market. Episodes of stop-and- go traffic increase the likelihood of low-speed rear-end collisions between motor vehicles.

    
    

13. The largest number of visitors to the Big Pine Key Flea Market and the greatest amount of traffic generated to Flea Market property occurred in the years of 1987 and 1988.

    
    

14. The traffic conditions on State Road 5, U.S. Highway #1, in the vicinity of the Respondent's property were either at their worst in the mid to late 1980s or have remained the same during the existence of the Flea Market at its present location.

15. There have been no changes of use in the Respondent's property, including land, structures, or facilities, nor has there been any expansion of the size of structures or facilities.

    
    

16. There has been no evidence presented which would establish an increase in trip generation of the Respondent's property exceeding 25 percent more trip generation and exceeding 100 vehicles per day.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57, Florida Statutes.

    
    

18. In 1988, the Florida Legislature enacted the "State Highway System Access Management Act," which is codified at Sections 335.18 through 335.188, Florida Statutes. Section 335.181(2)(a), Florida Statutes, reads as follows:

    
    

    (2) It is the policy of the Legislature that:

    1. Every owner of property which abuts a road on the State Highway System has a right to reasonable access to the abutting state highway but does not have the right of unregulated access to such highway. The operational capabilities of an access connection may be restricted by the department. However, a means of reasonable access to an abutting state highway may not be denied by the department, except on the basis of safety or operational concerns as provided in s. 335.184.

       
       

19. With regard to unpermitted connections in existence at the time of the enactment of the "State Highway System Access Management Act," Section 335.187(1), Florida Statutes, states:

    
    

    1. Unpermitted connections to the State Highway System in existence on July 1, 1988, which have been in continuous use for a period of 1 year or more shall not require the issuance of a permit and may continue to provide access to the State Highway System. However, the department may require that a permit be obtained for such a connection if a significant change occurs in the use, design, or traffic flow of the connection. If a permit is not obtained, the connection may be closed pursuant to s. 335.1825(3).

       
       

20. At Section 335.182(3)(b), Florida Statutes, the term "significant change" is defined as follows:

    
    

    1. "Significant change" means a change in the use of the property, including land, structures or facilities, or an expansion of the size of the structures or facilities causing an increase in the trip generation of the property exceeding 25 percent more trip generation (either peak hour or daily) and exceeding 100 vehicles per day more than the existing use.

21. Application of the foregoing statutory provisions to the facts in this case leads to the conclusion that, by operation of Section 335.187(1), Florida Statutes, the Respondent is entitled to continued access to State Road 5, U.S. Highway #1, by means of its preexisting unpermitted connection unless and until "a significant change occurs in the use, design, or traffic flow of the connection." There has been no "significant change" within the meaning of Section 335.182(3)(b), Florida Statutes. Therefore, the Department of Transportation is without authority to prevent the Respondent's access to State Road 5, U.S. Highway #1, and is without authority to require the Respondent to obtain a permit.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Department of Transportation issue a Final Order in this case concluding that the Respondent is entitled to continued access to State Road 5, U.S. Highway #1, and that the Respondent is not required to obtain a permit.

DONE AND ENTERED this 29th day of August 1994 in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 29th day of August 1994.

ENDNOTES

1/ The disposition of all exhibits is noted in the transcript of the proceeding.

2/ There is not, however, any evidence in this record of any serious consequences having resulted from delays of law enforcement or other emergency vehicles.

APPENDIX

The following are the specific rulings on all proposed findings of fact submitted by all parties.

Findings submitted by Petitioner:

Paragraph 1: First and second sentences accepted. Third sentence is rejected as irrelevant to the issues in this case. (It is also noted that the evidence is insufficient to show that there is reasonable access to the Flea Market property via Chapman Street.)

Paragraph 2: First, second, and third sentences accepted in substance, with a number of subordinate and unnecessary details omitted. Fourth, fifth, and sixth sentences rejected as subordinate and unnecessary details.

Paragraph 3: Accepted in substance.

Paragraph 4: First sentence accepted in substance. Second sentence rejected as irrelevant. Third and fourth sentences rejected because only support in the record is hearsay that would not be admissible over objection in a civil action.

Paragraph 5: Rejected as subordinate and unnecessary details in view of the dispositive issues in this case.

Paragraph 6: Rejected as in large part contrary to the greater weight of the evidence. Also, much of what is proposed here is not supported by persuasive competent substantial evidence. In this regard it is noted that the evidence in this case about traffic flow on State road 5 in the vicinity of the Big Pine Key Flea Market was for the most part anecdotal and approximate with some occasional hyperbole. There was nothing scientific or specific.

Paragraph 7: Rejected for the reasons discussed immediately above and for the additional reason that the evidence of a "direct linkage" is open to question. The Flea Market is open on both Saturday and Sunday, but the problematic traffic delays usually occur only on Saturdays. A scientific traffic study might reveal whether there were other factors contributing to the Saturday traffic delays.

Paragraph 8: Rejected as subordinate and unnecessary details and as, at least in part, contrary to the greater weight of the evidence.

Paragraph 9: Rejected as not supported by persuasive competent evidence and as being to some extent contrary to the greater weight of the evidence.

Paragraphs 10 and 11: The essence of these two paragraphs has been accepted, but most of the details have been omitted as subordinate and unnecessary.

Paragraph 12: First sentence is rejected as being supported only by hearsay that would not be admissible over objection in a civil action. Second, third, and fourth sentence are rejected as subordinate and unnecessary details, which are to some extent speculation and conjecture.

Paragraphs 13, 14, 15, 16, and 17: Rejected as subordinate and unnecessary details.

Paragraphs 18 and 19: Rejected as subordinate and unnecessary details and as also irrelevant to the issues in this case.

Paragraphs 20 and 21: Rejected as constituting argument and subordinate and unnecessary details.

Paragraph 22: Rejected as subordinate and unnecessary details and as not fully supported by persuasive competent substantial evidence.

Paragraph 23: Rejected as subordinate and unnecessary details.

Paragraph 24: Rejected as subordinate and unnecessary details and as irrelevant to the issues in this case.

Findings submitted by Respondent.

All of the findings proposed by the Respondent have been accepted in substance, although some details have been omitted as subordinate and unnecessary and some details have been added in the interest of accuracy.

COPIES FURNISHED:

Paul Sexton, Esquire Assistant General Counsel Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

Edward W. Horan, Esquire Horan, Horan & Esquinaldo 608 Whitehead Street

Key West, Florida 33040

Ben G. Watts, Secretary Department of Transportation ATTN: Eleanor F. Turner Haydon Burns Building

605 Suwannee Street, MS #58

Tallahassee, Florida 32399-0450

Thornton J. Williams, General Counsel Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-006473

Orders for Case No: 93-006473