STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 79-925T

)

MARION COUNTY, FLORIDA, )

(S. R. 314), )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, in Lake City, Florida, on June 12, 1979. The parties stipulated to an extension of time for submission of their proposed findings of fact and to the entry of the Recommended Order within thirty (30) days subsequent to filing of their proposed findings of fact. These excellent proposed findings were received on July 31, and August 1, 1979.

The parties stipulated that the portion of State Road 314 at issue was the southern one and one-half miles closest to the intersection of State Road 314 and State Road 340.

The issues as they developed at the hearing were two-fold. The primary issue of fact was whether the foundation of the subject section of road was in a physical condition commensurate with contemporary roads of like age and existing functional classification within Marion County, Florida. The issue of law was whether the nature of the foundation was relevant under Section 335.04, Florida Statutes, in light of the language requiring the Department of Transportation to resurface roads subject to transfer.

APPEARANCES

For Petitioner: Philip S. Bennett, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

For Respondent: Preston T. Everett, Jr., Esquire

County Attorney, Marion County Post Office Box 1030

Ocala, Florida 32670 FINDINGS OF FACT

1. The portion of State Road 314 in issue is stipulated to be the southern one and one-half miles closest to the intersection of state Road 314 and state Road 340.

2. The portion of the road in question was resurfaced in May of 1978. After being resurfaced, the road had an adjusted rating of 90 out of a possible

   100 in the flexible pavement condition survey.

   
   

3. Subsequent to the resurfacing of this portion of the road, surface cracks developed which were repaired by the Department of Transportation. Marion County asserts that these surface cracks indicate that the road's foundation does not meet the standards stated in Section 335.04, Florida Statutes, which constitute a condition precedent to transfer of the road to Marion County by the Department of Transportation.

   
   

4. The nature of the road's foundation was determined from bore samples taken by personnel of Marion County. This information is summarized in Respondent's Exhibit 1. The standards for roads of the type of State Road 314 in 1950, when it was reconstructed, were not ascertainable. However, the standards for foundations in 1966, over ten (10) years after State Road 314's construction, were six (6) inches of limestone on a good natural substrata or twelve (12) inches of stabilized limestone over a poor surface. It was generally accepted that the 1966 standards exceeded those of 1950. The substrata on the one-half mile portion of State Road 314 in question is of poor quality. The foundation of State Road 314 at the location of core samples #1 and #3 met the 1966 standards for roads with poor substrata. The foundation alone at the location of core sample #2 did not meet the 1966 standards; however, the additional asphalt added to the paved surface of this portion of the road in combination with the existing foundation does meet the 1966 standards.

   
   

5. The road in question was compared with other roads within Marion County, State Road 316 and State Road 364. The portion of State Road 314 in question is in a physical condition commensurate with State Roads 316 and 364, which are contemporaneous roads of like age and existing functional classification. The foundation of the section in question of State Road 314 is in a physical condition equal to or exceeding roads of like age and functional classification.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Department of Transportation argues that Section 335.04, Florida Statutes, does not require the Department of Transportation to assume any responsibility for repair of a road's foundation. Its argument is based upon the grounds that Section 335.04 only requires the Department to resurface roads. This interpretation of the section is strained, because the section requires that roads subject to reclassification be brought into a physical condition commensurate with contemporary roads of like age and functional classification within the county, and because road resurfacing presumably includes necessary modifications to the underlying substructure to be repaired. The Department's argument that resurfacing suffices to upgrade a road with an inadequate foundation is analogous to covering up rotten wood with a coat of paint.

   Section 335.04, supra, speaks in terms of "physical condition," not surface condition.

   
   

7. The facts, however, indicate that the portion of State Road 314 in question is in a physical condition equal to the 1966 standard, which exceeded prior standards, and therefore meets the standards set forth in Section 335.04, supra, of being in a physical condition commensurate with contemporary roads of like age and existing functional classification within Marion County.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the portion of State road 314 in question be transferred to Marion County by the Department of Transportation.

DONE and ORDERED this 24th day of August, 1979, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1979.

COPIES FURNISHED:

Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Preston T. Everett, Jr., Esquire County Attorney, Marion County Post Office Box 1030

Ocala, Florida 32670

Docket for Case No: 79-000925

Orders for Case No: 79-000925