STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF TRANSPORTATION, )
)
Petitioner, )
)
vs. ) CASE NO. 86-1709
)
PARADYNE CORPORATION, )
)
Respondent, )
and )
) IRWIN H. MILLER, SONYA MILLER, ) PHILLIP BENJAMIN and MARILYN ) BENJAMIN, )
)
Intervenors. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on September 18, 1986, in Tampa, Florida. The issues for determination in this proceeding are whether Paradyne Corporation's connection permit should be revoked and its access to the connection denied for the reasons that (1) Paradyne failed to construct the connection as permitted and/or (2) a material redesign of the existing connection is required.
APPEARANCES
For Petitioner: Vernon L. Whittier, Esquire
Haydon Burns Building Mail Station 58
Tallahassee, Florida 32301-8064
For Respondent: John R. Bush, Esquire
Bush, Ross, Gardner, Warren & Rudy
220 South Franklin Street Tampa, Florida 33602
For Intervenors: Bruce Marger, Esquire
Gardner, Reams, Marger, Davis, Piper & Bartlett, P.A.
1700 66th Street North, Suite 501 Post Office Drawer 41600
St. Petersburg, Florida 33743
INTRODUCTION
By a document entitled "Alleged Violation of the Florida Statutes and Notice to Show Cause," the Department of Transportation charged the Paradyne Corporation with two violations of Section 335.18, Florida Statutes, and ordered Paradyne to either comply or show cause why its connection permit should not be revoked and access denied to the connection. Specifically, the violations charged are "failure to construct highway connection as permitted" and "material redesign of existing highway connection is required to comply with statutory standards." The Department cites Sections 335.18(3) and 335.18(1), Florida Statutes, as its respective authority for these charges. Paradyne requested an administrative hearing and the Millers and Benjamins, adjoining property owners, were granted leave to intervene over the objection of Paradyne.
At the hearing, the Department of Transportation (DOT) presented the testimony of Gerald Lott, a District Traffic Operations Engineer for the DOT; and Alexander S. Byrne, the Vice-President and Director of Transportation Services for the DSA Group of architects, engineers and planners. DOT's Exhibits 1 through 4 were received into evidence.
The Paradyne Corporation (Paradyne) presented the testimony of John Mikelonis, its Facilities Manager; Gerald Lott; and Levi Courtney, Jr., a Maintenance Engineer with the DOT. Objections to the testimony of Richard Gannaway and Thomas N. Pridgen were sustained, and that testimony was proferred. Paradyne's Exhibit 1 was received into evidence. The intervenors presented the testimony of Gerald Lott.
Subsequent to the hearing, each of the parties submitted proposed findings of fact and proposed conclusions of law. The factual findings proposed by the parties have been accepted and/or incorporated in this Recommended Order, except as noted in the Appendix hereto.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
State Road Number 688, also known as Ulmerton Road, is a major east- west arterial road in Pinellas County. The Paradyne Corporation owns property south of Ulmerton Road and the intervenors, the Millers and the Benjamins, own property located immediately adjacent and to the west of the Paradyne property. Located on the Paradyne property are six or eight commercial buildings, parking lots and a road which runs between Ulmerton Road and 126th Avenue, a county road. At the present time Paradyne employs approximately 1,700 persons who park approximately 1,400 cars per day in the parking lots located on Paradyne's property.
On a form entitled "State of Florida Department of Transportation Driveway Permit," Paradyne requested "permission for the construction of a driveway(s) on Department of Transportation right-of-way" at State Road No. 688, Section No. 15120, Mile Post No. 6.350 in Pinellas County. The request was approved by the Department of Transportation on June 6, 1981. Attached to the approved permit were various conditions and stipulations and a sketch or drawing of the proposed construction.
Paradyne constructed the connection with the Ulmerton Road light- controlled intersection, as well as a private road leading to it, in a manner whereby only vehicles utilizing the Paradyne property would have access to the intersection. The actual location or configuration of the connection on the State's right-of-way deviated somewhat from the location or configuration shown on the sketch or drawing attached to the permit. The permit issued to Paradyne in 1981 did not include any provisions regarding or sketches illustrating an access road on private property.
The property owners adjacent to Paradyne, the intervenors herein, also desired a means of access to the light- controlled intersection on Ulmerton Road. Paradyne refused to allow intervenors to use the private road on its property. The intervenors' request to DOT for a separate connection to Ulmerton Road was denied for safety reasons. The DOT also denied the intervenors' request that a cease and desist order be issued that would require Paradyne to allow the intervenors the use of Paradyne's road. DOT's reason for refusing such a request was that it was beyond the jurisdiction of the DOT to order a 250- foot access road over the parties' private property. Apparently, the construction of a 250-foot joint use road was the subject of preliminary discussions between Paradyne and persons who had previously held an option to purchase the intervenors' land. However, as noted above, the permit was issued only to Paradyne and there is no mention therein of a 250-foot joint use drive on the private property of either Paradyne or the intervenors.
Having failed in their attempts with Paradyne and the DOT to gain access to the Ulmerton Road light-controlled intersection, the intervenors filed an action in the Pinellas County Circuit Court seeking a declaratory judgment and a mandatory injunction requiring Paradyne to participate with them in the construction of a 250-foot joint use drive. The Circuit Court ordered Paradyne to so participate in accordance with the driveway permit and the DOT drawing.
On appeal to the District Court of Appeal, Second District, it was concluded that there was substantial evidence to support the Circuit Court's finding that DOT intended that the owners of both parcels would have access to the light- controlled intersection. However, the appellate court found
"that the circuit court violated due process of law because it did not have authority to order appellant to participate with appellees in the construction of the 250-foot-connector road. The permit, as issued, did not require a 250-foot connector road.
The circuit court is only authorized
to enforce the DOT permit under section
120.69. The authority to regulate connectors to state roads has been delegated to DOT pursuant to section 335.18, Florida Statutes (1981). Therefore, we reverse and remand to the circuit court to enforce the DOT permit pursuant to section 120.69, so both parcels will have access to the light-controlled intersection. Upon remand, DOT may intervene as a matter of right pursuant to section 120.69(1)(d), or be joined as an indispensable party based on its
duties under section 335.18: It is possible that DOT will find that the intersection, as designed, does not meet the standards in section 335.18, Florida Statutes (1981). In this event, DOT should be allowed to re- design the connector road to meet the standards of section 335.18, and to have minimal impact on the property rights of appellant and appellees.
In the event it becomes impossible to provide the parties access to the intersection as contemplated by DOT's permit, DOT has authority under section 335.18(4) to deny access and revoke the permit.
Affirmed in part and reversed in part and remanded with instructions."
Paradyne Corporation v. Miller, 455 So.2d 432, at 434 (Fla. 2nd DCA, 1984).
On remand, the DOT intervened in the proceeding. By Order filed on December 23, 1985, the Circuit Court of Pinellas County noted that the intervenors herein and the DOT sought to present a redesign of the intersection and connector road and that Paradyne objected. The Court denied the proceedings sought by the intervenors herein and the DOT, concluding that
"this hearing is premature in view of the fact that a new permit must be issued for a material change of the intersection, and that Defendant (Paradyne), in the issuance of a new permit has all the rights of objection and administrative process
that it had under the first permit..."
Irvin E. Miller, et al v. Paradyne Corporation, et al, Case No. 82-3441-8 (Circuit Court for Pinellas County, December 23, 1985).
The instant "Alleged Violation of the Florida Statutes and Notice to Show Cause" is dated March 31, 1986. That document charges that the highway connection constructed by Paradyne is in violation of Section 335.18(3) and 335.18(1) for the reasons that:
it was not constructed in accordance with the permit design plan to provide joint access to Paradyne and the intervenors' adjoining properties, and (b) a material redesign of the existing connection in accordance with an attached drawing is required due to disruption of traffic and safety hazards caused by the greatly increased numbers of vehicles using the road connection. Paradyne was ordered to comply or show cause why its connection permit should not be revoked and access denied to the connection.
On the south side of Ulmerton Road, the DOT's right-of-way extends 38 feet from the berm of Ulmerton Road. There is no dispute over the fact, and petitioner so admits, that the connection Paradyne constructed on the State's right-of-way was not in accordance with the drawing attached to its 1991 permit. However, the DOT presented no evidence that it now desires Paradyne to alter the connection so as to be in compliance with the 1981 permit drawing.
In late 1984, after the remand from the District Court of Appeal, Second District, the intervenors retained the DSA Group, formerly Diaz-Seckinger & Associates, Inc., to prepare a report on the joint use of improvements at the intersection of Ulmerton Road and the Paradyne entrance. The DSA Group conducted traffic studies and prepared a "Report on Existing Conditions and Joint Use Access Proposal at Ulmerton Road and Entrance to Paradyne." The report recommended a redesign and contained drawings for a major revision of the intersection actually on Ulmerton Road, the connection on the right-of-way and a 250-foot long joint access road on the private property of Paradyne and the intervenors. While DOT employees were consulted regarding this report and its recommendations and had some input during its preparation, there was no showing that Paradyne participated in the report or the recommended redesign of Ulmerton Road, the connection or the joint use drive. Indeed, according to the engineer responsible for the DSA report, the report and redesign were developed and submitted to the intervenors and the DOT
"for their use in meeting and negotiating with the Paradyne. At the time we took the contract we were under the opinion that they were hopefully resolving things with the property owners and they wanted something to go
to Paradyne as an offering of one alternative, frankly, with the expectation that there may be something coming back saying "Well, we need to modify this and this."
As it turns out, this plan as of a year ago or over a year ago, it's the one that stands right now."
(Transcript, pages 98 and 99).
Apparently, the intervenors, prior to commissioning the DSA report, requested the DOT to perform a survey or study. DOT declined to do so on the ground that "this had to do with private drives, private property and it was DOT's position that we did not fund evaluations for access into private development." (Transcript, page 136).
The redesign of the Ulmerton Road intersection and entrance to the Paradyne/Intervenors property, along with the 250-foot joint use road, recommended by the DSA Group is identical to the redesign required under specification (b) of the Notice of Violation and to Show Cause issued by the DOT. The drawing attached to the Notice to Show Cause is the drawing prepared by the DSA Group.
Traffic has increased at the intersection of Ulmerton Road and the entrance to the Paradyne property. The traffic signal in the center of Ulmerton Road allows Paradyne employees traveling westward on Ulmerton to turn south into Paradyne's parking lots, allows exiting employees to turn westward or eastward and also allows traffic exiting from a development known as Tall Pines Estates on the north side of Ulmerton to turn east or west. During two peak traffic flow hours in 1981, 780 vehicles traversed the intersection straight through from east to west, and 235 westbound vehicles turned left or southward into the Paradyne parking lot from Ulmerton Road. In 1985, the through vehicles numbered 1,224 and the left-turning vehicles numbered 379 during the peak traffic hours. It was not established by the testimony and evidence that the increase in through traffic from east to west is the result of any increased activity on the part of either Tall Pines Estates on the north side of Ulmerton or Paradyne on the south side. The increased number of westbound, left-turning vehicles into the Paradyne parking lots causes some backup from the existing stacking lane during the morning and afternoon peak hours, thus causing some congestion on the north or westbound half of Ulmerton Road. The single, existing stacking lane for westbound, left-turning vehicles is approximately 120 to 150 feet long. A survey conducted in late 1984 demonstrated that for the morning peak period, the level of service was an "E", indicating forced flow with traffic backing up. In the afternoon peak period, the level of service was a "D", meaning that drivers had to wait two or three cycles to get through the intersection. The desirable or comfortable level of service is a "C", meaning that the motorist has to stop for only one change of lights. The DOT's minimum accepted design standard in an urban area is a level "D" service. In 1985, the actual accident rate in ratio to the critical accident rate slightly exceeded 1 in the area of the subject intersection.
The recommendations of the DSA Group, and the redesign required by the DOT in its Notice to Show Cause, calls for the construction of a dual or double stacking area, 350 feet in length, for the westbound approach on Ulmerton Road and a widened receiving approach on the property to the south to accommodate the dual left-turning traffic. The plan also calls for two westbound turning lanes out of Paradyne property. The median barrier for westbound traffic on Ulmerton Road would need modification. In addition to the widened entrance on the private property to the south, the DSA design calls for the private access road to be extended to a point 250 feet south, with a fence or curb barrier to control the flow of traffic from Paradyne's parking lots at designated points into the access road. The access road would require approximately 22,700 square feet for a joint use area, with 13,980 square feet located on Paradyne's property and 8,750 square feet located on the intervenors' property. The joint use road could either be maintained as a private road pursuant to an agreement between the property owners or it could, perhaps, be dedicated to public use. There was no evidence as to whether Pinellas County would be agreeable to accepting the dedication and thereby becoming responsible for the road's maintenance.
It is anticipated that this redesign, primarily because of the dual left turn lanes on Ulmerton Road, would improve the level of service in the morning peak hours to a level "D", and in the afternoon peak period to a level "C". The cost for construction on Ulmerton Road is estimated to be $310,000.00 and the cost for the private 250-foot long drive is estimated to be $50,000.000.
In the opinion of the designer of the DSA plan, there is no practical method of design that would allow two separate accesses for Paradyne's and the intervenors' use. The provision of separate accesses would create a five-lead intersection which would cause "even more difficulties in traffic operations."
(Transcript, page 86). The DOT's traffic engineer would not approve the traffic signal operation which would be required if there were separate access roads ingressing and egressing the two properties south of the subject intersection.
All the proposed modifications at the approach to the property south of Ulmerton Road could be located on Paradyne's property. This would cause a slight offset of the intersection and would cause Paradyne to lose some property now used as a parking lot.
CONCLUSIONS OF LAW
The Department of Transportation has the authority to regulate connections to roads on the State highway system. The term "connections" includes "driveways, streets, turnouts, or other means of providing for movement of vehicles to or from loads on the State Highway System." Section 335.18(5), Florida Statutes. Recognizing that such connections can significantly contribute to vehicular accidents, congestion and reduction in traffic-carrying capacity, the Legislature delegated to the DOT the authority and duty to regulate connections by requiring permits prior to their construction or alteration and by redesigning proposed or existing connections. The DOT's authority in this regard, as pertinent to the instant proceeding, is found in Section 335.18(1) and (3), as follows:
"(1) ... If the traffic patterns, points of connection, roadway geometrics, or traffic control devices cause undue disruption of traffic or create safety hazards at existing connections, or are expected to cause such disruption
or hazards at proposed connections, the department has the authority to deny the permit authorized in sub- section (3) or to require redesign of a proposed connection at a specific location or redesign of an existing connection.
(3) A permit from the department
is required prior to the construction or alteration of any connection. The department has the authority to deny access to a road on the State Highway System at the location specified in the permit if the permittee fails to construct or alter the connection in accordance with the permit require- ments."
Thus, it can be seen that permits for construction or alteration of connections are required, that access can be denied for failure to comply with the permit, that the DOT can require a redesign of a proposed connection, and that the DOT itself can redesign an existing connection in the event of undue disruption of traffic or the existence of safety hazards. What is not clear from the statutes is the mechanism for requiring a redesign of an existing connection.
Here, the evidence is undisputed that Paradyne did not construct its connection with Ulmerton Road in accordance with the schematic drawing attached to its original 1981 permit. Thus, the DOT would have the authority to either require compliance with that permit, deny Paradyne access or require a redesign of the project. Compliance with the original permit drawing, while amenable to Paradyne, is not sought in this proceeding by either the DOT or the intervenors.
Instead, the evidence supports the need for a rather major redesign of the intersection on Ulmerton Road and Paradyne's connection with that Road due to the heavy amount of traffic entering and exiting Paradyne's property during peak morning and afternoon traffic periods. It is concluded that the DOT has the authority to require such a redesign due to traffic congestion and possible safety hazards. However, the redesign or alteration that can be required by the DOT is limited to those areas over which the DOT has jurisdiction; to wit: State Road 688 (Ulmerton Road) and the DOT right-of-way. The DOT has no authority to require Paradyne to construct a joint use road or to do anything else on its private property except as it may relate to the traffic conditions or safety features of the State road and its right-of-way. In other words, the DOT may be able to require that the permittee's receiving approach on private property be a certain length, width or configuration so as to allow the lighted intersection to be utilized as designed with regard to the flow of traffic.
This does not mean that the DOT may designate the actual location or specifications of the entire private roadway or require that a neighboring landowner have access to the private road. There was insufficient evidence adduced at the hearing to demonstrate that either traffic congestion or safety hazards dictated any requirements regarding the design of Paradyne's private road other than its width on or near the right-of-way. Neither its location on Paradyne's private property, its length or its use or nonuse by the neighboring property owners was shown to constitute an impact upon traffic or safety considerations.
The nature of the roadway to be located on the private property lying south of Ulmerton Road is simply not within DOT's jurisdiction to determine. This has been recognized by the DOT on several occasions during the long history of this proceeding. The DOT acknowledged that it had no jurisdiction over the private property of Paradyne when it refused the intervenors' request for a cease and desist order and, again, when it declined to fund the study and report that was ultimately prepared by the DSA Group. The DOT permit form itself states that it is a request for "permission for the construction of a driveway(s) on Department of Transportation right of way" at a specific location. Other than through its power of eminent domain, the DOT has not been given the authority to require the joint use of private property or to force joint use agreements upon otherwise unwilling private property owners. Such authority cannot be inferred from the authority bestowed by Section 335.18 to regulate "connections" to State roads.
It may well be, as found by the trial court and the appellate court, that the DOT (and perhaps at one time Paradyne and the intervenors) originally intended that a joint access to the light-controlled Ulmerton Road intersection be shared by both property owners. The location and configuration of the right- of- way connection as depicted on the 1981 permit would allow for joint or dual access. The original permit drawing did not depict a joint use 250-foot road on private property. Thus, while Paradyne may now be required to reconstruct in accordance with the 1981 permit, or have its access revoked or denied for failure to do so, it may not be required, under the guise of the original permit, to construct and share a 250-foot joint use road with its neighboring property owners.
In the alternative, the DOT may require a major redesign of the intersection on Ulmerton Road and Paradyne's connection to that intersection on the DOT's 38-foot right-of- way. Since, according to Section 335.18(3), Florida Statutes, a permit is required for construction work, it would seem that the appropriate manner of accomplishing such a redesign would be for DOT to issue a permit to Paradyne for such purpose. As previously determined, the permit issued may only include work to be accomplished on the State's road and its adjoining right-of- way as well as those specifications pertaining to the length, width or configuration of the receiving approach deemed necessary to ensure that the intersection design functions as intended with respect to the movement of traffic and safety considerations on the State's roads. Should Paradyne refuse to comply with the new permit's requirements within a reasonable period of time, the DOT could only then revoke the permit and deny Paradyne access to Ulmerton Road from its property lying south of said road.
In summary, Paradyne may be compelled by the DOT to alter or reconstruct its connection with the DOT's right-of-way on Ulmerton Road in a manner which will improve traffic conditions and eliminate safety hazards. It may do so by either requiring adherence to the original permit drawings or by redesigning the connection and issuing a new permit for construction on the right-of-way. The DOT may not, however, revoke Paradyne's permit and deny it access on the ground that Paradyne's private roadway leading to that right-of- way connection is not available for the joint use of the adjoining property owners. The DOT may redesign the intersection itself and that part of the
:connection" which falls upon its right-of-way. It may also require that the private roadway leading to that right-of-way meet any specifications necessary to accommodate entering or exiting vehicles in a manner which will prevent undue disruption of traffic and eliminate safety hazards on Ulmerton Road. Beyond that, neither the DOT nor the intervenors may use the DOT's authority to permit or redesign connections to State roads to achieve determinations regarding the use of private property.
Based upon the findings of fact and conclusions of law recited herein, IT IS RECOMMENDED THAT the "Alleged Violation of the Florida Statutes and Notice to Show Cause" be dismissed. IT IS FURTHER RECOMMENDED THAT said dismissal be without prejudice to the Department of Transportation to issue to Paradyne Corporation a new permit specifying the location and design it considers appropriate for Paradyne's connection to Ulmerton Road, said design containing specifications for construction on Ulmerton Road and its right-of-way, as well as any requirements at Paradyne's entrance beyond the DOT's right-of-way deemed necessary to accommodate proper traffic flow and eliminate safety hazards.
Should a new permit be issued, Paradyne should be afforded thirty (30) days within which to indicate its intent to either comply with the new permit terms and conditions or forfeit its access rights to Ulmerton Road.
Respectfully submitted and entered this 4th day of February, 1987, in Tallahassee, Florida.
DIANE D. TREMOR
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1709
The proposed findings of fact submitted by each of the parties have been fully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below:
Petitioner, Department of Transportation
Rejected as irrelevant and immaterial to the issues in dispute.
Respondent, Paradyne Corporation
NOTE: The respondent's proposed "findings of fact" contain many statements which constitute legal argument or restate the legal positions of counsel for the parties. To that extent, those statements are not proper "findings of fact" and are rejected as factual findings.
All but the last sentence is rejected. The documents referenced were not the subject of a proper request for official notice and, therefore, cannot be
considered evidence in this proceeding.
4 and 5. Rejected. Under proper circumstances, as discussed in the conclusions of law, the term "connection" may include more than the DOT right-of-way.
First sentence rejected as contrary to the evidence.
Rejected as irrelevant and immaterial.
Accepted only insofar as it correctly states that the responsibility for cost of construction on Ulmerton Road was
not made an issue in this proceeding.
Intervenors, Miller and Benjamin
NOTE: The intervenors have filed a proposed recommended order which is not separated into "findings of fact" and "conclusions of law." To the extent that proposed factual findings are suggested in said filing, they are accepted with the exception of:
Page 1,
last sentence: Rejected; the document does not
cite Paradyne for refusing the redesign. It simply states that a redesign is required.
Page 4, next to
last paragraph: Rejected as contrary to the
evidence and contrary to the law.
Page 5, 3rd
paragraph: Rejected as erroneous legal
conclusion insofar as "joint access" is intended to encompass
a "joint use road" on private property.
COPIES FURNISHED:
Vernon L. Whittier, Esquire Haydon Burns Building
M.S. 58
Tallahassee, Florida 32301-8064
John R. Bush, Esquire
Bush, Ross, Gardner, Warren & Rudy
220 South Franklin Street Tampa, Florida 33602
Bruce Marger, Esquire Gardner, Reams, Marger, Davis,
Piper & Bartlett, P.A.
1700 66th Street North - 501 Post Office Drawer 41600
St. Petersburg, Florida 33743
Kaye Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION,
Petitioner,
vs. CASE NO. 86-1709
PARADYNE CORPORATION,
Respondent,
and
IRWIN H. MILLER, SONYA MILLER, PHIL LIP BENJAMIN and MARILYN BENJAMIN,
Intervenors.
/
FINAL ORDER
The Record in this proceeding has been reviewed along with the Recommended Order of the Hearing Officer, copy attached. Exceptions to Recommended Order were filed by Petitioner, STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION (Department), Respondent, PARADYNE CORPORATION (Paradyne), and Intervenors, IRWIN H. MILLER, SONYA MILLER, PHILLIP BENJAMIN and MARILYN BENJAMIN (Miller).
The exceptions are considered and addressed in this Order. Respondent's Motion to Strike Intervenor's Exception to Recommended Order filed by Paradyne has been considered. References to the transcript will be made by the use of abbreviation "Tr" followed by the appropriate page number.
In Paragraph 2 of the Respondent's Exceptions to Hearing Officer's Recommended Order, exception was taken to the recommendation which found safety hazards at the subject intersection. Competent, substantial evidence was presented at the hearing to support a finding by the Hearing Officer of safety hazards. (Tr: 74-78, 107-117, 124-129, 134-135).
Respondent also objected that the method of notifying Paradyne by the Department was not in conformity with the Department publication "Policy and Guidelines for Vehicular Connections to Roads on the State Highway System", effective February, 1985. The document sent by the Department to Respondent titled "Alleged Violation of the Florida Statutes and Notice to Show Cause" is a notice of intent of proposed final agency action for notice and waiver purposes. A Complaint seeking license revocation must state with specificity the acts complained of to allow the licensee a fair chance to prepare a defense. Hunter
Department of Professional Regulation, 458 So.2d 842 (Fla. 2nd DCA 1984). Respondent does not complain of lack of notice, but lack of proper notice.
Respondent was properly notified of the issues which were the subject of the hearing. A clear point of entry for substantially affected parties was provided. Further, the subject permit was issued in 1981, and the policy manual was not in effect until 1985.
Respondent's Motion to Strike Intervenor's Exception to Recommended Order has been reviewed. It is acknowledged that no competent, substantial evidence in the record of the instant hearing indicates when the chain link fence was erected. Therefore, the language is not considered by the Department in reaching these conclusions. Other exceptions submitted by each of the parties have been fully considered and are addressed in this Final Order.
CONCLUSIONS OF LAW
The Conclusions of Law in the Recommended Order are accepted in so far as the Hearing Officer concluded that the Department would have jurisdiction to regulate connections to roads on the State Highway System; to revoke the permit and deny access to the highway system for failure to comply with the permit; and to redesign an existing connection. The Department disagrees with the Hearing Officer's legal conclusion that the Department does not have authority to redesign the connector road. To the extent an alteration of the driveway on private property is required in order to assure a safe and efficient connection to the state highway, as a condition of granting the driveway permit, the Department can require construction of the driveway or road in a specific manner in order to facilitate the safe and efficient connection. The Department cannot allow a connection to the state highway system unless the connection is safe both on and off the state highway.
Pursuant to Section 335.18, Florida Statutes, the legislature granted broad authority to the Department to regulate connections to the State Highway System and to permit or deny access as well as to revoke permitted access. Section 335.18, Florida Statutes provides in full:
The department shall regulate connections to roads on the State Highway System, as such connections are a significant contributor to vehicular accidents, congestion, and
reduction in traffic-carrying capacity. If the traffic patterns points of connection, roadway geometric a, or traffic control devices cause undue
d isrupt ion of traffic or create safety hazards at existing connections, or are expected to cause such disruption or hazards at proposed connections, the department has the authority to deny the permit authorized in subsection (3) or to require redesign of a proposed connection at a specific location or redesign of an existing connection.
The rules of the department shall provide for the regulation of connections, which rules shall be based on immediate and anticipated traffic volumes and shall provide for location standards, safety factors,
design and construction standards, traffic control devices, and effective maintenance of the roads.
A permit from the department is required prior to the construction or alteration of any connection. The department has the authority to deny access to a road on the State Highway System at the location specified in the permit if the permittee fails to construct or alter the connection
in accordance with the permit requirements.
The cost of construction or alteration of a connection shall be borne by the permittee, except for alteration a made at the request of and for the con- venience of the department. The permittee, however, shall bear the cost of alteration of any connection which is required by the department due to increased or altered traffic flows generated by changes made
by the permittee in the facilities or nature of business conducted at the location specified in the permit.
As used in this section, the term "connections" means driveways, streets, turnouts, or other means of providing for movement of vehicles to or from road on the State Highway System.
Under Section 335.18, Florida Statutes, the Department has authority to regulate connectors to state roads and require redesign of existing connections to meet the requirements of said statute. A connector road must have sufficient depth and width to insure that traffic can enter and exit the state road safely without causing undue disruptions to traffic.
There is no dispute in this case that the connection has not been constructed in compliance with the original permit which was issued to Paradyne. As stated by the Hearing Officer, access can be denied for failure to comply with the permit, the DOT can require a redesign of a proposed connection, and DOT can itself redesign an existing connection in the event of undue disruption of traffic or the existence of safety hazards.
The District Court of Appeal also recognized that the DOT has authority to redesign the connector road to meet the standards of Section 335.18 and to have a minimal impact on the property rights of the parties involved. The highway connection located on State Road 688, Section 15120, M.P. 6.350 in Pinellas County, Florida was not constructed to provide joint access in accordance with the permit. The District Court found that it was the intent of DOT at the time of issuing the permit that both parties have access to the light-controlled intersection, and that the Department of Transportation had authority under Section 335.18(4) to deny access and revoke the permit should it become impossible to provide both parties access.
Since issuance of the permit on July 6, 1981, and construction of the highway connection, the traffic has increased on SR 688 to a degree which necessitates a modification and redesign of the connector road and SR 688 in order for the highway connection to meet the standards of Section 335.18. This the Department has done with the design by Diaz-Seckinger & Associates to meet the traffic and safety requirements at the present time.
The controlling legal issue in this cause is whether the Department can require Paradyne to construct its connector road in a specific manner as a condition of maintaining a connection to Ulmerton Road. It is very clear that the current permit could be revoked for failure to construct the driveway connection in accordance with the permit conditions.
It is equally clear that the connection must be improved to better protect the travelling public. At the same time, the intent of the Department that this one intersection serve as a connection for both properties can be affected by the modifications proposed by the Department in the revised permit.
There can be no question that a property owner may have to alter the current condition of its property in order to facilitate a proper connection to the highway system. For example, if two lanes were exiting the state highway system into a one lane road a hazardous situation could occur. In order to properly exercise its police powers under Section 335.18, the Department must require some safe type of transition from the state highway to the private property. This may require the property owner to use some portion of the property to effectuate this safe transition.
The hearing officer is correct in holding that the Department can require "the permittee's receiving approach on private property be a certain length, width or configuration so as to allow the lighted intersection to be utilized as designed with regard to the flow of traffic." However, contrary to the conclusions of the hearing officer, the Department may require the consideration of the needs of adjoining property owners when only one intersection is safely permissible for both properties.
In this case one safe connection to Ulmerton Road must be designed and constructed which will accommodate the traffic from both the Paradyne and Miller properties, otherwise the existing connection must be closed for safety reasons. Based on the foregoing Findings of Fact and Conclusions of Law, it is
ORDERED that the Driveway Permit dated July 6, 1981, held by Paradyne Corporation at State Road No. 688, Section No. 15120, Mile Post No. 6.350 in Pinellas County is hereby revoked, effective 90 days from the date of this order.
However, Paradyne Corporation shall have 60 days from the date of this order to present to the Department for approval a design for a revised connection to State Road 688 which would allow access to Ulmerton Road for both Paradyne and Miller properties and accommodate current traffic conditions in a safe and efficient manner. Upon approval by the Department, a revised driveway permit shall be issued.
If within 60 days of the date of this order the Department has not issued a revised permit based on plans submitted by Paradyne, prior to the expiration of
90 days from the date of this order the Department shall issue a redesign permit for the Ulmerton Road intersection with the requirements that the driveway connection be modified by reconstruction using the Diaz-Seckinger design to
provide for increased traffic and joint use of the intersection by the adjoining property owners and to accommodate proper traffic flow and eliminate safety hazards on the connector road.
DONE and ORDERED the 5th day of May, 1987.
KAYE N. HENDERSON, P.E.
Secretary
Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0450
Copies furnished to:
Diane D. Tremor Hearing Officer
Division of Administrative Hearings Division of Administration
The Oakland Building 2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
John R. Bush, Esquire
Bush, Ross, Gardner, Warren & Rudy
220 South Franklin Street Tampa, Florida 33602
Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32399-0450
Bruce Marger, Esquire Goldner, Reams, Marger, Davis, Piper, & Bartlett, P.A.
1700 66th Street North, 501 Post Office Drawer 41600
St. Petersburg, Florida 33743
By statute the Department is to include the following information in all final orders:
Judicial review of agency final orders may be pursued in accordance with Section 120.68, Florida Statutes, and Florida Rules of Appellate procedure 9.030(b)(1)(c) and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceedings, Haydon Burns Building, 605 Suwannee street, MS 58, Tallahassee, Florida 32301-8064, and with the appropriate District Court of Appeal within 30 days of the filing of this Final Order with the
Department's Clerk of Agency proceedings. The Notice of Appeal filed with the District Court of Appeal should be accompanied by
the filing fee specified in section 35.22(3), Florida Statutes.
| Issue Date | Proceedings |
|---|---|
| Feb. 04, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 05, 1987 | Agency Final Order | |
| Feb. 04, 1987 | Recommended Order | DOT may consider needs of adjoining property owners if only 1 road safe for all users. Respondent permitted to submit plan to accommodate neighbors. |
WILLIAM B. SWAIM vs SOUTH FLORIDA WATER MANAGEMENT DISTRICT, 86-001709 (1986)
DEPARTMENT OF TRANSPORTATION vs. KOA KAMPGROUND, 86-001709 (1986)
DEPARTMENT OF ENVIRONMENTAL PROTECTION vs WILLIE R. GAINEY, 86-001709 (1986)
DEPARTMENT OF STATE, DIVISION OF LICENSING vs DORMAL DEAN CAVILEE, 86-001709 (1986)
