STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-6106

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came before the undersigned on a motion to dismiss or to relinquish jurisdiction filed on January 31, 1989 by respondent, Department of Transportation (DOT). A memorandum in opposition to the motion was filed on February 14, 1989 by petitioner, Broward County (County). The parties were represented by Barbara A. Hall, Esquire and Charles G. Gardner, Esquire, respectively. For purposes of ruling on the motion, the undersigned has assumed all allegations in the County's petition are well-pled. Based upon the pleadings filed in this cause, the following findings of fact are determined:

FINDINGS OF FACT

1. By letter dated August 20, 1987, the County requested that DOT reclassify various roads within the county from county jurisdiction to the state highway system. The request was filed under Rule 14-12.016, Florida Administrative Code.

   
   

2. On October 21, 1988 DOT advised the County by letter that the County's request to "add 17 miles to the State Highway System in Broward County" had been denied on the ground the proposed routes did not meet DOT's road classification criteria.

   
   

3. In its petition, the County maintains that the subject roads meet all functional classification criteria for inclusion in the state highway system as established in Section 335.04, Florida Statutes and Rule 14-12.016.

   
   

4. The County alleges further that DOT's decision "affects the County's duty to maintain and oversee the subject roads, unfairly burdening the County with the maintenance of roads which meet the criteria for inclusion in the State Highway System."

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).

   
   

6. Subsection 335.04(1)(b)4., Florida Statutes (1987) provides that:

   
   

   4. After July 1, 1982, the department, if requested by cities or counties, shall, within a reasonable period of time not to exceed 1 year, perform functional evaluations of specific roads utilizing the criteria referred to in this subsection, and the transfers resulting from such evaluations shall be accomplished as provided in this subsection.

   
   

   The request herein was filed under the foregoing statute.

   
   

7. In support of its motion, DOT cites the recent case of City of Destin

   v. Department of Transportation, 14 FLW 280 (Fla. 1st DCA, January 27, 1989). That case held that "the reclassification of a public road is outside the coverage of the APA." Id. at 281. Relying upon that proposition, DOT asserts that the County is not, as a matter of law, entitled to a 120.57(1) hearing, or in the alternative, that no facts are in dispute and that the matter should be returned to the agency for informal disposition.

   
   

8. In reply, the County argues that, notwithstanding the above decision, a functional road classification is a factual determination requiring a 120.57(1) hearing. In addition, it contends that the City of Destin case is distinguishable from this proceeding and is therefore inapplicable. Finally, it points to the fact that this case arises under Rule 14-12.016, and not Rule 14- 12.018, which was at issue in the appellate decision.

   
   

9. The City of Destin case involved a decision by DOT to reclassify a state highway from the state highway system to a county road under Subsection 335.04(1)(b), Florida Statutes (1987). Both the City of Destin (City) and a county objected to the transfer and requested a 120.57(1) hearing. After such a hearing was held and a final order was entered approving the transfer, the City appealed. On appeal, the court agreed with DOT's contention that the reclassification of a public road was not subject to a hearing under section 120.57(1). As noted by the court, except for disputes over the physical condition of the road, which are specifically subject to Administrative Procedure Act (APA) requirements under subsection 335.04(1)(b)3., and disputes over the financial ability of a county to maintain a road being transferred under subsection 335.04(1)(c), no other agency action under section 335.04 is subject to chapter 120 requirements.

   
   

10. Applying that principle to the instant case, it is undisputed that the County's request is made under subsection 335.04(1)(b). It does not involve a dispute over the physical condition of the roads, the only matter in that subsection subject to APA requirements. Therefore, the County is not entitled to a section 120.57(1) hearing.

    
    

11. In reaching the above conclusion, the undersigned has given thoughtful consideration to the County's contentions. As to the contention that a litigant

    is entitled to a chapter 120 hearing whenever factual disputes arise concerning an agency decision, it is noted that the court pointed out in City of Destin that "(s)tatutory provisions external to Chapter 120 remedies may limit access to such remedies." Id. at 281. Thus, even though the County may raise disputed factual matters in the case at bar, it is not entitled to a review of these claims under chapter 120 given the access limitations provided in section

    335.04. As to the claim that a different rule applies here (14- 12.016) than was present in the City of Destin case, the undersigned can find no language in the cited rule that entitles a party to an administrative hearing in this type of case. Even if it did, a conflict between the rule and statute would exist, and the statute would obviously control. See, e.g., State, Department of Business Regulation v. Salvation, Ltd., 452 So2d 65 (Fla. 1st DCA 1984).

    
    

12. In summary, the motion to dismiss is found to be meritorious and should be granted. Since it appears that the County cannot state a viable cause of action under any factual scenario, the dismissal should be with prejudice.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the motion to dismiss the petition is hereby GRANTED, with

prejudice, and that a Final Order be entered dismissing the same.

DONE and ENTERED this 28th day of February, 1989, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 28th day of February, 1989.

COPIES FURNISHED:

Barbara A. Hall, Esquire

115 South Andrews Avenue Suite 423

Fort Lauderdale, Florida 33301

Charles G. Gardner, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458

Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0450

Docket for Case No: 88-006106

Orders for Case No: 88-006106