STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, ) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3898

)

UGLY DUCKLING RENT-A-CAR, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on October 24, 1989, at 2:00 p.m., in Meeting Room "A", Jacksonville Public Library, 122 North Ocean Street, Jacksonville, Florida, a formal hearing was held in this case. The authority for the conduct of the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: Frederick L. Rice, Esquire

5611 St. Augustine Road Jacksonville, Florida 32207

STATEMENT OF ISSUES

The issues in this case are those announced by the Administrative Complaint brought by the Petitioner against Respondent claiming that the dirt drive entrance to the Ugly Duckling Rent-A-Car at 2555 U.S. 1 South, St. Augustine, Florida, is an unpermitted drive connection used for commercial purposes. It is further alleged that it is, by its nature, a residential driveway that is used in a commercial endeavor and that it does not meet design standards. The stated authority for these accusations are Sections 335.187 and 335.1825, Florida Statutes.

PRELIMINARY STATEMENT

The Administrative Complaint was drawn on June 15, 1989. It was received by the Respondent and a reply was made by Frederick L. Rice, Esquire, counsel for Leroy E. Wall, Jr., the owner of the subject property who leases the site to Vernard W. Fletcher, Jr., who owns Ugly Duckling Rent-A-Car. Mr. Rice's reply dates from July 7, 1989, in which he suggests that the case be resolved without further dispute for reasons as described in his correspondence and attachments.

Otherwise, a formal hearing was requested to consider this dispute. Petitioner received this correspondence and its attachments on July 10, 1989. The case could not be amicably resolved and the Department of Transportation asked the Division of Administrative Hearings to conduct a formal hearing. This request was honored leading to the final hearing of October 24, 1989.

In the course of the hearing, testimony was offered by Marshall Sander for the benefit of the Petitioner. Respondent presented the witnesses Vernard W. Fletcher, Jr., and Leroy E. Wall, Jr. Petitioner's and Respondent's Exhibits admitted in the course of the hearing are described at page 3A of the transcript of proceedings. This sets out the exhibit number and page number at which the more complete exhibit description may be found.

The parties were afforded the opportunity to present proposed recommended orders. Petitioner did not timely file a proposed recommended order.

Respondent has timely filed a proposed recommended order and the facts suggested are addressed in an Appendix to this Recommended Order. After the time for submission of proposed recommended orders Petitioner moved to file a proposed recommended order. The text proposed was attached. The motion was opposed.

The motion is granted. The fact finding suggested is addressed in the aforementioned Appendix.

FINDINGS OF FACT

1. On October 2, 1979, Leroy E. Wall, Jr., and his wife Freda purchased the property which is in dispute in this case from Alex Hein and Virginia Hein, his wife. That property is located in St. Johns County, Florida, and its dimensions include approximately 300 feet of frontage on U.S. 1, also known as State Road 5. The frontage runs roughly north and south. The east-west depth of the property is approximately 350 to 360 feet.

   
   

2. U.S. 1, for about 20 years, has been a four-lane road at this location with a median separating the northbound and southbound lanes. The property in question is on the western side of U.S. 1 and the southbound lane of that highway passes in front of the property.

   
   

3. Petitioner holds a right-of-way from the white line on the shoulder of the road 38 feet inward. It has maintenance responsibility for a five foot strip inward from that white line.

   
   

4. At the time Mr. Wall and his wife purchased the property in question, there was a residence located on the property with a free standing garage. Respondent's Composite Exhibit No. 1 admitted into evidence contains a copy of the warranty deed from the Heins to Mr. Wall and his wife. It also shows a description of the property through a survey done on November 14, 1984.

   
   

5. It was the intention of Mr. Wall to have the property rezoned from residential to commercial. In addition, he had intended to build a commercial building and to seek approval of Petitioner for a driveway permit associated with that commercial venture.

   
   

6. That driveway permit was approved on November 1, 1979. A copy of the driveway permit may be found in Petitioner's Composite Exhibit No. 3 admitted into evidence. The date of approval of that permit is November 1, 1979. The driveway permit and a small drawing reflect the two paved driveways associated with the intended commercial building. It shows frontage in the amount of 165 feet as opposed to the 300 foot expanse that constituted the entire parcel which

   Mr. Walk and his wife had bought from the Heins. Nonetheless, Mr. Wall is confident that the Petitioner was made aware of the entire 300-foot expanse when he sought the permit. His recollection of those events is credited.

   
   

7. As reflected in Respondent's Composite Exhibit 1, a report and recommendation was made by the zoning board suggesting to the Board of County Commissioners that they approve the rezoning of the subject property. That recommendation dates from December 10, 1979. The zoning change was effected.

   
   

8. The residential building and detached garage was used by a tenant of Mr. Wall's who was in the import business. Subsequent to that time Vernard W. Fletcher, Jr., who owns Ugly Duckling Rent-A-Car became a tenant at that location on July 1, 1983.

   
   

9. The commercial building that had the two paved drives permitted on November 1, 1979 has four tenants.

   
   

10. The dirt driveway which enters U.S. 1 from the residence with the detached garage has been there from the time of the purchase by the Walls from the Heins until the present. Mr. Fletcher has described the peak usage of that driveway as 20 trips per day in 1987. In the period July 1, 1988, through June 15, 1989, the number of trips has dropped to 15 cars a day. Mr. Fletcher's explanation of the number of trips is accepted.

    
    

11. July 1, 1988, through June 15, 1989, describes the period from the advent of Section 335.187, Florida Statutes, (1988), until the Administrative Complaint was brought against the Respondent on June 15, 1989, as described in the statement of the issues.

    
    

12. As Mr. Fletcher and Mr. Wall both explain, the dirt drive is used mostly for ingress. One of the paved drives associated with the commercial building is used for egress onto U.S. 1.

    
    

13. On March 16, 1989, Respondent received notice from the Petitioner that the dirt driveway was an unacceptable access point onto U.S. 1. This correspondence was received by Mr. Fletcher on March 17, 1989. It sets forth the same basis of concern as announced in the Administrative Complaint which was prepared on June 15, 1989.

    
    

14. Marshall Sander who is a permit engineer for the Lake City District of the Petitioner testified at the hearing. Although he did not confirm in absolute terms the expectation of the Petitioner as to the type driveway that it would accept for permitting, it is clear that some other form of driveway than the present type is contemplated. Mr. Sander's remarks to Mr. Wall made it obvious that the Petitioner is more likely to look with favor on a paved driveway with deceleration lane than any other form of improvement. This would cost as much as $15,000.

    
    

15. A not-to-scale drawing of the immediate area is found as Petitioner's Exhibit No. 5. It depicts the commercial building with its two paved driveways and the Respondent's site with its dirt driveway. It also shows the approximate location of a shopping plaza which was under construction and expected to open in October 1989, which is 500 feet north of the property in question. That shopping center is located on the same side of the road as the property that is at issue. There is a traffic signal at Lewis Point Road and U.S. 1, the

    location of the new shopping center. That traffic control device protects automobiles which are exiting the location of the Respondent and the commercial properties adjacent to that location which are leased by Mr. Wall.

    
    

16. Petitioner's Exhibit No. 7 is a series of photographs which depict the site in question with descriptions of the exact nature of those photographs specifically set out.

    
    

17. Petitioner's Exhibit 8 also contains a series of photographs. The first photograph is one of Moultrie Plaza which has a Publix food store and 14 other tenants with the possibility of 8 additional tenants in the future. This shopping plaza opened in January 1989 and is approximately two miles south of the Respondent's business location. The shopping plaza which is immediately north of the location in question has a Food Lion grocery store, a McDonald's restaurant, a bank and several other retail shops. It is located on the same side of U.S. 1.

    
    

18. Petitioner's Exhibit No. 9 contains other pictures associated with the basic location of the business in question.

    
    

19. Mr. Sander's concern about the use of the dirt driveway in a commercial application relates to the edge of pavement drop-off and the formation of ruts that develop with the kick-out by wheels that spin as cars are leaving or pulling into the location and under braking, and the fact that they slide and move the gravel material in the dirt driveway. In his analysis this creates a possible safety hazard. There is no evidence that any accidents have ever occurred because of the use of this dirt driveway or any safety problem associated with its use. Mr. Fletcher and Mr. Wall have no recollection of such events and the Petitioner presented no indication that accidents or other safety problems had occurred.

    
    

20. Mr. Sander also was of the opinion that Mr. Wall should have revealed the existence of the additional 135 feet of frontage when the 165 feet of frontage associated with the commercial building was set out in the attachment to the permit for the two paved driveways that have been mentioned before. Again, the facts are found that the 300 foot frontage was made known to the Petitioner based upon the testimony given by Mr. Wall.

    
    

21. Section 385.187(1), Florida Statutes (1988), provides that unpermitted connections to the state highway system, to include U.S. 1, in existence before July 1, 1988, which had been in continuous use for a period of one year or more do not require permits. The dirt driveway was in existence before July 1, 1988, and was in continuous use for a period of one year or more. However, that same section speaks in terms of the ability of the Petitioner to require a permit in those instances where the connection undergoes a significant change in the use, design, or traffic flow of the connection or of the state highway that provides access. Beyond July 1, 1988, the use, design, or traffic flow of the driveway connection has not significantly changed. The use and design of the state highway has not significantly changed. The point of dispute is whether the traffic flow on that state highway has changed in a significant way.

    
    

22. Notwithstanding the existence of two residential developments known as St. Augustine South and St. Augustine Shores, the two shopping plazas that have been described and other activities in the general vicinity, it was not shown that the traffic flow had increased in a significant way beyond July 1, 1988, up until June 15, 1989, the point at which the administrative complaint was brought or for that matter up until the time of the final hearing. Moreover, as stated,

    there is no suggestion that the driveway has presented a safety hazard in that time frame, particularly not when taking into account the preference to use the paved drives associated with the commercial building in the egress. That usage is facilitated by the fact that some of the equipment that is being rented is brought up one of the paved driveway exits from an area behind the commercial building. This set of circumstances is considered in light of the fact that the traffic signalization at Lewis Point Road and U.S. 1 protects a person entering

    U.S. 1 southbound.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action under Section 120.57(1), Florida Statutes.

24. Section 335.187(1), Florida Statutes (1988), states: 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, a permitting authority 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 or of the state highway to which it provides access. If a permit is not obtained, the connection may be closed

    pursuant to s. 335.1825(3).

    
    

25. As shown in the findings of fact, the dirt driveway connection existed on July 1, 1988, and had been in continuous use for a period of one year or more. Subsequent to that date, it did not undergo a significant change in its use, design, or traffic flow nor did the state highway undergo a significant change in the use, design or traffic flow. Therefore, the permits that are contemplated under Section 335.825, Florida Statutes, and the need to pay for the expense of the cost of construction or alteration are not incumbent upon the Respondent or any other person.

RECOMMENDATION

Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED:

That a Final Order be entered which dismisses the Administrative Complaint.

DONE and ENTERED this 19th day of December, 1989, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 19th day of December, 1989.

APPENDIX CASE NO. 89-3898

Petitioner's Facts

Petitioner's facts in paragraphs 1, 2, 3 and 4, are subordinate to facts found.

Paragraph 5 is contrary to facts found.

Paragraph 6 is accepted but it is not essential that it be found as a fact. Paragraph 7 is subordinate to facts found.

Respondent's Facts

Respondent has described facts it wishes to have found in two categories.

Those categories are a preliminary statement of facts not in dispute and a category associated with the issues deemed to be in dispute. These suggested facts are subordinate too the facts found in the recommended order.

COPIES FURNISHED:

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Frederick L. Rice, Esquire 5611 St. Augustine Road Jacksonville, Florida 32207

Ben Watts, Interim Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Docket for Case No: 89-003898

Orders for Case No: 89-003898