STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, ) DEPARTMENT OF TRANSPORTATION )

)

Petitioner, )

)

vs. ) CASE NO. 89-5941

)

STEVE SHAMBLIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case on February 8, 1990, in Jacksonville, Florida. The authority for the conduct of the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams served as Hearing Officer.

APPEARANCES

For Petitioner: Vernon L. Whittier, Jr., Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: Leo O. Myers, Esquire

Post Office Box 1621 Jacksonville, Florida 32201

STATEMENT OF THE ISSUES

The issues to be decided in this case are those associated with the question of whether the Respondent is required to have a permit for the connection of his business property to State Road 206 or is exempt from that requirement. See Section 335.187, Florida Statutes. If he is required to have a permit the issue becomes the acceptability of his current drive, i.e., does it comply with the commercial use design criteria contemplated by Chapter 335, Florida Statutes, and further described in the Florida Department of Transportation "Policy and Guidelines for Vehicular Connections to Roads on the State Highway System," February, 1985, which was recognized and incorporated by reference through Rule 14- 15.013, Florida Administrative Code. These issues are raised through an alleged violation of the Florida Statutes and Florida Administrative Code set out in the Notice to Show Cause which was forwarded to Respondent from Petitioner leading to the formal hearing. The date of that Notice to Show Cause was July 18, 1989. Within the statement of violations there were also allegations concerning irregular signs as alleged under Section 479.11(8), Florida Statutes, associated with the commercial activities by Respondent and the unauthorized parking on the right-of-way at State Road 206 in

violation of Section 337.406, Florida Statutes. These latter allegations were conceded by the Respondent at hearing and are resolved through those concessions.

PRELIMINARY STATEMENT

At hearing Petitioner presented the testimony of George L. Sigman and Marshall W. Sander. Respondent testified in his own behalf. Petitioner's exhibits numbered 1-3 were received into evidence. Official recognition was made of Rule 14-15.013, Florida Administrative Code, and Florida Department of Transportation "Policy and Guidelines for Vehicular Connections to Roads on the State Highway System," February, 1985.

This recommended order is being entered following the receipt and review of the transcript of proceedings as filed with the Division of Administrative Hearings on February 20, 1990, and upon consideration as the exhibits and those matters for which official recognition was requested. Petitioner and Respondent submitted proposed recommended orders whose facts are discussed in the appendix to this Recommended Order.

FINDINGS OF FACT

1. At the time of the hearing Respondent operated a roadside fruit and vegetable stand at property adjacent to State Road 206 in St. Johns County, Florida. In addition to fruits and vegetables, by local ordinance of St. Johns County, Florida, he is allowed to sell poultry and fish. There is no indication that he has taken advantage of that opportunity other than to sell fresh shrimp from a cooler during 1989. In addition to these products he sells honeys, jellies, and jams. He also sells soft drinks from a dispensing machine. A mainstay in his business is peanuts which he sells fresh. Another product sold is pork skins. The drink machine that is described was added in March, 1989. Before that time he sold fountain drinks and cold drinks that were dispensed from a cooler. He has always had soft drinks available from the inception of his operation of the roadside stand. That began in March, 1985.

   
   

2. At the time the Respondent purchased the property there was an operation ongoing whereby fruit was being sold on two tables. Respondent replaced those structures with a portable trailer which was anchored to the lot, and display and sell of fruit on a 16-foot table and use of an 8-foot table upon which tomatoes were displayed and sold. The trailer was used to store his products over night. The trailer described was a pop-up camper trailer. The principal products being dispensed at that time were peanuts, vegetables, and tomatoes.

   
   

3. Through Ordinance No. 86-68, passed by St. Johns County, a copy of which may be seen as Respondent's exhibit No. 1, the property was recognized as C1, commercial intensive, with the conditions that the property would be limited to outdoor sale of produce, vegetables, fruit, poultry, and fish. It was also stated that there would be no access/egress to United States Highway 1, which is also known as State Road 5. This property is located at the intersection of State Road 5 and State Road 206. Present access/egress to the property is from State Road 206 and that has been the situation since Respondent purchased the property. The ordinance described dates from August 12, 1986.

   
   

4. Over time Respondent has taken a number of steps to improve his business. In March, 1988, Respondent obtained permission from St. Johns County to place a storage shed on his property. In August of that year he obtained

   permission to install a metal awning or carport of dimension 18 feet by 45 feet which is anchored to the ground. At that same time he placed the body from an old milk truck on the property for purposes of cold storage.

   
   

5. In March, 1988, he had received an electrical permit from St. Johns County. Prior to that time he did not have electricity.

   
   

6. In the spring of 1989, a well was drilled to provide running water. Prior to that time Respondent used bottled water.

   
   

7. Respondent's composite exhibit No. 2 admitted into evidence describes various permits obtained from St. Johns County. If Respondent was required to remove the structures on his property it could be done in three days. This goes to identify the nature of the structures and to demonstrate that they are not permanent fixtures to the realty.

   
   

8. According to Respondent, whose testimony is accepted, the business that he is experiencing at present has remained fairly constant in dollar amounts.

   He does not sell as many peanuts as he did before.

   
   

9. Concerning traffic, Respondent indicates, and his testimony is accepted, that the number of cars that are located at his business would be a maximum of 12 on a busy Sunday afternoon and that at most times there are one or two cars.

   
   

10. The hours of the business are from 8:00 a.m. until 6:00 p.m. in the winter time and somewhat longer in the summer time. The business is open seven days a week.

    
    

11. A rough description of the nature of the property by design may be found in the documents contained in Respondent's exhibit No. 2 admitted into evidence. The property is approximately 280 front feet and 280 feet at the rear with 41 feet on each side. The frontage runs approximately east-west on State Road 206 and one of the sides abuts State Road 5. The basic design of the driveway entrance from State Road 206 is also set out in those drawings. As Marshall W. Sander, engineer in the permit department for Petitioner in its St. Augustine, Florida, maintenance office, explains the driveway is an unimproved dirt shell connection. This is the same driveway that was there at the time that Respondent purchased the property and has remained in that state since that time. Notwithstanding Mr. Sanders' concern that the driveway is not up to current commercial business criteria for access/egress, there have been no accidents as a result of access/egress from the business. There are two turnouts or turn- ins into the property. Mr. Sander believes that at least one paved driveway is needed leading into the property. The dimensions of that drive would be 24-foot wide which allows a 12-foot wide lane in and a 12-foot wide lane out. This impression of Mr. Sander is drawn in the face of the Respondent's presenting himself at the office of Petitioner in St. Augustine, Florida, with an application and plan showing the intention to improve the property to include restrooms, a beer and wine cooler with parking on site. Under those circumstances Mr. Sander felt it necessary to improve the drive connection. At hearing there was no suggestion that restrooms are available on the premises or will be in the near future, nor was there any indication that a beer and wine cooler would be installed. Therefore it cannot be said that the basic nature of the business has changed from its inception to the present.

    
    

12. Mr. Sander concedes that within the records of the Petitioner there are no indications that the business has increased by way of records concerning

    traffic flow or otherwise. His remarks about increased traffic at Dupont Center is not specific enough to gain a useful impression of that circumstance. Mr.

    Sander relies upon the observations of the State of Florida, Department of Health and Rehabilitative Services and the St. Johns County Public Health Unit as were testified to by George L. Sigman, Environmental Health Director II for that organization. He also spoke to certain records of the health unit which may be found as Petitioner's composite exhibit 1 admitted into evidence.

    Nothing about his testimony or that exhibit identifies a noteworthy change in the basic nature of the business from Respondent's establishment of the roadside stand in March, 1985 until the present.

    
    

13. Throughout the existence of his business Respondent has operated without the benefit of a driveway permit issued by Petitioner.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. As stated in the statement of issues the questions to be considered here are whether Respondent is required to have a permit and if so required whether his driveway connection warrants the issuance of that permit. To answer this question resort is made to Section 335.187(1), Florida Statutes, which 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).

    
    

16. Respondent's unpermitted connection to State Road 206 existed prior to July 1, 1988, and has been in continuous use for a period of one year or more. As such, it is not necessary for him to obtain a permit to use that drive connection. Moreover, the proof presented in this case does not demonstrate that a significant change has occurred in the use of the connection or the state highway which it abuts. It has not been shown that a significant change has been made in the design of the connection or of the state highway which it abuts. It has not been shown that a significant change has occurred in the traffic flow of the connection or of the state highway which it abuts. Consequently, Respondent is not required to have a permit for this drive connection and the Notice to Show Cause is not well-founded.

RECOMMENDATION

Based upon the consideration of the facts found and in view of the conclusions of law reached, it is,

RECOMMENDED:

By way of disposition of the Notice to Show Cause, that a Final Order be entered which recognizes the concessions made by the Respondent concerning the sign in question, calling for its removal if still in existence and his acknowledgment of the problem of parking on the right-of-way and which absolves the Respondent of any necessity to obtain a driveway permit.

DONE and ENTERED this 9th day of March, 1990, 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 9th day of March, 1990.

APPENDIX

The following discussion is given concerning proposed facts.

Petitioner' s Facts

Paragraphs 1 and 2 are subordinate to facts found.

The first sentence in Paragraph 3 is subordinate to facts found. The second sentence is contrary to facts found. The third sentence is subordinate to facts found. Sentences 4 and 5 depict testimony as opposed to suggesting fact finding. However, the last sentence in that paragraph is one upon which facts were found in the Recommended Order.

Respondent' s Facts

Paragraphs one and two pertain to withdrawal of the request for hearing concerning signs and parking and are not part of fact finding.

The first sentence in paragraph 3 is subordinate to facts found. The remaining sentence is legal argument, as are paragraphs 4 and 5.

Paragraphs 6-11 are subordinate to facts found. Paragraph 12 is not relevant.

Paragraphs 13 and 14 are subordinate to facts found.

COPIES FURNISHED:

Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, FL 32399-0458

Leo O. Myers, Esquire Post Office Box 1621 Jacksonville, FL 32201

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

Tallahassee, FL 32399-0458

Docket for Case No: 89-005941

Orders for Case No: 89-005941