STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARINA PARK ASSOCIATES, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2249

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on May 23, 1991, in Miami, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: M. L. Dayton

General Partner

Marina Park Associates

340 Biscayne Boulevard Miami, Florida 33132

For Respondent: Russell A. Waldon

Assistant General Counsel and Pamela S. Leslie, Administrative Law Counsel Department of Transportation 605 Suwanee Street, M.S. #58

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES

The issue in this case is whether Petitioner's application to install a canopy over a sidewalk abutting State Road 5, U.S. 1, Biscayne Boulevard in Dade County, Florida should be granted.

PRELIMINARY STATEMENT

By letter dated March 1, 1991, the Respondent Department of Transportation ("Department") notified Petitioner Marina Park Associates ("Marina Park") that its application for a special permit to construct a canopy in front of its Biscayne Boulevard Hotel was denied. Marina Park was seeking a variance, through application for a special permit, to install a canopy in front of its hotel pursuant to Rule 14-43, Florida Administrative Code. By letter dated March 21, 1991, Marina Park requested an administrative hearing on the matter. The case was referred to the Division of Administrative Hearings which noticed and conducted a hearing.

At the hearing, Mr. M. L. Dayton represented the Petitioner and testified on its behalf. Petitioner offered four exhibits into evidence, all of which were accepted without objection.

Respondent presented the testimony of Gus Pego, the District Maintenance Engineer for the Department. Respondent offered one exhibit into evidence, which was accepted without objection.

No transcript of the proceeding has been provided. No post-hearing submittals have been received from the Petitioner. Respondent filed a document entitled Proposed Findings of Fact, Conclusions of Law and Recommendation. That submittal has been reviewed and considered in preparation of this Recommended Order. A ruling on each of the Respondent's proposed findings of facts is included in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

1. Biscayne Boulevard through the municipality of Miami, Florida, is a state highway, State Road 5 (U.S. 1,) which is operated and maintained by the State of Florida through its Department of Transportation.

   
   

2. The state owns the right of way areas adjacent to Biscayne Boulevard.

   
   

3. The Petitioner, Marina Park Associates ("Marina Park") is the owner of the Marina Park Hotel (the "Hotel") located at 340 Biscayne Boulevard, Miami, Florida. The Hotel is situated adjacent to the Department's right of way. Petitioner has applied to the Department of Transportation for approval to construct a canopy extending from the entrance of the Hotel over the state's right of way adjacent to Biscayne Boulevard.

   
   

4. There is an existing canopy in front of the Hotel which was installed approximately 11 years ago. At the time the existing canopy was installed, the Hotel obtained a permit from the city. However, it does not appear that the State Department of Transportation was ever notified or considered the application for the existing canopy.

   
   

5. Petitioner is seeking to replace the existing canopy with a new improved canopy at approximately the same location. The Hotel recently underwent renovations and the Petitioner is seeking to make the property more attractive by installing a new canopy.

   
   

6. The plans for the proposed canopy were submitted by Petitioner to Respondent. Those plans indicate that the proposed canopy would violate at least three aspects of the Respondent's rules regarding canopies over state right of way areas. These rules were adopted to establish uniform safety standards, to limit or prevent obstruction of the sidewalks and to further emergency vehicle access. There is no provision in the rules for variances or exceptions to these requirements. While the evidence established that there are several obstructions along the right of way which contravene these rules, there is no evidence that the Department has ever approved such obstacles.

   
   

7. The plans for the proposed canopy do not provide for a set back of at least two feet from the outside edge of the canopy to the face of the curb as required by the existing rules. This defect can be cured quite easily by adjusting the length of the canopy. However, the other problems with the canopy cannot be cured so easily.

8. The Hotel has a recessed entrance. The proposed canopy would extend into the recessed area. As a result, there will not be a nine foot clearance between the bottom of the canopy and the sidewalk as required in the existing rules. Even more importantly, the building design provides insufficient support to cantilever the canopy out from the entraceway without columns. Therefore, the proposed canopy requires supports at the end of the canopy on the sidewalk. The existing rules prohibit any such supports and there is no provision for a variance from this requirement.

   
   

9. Canopy supports extending below the nine foot clearance are prohibited because of the resulting obstruction of the sidewalk impairing pedestrian traffic and inhibiting access from passenger vehicles parked on the roadway.

   
   

10. The existing canopy is apparently not in compliance with all of the provisions of the Respondent's rules. Respondent never reviewed or permitted the existing canopy nor has it cited the existing canopy for being in violation of the rules. There is no provision in the rules to grandfather in an existing canopy and/or to replace or improve an existing canopy.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this case pursuant to Section 120.57(1), Florida Statutes (1989).

    
    

12. The Respondent has the authority to regulate canopies erected over the state right of ways pursuant to Section 337.407, Florida Statutes (1989).

    
    

13. The Respondent has adopted rules regulating canopies placed along and over state roads within the corporate limits of municipalities. These rules are set forth in Chapter 14-43, Florida Administrative Code.

    
    

14. Rule 14-43.001(1)(a) and (d) provide as follows:

    
    

    1. Canopies or signs may be allowed provided they clear the sidewalk vertically at least nine feet and provided the outside edge is at least two feet behind the vertical line through the face of the curb.

       * * *

       (d) That no support for canopies or signs

       extend below the nine foot vertical clearance line.

       
       

15. Petitioner's proposed canopy does not meet the requirements of Rule 14-43.001.

    
    

16. There is no provision in the Rule or the statute to grant a variance from the existing rules.

    
    

17. The Department's failure to require the removal of all existing obstructions on the right of way (including the existing canopy supports), does not provide a basis for requiring the Department to approve a variance for the proposed new canopy.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Transportation enter a Final Order finding Petitioner's proposed canopy does not meet the requirements of Rule 14-43 and denying Petitioner's request for a variance by means of through application for a special permit.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24th day of June, 1991.

J. STEPHEN MENTON 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 D Division of Administrative Hearings this 24th day of June, 1991.

APPENDIX

The Respondent has filed a Proposed Recommended Order. The following constitutes my rulings on the proposed findings of fact submitted by the parties.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted

or Reason for Rejection.

1. Adopted in substance in Findings of Fact 1.

2. Adopted in substance in Findings of Fact 2.

3. Adopted in substance in Findings of Fact 3.

4. Adopted in substance in Findings of Fact 7, 8 and 9.

5. Adopted in substance in Findings of Fact 9.

6. Adopted in substance in Findings of Fact 4.

COPIES FURNISHED:

Russell A. Waldon Assistant General Counsel

Department of Transportation Haydon Burns Building

605 Suwanee Street, M.S. #58

Tallahassee, FL 32399

M. L. Dayton

Marina Park Associates

340 Biscayne Boulevard Miami, FL 33132

John Reilly

Miami Awning Company

282 Northwest 36th Street Miami, FL 33127

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwanee Street

Tallahassee, FL 32399-0458

Thornton J. Williams, General Counsel Department of Transportation

562 Haydon Burns Building Tallahassee, FL 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will

issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-002249

Orders for Case No: 91-002249