STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

PABLO SANCHEZ, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4389

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Miami, Florida on December 11, 1991, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Juan Carlos Perez, Esquire

4770 Biscayne Blvd., #600

Miami, Florida 33137 and

Michael A. Bienstock, Esquire

25 SE 3rd Avenue, Suite 1240 Miami, Florida 33134

For the Respondent: Vernon L. Whittier, Jr., Esquire

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450 STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Petitioner, Pablo Sanchez, should be issued a driveway permit, (Application No. 001-91) for a site at 700 E 8th Avenue, State Road 953, LeJune Road, in Dade County, Florida.

PRELIMINARY MATTERS

By letter dated March 19, 1991, Gus Pego, P.E., the Department's District Maintenance Engineer in the Department District headquartered in Miami, notified the Petitioner herein, Pablo Sanchez, that his application No. 001-91, for a driveway permit for the property located at 700 East 8th Avenue, in Dade County, Florida had been denied. Thereafter, by Petition filed with the Department on April 15, 1991, Petitioner's counsel, on behalf of the Petitioner, requested a formal hearing and by letter dated July 17, 1991, the matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer.

On September 18, 1991, after neither party responded to the Initial Order entered herein, the undersigned issued a Notice of Hearing setting the matter for hearing in Miami on December 11, 1991, at which time the case was heard as scheduled.

At the hearing, Petitioner testified in his own behalf and presented the testimony of his son, Joel Sanchez. Petitioner also introduced Petitioner's Exhibits 1 through 9. Respondent presented the testimony of Debora Moran Rivera, assistant traffic operations engineer for the Department in the Miami District and formerly District Permit Engineer at the time the instant application was acted on, and introduced Respondent's Exhibits A though C. At the request of Respondent and without objection by the Petitioner, the undersigned officially recognized the provisions of Rules 14-96 and 14-97, F.A.C.

A transcript of the hearing was provided. Respondent submitted Proposed Findings of Fact which have been accepted and are incorporated into this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the matters in issue herein, the Respondent, Department of Transportation, was the state agency responsible for the monitoring and control of vehicular access to and traffic control on the state highways of this state.

   
   

2. Petitioner, Pablo Sanchez, owns the property in issue. This property is a 24 x 40 foot house located on a 70 x 103.62 foot lot located at the corner of East 8th Avenue (LeJeune Road) and East 7th Street in Hialeah, Florida. LeJeune Road, depending upon the location, both has and does not have a restrictive median. At this location it does not.

   
   

3. Mr. Sanchez currently and historically, over the 3 years he has lived in the property in question, enters and exits the property, which has no formal driveway, from LeJeune Road. By the same token, guests who visit him enter and exit the property the same way. During this 3 year period there have been no accidents or traffic problems as a result of this use even though traffic on LeJeune Road, a main thoroughfare, is heavy. There is no obstruction on or near the property to hinder visibility of either an individual exiting the property onto LeJeune Road or a driver on LeJeune Road observing anyone coming off the property. In Mr. Sanchez' opinion, a permitted driveway practically would change nothing from the current situation.

   
   

4. The area in which the property is located is rapidly changing from residential to commercial. Mr. Sanchez is trying to have the zoning of his property changed from residential to office use. His efforts in this regard are with the City of Hialeah. If his application for zoning change is approved, it is his intention to use the house as an office for his insurance business which is currently conducted at a different location at 24th Street and LeJeune Road. The current office is located on a corner lot from which Mr. Sanchez has access onto LeJeune Road and it is his contention there have been no traffic problems at that location either. No evidence to rebut this contention was forthcoming.

   
   

5. There are currently commercial businesses in operation on both sides of LeJeune Road between the area now being used as a business by Petitioner and the area for which he submitted his application. The majority of these enter onto LeJeune Road. Mr. Sanchez contends that the use of the property in issue

   as an insurance office would not generate as much traffic as either the neighboring bank or service station in the area, and if he were to receive the driveway permit for this property, he claims, the amount of traffic onto LeJeune Road from it would not be increased by any significant amount. He submitted his application and paid the $1,000.00 fee.

   
   

6. Most of Mr. Sanchez' time is spent at his business building because his parents live at that location and when he is not working, he spends a great deal of time with them. His experience has been that he can easily go from his home to his office on LeJeune Road at any time without difficulty, and he goes up and back each day expending 6 or 7 minutes for each trip.

   
   

7. Petitioner introduced photographs of several businesses purported to be in the area which, he claims, have commercial entrances onto LeJeune Road. Respondent entered no evidence to contradict the identity or location of the sites reflected in the photos and they are, therefore, accepted as offered. One of them is a bank which, he contends, has been in operation for approximately 10 years. Another is a service station which has been in operation for "a considerable amount of time." This facility was there before Petitioner arrived in the area. Another business depicted, Marina Insurance, opened approximately two years ago. The facility used to be a residence and Mr. Sanchez does not know when or if a driveway permit was issued for that property. Another service station in the area was opened "many years ago" and a store for wedding gowns was opened "seven or eight years ago." The photographs fail to show any traffic, however, either in front of, exiting, or entering the properties. Mr. Sanchez claims they are active businesses and have been contributing to traffic on LeJeune Road for many years. In the absence of evidence to contradict that assertion, it is accepted.

   
   

8. Mr. Sanchez' contentions were supported by his son, Joel, who is in business with his father and who used to live in the house in question with his father, his mother, his wife and his two children. With four adults living there, three cars were frequently in use, and all usually entered and exited the property from LeJeune Road. On occasion, they would come in or exit from 7th Street, but between 80 and 85% of the time the LeJeune Road access was utilized, primarily because the property faces on LeJeune Road.

   
   

9. Visitors to the property usually park to the right of the front door, and so far there has been no problem getting on or off of LeJeune Road. The younger Sanchez confirms his father's testimony that entrance onto or exit from LeJeune Road from either the current residence or the current business property has not been a problem over the years, and he sees no traffic hazard.

   
   

10. According to Joel Sanchez, LeJeune Road is no longer a residential street. He confirms his father's statement that new businesses are constantly going in and all seem to have been able to get driveway access onto LeJeune Road. The older businesses have had access to LeJeune for a long time and there appears to have been no problem with traffic.

    
    

11. The property in issue here became a problem only when the Sanchezes tried to rezone it. Notwithstanding the fact that at the residence they already use an access onto LeJeune Road, according to the city zoning officials, if the property were to be converted into a business use property, a formal access onto LeJeune, to accommodate 8 parking spaces on the property, would be necessary. The only way 8 parking spaces could be placed onto the existing property would be to place the entrance and exit onto LeJeune Road.

12. From a practical standpoint, the only change would be the actual paving of access ramps out to the highway instead of driving onto and off the property across the lawn as is the current practice. The number of the customers the business would bring to the new site would not be heavy, no more than 6 or 7 per day. This would be a maximum, Petitioner claims, because the nature of the insurance business he is conducting is changing to that which would reduce to an even lesser amount the traffic required. Most of the business customers are now renewals who deal with the company by mail, and the only traffic would be new business. In that regard, they are changing more to commercial lines of insurance, dealing with businesses, which does not have a large office visit rate.

    
    

13. Neither of the Sanchez men have any training in traffic management or safety, but both sincerely feel their proposal will not increase traffic or pose a risk to traffic safety in the area.

    
    

14. Debora Moran Rivera, a traffic engineer with the Department's Miami District is familiar with the instant permit application and, in fact, reviewed it when it was submitted. When first received by the District, the application was sent to the field for comments. It was determined that a 25 foot radius exit was required. Photographs were received along with the comments and based on the review by both the field office and the District office, it was determined that the application here was not consistent with the rules of the Department governing permits of this nature. As a result, on February 26, 1991, a Notice of Intent to Deny the application was sent to Mr. Sanchez in which the reason for denial was the availability of access to the State Highway from another public road, (East 7th Street).

    
    

15. Sometime thereafter, Ms. Rivera was contacted by Joel Sanchez who asked for a formal denial which could be appealed and thereafter, a formal denial letter dated March 19, 1991 was sent. This letter indicated the Department rules limited access to a point at least 115 feet from the nearest connection, East 7th Street.

    
    

16. The denial decision was based on information provided by the field operations office to whom the application was sent for verification. The decision to grant or deny is a joint one made by several individuals whose identity is dependant upon where the property in question is located. Mr. Pego, Ms. Rivera's supervisor and Ms. Rivera were the individuals who made this decision based upon the input from the staff in the field. In this case, the field information consisted of a statement based upon his visit to the site and two photographs. Based on this information along with that provided by the applicant, the decision to deny was made. Admittedly no traffic study of the area in question was made by either party. Further, in evaluating the application, however, Ms. Rivera did not look at any other driveway permits for property in the immediate area. She thinks she went out to visit the site before the official denial letter was sent out on March 19, 1991 but she does not recall what the business characteristics of the area were like. While she is generally familiar with the area, she does not recall the specifics. Based on the evidence presented, nothing was put before the undersigned to demonstrate the insufficiency or impropriety of the Department's evaluation and decision making process and it is accepted that the process was sufficient and adequate.

    
    

17. There is some indication from the testimony of Petitioner that he had called the District office to request a Spanish speaking representative come out to the property. In response, the District sent out a Mr. Montez. According to Mr. Sanchez, Montez initially told him that the application would probably not

    be approved because the property fronted on LeJeune Road. However, Sanchez claims Montez later changed his mind and indicated the application would probably be granted because of the small nature of the business. The evidence on this point is unclear as to whether the visit by Mr. Montez is the site visit described by Ms. Rivera. No evidence was presented to clarify this, but in any case, there is no showing that Montez had any authority to commit the Department to a position. His opinions, therefore, are irrelevant.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings pursuant to Section 120.57(1), Florida Statutes.

    
    

19. Respondent has denied Petitioner a permit to connect his property to LeJeune Road, a State Highway, on the basis that his application does not conform to the criteria outlined in Rules 14- 96 and 14.97, F.A.C.

    
    

20. Rule 14-96.003(1), F.A.C. provides in part:

    
    

    Every owner of property which abuts a State Highway where limited access rights have not been acquired has a right to have reasonable access, but may not have the right to a particular means of access to the State Highway. All new connections or alterations to existing connections ... providing ingress to or egress from residential, commercial, industrial, agricultural, or any other public or private land use shall require a connection permit.

    
    

21. Rule 14-96.004(1), F.A.C.m defines a "Category II- Minor Connection"

    as:

    
    

    ... a connection to the State Highway System for medium volume traffic generation expected to have an average daily traffic (ADT) of 1,500 or less but not included in Category I.

    
    

22. A Category I connection relates only to residential property.

    
    

23. Rule 14-96.007(2)(a), F.A.C., relating to review of applications,

    provides:

    
    

    Upon timely receipt of all required information, ..., the location and design of the connection shall be examined for consistency with current Department location, quantity, spacing classification, and Department design standards. The review shall also include an analysis of the site's existing and projected traffic on the operation and safety of the state highway.

    
    

24. Rule 14-97.003(1)(i)4, F.A.C. provides that corner clearance at intersections with a restrictive median which allows right in/out access shall

    be no less than 115 from the intersection. On roads without a restrictive median, full access is allowed no less than 125 feet from the intersection. Right in/out access shall be no less than 100 feet from the intersection.

    
    

25. Here, Petitioner seeks a permit for a 25 foot radius driveway connection onto LeJeune Road, on which his property is located at the intersection of East 7th Street. Petitioner has the burden to establish his entitlement (conformity with rules) to that access by a preponderance of the evidence. Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1DCA 1981).

    
    

26. Respondent has denied the permit on the basis that the access cannot be located less than 115 (100) feet from the closest existing connection, East 7th Street, and in addition, on the basis that Petitioner has an acceptable access to LeJeune Road through his access to East 7th Street which enters LeJeune Road at his property.

    
    

27. The above-cited rule clearly defined the distance criteria for access onto a State Highway. It is 115 feet from an intersection on roads where there is a restrictive median, and 100 feet where there is not. Under either criteria, Petitioner's property does not qualify since his frontage on LeJeune Road is only 70 feet total and that means Petitioner's property line furthest from the intersection is closer than the minimum distance required.

    
    

28. It is unfortunate for Petitioner that the Hialeah zoning officials will not change his property's zoning to permit a commercial use unless he can provide 8 parking spaces on the property. It is even more unfortunate that the only configuration that will permit the required 8 spaces necessitates a connection on LeJeune Road.

    
    

29. The evidence presented at the hearing clearly demonstrates, however, that regardless of the other connections which exist onto LeJeune Road from other properties, permitted or not, this particular application does not meet the Department's criteria for approval.

    
    

30. Notwithstanding his counsel's impassioned argument that Petitioner is being denied the highest and best use of his property as a result of the Department's denial of his application; notwithstanding the lack of evidence that approval of the connection would create additional safety hazards; notwithstanding the non-existence of a traffic study demonstrating adverse impact on traffic conditions in the area; notwithstanding the unsupported allegations by counsel of selective enforcement by the Department resulting in an unfair competitive edge to others; and notwithstanding counsel's unproven allegations of discrimination, there is still an unrefuted showing that Petitioner's application fails to conform to the standards and criteria set forth in the Department's rule.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that a Final Order be entered in this case denying Petitioner's application for a connection from his property located at 700 East 8th Avenue, Hialeah, onto East 8th Avenue, (Lejeune Road).

RECOMMENDED in Tallahassee, Florida this 29th day of January, 1992.

ARNOLD H. POLLOCK

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 29th day of January, 1992.

COPIES FURNISHED:

Juan Carlos Perez, Esquire 4770 Biscayne Blvd.

Miami, Florida 33137

Michael A. Bienstock, Esquire

25 SE 3rd Avenue, Suite 1240 Miami, Florida 33134

Vernon L. Whittier, Jr., Esquire Department of Transportation

605 Suwannee Street

Tallahassee, Florida 32399-0450

Ben G. Watts Secretary

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450

Thornton J. Williams General Counsel

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450

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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should b e filed with the agency which will issue the Final Order in this case.

Docket for Case No: 91-004389

Orders for Case No: 91-004389