STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0785

)

ALONZO T. BAGGETT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell held a formal hearing in this case on May 11, 1994 in Lakeland, Florida.

APPEARANCES

For Petitioner: Paul Sexton, Esquire

Assistant General Counsel Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: Alonzo T. Baggett, pro se

605 Hollingsworth Road

Lakeland, Florida 33801 STATEMENT OF THE ISSUES

Whether Respondent's driveway access to State Road 35 should be closed for safety reasons.

PRELIMINARY STATEMENT

By letter dated January 12, 1994, Petitioner advised Respondent that it was initiating action to close one of the existing connections on his property (State Road 35 or Bartow Highway) because it had determined that "your connection causes a safety or operational problem on the state highway system." Rule 14-96.011, Florida Administrative Code.

Petitioner advised Respondent of his right to appeal the Department's decision to close his highway pursuant to Section 120.57(1), Florida Statutes.

Respondent timely requested a formal hearing and this hearing ensued.

At the hearing, Petitioner presented the testimony of Thomas V. Pridgen, an employee of Respondent for approximately 23 years and who is presently Petitioner's assistant district traffic engineer in Lakeland; Rick A. Langley, a professional engineer employed by Petitioner for approximately five years who is

presently a resident projects coordinator; Michael J. Tako, an employee of Petitioner for approximately six years and who is presently the district's access engineer. Respondent testified on his own behalf.

Petitioner filed a proposed recommended order which is substantially incorporated in this recommended order. Petitioner introduced exhibits numbered 1, 2, 3, 6 and 7 which were received in evidence at the hearing.

Based on my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant:

FINDINGS OF FACT

1. Respondent, Alonzo P. Baggett, owns a residential parcel of property at the corner of State Road 35 (Bartow Highway) and Hollingsworth Road in Lakeland. Respondent's property has his residence on it which was purchased in 1961. When purchased, the property was originally a duplex with a driveway serving each unit. Respondent enclosed the carport on the easterly side of the house for use in an upholstery business. When he did so, the driveway at the easterly end of the house remained in place.

   
   

2. The house is presently used as a single family residence and the entrance to what was originally the right hand, or eastern unit, is permanently enclosed with concrete block construction. Respondent resides in the western side of the duplex and parks in the driveway which serves that side. The driveway on the right hand side of his property is approximately the length of one vehicle.

   
   

3. The intersection of State Road 35 and Hollingsworth Road is a busy signalized intersection. On an average day, upwards of 8500 vehicles pass through the intersection. State Road 35 is a four lane facility in the vicinity of Respondent's home. Both State Road 35 and Hollingsworth Road have dedicated right and left turn lanes at the intersection. The easterly connection which Petitioner is seeking to close is within the radius of the turn at the southwest corner of State Road 35 and Hollingsworth Road and the access is located in front of a stop bar on State Road 35.

   
   

4. To use the subject driveway, a driver must back into the flow of traffic at the intersection to exit the driveway. The connection also allows a driver to make a series of conflicting movements in relation to the traffic in the intersection. As it presently exists, there are no signal heads facing the driveway and a driver cannot see the traffic signals at the intersection. Both conditions create a safety problem because a driver, without seeing the signal head, cannot tell who has the right-of-way.

   
   

5. Respondent's State Road 35 connection provides uncontrolled access into a controlled intersection and could present an unexpected traffic movement to drivers entering the intersection from either State Road 35 or Hollingsworth Road. Additionally, the backing motion could conflict directly with the pedestrian crosswalk at that corner.

   
   

6. Also, there are two public schools, Lime Street Elementary and Lakeland High School, served by the intersection of State Road 35 and Hollingsworth Road. The driveway in question creates a conflict with school children who cross the road at the intersection.

7. Petitioner has engaged in an extensive review project of resurfacing, signalization, and road upgrades to new standards and has received a number of requests to change sidewalk and curb ramps to comply with ADA standards. The upgrades also included relocating some signal loops and Respondent's driveway came within the loop and upgrading review process.

   
   

8. Petitioner has no authority to change the zoning of Respondent's property such that he can resell it to a commercial purchaser as Respondent has requested. Closing the subject driveway is necessary to alleviate the safety problems referenced herein. Although the effect of this intended closure will prevent Respondent's access to his driveway on State Road 35, based on the limited usefulness and the access that he has to his property (the Hollingsworth Road connection), the closure is not arbitrary or unreasonable as Respondent contends. In this regard, Respondent still has access from Hollingsworth Road. That access is safer to use and the signalization from that road can be seen and the traffic flow isn't as heavy as State Road 35.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

11. Petitioner is the state agency responsible for the enforcement of the access management act. Subsection 335.18, Florida Statutes, et seq.

    
    

12. When there are significant safety or operational problems associated with a connection, the Department is authorized to modify or close a connection to resolve those safety or operational problems.

    
    

13. Subsection 335.187, Florida Statutes, when read in para materia with Chapters 334-339, 341, 348 and 349 and Subsections 332.003-332.007, Florida Statutes, it is apparent that Petitioner may modify or close a "grandfathered" connection for safety or operational reasons relating to the state highway system.

    
    

14. Subsection 334.044(14), Florida Statutes provides in pertinent part that Petitioner has the authority to regulate access to the state highway system through its power "to establish, control, and prohibit points of ingress to, and ingress from, the state highway system . . . as necessary to ensure the safe, efficient, and effective maintenance and operation "

    
    

15. Likewise, Subsection 335.182(1), Florida Statutes, authorizes Petitioner to regulate access to the state highway system as follows:

    
    

    Vehicular access and connections to or from the state highway system shall be regulated by the department in accordance with this act in order to protect the public health, safety and welfare.

    
    

16. Based on the policy statement in the access management act as provided in Subsection 335.181, Florida Statutes, Petitioner's powers should not be narrowly construed. Petitioner is charged with the duty to regulate access to

the state highway system in the interest of safety and efficiency of that system. Based on the showing that Respondent's utilization of the driveway in question is unregulated and cannot be safely used and that it is causing conflicting traffic movements at the intersection, Petitioner's notice of intent to close the State Road 35 access is both reasonable and appropriate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

Petitioner, the Department of Transportation, enter a final order closing Respondent's connection to State Road 35 and that such closure be completed by Petitioner at its own cost.

DONE AND ENTERED this 19th day of July, 1994, in Tallahassee, Florida.

JAMES E. BRADWELL

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 July, 1994.

COPIES FURNISHED:

Paul Sexton, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0458

Alonzo T. Baggett

605 Hollingsworth Road

Lakeland, Florida 33801

Thornton J. Williams, General Counsel Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0450

Ben G. Watts, Secretary Attn: Eleanor F. Turner Haydon Burns Building Department of Transportation

Haydon Burns Building, M.S. 58 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 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: 94-000785

Orders for Case No: 94-000785