STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6747

)

WAYNE RINKENBACK, d/b/a )

SHORES MOTOR LODGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing was held in on March 9, 1995, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings. Respondent, all but one of the witnesses and court reporter attended the hearing in Ft. Myers.

Petitioner's attorney, witness Michael J. Tako, and Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, participated by videoconference from Tallahassee.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Paul Sexton

Chief, Administrative Law Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: Wayne Rinkenback, pro se

Shores Motor Lodge 7243 Winkler Road

Ft. Myers, Florida 33919 STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner may close Respondent's access to State Road 739 (US Business 41).

PRELIMINARY STATEMENT

By letter dated September 15, 1994, Petitioner advised Respondent of its intent to close the State Road driveway connection of the Shores Motor Lodge.

By letter dated October 12, 1994, Respondent requested a formal hearing.

At the hearing, Petitioner called two witnesses and offered into evidence

11 exhibits, which were all admitted. Respondent called one witness and offered into evidence no exhibits.

The transcript was filed April 3, 1995. Petitioner's proposed findings are adopted or adopted in substance. Respondent filed no proposed findings.

FINDINGS OF FACT

1. Respondent owns and operates a motel in Ft. Myers known as the Shores Motor Lodge. The motel is on the northwest corner of the intersection of Cypress Street and State Road 739 (US Business 41).

   
   

2. In the vicinity of the motel, State Road 739 is busy with a projected weekday traffic volume of 57,000 vehicles. The posted speed limit is 45 miles per hour. Petitioner is in the process of widening State Road 739 in the area from four lanes to seven lanes. Cypress Street is a short, residential street.

   
   

3. The intersection of State Road 739 and Cypress Street is not at a 90 degree angle. Instead, a vehicle turning right onto Cypress Street must execute a sharp turn of about 135 degrees.

   
   

4. The motel is an established property. Guests visiting

   the motel office have diagonally parked in front of the motel on the State

   right-of-way separating the motel from State Road 739. The road-widening project consumes nearly all of the right-of- way with road surface and a sidewalk, leaving no room for vehicles to park in front of the motel on the remaining right- of-way.

   
   

5. The motel occupies about 50 feet of frontage. On the other side of the motel, to the north, there is a driveway serving an adjacent church. To accommodate Respondent's guests, Petitioner modified the original design to shorten the curb along Cypress Street so that motel guests may turn onto Cypress Street, park alongside the road beside the motel, and walk a few feet to the front office.

   
   

6. Respondent's solution is to obtain a driveway, cutting at a 65 degree angle across a wide expanse of the sidewalk and beginning at the southern edge of the church's driveway. This driveway would run only a sort distance at this angle before requiring a sudden turn to the right in order to negotiate a narrow set of supports supporting the motel canopy under which the vehicles must pass. The driveway would run only eight feet from the front door to the office.

   
   

7. Respondent's solution is unsafe to pedestrians on the sidewalk and the motel property. It is likely that vehicle operators leaving State Road 739 at a gentle angle would not anticipate the tight passageway that they must navigate, while turning their vehicle further to the right in dangerously close proximity to the front door of the office. Pedestrians on the sidewalk are also endangered by vehicles traveling at high speeds veering off the highway to cross a wide expanse of sidewalk so near an intersection and another driveway.

   
   

8. Respondent's solution is unsafe to other vehicles on Cypress Street, State Road 739, and the motel property. Vehicles parked on the proposed driveway block site lines for drivers seeking to exit Cypress Street and are in danger of being rear- ended by vehicles exiting State Road 739 too fast. Likewise, the risk of rear-end collisions on State Road 739 is greater when

   drivers turning into the motel suddenly notice the narrow passageway that they must navigate or an obstruction in their path.

   
   

9. On the other hand, Petitioner's proposal is safe and mandated by operational considerations resulting from the road widening project. There remains reasonable and safe access for motel guests, many of whom are long-term residents who have little need to visit the office.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

11. Section 335.181(2)(a) provides that landowners have "a right to reasonable access to the abutting state highway," but not "the right of unregulated access to such highway."

    
    

12. Section 335.181(2)(b) states that access rights are

    
    

    subject to reasonable regulation to ensure the public's right and interest in a safe and efficient highway system. This paragraph does not authorize the department to deny a means of reasonable access to an abutting state highway, except on the basis of safety or

    operational concerns as provided in s. 335.184.

    
    

13. Section 335.184(3) provides that Petitioner shall grant access unless the access would "jeopardize the safety of the public or have a negative impact upon the operational characteristics of the highway."

    
    

14. Likewise, Section 334.044(14) authorizes Petitioner to "establish, control, and prohibit" access to state highways under its jurisdiction as necessary "to ensure the safe, efficient, and effective maintenance and operation of such facilities."

    
    

15. Petitioner has proved that Respondent cannot have direct access to State Road 739 under the relevant safety and operational standards. Respondent's alternative is dangerous. Petitioner has provided Respondent with reasonable, alternative access to State Road 739.

RECOMMENDATION

It is hereby

RECOMMENDED that the Department of Transportation enter a final order dismissing Respondent's challenge.

ENTERED on May 9th, 1995, in Tallahassee, Florida.

ROBERT E. MEALE

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 on May 9th, 1995.

COPIES FURNISHED:

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

605 Suwannee Street

Tallahassee, FL 32399-0458

ATTN: Eleanor F. Turner, M.S. 58

Thornton J. Williams, General Counsel Department of Transportation

562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458

Paul Sexton

Chief, Administrative Law Department of Transportation Haydon Burns Bldg., MS 58 605 Suwannee St.

Tallahassee, FL 32399-0458

Wayne RinkenbacK Shores Motor Lodge 7243 Winkler Rd.

Ft. Myers 33919

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 94-006747

Orders for Case No: 94-006747