STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

Haydon Burns Building 605 Suwannee Street Tallahassee, Florida

SHELL OIL COMPANY,

Petitioner,

vs. DOAH CASE NO.: 97-4952

DOT CASE NO.: 97-0295

DEPARTMENT OF TRANSPORTATION,

Respondent.

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FINAL ORDER

This proceeding was initiated by a request for a formal administrative hearing filed by Petitioner, SHELL OIL COMPANY (hereinafter SHELL), challenging the Violation and Notice to Show Cause issued by the Respondent, DEPARTMENT OF TRANSPORTATION (hereinafter DEPARTMENT), regarding SHELL'S driveway connection to State Road 7 in Dade County, Florida. This matter was referred to the Division of Administrative Hearings (DOAH) for a formal hearing on October 21, 1997. On October 27, 1997, DOAH issued its Initial Order assigning the case to Michael M. Parrish, a duly appointed Administrative Law Judge, and setting forth the responsibilities of the parties. The hearing was scheduled for January 29, 1998, in Miami, Florida. An Order Granting a Motion for Continuance was issued on December 19, 1997, rescheduling the hearing for March 19, 1998. On March 5, 1998, the hearing was again continued. The hearing was held on May 14, 1998, by telephone. Appearances on behalf of the parties were as follows:

For Petitioner: John Lukacs, Esquire

Lukacs & Lukacs, P.A. 1825 Coral Way, Suite 102

Miami, Florida 33145

For Respondent: Paul Sexton, Esquire

Chief Administrative Law Counsel Brian F. McGrail, Esquire Assistant General Counsel Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

Stipulated Facts were filed prior to hearing with three exhibits attached. The deposition of Ingrid Birenbaum, the DEPARTMENT'S District Six Permits Engineer at the time the Notice to Show Cause was

issued, was filed with DOAH together with exhibits introduced at the deposition. A transcript was prepared and filed subsequent to the hearing. By agreement of the parties, no witnesses were presented and the Stipulated Facts with the three exhibits attached and the deposition of Ingrid Birenbaum constituted the record in this case for the purpose of disposing of the limited issue of timeliness. On June 22, 1998, the DEPARTMENT filed its Proposed Recommended Order and SHELL filed its Findings of Fact, Conclusions of Law and Recommended Order. On July 21, 1998, the Administrative Law Judge issued his Recommended Order. Exceptions to the Recommended Order were filed by SHELL on August 5, 1998, and the DEPARTMENT filed its response to the exceptions on August 17, 1998. Thereafter, SHELL filed a reply to the DEPARTMENT'S response to the exceptions, the DEPARTMENT filed a motion to strike the reply as unauthorized, and SHELL filed a response to the motion to strike.

STATEMENT OF THE ISSUE

As stated by the Administrative Law Judge in his Recommended Order, the issue presented is: "whether the Petitioner waived its right to a hearing by failing to request a hearing within the period of time described in the Notice to Show Cause."

BACKGROUND

On July 25, 1997, the DEPARTMENT issued a Violation and Notice to Show Cause (hereinafter Notice) to SHELL advising SHELL that its driveway nearest the intersection of N. W. 20th Street along N. W. 7th Avenue would be closed because it detracted from the safety and efficient operations of the roadway, and that SHELL had thirty (30) days from the date of receipt of the Notice to file a request for an administrative hearing, pursuant to Section 120.57, Florida Statutes.

In response to the Notice, SHELL filed a Petition for Formal Administrative Hearing and Supplement to Petition for Formal Administrative Hearing on October 6, 1997, challenging the DEPARTMENT'S proposed closure of the driveway.

SHELL'S EXCEPTIONS TO RECOMMENDED ORDER

SHELL'S first exception is to "the Administrative Law Judge's recommendation that the Department of Transportation issue a Final Order in this cause denying the request for an administrative hearing filed by the Petitioner, Shell Oil Company, based on the grounds that the Petition for said hearing was filed in an untimely manner." SHELL argues that the thirty (30) day time period specified in the Notice is not jurisdictional, in the sense that failure to comply is an absolute bar to appeal, but is more analogous to statutes of limitations which are subject to equitable considerations such as tolling. The issue presented was determined, by Page 3 of 19 agreement, on relatively few stipulated facts, a deposition, and a few documents which the parties agreed constituted the record. There is no evidence in the record that other facts which could demonstrate "equitable circumstances"

were not agreed to, were proposed by SHELL but rejected, or were presented but not considered by the Administrative Law Judge. Section 120.569(1), Florida Statutes, provides, in pertinent part, that agency notice of action which may affect a party's substantial interests must, inter alia:

inform the recipient of any administrative hearing or judicial review that is available under this section, s. 120.57, or s. 120.68; shall indicate the procedure which must be followed to obtain the hearing or judicial review; and shall state the time limits which apply.

If facts exist which could have established "equitable circumstances" entitling SHELL to relief from the mandatory filing requirements of the Notice, it was incumbent upon SHELL to have included such facts in the stipulated facts or establish such facts at the hearing. SHELL did not. As concluded by the Administrative Law Judge at Conclusion of Law 12, the "Department's Notice dated July 25, 1998, (sic) complies with all of the requirements of the statutory language quoted above. The Notice advised Shell that it could request an administrative hearing under either Section 120.57(1) or 120.57(2), Florida Statutes. The Notice clearly described the procedure to be followed to obtain the hearing. The Notice clearly stated the time limit within which Shell could request a hearing. Shell simply failed to timely exercise its right to request a hearing."

The DEPARTMENT may reject or modify incorrect or unsubstantiated conclusions of law and interpretations of administrative rules over which it has substantive jurisdiction. § 120.57(1)(j), Fla. Stat. (1997). However, as set forth above, and as revealed by the record in its entirety, the conclusions of the Administrative Law Judge that SHELL had adequate notice and had not established that it had been lulled or misled into inaction or prevented from timely asserting its rights, are well supported in the law and the record.

The facts stipulated to by the parties demonstrate that no "equitable circumstances" existed and none were established by SHELL to warrant the application of "equitable tolling." As concluded by the Administrative Law Judge, the facts of this case are less like the facts of Machules v. Dept of Agriculture, 523 So. 2d 1132 (Fla. 1988), and State, Dept of Envtl. Regulation v. Puckett Oil Co., Inc., 577 So. 2d 988 (Fla. 1st DCA 1991), and more like the facts of Environmental Resource Assocs. of Florida, Inc. v. State, Dept of Gen. Servs., 624 So. 2d 330 (Fla. 1st DCA 1993). In Environmental Resource Associates, the appellate court upheld an agency's denial of an administrative hearing because the petitioner did not timely file a request for hearing. Environmental Resource Assocs., 624 So. 2d 330. Noting that cases like Machules and Puckett require a showing of extraordinary circumstances or that the petitioner was misled or lulled into inaction, the Environmental Resource Associates court noted:

There is nothing extraordinary in the failure to timely file in this case. Quite to the contrary, the problem in this case is the too ordinary occurrence of a party's attorney failing to meet a filing deadline.

Id. at 330-331.

As revealed by the record in its entirety, the conclusions of the Administrative Law

Judge are well supported in the law as applied to the record in this case.

SHELL'S first exception is rejected.

SHELL'S second exception is to Finding of Fact No. 4 on the basis that it is not supported by competent substantial evidence because it "erroneously states the extent of information contained within the Notice dated July 25, 1997." The Notice states that a written request "must" contain certain enumerated information and the Administrative Law Judge in Finding of Fact No. 4 states that the Notice provides that certain enumerated information "should" be contained in a written request for hearing.

At Finding of Fact No. 4, the Administrative Law Judge did not quote the language of the Notice but rather characterized the requirement that certain information "must be included" as such information "should be included." Therefore, SHELL insists that since Finding of Fact No. 4 misstates the extent of information required for processing a Petition for Formal Hearing, it is not supported by competent substantial evidence and "should" be rejected.

The Administrative Law Judge properly weighed the evidence and concluded that the Notice contained legally sufficient information for SHELL to formulate a response and file a request for administrative hearing with the Clerk of Agency Proceedings within the thirty (30) day time period. Notwithstanding his use of the word should, the findings of the Administrative Law Judge are supported by competent substantial evidence and the DEPARTMENT cannot re-weigh evidence or reject findings that are supported by competent substantial evidence. Friends of Children v. Dep't of Health & Rehabilitative Servs., 504 So. 2d 1345 (Fla. 1st DCA 1987); Heifetz v. Dep't of Business Regulation, 475 So. 2d 1277 (Fla. 1st DCA 1985); State Beverage Dep't v. Ernal, Inc., 115 So. 2d 566 (Fla. 3d DCA 1959). The Administrative Law Judge's characterization of "must" as "should" is inconsequential and cannot defeat the record evidence supporting his conclusions.

SHELL'S second exception is rejected.

SHELL'S third exception is to Finding of Fact No. 5 because it "does not fully explain the content of Shell's August 19, 1997 letter and oversimplifies the contents of Shell's correspondence." It is undisputed in this record that the August 19, 1997, letter seeking copies of the traffic study acid not request an administrative hearing, nor did it request an extension of time to file a request for

an administrative hearing" as found by the Administrative Law Judge in Finding of Fact No. 4. SHELL reargues the meaning of the letter and continues to submit that it was sent in response to the Notice, and because it referenced the Notice, the specific property address, and the State Road Section identification numbers and milepost number, as required by the Notice, it is, in fact, not a public records request for the traffic study, but a request for administrative hearing.

It is the Administrative Law Judge's function "to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence." Heifetz, 475 So. 2d 1277; ;Ernal, Inc., 1 15 So. 2d 566. The DEPARTMENT cannot re-weigh evidence or reject findings that are supported by competent substantial evidence. Friends of Children, 504 So. 2d 1345; Heifetz, 475 So. 2d 1277. The Administrative Law Judge weighed the evidence, drew permissible inferences therefrom, and properly reached his ultimate findings of fact which are supported by competent substantial evidence. The public records request did not request a hearing nor was it sent to the Clerk of Agency Proceedings as stated in the Notice.

SHELL'S third exception is rejected.

SHELL'S fourth exception is to Finding of Fact No. 6 because it "misstated the role of the Department's Designee, Ms. Ingrid Birenbaum and therefore diminishes her role and authority as District Secretary." More specifically, SHELL argues that the last sentence of Finding of Fact No. 6 "is not supported by competent substantial evidence and is based on erroneous fact."

There is no evidence in this record that Ms. Birenbaum's "role and authority" with the DEPARTMENT were ever as "District Secretary." To the contrary, the record undisputedly establishes that Ms.

Birenbaum was District Permits Engineer for the DEPARTMENT'S District

6 at the time of the actions at issue in this case, that at the time of her deposition she was the Turnpike Traffic Operations Engineer, and that the District Secretary for the DEPARTMENT'S District 6 was Jose Abreu. By its exception, SHELL argues that Ingrid Birenbaum and Gus Pego, both engineers, possessed the authority after the passage of the thirty (30) day time limit to reverse the DEPARTMENT'S decision and to waive the timeliness issue. There is nothing in the record to support this position. The record establishes that Ms. Birenbaum gave instructions for removal of the driveway only after confirming with the DEPARTMENT'S Clerk of Agency Proceeding that a request for an administrative hearing had not been received from SHELL. There is no evidence that either Ms. Birenbaum or Mr. Pego had the authority to order replacement of the driveway at the DEPARTMENT'S cost or to waive the timeliness issue. The DEPARTMENT cannot re-weigh evidence or reject findings that are supported by competent substantial evidence. Friends of Children, 504 So. 2d 1345; Heifetz, 475 So. 2d 1277. The Administrative Law Judge's Finding of Fact No. 4 is supported by competent substantial evidence.

SHELL'S fourth exception is rejected.

SHELL'S fifth exception is to Finding of Fact No. 7 as a misstatement of fact and argues that SHELL "agreed to forebear legal proceedings in inverse condemnation in consideration of the Department of Transportation's agreement to restore the driveway pending outcome of the administrative hearing on the issue of the driveway closure." In her deposition, Ms. Birenbaum stated that counsel was "threatening inverse." There is no evidence in this record contradicting that statement. Moreover, even if there had been conflicting testimony, it is the function of the Administrative Law Judge to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence. " Heifetz,

475 So. 2d 1277; Ernal, Inc., 1 15 So. 2d 566. The DEPARTMENT cannot re-weigh evidence or reject findings that are supported by competent substantial evidence. Friends of Children, 504 So. 2d 1345; Heifetz,

475 So. 2d 1277. The Administrative Law Judge weighed the evidence and properly reached his ultimate findings of fact which are supported by competent substantial evidence.

SHELL'S fifth exception is rejected.

SHELL'S sixth exception is to Finding of Fact No. 8 that the first sentence thereof is not supported by competent substantial evidence and "incorrectly categorizes the individuals who are present at the October 1, 1997 meeting as 'staff'." The basis for this portion of its exception to Finding of Fact No. 8 is SHELL'S continued insistence, without citation in the record for support, to characterize Ms. Birenbaum as "District Secretary" or "District Secretary designee." There is no evidence in this record that such title or authority was granted to Ms. Birenbaum or that such authority should be imputed to her. As detailed above Page 9 of 19 in the DEPARTMENT'S rejection of SHELL'S fourth exception to the Recommended Order, the record undisputedly establishes that Ms. Birenbaum was District Permits Engineer for the DEPARTMENT'S District 6 at the time of the actions at issue in this case, that at the time of her deposition she was the Turnpike Traffic Operations Engineer, and that the District Secretary for the DEPARTMENT'S District 6 was Jose Abreu. The is no record evidence to support SHELL'S continued references to or reliance upon its unproven characterization of Ms. Birenbaum as the "District Secretary designee." Similarly, there is no evidence in this record to support SHELL'S apparent conclusion that by so characterizing Ms. Birenbaum in its exceptions to the Recommended Order, she has somehow obtained the authority SHELL would impute to her.

The only evidence is that the DEPARTMENT agreed with counsel for SHELL at the October 1, 1997, meeting not to replace the driveway until the issue of closure was resolved. There is no evidence that Ms. Birenbaum agreed to or had the authority to agree to waive the thirty (30) day notice for filing the petition.

SHELL also takes exception to the second sentence of Finding of Fact No. 8 that as a result of the October 1, 1997, meeting SHELL "advised that it would file a written request for an administrative hearing." The totality of this record supports the conclusion of the Administrative Law Judge.

Finally, SHELL takes exception to the last sentence of Finding of Fact No. 8 which states: " At the time of the agreements on October 1, 1997, the Department's District Six staff did not have a role in determining whether the Department would grant a hearing to Shell on the basis of a late-filed petition." Once again, SHELL'S support for this exception is its self-Page

serving characterization of Ms. Birenbaum as the "Agency Designee" and "District Secretary Designee" with authority to grant SHELL a hearing notwithstanding its untimely filed petition. There is nothing in this record to support the conclusion advocated by SHELL in its exception. The finding of the Administrative Law Judge is supported by competent substantial evidence in the record.

SHELL'S sixth exception is rejected.

SHELL'S seventh exception is to Finding of Fact No. 9 that "shortly after the October 1, 1997 meeting, the Department restored the subject driveway to its original condition, pending disposition of this proceeding" is misleading. The basis for SHELL'S position in this regard is that "shortly after" is, in fact, the same day, October 1, 1997. SHELL'S attempt to find fault with the Administrative Law Judge's choice of words falls short of the necessary showing for an agency to reject a finding of fact.

SHELL also argues that when the Administrative Law Judge refers to the DEPARTMENT'S restoration of the subject driveway as subject to the "pending disposition of this proceeding," the Administrative Law Judge erroneously interprets the parties' agreement as referring to the bifurcated proceeding on the timeliness issue.

SHELL agreed to bifurcate the issues of timeliness and the merits of the DEPARTMENT'S intended action to close the driveway. The Administrative Law Judge properly concluded that the parties agreement contemplated that upon final disposition of the timeliness issue adverse to SHELL, that portion of their agreement requiring SHELL to remove the driveway at its own expense would be triggered. The findings and conclusions of the Administrative Law Judge in that regard are supported by competent substantial evidence Page 11 of 19 in the record.

SHELL'S seventh exception is rejected.

SHELL'S eighth exception is that Conclusion of Law No. 11 is incomplete, misleading, and not supported by competent substantial evidence. Conclusion of Law No. 11 quotes the last sentence of Section 120.569(1), Florida Statutes (1997). SHELL takes exception to the

fact that the entire text of Section 120.569(1), Florida Statutes, was not also quoted. This exception does not form a basis for rejecting a conclusion of law, let alone one that merely quotes the relevant portion of the statute upon which a petitioner's rights are based.

SHELL'S eighth exception is rejected.

SHELL'S ninth exception is to Conclusion of Law No. 12 because the Notice issued to SHELL by the DEPARTMENT is dated 1997, and not 1998, as reflected in the Recommended Order and because the Administrative Law Judge concluded that the Notice complied with all requirements of the quoted statutory language of Section 120.569(1), Florida Statutes.

SHELL accurately notes that the Notice at issue is dated July 25, 1997, as reflected in paragraph 1 of the Stipulated Facts and as quoted in Finding of Fact No. 1 of the Recommended Order. This apparent scrivener's error is immaterial and does not affect the findings and ultimate conclusions of the Administrative Law Judge or the substantial support therefore in the record.

The Administrative Law Judge also concluded that based upon

the Notice provided, the DEPARTMENT complied with the requirements of the statute, that SHELL had notice that it could request a hearing under either Section 120.57(1) or 120.57(2), that it was adequately advised as to the procedure to follow to obtain a hearing, and that it was advised of the time limit within which to obtain a hearing. Upon the evidence presented, the Administrative Law Judge's conclusion that "Shell simply failed to timely exercise its right to request a hearing" is well supported.

None of the cases relied upon by SHELL to support its ninth exception factually resemble this case and are not controlling of the outcome. For example, in Stewart v. Dep't of Corrections, 561 So. 2d

15 (Fla. 4th DCA 1990), the appellate court reversed the dismissal of an employee's appeal to the Public Employees Relations Commission because it was filed one day late. In reversing and reinstating the employee's appeal of his dismissal from employment, the court noted that "equitable tolling unlike estoppel, does not require active deception or employer misconduct but focuses rather on the employee with a reasonably prudent regard for his rights." Id. at 16 (quoting Machules v. Dept of Admin., 523 So. 2d 1132 (Fla. 1988)). The court concluded that one day late showed the employee's reasonably prudent regard for his rights. There is no such fact in this case and no such showing as required to invoke the doctrine.

Somewhat similarly, the First District Court of Appeals addressed the filing of a petition contesting the termination of its dealership at 4:55 p.m. with an agency whose hours of operation are 8:00 a.m. to 4:30 p.m. General Motors v. Gus Machado Buick-GMC, 581 So. 2d 637 (Fla. 1st DCA 1991). The opinion of the court focused on the fact that while the operative statute "provides that the notice shall become effective within 15 days of receipt, it does not expressly

prescribe a time within which the dealer must file a petition." Id. at 638. Moreover, the hearing officer in Gus Machado found that "the notice sent to Machado by GM did not state that a petition to contest the termination had to be filed within 15 days." Id. This case and the DEPARTMENT'S Notice herein do not suffer from such deficiencies and Gus Machado does not support SHELL'S position.

Capeletti Brothers, Inc. v. State, Dep't of Transp., 362 So. 2d

346 (Fla. 1st DCA 1978), is similarly not on point and not supportive of SHELL'S exception. There, the challenge was to the DEPARTMENT'S "free-form decisions . . . unknown to the APA, by which an agency transacts its day-to-day business." Id at 348. According to the opinion, "DOT does not plausibly contend that its correspondence satisfied the procedural requirements of Chapter 120." Id. Here, the DEPARTMENT argued and presented sufficient evidence of its compliance with the requirements of Chapter 120 and SHELL'S simple failure to timely exercise its right to request a hearing.

SHELL'S ninth exception is accepted in part and rejected in part.

SHELL'S tenth exception is to Conclusion of Law No. 13 on various grounds. First, SHELL properly notes a repetition of the scrivener's error regarding the DEPARTMENT'S Notice discussed in the DEPARTMENT'S consideration of SHELL'S ninth exception. For the reasons noted in its response to SHELL'S ninth exception above, the exception is well taken, but immaterial to the ultimate findings and conclusions of the Recommended Order.

This exception also finds fault in the Administrative Law Judge's conclusion that "This argument [that the 30-day period never began to run because the Notice lacked sufficient factual detail for SHELL to be able to state in a request for hearing what facts it disputed] fails because the facts and conclusions alleged in the Notice, along with the statutory and rule citations in the Notice, were sufficient to inform Shell of the basis for the Department's proposed action. " Because the record supports this conclusion and for the reasons set forth above in response to SHELL'S first and ninth exceptions, the Recommended Order in this regard is well supported by the facts and the law.

Weighing the evidence presented, as he must, the Administrative Law Judge also properly concluded that "[f]rom the face of the notice, Shell had sufficient information to raise every issue that it ultimately included in its tardy petition." SHELL'S exception to this portion of Conclusion of Law No. 13 is not supported by this record.

SHELL'S tenth exception is accepted in part and rejected in part.

SHELL'S eleventh exception is to Conclusion of Law No. 14 and argues that Machules, 523 So. 2d 1132, and Puckett Oil, 577 So. 2d 988, excuse SHELL'S tardiness under the doctrine of equitable tolling. As discussed above in response to SHELL'S first exception to the Recommended Order and as concluded by the Administrative Law Judge,

the facts of this case are less like the facts of Machules and Puckett Oil, and more like the facts of Environmental Resource Assoc., 624 So. 2d 330. Unlike the facts of Machules and Puckett where there was a showing that the petitioner was misled or lulled into inaction, the facts of Environmental Resource Associates and the facts of this case support no such conclusion and equitable tolling cannot be relied upon. Even SHELL acknowledges that equitable tolling can be invoked only under certain circumstances. The evidence presented to the Administrative Law Judge does not establish such circumstances exist in this case.

SHELL'S claim that Ms. Birenbaum was confused about the appeal period in this case is not supported by the record.

For these reasons and for the reasons stated above in response to SHELL'S first, second, fourth, sixth, ninth, and tenth exceptions, SHELL'S eleventh exception is not well founded.

SHELL'S eleventh exception is rejected.

SHELL'S twelfth exception is to Conclusion of Law No. 15 and the Administrative Law Judge's conclusion that "Shell was not misled or lulled into inaction, Shell was not prevented from asserting its rights, and Shell did not timely assert its rights in the wrong forum." Once again relying on its mischaracterization of Ms.

Birenbaum as "District Secretary Designee" and imputing to her authority she never had, never said she had, and which cannot be found in or inferred from this record, SHELL continues to challenge findings and conclusions of the Administrative Law Judge on this basis.

SHELL further claims that the Administrative Law Judge erroneously relied upon Vantage Healthcare Corp. v. Agency for Health Care Admin., 687 So. 2d 306 (Fla. 1st DCA 1997), because it "is clearly distinguishable from the instant case" but never shares how. Vantage Healthcare stands for the proposition that it is error for an agency to depart from the clear and express requirements of its own rules and that whether the "equities" warrant the application of the doctrine of equitable tolling depends upon the factual circumstances of the case. In Vantage Healthcare, the court concluded that it could find no authority for extending the doctrine to facts as presented to it. Id. at 307. Such is the case here.

SHELL'S twelfth exception is rejected.

DEPARTMENT'S MOTION TO STRIKE

Rule 28-106.271(1) and (2), Florida Administrative Code, provide:

1. Parties may file exceptions to findings of fact and conclusions of law contained in recommended orders with the agency responsible for rendering final agency action within 15 days of

   the entry of the recommended order exception proceedings conducted pursuant to Section 120.57(3), F.S.

   
   

2. Any party may file responses to another party's exceptions within 10 days from the date the exceptions were served.

Neither Section 120.57(j), Florida Statutes, nor the rules allow for an agency's consideration of parties post-hearing filings directed to a Recommended Order except those described in Rule 28-106.271(1) and (2), Florida Administrative Code. Therefore, the DEPARTMENT, in preparation of its Final Order, has not considered any filings filed after the DEPARTMENT'S responses to SHELL'S exceptions in accordance with Rule 28-106.271(2), Florida Administrative Code. The DEPARTMENT has, necessarily, considered the motion to strike and SHELL'S response thereto to the extent necessary to evaluate and rule on the merits of the motion to strike.

The DEPARTMENT'S motion to strike is granted.

FINDINGS OF FACT

After review of the record in its entirety, it is determined that the Administrative Law Judge's Findings of Fact found in paragraphs 1 through 9 of the Recommended Order are supported by the record and are accepted and incorporated as if fully set forth herein.

CONCLUSIONS OF LAW

1. The DEPARTMENT has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Chapters 120, 334, and 335, Florida Statutes.

   
   

2. The Conclusions of Law contained in paragraphs 10, 11, 14, and 15 of the Recommended Order are fully supported in law. As such, they are adopted and incorporated as if fully set forth herein. The Conclusions of Law contained in paragraphs 12 and 13 of the Recommended Order are fully supported in law and fact with the exception of the two scrivener's errors noted in the responses to SHELL'S ninth and tenth exceptions. As such, those Conclusions of Law are rejected to the extent they erroneously identify the date of the DEPARTMENT'S Notice as July 25, 1998. Those conclusions are hereby modified to reflect the date of July 25, 1997, which is amply supported by the record. As modified, Conclusions of Law contained in paragraphs 12 and 13 of the Recommended Order are fully supported in law and fact and, as such, they are adopted and incorporated as if fully set forth herein.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law,

it is

ORDERED that the Administrative Law Judge's Recommended Order as modified is adopted in its entirety and Petitioner's, SHELL OIL COMPANY, request for hearing is dismissed. It is further

ORDERED that within thirty (30) days of the final disposition of this Final Order, SHELL has to remove the subject driveway at its own expense and if not removed in the time allotted, the DEPARTMENT or its contractor shall remove the driveway and the costs thereof are hereby assessed against SHELL.

DONE AND ORDERED this 19th day of October, 1998.

THOMAS F. BARRY, JR., P.E.

Secretray

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

Copies Furnished to:

Brian F. McGrail, Esquire Assistant General Counsel Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

John Lukacs, Esquire Lukacs & Lukacs, P.A. 1825 Coral Way, Suite 102

Miami, Florida 33145

Ingrid Birenbaum

Department of Transportation Post Office Box 9828

Ft. Lauderdale, Florida 33310-9828

Michael Parrish Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

NOTICE OF RIGHT TO APPEAL

THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY ANY PARTY PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULES

9.110 AND 9.190, FLORIDA RULES OF APPELLATE PROCEDURE, BY FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS OF RULE 9.110(d), FLORIDA RULED OF APPELLATE PROCEDURE, BOTH WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, ACCOMPANIED BY THE APPROPRIATE FILING FEE, AND WITH THE DEPARTMENT'S CLERK OF AGENCY PROCEEDINGS, HAYDON BURNS BUILDING, 605 SUWANNEE STREET, M.S. 58, TALLAHASSEE, FLORIDA 32399- 0458, WITHIN THIRTY (30) DAYS OF RENDITION OF THIS ORDER.

Docket for Case No: 97-004952

Orders for Case No: 97-004952