STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA PUBLIC UTILITIES COMPANY, )

)

Petitioner, )

)

vs. ) Case No. 98-4461

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 22, 1999, at Tallahassee, Florida, before Claude B. Arrington, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: E. Gary Early, Esquire

Akerman, Senterfitt & Eidson, P.A.

216 South Monroe Street, Suite 200 Tallahassee, Florida 32301

For Respondent: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES

Whether the application of the Florida East Coast Railway Company (FEC) to close the subject railway crossing should be dismissed for lack of regulatory jurisdiction.

PRELIMINARY STATEMENT

The Florida East Coast Railway Company (FEC) applied to

Respondent for authorization to close a railroad crossing located in the Town of Lantana, Florida. This crossing, known as the Gator Culvert, is adjacent to property owned by Petitioner, Florida Public Utilities Company. Respondent investigated the status of the crossing and, based on its determination that it did not have jurisdiction over the crossing, published notice that it intended to dismiss the application. Respondent's determination that it lacked jurisdiction was based on its conclusion that the subject crossing was not a public crossing within the meaning of Section 335.141(1)(a), Florida Statutes, and that the subject road is not a public road within the meaning of Section 335.01(1), Florida Statutes.

Petitioner asserts that Respondent's determination as to its jurisdiction is premature because the issue of whether the crossing is public or private is being litigated in a Circuit Court proceeding in Palm Beach County, Florida.

The parties stipulated to all facts found herein.1 Petitioner filed as its only exhibits, the Amended Verified Complaint that underpins the Circuit Court proceeding and a notice of the agency action that triggered the petition that underpins this action. Respondent presented as its only exhibit a copy of its railway crossing inventory. The two exhibits submitted by Petitioner and the one exhibit submitted by Respondent were admitted into evidence. No other witnesses and no other evidence was presented.

No transcript of the proceedings has been filed. The Petitioner and Respondent filed proposed recommended orders, which have been duly considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner owns and operates a propane gas distribution facility adjacent and parallel to the FEC railroad track within the Town of Lantana. The railroad track is between Petitioner's facility and U.S. Highway 1. To reach its property from U.S. Highway 1, Petitioner's employees must utilize a railroad crossing commonly known as Gator Culvert.

2. The Gator Culvert is an at-grade railroad crossing.

   
   

3. On October 13, 1948, the Town of Lantana acquired a right-of-way for road purposes at the Gator Culvert from Everett Wurtz, Petitioner's predecessor in title.

4. On December 13, 1948, FEC and the Town of Lantana entered into a one-year renewable license to use the crossing for public road crossing purposes contingent upon the Town of Lantana assuming the cost of maintaining the crossing.

5. On June 26, 1979, the Town of Lantana quit-claimed its interest in the right-of-way to Gator Culvert.2

6. On March 29, 1996, Petitioner filed suit against FEC seeking declaratory and injunctive relief regarding its rights to use the Gator Culvert crossing. This litigation is pending in Circuit Court in Palm Beach County, Florida.

7. On June 28, 1996, FEC filed the subject application with Respondent for authorization to close the Gator Culvert crossing.

8. On October 2, 1996, Petitioner amended the complaint that underpins the Circuit Court litigation to join Respondent and the Town of Lantana as defendants.

9. By Count One of the Amended Complaint, Petitioner (referred to as Plaintiff in the Circuit Court pleadings) requests the Court to:

   . . . grant a declaratory judgment ruling that Plaintiff has a way of necessity purusant to F.S. Section 704.01(1) and that Defendants FEC, FDOT, and Town of Lantana may not close the crossing and thereby prevent Plaintiff's use of its way of necessity.

   Plaintiff further requests a trial by jury pursuant to F.S. Section 86.071.

10. By Count Two of the Amended Complaint, Petitioner requests the Court to:

    . . . grant a declaratory judgment ruling that Plaintiff has a prescriptive easement and that Defendants FEC and the Town of Lantana may not close the crossing and thereby prevent Plaintiff's use of said easement. Plaintiff further requests a trial by jury pursuant to F.S. Sectioln 86.071.

    
    

11. By Count Three of the Amended Complaint, Petitioner requests the Court to:

    . . . enter a temporary and permanent injunction restraining and enjoining Defendant, FDOT from granting FEC's application to close the crossing; to restrain and enjoin Defendant FEC from ceasing to maintain and from closing the railroad crossing which provides the only access to Plaintiff's property; and to restrain and enjoin the Town of Lantana form executing the Stipulation for Approval of Closure3 or participating in any way with the attempted closure of said crossing.

12. Count Four of the Amended Complaint pertained only to the Town of Lantana and did not involve Respondent.

13. On August 14, 1998, Respondent published its Notice of

    Intent to Dismiss Application to close the subject railroad crossing in the Florida Administrative Weekly. This notice set forth Respondent's rationale for dismissing the application to close the Gator Culvert crossing that FEC had filed June 28, 1996, in pertinent part, as follows:

    . . . The history of the crossroad, and its current condition indicate that it is not a public road. In particular, on the 26th day of June 1979, the Town of Lantana quit- claimed its interest to the right of way for public road purposes to Gator Culvert. While the prior status of the road as a public road is in doubt, this transaction effectively abandoned the right of way as a potential public roadway. Because the crossing is not a public railroad-highway grade crossing, the location is not subject to the Department's jurisdiction pursuant to Section 335.141, Florida Statutes. . . .

14. On September 4, 1998, Petitioner timely filed its Petition for Formal Administrative Hearing with Respondent, the pleading that underpins this proceeding.

15. On September 10, 1997, the Respondent issued a rails inventory that identified the Gator Culvert crossing as a private crossing.

16. Scott Allbritton, Respondent's Rail Programs Engineer, reviewed and assessed the documents in the public record in processing FEC's application that were necessary and appropriate to determine whether the subject crossing was public or private, thereby determining whether Respondent lacked jurisdiction to regulate the subject crossing. His investigation revealed that the record title to the subject crossing was private. Based on

    Mr. Allbritton's investigation, Respondent determined that it lacked jurisdiction to regulate the subject crossing since it was not a public crossing. Respondent did not act in an arbitrary or capricious manner in making that determination.

17. Respondent does not attempt to adjudicate real property disputes by its administration of the statutorily mandated railroad/vehicular traffic crossing program.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction of the parties to and the subject of this proceeding. Section 120.57(1), Florida Statutes.

19. Section 335.141, Florida Statutes, provides, in pertinent part, as follows:

    (1)(a) The department shall have regulatory authority over all public railroad-highway grade crossings in the state, including the authority to issue permits which shall be required prior to the opening and closing of such crossings.

    (b) A "public railroad-highway grade crossing" is a location at which a railroad track is crossed at grade by a public road.

20. Section 335.01, Florida Statutes, provides, in pertinent part, as follows:

    1. All roads which are open and available for use by the public and dedicated to the public use, according to law or by prescription, are hereby declared to be, and are established as, public roads.

       
       

21. The record title to the subject property reflects that the Gator Culvert crossing is a private crossing.

22. Article V, Section 5 of the Florida Constitution vests original jurisdiction to determine real property rights in the circuit courts. Only a court of competent jurisdiction can determine that the crossing is a public crossing based on one or more of the theories advanced by Petitioner in the Circuit Court litigation. Respondent has no such authority. In the administration of this statutorily mandated program, Respondent must determine whether a particular crossing is public or private based solely on the public record. Because the record title reflects that the crossing is a private crossing, Respondent correctly determined that it lacked jurisdiction to regulate the subject crossing. If, as a result of the Circuit Court proceeding, it is determined that the crossing is a public crossing, Respondent recognizes that it will be required by statute to exercise jurisdiction over the crossing.

23. The Circuit Court proceeding is the appropriate forum to resolve the issues raised by Petitioner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order that dismisses this proceeding.

DONE AND ENTERED this 17th day of February, 1999, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1999.

ENDNOTES

1/ These stipulations can be found in the Prehearing Stipulation filed January 20, 1999. In addition, the parties stipulated at the formal hearing that Scott Allbritton, Respondent's Rail Programs Engineer, reviewed and assessed documents in the public record in processing FEC's application and in making his determination that Respondent lacked jurisdiction to regulate the subject crossing.

2/ The stipulation is quoted verbatim. From the stipulation, it is clear that the Town of Lantana was the grantor of the quit- claim deed. It is not clear whether an entity named Gator Culvert was the grantee or some other non-public entity was the grantee. The significance of the stipulated fact is that the public entity, the Town of Lantana, purported to divest itself of any interest in the right-of-way.

3/ The Stipulation for Approval of Closure is a facet of the underlying dispute that is not relevant to the instant proceeding.

COPIES FURNISHED:

E. Gary Early, Esquire

Akerman, Senterfitt & Eidson, P.A.

216 South Monroe Street, Suite 200 Tallahassee, Florida 32301

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

Thomas F. Barry, Secretary Department of Transportation

ATTN: James C. Myers, Clerk of Agency Proceedings Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

1 These stipulations can be found in the Prehearing Stipulation filed January 20, 1999. In addition, the parties stipulated at the formal hearing that Scott Allbritton, Respondent's Rail Programs Engineer, reviewed and assessed documents in the public record in processing FEC's application and in making his determination that Respondent lacked jurisdiction to regulate the subject crossing.

2 The stipulation is quoted verbatim. From the stipulation,

it is clear that the Town of Lantana was the grantor of the quitclaim deed. It is not clear whether an entity named Gator Culvert was the grantee or some other non-public entity was the grantee. The significance of the stipulated fact is that the public entity, the Town of Lantana, purported to divest itself of any interest in the right of way.

3 The Stipulation for Approval of Closure is a facet of the underlying dispute that is not relevant to the instant proceeding.

Docket for Case No: 98-004461

Orders for Case No: 98-004461