STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF TRANSPORTATION,
Petitioner,
vs.
RONALD PULEO,
Respondent.
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) Case No. 12-3524
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RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this case on January 4, 2013, by video teleconference at sites in Sarasota and Tallahassee, Florida, before Administrative Law Judge
Elizabeth W. McArthur of the Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioner: Wayne W. Lambert, Esquire
Florida Department of Transportation Mail Station 58
605 Suwannee Street
Tallahassee, Florida 32399-0450
For Respondent: Daniel C. Guarnieri, Esquire
Adams and Reese, LLP Suite 700
1515 Ringling Boulevard
Sarasota, Florida 34236-6730 STATEMENT OF THE ISSUES
The issues in this permit enforcement proceeding are whether Respondent violated the conditions of a general use permit,
authorizing use of a designated portion of the Department of Transportation's right-of-way property, and, if so, what remedy is appropriate and authorized?
PRELIMINARY STATEMENT
By letter dated November 8, 2010, the Sarasota Operations Center of the Department of Transportation (Department or Petitioner), advised Ronald Puleo (Mr. Puleo or Respondent) that he violated the terms of a 2010 permit, as well as a "court ordered agreement" and "Florida Statute," by using the permitted site for "parking and sale of merchandise/goods[.]" Transmitted with the letter was a "Violation and Order to Show Cause," which served as the charging document (Complaint).1/ The Complaint set forth the factual allegations claimed to be violations and the statutes under which the alleged violations were charged. The Complaint specified that, as relief for the alleged violations, "the Department reserves the right to take such action as the law permits, including but not limited to the revocation of the permit." The Complaint informed Mr. Puleo of his right to an administrative hearing to contest the "[n]otice of [i]ntended Department [a]ction" and identified the applicable procedural rules and time limits for exercising that right.
A timely petition for an administrative hearing involving disputed issues of material fact (Petition) was filed on
Mr. Puleo's behalf. The Petition disputed the validity of the
2010 permit on which the charges were predicated. Mr. Puleo contended that the Department unilaterally and unlawfully revoked a prior permit issued in 2009 (hereafter the "2009 permit") and replaced the 2009 permit with the 2010 permit, which imposed new conditions. Mr. Puleo contended that the 2009 permit was issued as part of a settlement agreement between Mr. Puleo and the Department to resolve circuit court litigation--the same
"court-ordered agreement" referred to in the Department's letter (hereafter the "settlement agreement"). Mr. Puleo contended that the Department was estopped from asserting violations of the 2010 permit and from denying the effectiveness of the 2009 permit, because it was part of the parties' settlement agreement.
The Petition also requested a stay of the administrative action so that Mr. Puleo could return to the circuit court in Sarasota County to seek enforcement of the settlement agreement approved by that court, and the Department agreed. As represented by both parties, the circuit court action to enforce the settlement agreement has not been resolved; that action remains pending, having been stayed until administrative remedies have been exhausted. Accordingly, after a two-year delay, the Complaint and Petition were forwarded to DOAH for assignment of an Administrative Law Judge to conduct the hearing requested by Respondent.
Before the final hearing, the parties filed a joint
pre-hearing stipulation in which they described the nature of the controversy and their respective positions and stipulated to several facts that are incorporated in the findings below. The parties described the controversy as including whether the Department was authorized to revoke the 2009 permit and issue the 2010 permit as a replacement permit; and, if the Department was not so authorized, whether Mr. Puleo violated the 2009 permit.
At the outset of the hearing, the parties acknowledged that this is an enforcement proceeding; as such, the hearing scope would be limited to the matters charged in the Complaint, and the Department would bear the burden of proof. The Complaint admittedly only charges Mr. Puleo with violating the 2010 permit. However, in the interests of efficient litigation, the parties stipulated that the Complaint is deemed amended to charge, in the alternative, that Mr. Puleo violated either the 2010 permit or the 2009 permit (if the 2009 permit was not lawfully revoked and replaced with the 2010 permit).
Petitioner presented the testimony of: Michael Hope, Esquire, a Department senior attorney; Albert Rosenstein, P.E., an engineering manager in the Department's Sarasota Operations Center; and Lance Grace, P.E., the operations engineer of the Sarasota Operations Center. Petitioner's Exhibits 1 though 8 and 10 were admitted in evidence without objection.
Respondent testified on his own behalf. Respondent's Exhibits 1 and 2 were admitted in evidence without objection.
The one-volume Transcript was filed on January 15, 2013.2/ The parties timely filed proposed recommended orders, which have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
Ronald Puleo owns property that fronts on U.S. Highway 41, South Tamiami Trail, in Sarasota, Florida. He purchased the property in 1989 and has used the property to operate a business called Sarasota Auto Rentals.
A commercial building on Mr. Puleo's property faces east, toward Tamiami Trail. The building houses not only Mr. Puleo's auto rental business, but also several other
commercial tenants who operate businesses that serve the public. According to signs in front of the building, these tenants have included a window-tinting business and Scoot, Inc., apparently involving the sale and/or rental of motor scooters.
Pictures in evidence of Mr. Puleo's property and the vicinity, taken during the relevant time of this controversy,3/ portray a fairly busy, established commercial area, as witnesses confirmed. The property to the south of Mr. Puleo's property is occupied by Enterprise, another rental car business. Further south, there is a solid line of establishment after establishment, a mixture of buildings, signs, and parking areas
as far as the eye can see. To the north of Mr. Puleo's property, there is a large car dealership with visible logos for
Volkswagen and Audi.
Tamiami Trail is a major north-south roadway through Sarasota. In front of Mr. Puleo's property, the road is
six-laned, with three lanes in each direction separated by a median.
Outside of the solid white lines marking the road's outer edge, the area adjacent to the roadway is finished with concrete gutters with intermittent drainage grills, raised curbs, and then a sidewalk flanked on either side by grass. At the interspersed access connections that allow ingress and egress to and from the various business properties, the curb and sidewalk flatten to street level, and there is pavement instead of grass. Standing on the grassy strip on the interior side (i.e., the side farther from the street), there is a row of intermittent tall poles with street lights. After the interior grassy strip (moving away from the street), there appears to be mostly asphalt paving in front of the businesses.
On Mr. Puleo's property, in particular, there is one access connection near the north end of the property. To the north of the access connection, a single street light pole stands on the interior grassy patch to the west of the sidewalk. On the south side of the access connection, there is a small grassy
strip to the right of the sidewalk. The rest of the space in front of Mr. Puleo's property is paved with asphalt. Directly in front of Mr. Puleo's building, the asphalt is painted with white stripes, designating parking spots perpendicular to the building. The parking spots have concrete parking bumpers at the front edges, which are very close to the front of the building itself; perhaps there is enough room for a person to walk in front of a parked vehicle to go into the building, but no more than that.
In addition to the designated parking spots, other parts of the asphalt pavement in front of Mr. Puleo's building are used, and historically have been used, for parking vehicles. Running east to west along the north property line, from the edge of the interior grassy patch, Mr. Puleo uses the pavement to park a row of rental cars. These cars are backed in either due south- to-north, or diagonally southeast-to-northwest, so that the car fronts face south (towards the asphalt in front of Mr. Puleo's property) or southeast (angled towards Tamiami Trail). These parked cars along the north property edge often have small "Rent Me" signs in the front windows.
In addition, historically, Mr. Puleo, his customers, his tenants, his tenants' customers, and sometimes customers or visitors of nearby businesses have parked vehicles along the east edge of the asphalt pavement in front of Mr. Puleo's building and along the south edge of the paved area in front of the building.
Historically, Mr. Puleo and others also have parked vehicles on an area to the south of Mr. Puleo's southern property line, in front of what is now the Enterprise rental car business, where there used to be asphalt pavement to the west of the sidewalk and interior grassy strip.
Lance Grace has been the operations engineer for the Department's Sarasota Operations Center since 2003. Mr. Grace first became familiar with Mr. Puleo's property and the property to the south in 2004, when Mr. Puleo's neighbor to the south was an exotic car dealer. According to Mr. Grace, there was competition between the two neighboring businesses to park on the asphalt-paved area that was to the south of Mr. Puleo's property line, and Mr. Grace was asked to get involved. Mr. Grace did not identify by whom he was asked to get involved, but the impression given was that it may have been the exotic car dealer. Mr. Grace testified that the exotic car dealer did not like Mr. Puleo parking on the asphalt to the south of his property line, because it blocked the view to the exotic car dealer's property.
At that time, the Department asserted the right to all of the Tamiami Trail frontage as its right-of-way westward from the roadway, past the sidewalk and grassy strips, all the way to a line that runs north-south, very close to Mr. Puleo's building--so close that the line actually bisects the designated parking spaces in front of Mr. Puleo's building so that half of
the parking spaces are within the right-of-way. This right-of- way line is 40 feet to the west of the interior grassy strip.
Therefore, the asphalt-paved area in front of the exotic car dealer's business was included in the Department's right-of-way.
Mr. Grace said that when he was asked to get involved in 2004, he tried to let the property owners work it out among themselves, although he did tell them that "all this parking within the right-of-way is illegal" and that if they continued to have issues, then he would have to get involved to "deal with it from a statutory point of view." At the hearing, Mr. Grace explained: "There is a Section 337 [in the Florida Statutes] that deals with unauthorized use within the right-of-way, and it is specifically written to prevent the parking and display of items within the right-of-way for safety and efficient use of the roadway." Mr. Grace testified that it was, and is, the Department's position based on the statute to which he alluded that parking is not allowed on its right-of-way.
Nonetheless, the parking continued on the paved area to the south of Mr. Puleo's property in front of the neighboring business. Mr. Grace testified that at some point, when there continued to be issues with parking there, the decision was made to have the asphalt removed and replaced with grass to discourage parking in that portion of the right-of-way. Mr. Grace's recollection was that a portion of that asphalt "may have" been
removed by the Department, but that at least part of the asphalt on the right-of-way was removed by Mr. Puleo's neighbor, who did not like the parked vehicles blocking the view of his business.
The pictures in evidence show the rectangular area south of Mr. Puleo's property where grass was placed to discourage parking in response to the dispute between Mr. Puleo and his neighbor to the south. However, in front of Mr. Puleo's property and elsewhere on both sides of Tamiami Trail, areas claimed as Department right-of-way remain paved between the interior grassy strips and the fronts of buildings.
Mr. Puleo credibly testified that historically, as long as he has owned the property, persons working at or visiting other establishments in the vicinity on both sides of Tamiami Trail have used the right-of-way similarly by parking vehicles on the area between the interior grassy strips next to the sidewalks and their buildings. Mr. Puleo's testimony was further corroborated by the pictures in evidence.
For example, the Department offered in evidence an aerial picture with the legend "Sarasota County Property Look- Up," on which tan lines are superimposed to demonstrate the Department's right-of-way boundary. This aerial picture (Petitioner's Exhibit 2) shows the lineup of cars parked along the northern boundary of Mr. Puleo's property described above. The same aerial view also shows that other businesses in the
vicinity use Department right-of-way property for parking. The property in the bottom left corner of the picture, on the other side of Tamiami Trail and a little to the south of Mr. Puleo's property, illustrates this usage. Just inside of the sidewalk and interior grassy strip, two cars are diagonally parked on a paved area facing Tamiami Trail. According to the tan right-of- way line, these two cars and the asphalt paving on which they are parked are wholly on right-of-way property. On the same parcel, the right-of-way line bisects a number of vehicles parked on paved areas that appear to be designated parking spaces, much like the right-of-way line in front of Mr. Puleo's building bisects his parking spaces.
The aerial photo also shows that on the property two parcels to the south of Mr. Puleo's property, several vehicles are parked perpendicular to the roadway with the front bumpers very near the sidewalk; one of the cars is so close that the edge of its front bumper might even protrude a bit over the edge of the sidewalk. These cars are wholly within the right-of-way.
Other pictures in evidence present similar images, such as the color photos that are part of the 2009 permit, which were taken by Mr. Rosenstein.
Mr. Grace acknowledged that Mr. Puleo's historic use of the right-of-way was not unique to his property, but rather, was fairly common in the general area, as shown in the pictures.
According to Mr. Grace, "the first real major effort" to try to prevent parking within the right-of-way in this vicinity occurred in 2005. This "major effort" involved him sending "several letters" to Mr. Puleo and several other businesses in the vicinity advising that "selling of items and parking in the right-of-way" was illegal. Mr. Grace noted that Mr. Puleo has
not ever stopped parking vehicles in the right-of-way in front of his property, despite the 2005 letter described by Mr. Grace.
The pictures in evidence (bearing dates in and after 2009) show that others in the vicinity similarly continued parking vehicles in the right-of-way after 2005.
Mr. Grace was asked what enforcement authority he has with regard to the problem he has perceived of parking and advertising items for sale in the right-of-way. He candidly admitted that he does not have law enforcement authority; he said that he can only inform property owners that there is a statute that applies to this situation and it is illegal. Mr. Grace testified that, if necessary, he can request assistance from law enforcement and that when he sent letters to property owners in 2005, he sent copies to the Florida Highway Patrol.
Throughout Mr. Grace's involvement in right-of-way matters with Mr. Puleo, dating back to 2004, no citations have been issued by the Florida Highway Patrol or any other law
enforcement authority for what Mr. Grace testified was Mr. Puleo's illegal use of the right-of-way.
When asked whether he has asked for enforcement assistance in Mr. Puleo's case, Mr. Grace said that he did so once. As Mr. Grace described the occasion, the Department was poised with a crew in place to remove asphalt from the right-of- way in front of Mr. Puleo's business. Apparently, Mr. Grace sought approval from the Florida Highway Patrol to authorize the crew to proceed. From what Mr. Grace recalls, Mr. Puleo may have gotten an attorney involved, because the Florida Highway Patrol "backed down at that point," telling Mr. Grace that they were "not sure about this whole right-of-way issue." Mr. Grace did not say when this incident occurred, except to note that it was before "the lawsuit."
In 2007, the Department filed a complaint in circuit court for ejectment against Mr. Puleo and his business, seeking to eject them from the Department's right-of-way. Michael Hope is the Department attorney who prepared the ejectment complaint. Both Mr. Hope and Mr. Grace acknowledged that the purpose of this lawsuit was to stop Mr. Puleo from parking and advertising on Department right-of-way. Mr. Puleo and his business counterclaimed.
A twist in the controversy arose when title work revealed that the 90 feet of Tamiami Trail frontage in front of
Mr. Puleo's property, from the roadway to a line bisecting the parking spaces in front of Mr. Puleo's building, did not all belong to the Department as right-of-way, as believed. Instead, more than half of the frontage--50 feet--actually was owned entirely by Mr. Puleo in fee simple.
This twist changed the dynamics of the dispute between the parties. The Department was put into the position of having to secure permission from Mr. Puleo to use his property for drainage and underground utilities traversing 50 feet of
Mr. Puleo's property. And in an ironic twist, it was suddenly the Department having to make amends for its prior unauthorized use of Mr. Puleo's property.
Meanwhile, although Mr. Puleo's bargaining position certainly had changed, his objective remained unchanged; he wanted to continue his admitted historic use of the paved portion of the other 40 feet of Tamiami Trail frontage, which was Department right-of-way up to the line bisecting the parking spaces in front of Mr. Puleo's building. In addition, Mr. Puleo wanted an asphalt strip restored on the right-of-way south of
Mr. Puleo's property line, where it had been removed and planted with grass to discourage his historic use of that right-of-way.
Protracted negotiations ensued, and the parties ultimately reached a settlement agreement in July 2009. The settlement agreement is set forth in a pleading that bears the
caption of the circuit court case, entitled "Stipulation for Dismissal of All Claims and Counterclaims," signed by both parties on July 10, 2009. Although the settlement agreement in evidence does not indicate approval by the circuit court, the parties acknowledge that it was, in fact, approved by the court. As suggested by the title, the settlement agreement resulted in the dismissal of all claims and counterclaims (subject to the right reserved in paragraph 12 of the settlement agreement to reopen the case for the purpose of enforcing the agreement).
Both parties agree that two paragraphs of the settlement agreement provide background germane to this administrative enforcement action, as follows:
[The Florida Department of Transportation, FDOT] acknowledges that the
40 foot portion of Parcel 106 that is proximate to the PULEO frontage is PULEO's historic driveway, for driveway usage for the PULEO property and that such driveway shall not be changed, except as provided herein, or in accordance with FDOT Access Management standards and procedures, with PULEO retaining rights to procedural redress under Chapter 120 of the Florida Statutes.
FDOT has issued a permit (permit #2009- K-194-36), Exhibit C, and thus agrees that PULEO may construct a 15 foot deep asphalt "turn out" for driveway usage for PULEO's property; such driveway "turn out" shall not be changed except in accordance with FDOT Access Management standards and procedures, with PULEO retaining rights to procedural redress under Chapter 120 of the Florida Statutes.
Paragraph 7 of the settlement agreement addresses
Mr. Puleo's use of the Department's right-of-way on the 40-foot portion of the Tamiami Trail frontage that is not owned outright by Mr. Puleo. As confirmed by both parties' witnesses, this right-of-way area is shown on Respondent's Exhibit 1 as the square outlined in pink. On Petitioner's Exhibit 2 (the aerial picture), it is the square area immediately north of the green-yellow- highlighted rectangle designated right-of-way parcel 196, east of the tan line bisecting five parking spots in front of Mr. Puleo's building and south of the tan line protrusion that extends eastward to the roadway, then north to Mr. Puleo's northern property boundary. The tan line protrusion marks the 50-foot frontage owned by Mr. Puleo; this area is shown on Respondent's Exhibit 2 as the larger blue rectangle next to the pink square.
Paragraph 8 of the settlement agreement addresses
Mr. Puleo's use of the right-of-way to the south of Mr. Puleo's property, which previously had been paved and used by Mr. Puleo. The Department issued the 2009 permit identified in paragraph 8 on July 9, 2009, the day before the settlement agreement was executed. The 2009 permit is part of the settlement agreement, as Exhibit C thereto.4/ Issuance of the 2009 permit allowed
Mr. Puleo to repave (at Department expense) and use a designated portion of the right-of-way to the south of Mr. Puleo's property.
Department attorney Michael Hope reviewed and signed the settlement agreement, with the 2009 permit attached. Before the settlement agreement was signed, Mr. Hope gave the instructions to Mr. Rosenstein to prepare the permit. Mr. Rosenstein has primary responsibility within the Sarasota Operations Center for issuing permits, although occasionally Mr. Grace, to whom Mr. Rosenstein reports, gets involved in issuing permits. When the matter of preparing a permit for Mr. Puleo arose, Mr. Grace was on vacation.
The issuance of the 2009 permit to Mr. Puleo was unusual for several reasons. First, it was issued as part of a settlement agreement, instead of by the normal procedure of an application being filed by someone requesting a permit. Second,
Mr. Rosenstein was asked by Mr. Hope to prepare and issue the permit and deliver it to Mr. Puleo, all in a single day, which is highly unusual. Mr. Rosenstein had to drop everything and immediately go to Mr. Puleo's property to take pictures from several angles of the adjacent right-of-way to the south. He marked the pictures to describe and outline the area of right-of- way that Mr. Puleo would be allowed to pave and use.
Mr. Rosenstein then had to fill out the permit, cross-referencing the marked pictures. He had to add the appropriate form pages containing the Department's standards for the paving activity adjacent to Tamiami Trail, addressing such matters as requirements for signs alerting traffic to the work and procedures for lane
closures, if necessary. Mr. Rosenstein then had the completed permit reviewed and approved by the permits coordinator who signed the permit along with Mr. Rosenstein. He then delivered the completed permit to Mr. Puleo.5/
Mr. Rosenstein testified that the 2009 permit is a "general use permit." According to Mr. Rosenstein, a general use permit is considered a residual category to allow an activity on right-of-way that does not fall within any other permit category. He identified the other permit categories as drainage permits, utility permits, landscape permits, and access connection permits to make a connection to access a state road. The 2009 permit is not an access connection permit, as the asphalt pad authorized by the 2009 permit stops at the inside end of the interior grassy strip and does not extend to the roadway; a vehicle cannot drive directly from the asphalt pad onto Tamiami Trail.
The 2009 permit, as completed by Mr. Rosenstein, states that the permittee, Mr. Puleo, requests permission from the Department "to construct, operate and maintain: INSTALL ASPHALT PAD AS SHOW [sic] IN PICTURE." Mr. Rosenstein attached two pages with pictures of the site. The first page has a single picture on which Mr. Rosenstein put the following description: "Extend Parking Area with Asphalt 15 x 40 feet." He marked the outline of the designated rectangle in red. As designated, the area extended the pavement that was in front of Mr. Puleo's property
to the south, adding 15 feet of Tamiami Trail frontage to the south. The 40-foot length of the rectangle extended from the edge of the interior grassy strip west of the sidewalk to the end of the Department's right-of-way. This means that the west end of the new asphalt pad would be even with the midpoint of the parking spaces in front of Mr. Puleo's building, where they are bisected by the Department's right-of-way line.
Mr. Rosenstein acknowledged that he did not add any special conditions to the permit to specify or restrict the usage of the approved asphalt pad. There was no evidence to suggest that Mr. Rosenstein was given instructions to include special permit conditions to specify or restrict the usage of the asphalt. In the space on the permit form for special conditions, the only condition put on the 2009 permit required Mr. Puleo to "sod all areas of disturbed right-of-way."
Mr. Rosenstein gave conflicting testimony regarding his understanding of the 2009 permit that he was instructed to prepare. At first, he testified that he had no information at the time regarding the purpose of the asphalt pad or its intended use. However, he stated later that he understood at the time that the purpose of the asphalt pad was to allow cars to turn around. According to Mr. Hope, he instructed Mr. Rosenstein to prepare a permit "for a turn-out area for driveway purposes over a portion of the right-of-way."
Mr. Hope testified that the asphalt pad was intended to be used only as a "turn out," in which cars pulling out of the parking spaces in front of Mr. Puleo's building could back into the newly paved area and then drive forward to exit onto Tamiami Trail at the access connection. Mr. Hope said that the "turn- out" area was needed primarily for cars parking in the two southernmost parking spaces in front of Mr. Puleo's building. Although this turn-out use might explain one of the reasons for the asphalt pad authorized by the 2009 permit, that use alone would not explain authorizing a 40-foot-long asphalt pad that extends parallel to the parking spaces. Cars would not back out of parking spaces and then back up while turning 180 degrees before pulling forward to exit Mr. Puleo's business.
Mr. Rosenstein did not recount the instructions he received from Mr. Hope for preparing the permit. Neither
Mr. Rosenstein nor Mr. Hope explained why the authorized asphalt pad extend for 40 feet, all the way from the interior grassy strip to the west end of the Department's right-of-way.
Mr. Rosenstein did not explain how he knew to mark the pictures to designate the site for the asphalt pad or where the dimensions came from.
Mr. Rosenstein claimed that he was focused on giving instructions to the contractor that would be installing the asphalt pad, not on the use of the new paved area after
construction. Nonetheless, he admitted that general use permits are intended to address not only construction, but also the subsequent operation or use of what is constructed.
Mr. Rosenstein conceded that since the 2009 permit did not address the ultimate usage, then the ultimate usage would be determined by the permittee.
Actually, the 2009 permit does address the usage of the new paved area by the description "extend parking area." The 2009 permit, thus, identifies the paved right-of-way on
Mr. Puleo's property as a "parking area" and authorizes asphalt paving to "extend" that "parking area" to add another 15 feet of Tamiami Trail frontage for the entire length of the right-of-way.
Based on the credible evidence of record, the reasonable meaning of the description "extend parking area," placed by Mr. Rosenstein on the picture that became part of the 2009 permit, is to indicate that the paved area in front of Mr. Puleo's building was, in fact, used as a parking area and
that the new asphalt was being authorized as an extension of that area and of that use. Neither Mr. Rosenstein nor any other witness offered a different credible interpretation of the "extend parking area" description in the 2009 permit.
Mr. Hope testified that he discussed the subject of parking and the other historic uses with Mr. Puleo in a single face-to-face settlement negotiation meeting with Mr. Puleo and
his attorneys. According to Mr. Hope, at that meeting, Mr. Puleo asked Mr. Hope whether he would be allowed to park vehicles or put signs on the new paved area; Mr. Hope said that he told
Mr. Puleo no, that the new paved area was a turn-out area to be used for driveway purposes only, by which he meant for moving vehicles from one area to another. Mr. Hope conceded that this single face-to-face settlement meeting occurred many months before the settlement agreement was reached.
Mr. Puleo testified that the meeting he attended with Mr. Hope took place nine months before the 2009 permit was prepared and the settlement agreement was finalized. Mr. Puleo testified that he did not ask Mr. Hope at that meeting whether parking would be allowed on the right-of-way and does not recall Mr. Hope addressing that subject, either. However, Mr. Puleo did recall subsequent protracted negotiations in which he understood that the Department did not want to give Mr. Puleo the right to use the new asphalt pad for parking. Mr. Puleo credibly testified that since this was important to him, he refused to agree on those terms. Mr. Puleo testified that the Department ultimately agreed to settle on his terms by issuing the 2009 permit that authorized him to "extend [his] parking area" and by making that permit a part of the settlement agreement.
Mr. Hope's recollection of what was said at a settlement conference nine months before the 2009 permit was
prepared and incorporated into the settlement agreement is inconsistent with the description expressed in the 2009 permit. Even if a conversation took place that was anything like his recollection, the credible evidence established that the Department's preliminary position changed between then and the issuance of the 2009 permit.
Mr. Hope testified that he reviewed the final settlement agreement document, including the exhibits, before he signed it. He acknowledged reviewing the 2009 permit after it was issued and before he signed the settlement agreement, because the 2009 permit was an exhibit to the settlement agreement.
Given that the sole purpose of the ejectment lawsuit he prepared was to stop Mr. Puleo from parking and advertising on Department right-of-way, it is not credible that Mr. Hope would not have insisted on express prohibitions in the 2009 permit against parking and advertising, had he believed that those prohibitions would have been permissible as part of the settlement agreement, of which the 2009 permit was a critical part. It is not credible that Mr. Hope would have agreed to the 2009 permit authorizing Mr. Puleo to "extend parking area" as part of the settlement agreement, unless, as Mr. Puleo testified, that is what was bargained for and what Mr. Puleo required to enter into the settlement agreement. Mr. Puleo's testimony in this regard is accepted as more credible than Mr. Hope's testimony.
When Mr. Grace came back from vacation, he was made aware of the permit and the settlement agreement. He testified that "despite the original purpose of the lawsuit, there was parking and advertising continuing to occur within the right-of- way." He conducted surveillance and had pictures taken of the property after the asphalt pad was installed. Pictures were taken of Mr. Puleo's property and the extended parking area on July 27 and 30, 2009, to document that the new asphalt pad was being used for parking.
Mr. Grace testified that he called Mr. Puleo to report that he observed parking on the new asphalt. Mr. Puleo told
Mr. Grace that he was allowed to park on the new asphalt because his permit authorized him to "extend parking area."
Mr. Grace claimed that he had not looked at the permit until then. At that point, Mr. Grace "started discussing the matter with Mike Hope," and they decided that it was time to revoke the 2009 permit and issue a new permit "that would clarify and still support the original intent of the settlement agreement, but clarify the intent."
Inexplicably, the Department took no action until May 13, 2010, when Mr. Grace sent a letter by certified mail to Mr. Puleo. The entire text of the letter was as follows:
Re: Permit Number 2009-K-194-36 Dear Mr. Puleo:
As part of the stipulation agreed to between the [Department] and you the above referenced permit was issued on July 9, 2009. The permit was issued to comply with stipulation number 8 which states "PULEO may construct a 15 foot deep asphalt "turn out" for driveway usage for PULEO's property."
The stipulation clearly states that the asphalt turn out is for driveway usage. However, it has been observed on numerous occasions that the asphalt area is routinely being used as a parking area which does not comply with the intent of the agreement.
When this issue was previously brought to your attention you referenced a picture which was included with the permit depicting the area for asphalt placement. The picture included verbiage that included "Extend Parking Area". This reference was made in error by a staff member who was not completely familiar with the terms of the stipulation.
This permit will be voided and replaced with a new permit to comply with the terms of the stipulation which included the use of the right of way as a driveway and not for parking. The permit referenced above will be voided effective May 21, 2010. A replacement permit will be issued concurrently with the voiding of this permit.
Please contact me if you have any questions. Thank you for your cooperation in these matters. (emphasis added).
Mr. Grace's statement--that the 2009 permit's authorization to "extend parking area" was made in error by the Department representative--is an admission that the 2009 permit
does indeed authorize Mr. Puleo to park on the new asphalt. However, contrary to Mr. Grace's characterization, the 2009 permit cannot be said to have been issued in "error" or not in compliance with the terms of the settlement agreement, because the 2009 permit itself was made part of the settlement agreement. Mr. Grace's description implies that the settlement agreement came first, followed by the 2009 permit, which did not match up to the requirements of the settlement agreement; in fact, the reverse is true--the 2009 permit was issued first and the 2009 permit, as prepared and issued (including the "extend parking area" description), was incorporated into the settlement agreement as an exhibit and an express component of paragraph 8.
The only explanation given for revoking the 2009 permit was its purported inconsistency with the settlement agreement. For example, there were no allegations of substantial changes in the use of the right-of-way that would trigger new and different safety concerns. Instead, Mr. Grace's May 13, 2010, letter acknowledged that Mr. Puleo had only continued his historic use of the right-of-way in front of his property, extending that use to the new asphalt extension of his parking area.
The May 13, 2010, letter did not inform Mr. Puleo that he had a right to an administrative hearing to contest the Department's intended action to revoke his 2009 permit.
Instead of offering Mr. Puleo a window of time in which to request an administrative hearing, only eight days after the May 13, 2010, letter was mailed to Mr. Puleo, Mr. Grace sent a second certified letter to Mr. Puleo. The entire text of this May 21, 2010, letter was as follows:
Re: Permit Number 2010-K-194-30 Dear Mr. Puleo:
As stated in my May 13, 2010, letter to you permit number 2009-K-194-36 is void and no longer valid.
A replacement permit number 2010-K-194-30 is enclosed for your use and meets the terms of the stipulation referenced in my previous letter.
Please contact me if you have any questions. Thank you for your cooperation in these matters.
The 2010 permit is a general use permit, just as the 2009 permit was. Despite the fact that the asphalt pad that was authorized by the 2009 permit to "extend parking area" had already been installed, the 2010 permit authorized Mr. Puleo to "Install Asphalt Pad as shown in attached photo's [sic]." The 2010 permit in evidence is incomplete, in that no photos are attached. Presumably, the missing photos are different from those included with the 2009 permit.
Whereas the 2009 permit had a single "special condition" requiring the replacement of all sod disturbed during
the installation of the asphalt pad, the 2010 permit added the following as new special conditions:
The asphalt placed in the Department's right-of-way is for the limited use of vehicles as a driveway only. This is limited to maneuvering of a vehicle for ingress and egress only. No other permissions are granted herein. The Department's right-of-way shall not be used for parking, storage of equipment, placement of signs, or any other use not expressly stated within the terms of this permit.
Mr. Grace testified that he drafted the special conditions in the 2010 permit. He explained why he believed it was necessary to draft these conditions:
In the case of Mr. Puleo, it's been a situation that I have been trying to resolve since 2004, and I felt like it was necessary to clearly state that the permit, while it allows the use of the right-of-way for placement of the asphalt, and it's allowed, per the stipulation, for ingress and egress, I said that, in order for this to be clear to Mr. Puleo, I had to state that parking and display of items for sale were not permitted.
Mr. Grace's testimony--that it was necessary to specifically prohibit parking and advertising as conditions in the permit itself because of the history with Mr. Puleo--is an admission that the 2009 permit cannot be interpreted to prohibit those historic uses, because it lacks the necessary express conditions.
Mr. Grace has driven by Mr. Puleo's property 100 times between 2004 and the day of the hearing, observing the same kind of parking and advertising activity that Mr. Grace has been trying to stop since 2004. The pictures in Petitioner's Composite Exhibit 10 were described as representative of the alleged violations. As these pictures demonstrate, the advertising activity referred to is the placement of small "Rent Me" signs in the windows of vehicles parked on the pavement in front of Mr. Puleo's property on the right-of-way. Therefore, as Mr. Grace clarified, the advertising on the right-of-way is not a separate activity from the parking on the right-of-way; he considers the parking and advertising to be a single violation.
Mr. Grace acknowledged that the special conditions in the 2010 permit, which he found necessary to make clear that Mr. Puleo had to stop the parking and advertising that he has
been doing on the right-of-way since 2004, could have been put in the 2009 permit. As found above, the credible evidence establishes that the Department would have expressly prohibited parking and advertising on the new asphalt pad authorized by the 2009 permit, if the Department had been in a bargaining position to insist on those terms, but the Department was not.
The Department presented no credible evidence that
Mr. Puleo's parking and advertising in the right-of-way ever has endangered the health, safety, and general welfare of the public
by causing distractions to motorists, unsafe pedestrian movement, dangerous traffic movement, increased vehicular accidents, motorist injuries, or fatalities. There was no evidence of any safety-related problems of any kind actually caused by
Mr. Puleo's historic use of the right-of-way in front of his property or to the south of his property line where the asphalt was installed to extend his parking area. No evidence was offered to prove that allowing Mr. Puleo to use the new asphalt pad for the same parking and advertising activity he has conducted historically would interfere with safety, operation, aesthetics, or maintenance of the State Highway System, utilities, or right-of-way.
Instead, the evidence established that Mr. Puleo's historic parking and advertising on the right-of-way have not given rise to any traffic-related or pedestrian-related problems. Mr. Puleo's use of the right-of-way is no more intrusive or distracting than the similar uses of right-of-way evident from the pictures in evidence. Moreover, Mr. Puleo's historic use of the right-of-way is no more intrusive or distracting than
Mr. Puleo's lineup of rental cars with "Rent Me" signs in the windows along his northern property line, which Mr. Puleo has every right to do, because he owns that property in fee simple.
While in a different case, the Department certainly could have legitimate safety concerns with certain parking on its
right-of-way, such as if vehicles parked on the grassy strips on either side of the sidewalk, or straddled the sidewalk itself, or if parked vehicles blocked access connections or interfered with motorist visibility. However, not all right-of-way areas present the same safety concerns. Parking on the right-of-way might, but would not necessarily, impede pedestrian traffic on sidewalks or interfere with ingress and egress or motorist visibility at access connections, depending on where the right-of-way is and how far it extends in from the roadway. These sorts of safety concerns are matters to be proven, and there was no such proof offered by the Department in this case.6/
The Department sought to justify the issuance of the 2010 permit, with its new special conditions, on the grounds that the 2010 permit is more consistent with the terms of the settlement agreement. The Department points to the terms "turn out" and "driveway usage" in paragraph 8, which the Department argues should give rise to a permit restricting usage of the new asphalt to moving traffic only. Mr. Puleo contends that "driveway usage" in both paragraphs 7 and 8 refer to the ordinary meaning of that term, which includes parking.
As the parties acknowledged at the outset of the hearing and as the undersigned reiterated throughout the hearing, the nature of this proceeding is a permit enforcement proceeding.
Interpretation and enforcement of the settlement agreement are matters for the circuit court.
Moreover, as noted above, the settlement agreement incorporates the 2009 permit as one of the settlement agreement's terms, not the other way around. Therefore, while one might want to consider what the 2009 permit says, if one were interpreting the settlement agreement (because the 2009 permit is part of the settlement agreement), the reverse is not true. The 2009 permit stands on its own terms, because it was issued before the settlement agreement was executed. The 2009 permit uses the description "extend parking area" and neither incorporates the settlement agreement by reference, nor uses the terms "turn out" or "driveway usage" that appear in the settlement agreement.
Even if the 2009 permit provided that the newly installed asphalt was for "driveway usage" as paragraph 8 of the settlement agreement does, absent a specific definition of that phrase, one would resort to the common, ordinary meaning from dictionaries. The word "driveway" alone is commonly defined as "a private way or road for cars, leading from a street or road to a garage, house, or other building." See, e.g., Webster's New World Collegiate Dictionary (2010); American Heritage Dictionary
of the English Language, 4th Ed. (2010) (both available online at yourdictionary.com). The same online source provides examples of
usage of the word "driveway" in sentences and phrases, as follows:
Driveway parking.
A paved driveway in the property provides ample parking.
The property is approached via a block-paved driveway with parking for approximately four vehicles.
These examples illustrate that driveway usage includes parking, based on the common, ordinary meaning of the term.
The Department offered a specialized meaning of "turn out" and "driveway" from its design standards for access connections that are permitted on right-of-way property. Those standards provide that access connections are to be designed with driveways of sufficient length to allow all vehicular parking and maneuvering to take place beyond the right-of-way, so that driveways and turn outs within the right-of-way are used only for "moving vehicles entering or leaving the highway." That specialized definition makes sense in the context of designing access connections that are permitted uses of a right-of-way. If vehicles are parked or are maneuvering to turn around within the right-of-way that is being used as an access connection, that use would interfere with the movement of vehicles entering or leaving the highway, as the design standard itself makes clear. Here, however, the asphalt extension of Mr. Puleo's parking area does
not connect to the roadway and is not proximate to the access connection point on Mr. Puleo's property. Thus, the design standard's specialized usage of the terms driveway and turn out to restrict use of the right-of-way to "moving vehicles entering or leaving the highway" has no application to the facts here.
The Department's witnesses established that neither the 2009 permit, nor the 2010 permit at issue in this case, is an access connection permit.
Perhaps the clearest indicator that the 2009 permit means what it says and was intended that way is by reference to Mr. Puleo's historic use of the right-of-way in front of his building. The settlement agreement addresses this right-of-way in paragraph 7, stating that the Department acknowledges that Mr. Puleo has used this right-of-way as "his historic driveway." The Department also acknowledges that there are parking spaces on the right-of-way that is Mr. Puleo's historic driveway; part of every vehicle parked in a designated space in front of
Mr. Puleo's building is on the right-of-way that is described in the settlement agreement as Mr. Puleo's "historic driveway." Vehicles historically have also parked on other parts of the pavement in front of Mr. Puleo's building, besides the designated parking spaces, on Department right-of-way, also known as
Mr. Puleo's historic driveway.
Another apt name for Mr. Puleo's historic driveway was suggested by Mr. Rosenstein's 2009 permit description--parking area. The evidence establishes that the two phrases are one and the same for purposes of describing Mr. Puleo's historic usage of the right-of-way in front of his building; he has used his historic driveway as a parking area. The corollary is that the 2009 permit authorized Mr. Puleo to extend the parking area and, thereby, extend his historic use of his driveway as a parking area to the extended driveway/parking area.
Nonetheless, after the Department unilaterally revoked the 2009 permit and replaced it with the 2010 permit, the Department issued its Complaint. The Complaint alleged that by parking vehicles and advertising on the new asphalt pad,
Mr. Puleo violated the new special conditions of the 2010 permit. Sections 335.181 and 337.406, Florida Statutes, were cited as the statutes under which Mr. Puleo's alleged violations were charged. This time, the Complaint acknowledged that the Department's charges were only intended action and that Mr. Puleo could contest the charges before they became final by timely requesting an administrative hearing. At the hearing, the Department offered no explanation for its failure to follow the same procedure when it notified Mr. Puleo by letter on May 13, 2010, that his 2009 permit would be revoked, effective eight days hence.
The Complaint is predicated only on Mr. Puleo's alleged violation of the 2010 permit, by his use of the new asphalt pad for parking and advertising. The Complaint does not charge
Mr. Puleo with any improper use of the right-of-way in front of his building.
The parties stipulated that Mr. Puleo has been parking and advertising on Department right-of-way.7/
Mr. Puleo credibly testified that he would not have agreed to a settlement of the circuit court litigation with the Department without the 2009 permit authorizing him to "extend [his] parking area."
Mr. Puleo reasonably relied on the Department's representations expressed in the 2009 permit and in the settlement agreement incorporating the 2009 permit. The Department's representations recognized that Mr. Puleo's "historic driveway" was used as a parking area; the Department's representations authorized Mr. Puleo to extend his parking area and continue his historic usage of the parking area, as extended by the new asphalt pad.
In reliance on the Department's representations,
Mr. Puleo changed his position to his detriment by agreeing to a settlement agreement that resulted in the dismissal of the circuit court litigation. In entering into the settlement agreement, Mr. Puleo acquiesced to terms that were of great value
and importance to the Department, because Mr. Puleo understood from the Department's representations that he was receiving, in return, the terms that were of great importance to him. The 2009 permit was issued as an inducement to secure Mr. Puleo's agreement to execute the settlement agreement.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2012).8/
The Department initiated this action by issuance of a Complaint charging violations of the 2010 permit conditions and specified statutes. The Department has the burden in this enforcement proceeding to plead with particularity in its Complaint the facts and law on which it predicates its charges against Respondent. See, e.g., Cottrill v. Dep't of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). By stipulation, the parties agreed to deem the Complaint amended so that the factual allegations and statutory charges would be deemed, in the alternative, to charge violations of the 2010 permit (as pled) or the 2009 permit, if that permit is found to be the one in effect.
In addition to its burden to plead the facts and law on which it relies to charge violations, the Department has the burden to prove the Complaint's allegations. Dep't of Banking
& Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996)
(Department has the burden of proving alleged statutory violations relied on as the basis for a cease and desist order and fine imposition). While the remedy sought is not entirely clear, to the extent the Department seeks permit revocation (as the Department reserved the right to do in the Complaint) or other penal consequences, then the Department's burden of proof is by clear and convincing evidence. Id. at 935. To the extent that the Department does not seek to impose disciplinary or penal consequences for the alleged violations, then the Department's burden of proof would be by a preponderance of the evidence.
§ 120.57(1)(j) ("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings [.]").
At the final hearing, the Department suggested that it would only want to enforce the terms of Mr. Puleo's permit, by issuance of a cease-and-desist-type of order to prohibit violations. The availability of such a remedy depends on the extent to which statutory authority has been delegated to the Department to enter cease and desist orders. See, e.g., B.D.M.
Fin. Corp. v. Dep't of Bus. & Prof'l. Reg., Div. of Land Sales, Condominiums & Mobile Homes, 698 So. 2d 1359 (Fla. 1st DCA 1997)(affirming that part of the final order directing the corporation to cease and desist, but reversing revocation where statute authorized Division to enter cease and desist orders as
an alternative to revocation). As suggested at hearing, there does not appear to be any such statutory authority for the Department. The Department was asked to identify "the specific statutory authority" for the Department to enter a cease and desist order; no such authority was identified in the Department's Proposed Recommended Order. Thus, what type of authorized remedy is being sought remains unclear.
At the outset of the hearing, the Department agreed that the Department has the burden of proof in this permit enforcement proceeding. The Department's Proposed Recommended Order acknowledges that, as the party asserting the affirmative of the issue, the Department has the burden of proof as to the charges in the Complaint (as deemed amended). Despite that recognition, the Department offered the novel suggestion that in this permit enforcement proceeding, there is actually a shifting burden of proof, under which the Department's burden is limited to providing "reasonable assurance that its action complies with the applicable statutes and rules," following which the burden shifts to Respondent "to present contrary evidence of equal quality showing that the Department is not entitled to [a cease and desist] order." The Department misplaces reliance on a case in which it was a party, Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981), for its suggested shifting burden of proof standard in this case. The only
similarity between J.W.C. and this case is the Department's presence as a party. J.W.C. was not a permit enforcement case initiated by the Department, nor was the Department even the permitting agency in that case. Instead, in J.W.C., the Department was the permit applicant for an environmental permit from the Department of Environmental Regulation (DER). DER gave notice of its intent to approve the Department's permit application, and third party challengers petitioned for an administrative hearing. In that context, where the statutory standard for the permit was whether "reasonable assurances" were provided that environmental criteria would not be violated, the court held that the permit applicant had the burden of presenting a prima facie case of entitlement to approval, but then the burden shifted to the challengers to prove that the permit should not be issued. In this case, as the regulatory agency initiating this enforcement action by charging Respondent with violations and seeking remedies up to and including permit revocation, the Department plainly bears the burden of proving its charges and cannot shift its burden to Respondent, as if Respondent were a third party challenging approval of an environmental permit.
Respondent does, however, bear the burden of proving his estoppel defense.
The Complaint charges Mr. Puleo with violating the conditions of the 2010 permit by parking and advertising on the
new asphalt pad. The statutes under which these violations are charged are sections 335.181 and 337.406.
Section 335.181 does not contain any provision relevant to this case. The statute sets forth legislative findings and policies applicable to the regulation of access connections to state roadways. It is part of the "State Highway System Access Management Act" (the Act), set forth in sections 335.18 through
335.188. See § 335.18 (short title of the Act). As found above, this case does not involve access connection permits; neither the 2009 permit nor the 2010 permit is an access connection permit governed by the Act. Moreover, section 335.181 does not contain any provisions that enumerate violations, identify grounds for enforcement actions, or authorize specific remedies. It is, therefore, not surprising that the Department apparently has abandoned the charges under section 335.181; that statute is not cited in the Department's Proposed Recommended Order.
The Department's Proposed Recommended Order does, however, cite and rely on several statutes that are not charged in the Complaint. The Department offers section 334.044(14), which empowers the Department to "establish, control, and prohibit points of ingress to and egress from" transportation facilities under the Department's jurisdiction. Even if this statute were charged in the Complaint, it would not be germane. This case does not involve the establishment, control, or
prohibition of an access point to or from Tamiami Trail. Instead, at issue is an asphalt pad installed to extend
Mr. Puleo's parking area, which is his historic driveway. The asphalt pad at issue is south of Mr. Puleo's property boundary and does not connect to the road; instead, the access point to Tamiami Trail is near the north end of Mr. Puleo's property. The Department has not charged Mr. Puleo with any violations related to the access connection point on his property.
The Department also offers section 335.185(1) in its Proposed Recommended Order, another statute that was not charged in the Complaint. Once again, the Department's reference is to a provision of the Act that is relevant only to access connection permits. The statute provides:
The department may issue a permit subject to any reasonable conditions necessary to carry out the provisions of this act. The department may revoke a permit if the applicant fails to comply with the conditions upon which the issuance of the permit was predicated. (emphasis added).
If section 335.185(1) were applicable, then sections
335.182 and 335.187 would also be applicable. Section 335.182(2) requires the Department to "adopt, by rule, administrative procedures for its issuance and modification of access permits,
. . . and revocation of permits in accordance with this act." Section 335.187(4) provides that the Department may modify or revoke an access permit issued after 1988 only after "written
notice and the opportunity for a hearing, as provided in
s. 120.60." The grounds for revoking or modifying an access connection permit under this statute are "if a significant change occurs in the use, design, or traffic flow of a connection." Again, while all of these statutes in the Act are inapplicable to this case, in that no access connection permit is involved, if such a permit were involved, the Act makes clear that action against a permit must comport with the requirements of the Administrative Procedure Act (APA).
The other statute charged in the Complaint is a penal statute, section 337.406, entitled "Unlawful use of state transportation facility right-of-way; penalties." This statute provides in pertinent part:
Except when leased as provided in s. 337.25(5) or otherwise authorized by the rules of the department, it is unlawful to make any use of the right-of-way of any state transportation facility, including appendages thereto, outside of an incorporated municipality in any manner that interferes with the safe and efficient movement of people and property from place to place on the transportation facility. Failure to prohibit the use of right-of-way in this manner will endanger the health, safety, and general welfare of the public by causing distractions to motorists, unsafe pedestrian movement within travel lanes, sudden stoppage or slowdown of traffic, rapid lane changing and other dangerous traffic movement, increased vehicular accidents, and motorist injuries and fatalities. Such prohibited uses include, but are not limited to, the free distribution or sale, or display or
solicitation for free distribution or sale, of any merchandise, goods, property or services; the solicitation for charitable purposes; the servicing or repairing of any vehicle, except the rendering of emergency service; the storage of vehicles being serviced or repaired on abutting property or elsewhere; and the display of advertising of any sort, except that any portion of a state transportation facility may be used for an art festival, parade, fair, or other special event if permitted by the appropriate local governmental entity. Local government entities may issue permits of limited duration for the temporary use of the right- of-way of a state transportation facility for any of these prohibited uses if it is determined that the use will not interfere with the safe and efficient movement of traffic and the use will cause no danger to the public. The permitting authority granted in this subsection shall be exercised by the municipality within incorporated municipalities and by the county outside an incorporated municipality. Before a road on the State Highway System may be temporarily closed for a special event, the local governmental entity which permits the special event to take place must determine that the temporary closure of the road is necessary and must obtain the prior written approval for the temporary road closure from the department. Nothing in this subsection shall be construed to authorize such activities on any limited access highway. Local governmental entities may, within their respective jurisdictions, initiate enforcement action by the appropriate code enforcement authority or law enforcement authority for a violation of this section.
Persons holding valid peddlers' licenses issued by appropriate governmental entities may make sales from vehicles standing on the right-of-way to occupants of abutting property only.
The Department of Highway Safety and Motor Vehicles and other law enforcement agencies are authorized and directed to enforce this statute.
* * *
(5) The violation of any provision of this section or any rule promulgated by the department pursuant to this section constitutes a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083, and each day a violation continues to exist constitutes a separate offense. (emphasis added).
Section 337.406 is the "section 337" statute referred to by Mr. Grace. Although Mr. Grace believes that this statute makes all parking illegal on Department right-of-way, there is no such prohibition. To the contrary, the statute expressly prohibits only the "service or repairing of any vehicle" and the "storage of vehicles being serviced or repaired" on right-of-way.
While section 337.406 does refer to the display of merchandise/goods for sale and to the display of advertising on right-of-way, Mr. Grace conceded that the primary violation charged is parking vehicles on the new asphalt pad; the associated advertising, which he considers to be the same violation as the parking, is limited to small "Rent Me" signs displayed on the window of vehicles parked on the right-of-way. Nonetheless, to this extent, Mr. Puleo's advertising could be the basis for Department action, provided that the Department is authorized to enforce the statute and provided that the right-of-
way use is not allowed under a statutory exception. The Department's charges fail on both of these scores.
First, the Department is not authorized to enforce section 337.406. Instead, that authority is provided to the Department of Highway Safety and Motor Vehicles and other law enforcement agencies. Mr. Grace conceded that the Department lacks the enforcement authority over this statute. Even before the lawsuit and the settlement agreement, the proper authority, the Florida Highway Patrol, would not act on Mr. Grace's request for enforcement assistance.
Even if the Department had enforcement authority, the prohibited uses in section 337.406 are subject to an exception-- when otherwise authorized by rules of the Department. For example, Florida Administrative Code Rule 14-20.003 authorizes advertising on all sides of public transit shelters, which are allowed on right-of-way closer to the roadway than any parking or advertising done by Mr. Puleo. The authorized advertising on public transit shelters is limited in size to 72 inches by
60 inches per side.
More germane to this case is rule 14-20.010, which authorizes general use permits. The Department does not explain or even address this rule, despite the fact that its witnesses acknowledge that the permits at issue in this case are general use permits. Rule 14-20.010 provides in pertinent part:
(1) Purpose. This rule is adopted to authorize use of and to control the right- of-way on the State Highway System, for purposes not addressed by other rules of the Department, a lease agreement of state owned property entered into pursuant to Section 337.25(5), F.S., or other agreements.
* * *
(c) "General Use Permit" means a temporary use of the right of way of the State Highway System authorized by the Department and not prohibited by, nor authorized and regulated by other local, state, or federal laws, rules, or regulations. General use permits do not authorize possessory, exclusive, or permanent use of the right of way. General use permits shall not create contractual rights on behalf of an applicant or permittee. General use permits are revokable [sic] at any time by the Department.
* * *
General Criteria.
A complete application [is required]
. . . No use will be permitted which interferes with safety, operation, aesthetics, and maintenance of the State Highway System, utilities, or right-of-way.
* * *
(e) The applicant shall provide a complete and detailed description of the proposed use and duration to be permitted.
* * *
Examples of situations where general permits may not be issued are the following:
Permanent construction in the right of way.
Traffic control devices or features.
Permanent signs.
Landscaping.
Utilities.
Parades or other events requiring temporary road closures.
Bus benches or shelters, modular news racks, or waste receptacles.
Connections to the State Highway System.
Overhanging encroachments.
Drainage connections.
The issuance of a general use permit shall not restrict the Department's right to take immediate action authorized under Section 120.60(6), F.S. (emphasis added).
The issuance of a general use permit, as authorized by this rule, operates as an exception to section 337.406.
As the Department's general use permit rule recognizes in paragraph (6), a general use permit is subject to the requirements of the APA's licensing statute, section 120.60, because the permit is a form of license, defined in the APA as "a franchise, permit, certification, registration, charter, or similar form of authorization required by law[.]" § 120.52(10). Section 120.60(6), referred to in the general use permit rule, authorizes emergency suspension or restriction of a license based on findings of an "immediate serious danger" to the public
health, safety, and welfare. Absent such an immediate serious danger, enforcement action against a license requires prior notice in the form of an administrative complaint and an opportunity for an administrative hearing. § 120.60(5).
Section 120.60(5) makes clear that "[n]o revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the entry of a final order," the agency serves an administrative complaint on the licensee that sets forth the basis for the intended action, and unless the agency gives the licensee an adequate opportunity to request an administrative hearing. See also Fla. Admin. Code R. 28-106.111 (addressing the manner in which agencies must offer an adequate opportunity for an administrative hearing to contest intended agency action).
In May 2010, when the Department unilaterally revoked the 2009 permit and issued the 2010 permit as a so-called replacement, the Department failed to follow the prerequisites necessary to make its revocation of the 2009 permit final agency action. § 120.60(5); Fla. Admin. Code R. 28-106.111. A core tenet of the APA is that an administrative agency's action must be deemed mere proposed agency action, regardless of its tenor, unless and until the agency provides a "clear point of entry" to administrative proceedings by advising of the right to request an administrative hearing to contest the agency's proposed action and specifying the time limits to exercise that right. Capaletti
Bros., Inc. v. Dep't of Transp. 362 So. 2d 346, 348-349 (Fla. 1st DCA 1978); Henry v. Dep't of Admin., 431 So. 2d 677, 679 (Fla.
1st DCA 1983); Fla. Admin. Code R. 28-106.111.
The Department offered no legal authority or argument in defense of its unilateral revocation of the 2009 permit without prior notice of its proposed action and a right to an administrative hearing to contest that proposed action before it becomes final. Mr. Grace's May 13, 2010, letter is neither an administrative complaint nor an emergency suspension order conforming to section 120.60. The letter does not charge any violation of the 2009 permit, nor provide any other statutory or rule basis for revoking that permit. The purported unilateral revocation of the 2009 permit was unlawful under the APA. Therefore, the 2009 permit must be considered still in effect.
Mr. Grace alluded to the sentence in rule
14-20.010(1)(c), providing that the Department may revoke a general use permit at any time, to suggest that the Department was allowed to unilaterally revoke its general use permits.
However, as the rule itself recognizes, the Department must still follow the licensing procedures in the APA in any revocation action; the Department cannot grant itself an exemption from the APA. See Bd. of Trustees of Int. Imp. Trust Fund v. Barnett, 533 So. 2d 1202, 1205-1206 (Fla. 3d DCA 1988)(rejecting the Board of Trustees' argument that because it was acting in a proprietary
capacity instead of a regulatory capacity, it could revoke a consent of use at any time without following the APA's requirement, and holding as follows: "Once having granted a consent of use to Defendant Barnett, [the Board of Trustees] could not revoke that consent without complying with the [APA] to which it is admittedly subject. . . . The freedom to act in an arbitrary manner is not available to government in either its proprietary or regulatory capacity.").
Just as the 2009 permit was not lawfully revoked, it follows that the 2010 permit was not lawfully issued by the Department as a "replacement" of the 2009 permit. The 2010 permit is void, and has no legal effect.
The Department did establish that if the 2010 permit had been properly issued (such as if the 2010 permit was the permit issued to induce the settlement agreement that was made a part of the settlement agreement), then Mr. Puleo would have violated the new conditions in that permit, by parking and advertising on the asphalt pad that was installed to extend his parking area. But the Department cannot lawfully take enforcement action against Mr. Puleo predicated on the 2010 permit conditions, because the 2010 permit was not lawfully issued as a replacement of the unlawfully-revoked 2009 permit. The Department had no legal right to unilaterally add conditions that it wished it had put on
the 2009 permit--a permit that was not only issued by the Department but also made a part of the settlement agreement.
Anticipating the possibility of a determination that the 2009 permit was not lawfully revoked and replaced with the 2010 permit, the parties stipulated that the Complaint should be deemed amended to charge Mr. Puleo with violating the terms of the 2009 permit.
The Department did not prove by a preponderance of the evidence, much less by clear and convincing evidence, that
Mr. Puleo violated the terms of the 2009 permit. Instead, the greater weight of the credible evidence established that
Mr. Puleo has complied with the express provisions in the 2009 permit by installing the asphalt pad in the designated area to "extend [his] parking area." Mr. Puleo has used the new asphalt pad, as allowed by the 2009 permit, as an extension of his parking area, for the same parking and advertising use that has been observed by Mr. Grace as far back as 2004. The evidence in this regard is buttressed by the Department's own conduct, in attempting to renounce the 2009 permit description authorizing an extended parking area, and attempting to issue a substitute permit with new conditions prohibiting parking and advertising.
If parking and advertising were not allowable uses pursuant to the 2009 permit, the Department would not have had to attempt its unilateral permit revocation and replacement exercise.
As found above, the evidence does not support the Department's contention that the 2009 permit was issued in "error." However, even if the Department's representative made an error, the Department would still be bound by the 2009 permit, because Respondent proved all the elements of equitable estoppel as a defense to the Department's enforcement action. See, e.g., Chipley Motel v. Dep't of Transp., 498 So. 2d 1357, 1359 (Fla. 1st DCA 1986) (evidence supported the hearing officer's finding that the Department, not the permittee, made an error or mistake; the facts established the requisite elements of equitable estoppel, which is recognized as a defense to revocation of the permit); accord Dolphin Outdoor Advertising v. Dep't of Transp.,
582 So. 2d 709 (Fla. 1st DCA 1991); Tri-State Systems, Inc., v.
Dep't of Transp., 500 So. 2d 182, 183 (Fla. 1st DCA 1986).
Respondent proved, clearly and convincingly, that the Department made representations in the 2009 permit and in the settlement agreement, as found above. The Department represented in the 2009 permit that Respondent was authorized to extend his parking area to the new asphalt pad. The Department acknowledged in the settlement agreement that Respondent used the Department's right-of-way in front of his building as his "historic driveway," and that Respondent would be allowed to continue his historic driveway usage and extend that driveway usage to the new asphalt authorized by the 2009 permit.
Respondent proved, clearly and convincingly, that he reasonably relied on the Department's representations, and as a result, changed his position to his detriment, by agreeing to the settlement agreement, acquiescing to terms that were of great value to the Department, when he would not have otherwise agreed.
Respondent has shown clear exceptional circumstances that call for application of equitable estoppel against a governmental agency. As found above, requiring the Department to honor the 2009 permit as written will not unduly harm the public interest. Instead, the Department's attempt to change the terms of the 2009 permit that was made a part of a court-approved settlement agreement is conduct that goes beyond mere negligence and that would cause serious injustice if allowed to stand. Having secured Respondent's agreement to resolve the circuit court litigation with the bait of the 2009 permit, the Department is equitably estopped from switching the terms of the 2009 permit, even if its representatives made mistakes in issuing that permit and in making it a part of the settlement agreement.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order (1) determining that permit number 2009-K- 194-36 remains in full force and effect; (2) determining that permit number 2010-2010-K-194-30 is void and of no effect; and
(3) dismissing the Complaint (as deemed amended), based on the failure to prove violations of the 2009 permit under the statutes charged in the Complaint, and based on the established defense of equitable estoppel.
DONE AND ENTERED this 14th day of February, 2013, in Tallahassee, Leon County, Florida.
S
ELIZABETH W. MCARTHUR
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2013.
ENDNOTES
1/ At the outset of the hearing, the parties agreed that this proceeding is appropriately characterized as an enforcement action initiated by the Department and predicated on the Department's charges that Mr. Puleo, as the holder of a Department-issued permit, violated the terms of his permit and of specified statutes. As such, as provided in Florida Administrative Code Rule 28-106.2015, the Department is properly denominated the Petitioner; the charging document is deemed an administrative complaint; and Mr. Puleo is properly denominated the Respondent, even though he filed a "petition" requesting an administrative hearing. Many pleadings filed before the final hearing invert the party designations, identifying Mr. Puleo as "Petitioner," and the Department as "Respondent." The parties were instructed at the final hearing to correct their subsequent filings to identify the Department as Petitioner and Mr. Puleo as
Respondent, as required by rule 28-106.2015. However, the Department's Proposed Recommended Order continued to use the incorrect party designations.
2/ The Transcript's index page contains the following statement regarding exhibits: "Petitioner's Exhibits 1-10 were retained by the court reporter to be attached, excluding Exhibit No. 9; Respondent's Exhibits 1-2 were retained by the court reporter to be attached." This statement is incorrect. The parties' proposed exhibits were submitted to the undersigned before the final hearing, so that the documents could be marked by the undersigned and rulings could be made on their admission into evidence. The court reporter was not asked to mark the exhibits for identification or admission, as evident from the fact that the documents attached to the Transcript are not marked with exhibit numbers or party identifier. The court reporter was not asked to append exhibits to the Transcript. The documents attached to the Transcript were incomplete, askew, with intermittent pages upside down, and not reflective of the exhibits the parties offered into evidence. For example, the Department's exhibits included color and oversized documents.
Mr. Puleo also had color exhibits and requested that they be reflected as such in the record. The original-marked exhibits include the actual color documents, as well as the full-sized documents folded to letter size. The court reporter copies do not replicate the exhibits that are in color, nor the oversized exhibits. Oversized exhibits were split into multiple letter- size pages, apparently with some overlap, so that it would be necessary to cut and splice the separate pages to replicate the actual exhibits. For these reasons, as hand-noted on the original Transcript's index page, the undersigned removed the appended documents from the original Transcript and placed the group of documents on the docket with the description "court reporter appended exhibit copies." Thus, while the court reporter's collection of unmarked documents remains part of the case file in the event one wanted to review the removed Transcript attachment, those documents should not be considered the evidence of record. Instead, the documentary evidence of record consists of the exhibits (Petitioner's Exhibits 1 through
8 and 10; Respondent's Exhibits 1 and 2) bearing the undersigned's hand notations marking the document by party identifier and exhibit number, case number, final hearing date, the indicator "received," and the undersigned's initials.
3/ The pictures depicting Mr. Puleo's property and the vicinity are in evidence as Petitioner's Exhibit 2, a "Sarasota County Property Look-Up" aerial picture with lines added to depict
right-of-way boundaries; Petitioner's composite Exhibit 10, consisting of nine pages of color photographs taken by Department personnel over a period of time spanning at least from July 2009 through August 2011, according to the dates on some of the pictures; and two pages of color pictures that are part of the 2009 permit taken on July 9, 2009, by Mr. Rosenstein and included in Respondent's Exhibit 2 (the settlement agreement).
4/ A complete and accurate copy of the settlement agreement is in evidence as Respondent's Exhibit 2, including the color pictures that are part of the 2009 permit attached as settlement agreement Exhibit C. The Department's exhibits also include the settlement agreement; however, the Department separated the actual settlement agreement into two exhibits. Petitioner's Exhibit 4 contains the settlement agreement without all of its exhibits-- only settlement agreement Exhibits A and B are included.
Petitioner's Exhibit 5 is the settlement agreement Exhibit C, but not in the same form as the original settlement agreement in that the pictures that are part of the 2009 permit are not provided in color. Therefore, Respondent's Exhibit 2 should be relied on as the complete and more accurate version of the settlement agreement, in lieu of Petitioner's Exhibit 4 plus Exhibit 5.
Indeed, Petitioner's Exhibit 4, identified in the Department's exhibit list as the "settlement," is misleading in that the misimpression is given that the exhibit is the complete settlement agreement, when it is not.
5/ The permit form used for the 2009 permit has a space for the permittee's signature. When Mr. Rosenstein brought the original permit to Mr. Puleo for his signature, Mr. Puleo told him that he wanted to check with his attorney first. The permit (without Mr. Puleo's signature) was thereafter made a part of the settlement agreement, and the settlement agreement was signed by Mr. Puleo. As the parties stipulated at the hearing, it is undisputed that Mr. Puleo accepted the 2009 permit as part of the settlement agreement, and the absence of his signature on the permit itself is immaterial; his signature on the settlement agreement was tantamount to signing the permit attached as part of the settlement agreement.
6/ The Department proposed to offer rebuttal testimony from
Mr. Grace after Mr. Puleo testified that his use of the right-of- way was no different from a safety perspective than the historic uses of right-of-way by others in the vicinity of his property.
The undersigned ruled that Mr. Grace would be allowed to present rebuttal testimony "that what Mr. Puleo is doing is different, is worse than, is somehow a safety problem that's unique to what's
going on on that right-of-way . . . [the rebuttal] needs to be limited to what is the safety difference[.]" The Department declined that opportunity and did not present any rebuttal, through Mr. Grace or any other witness.
7/ The parties also stipulated that Mr. Puleo has been "storing equipment" within the right-of-way. It is unclear what the parties meant by this stipulation. Mr. Grace testified that the Department is seeking to address what is essentially a single violation--parking vehicles on the new asphalt pad, with small "Rent Me" signs displayed in the windows of those vehicles. The pictures that Mr. Grace identified as portraying "representative" violations do not show any stored equipment on the new asphalt.
It is unnecessary to resolve this ambiguity, because the stipulation is not relevant to the charges in the Complaint. The Complaint specifies only parking and advertising as the alleged violations and does not mention "storing equipment."
8/ All references to statutes herein are to the Florida Statutes (2012). In this regard, there have been no amendments to the relevant portions of the statutes charged in the Complaint throughout the time period pertinent to this action. Therefore, while the 2012 statutes are used for ease of reference, they are the same in all material respects as the version of the statutes in effect at the time of the actions charged in the Complaint.
COPIES FURNISHED:
Ananth Prasad, Secretary Department of Transportation
Haydon Burns Building, Mail Station 57 605 Suwannee Street
Tallahassee, Florida 32399-0450
Gerald B. Curington, General Counsel Department of Transportation
Haydon Burns Building, Mail Station 58 605 Suwannee Street
Tallahassee, Florida 32399-0450
Trish Parsons, Clerk of Agency Proceedings Department of Transportation
Haydon Burns Building, Mail Station 58 605 Suwannee Street
Tallahassee, Florida 32399-0450
Wayne W. Lambert, Esquire
Florida Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street
Tallahassee, Florida 32399-0450
Daniel C. Guarnieri, Esquire Adams and Reese, LLP
Suite 700
1515 Ringling Boulevard
Sarasota, Florida 34236-6720
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.
| Issue Date | Document | Summary |
|---|---|---|
| May 14, 2013 | Agency Final Order | |
| Feb. 14, 2013 | Recommended Order | DOT cannot enforce new conditions on permit issued to replace prior permit DOT unitaterally revoked without APA procedures; no violations of prior permit were proven; grounds for estoppel were shown; recommend dismissal. |
