Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent, St. Lucie County Expressway Authority, was created by the Florida legislature in 1983, and is governed by Chapter 348, Florida Statutes. The Authority is composed of two members from the Board of County Commissioners of St. Lucie County, two members from the City Commission of Ft. Pierce, two members from the City Council of Port St. Lucie and three members appointed by the governor. Based on the anticipated future growth of St. Lucie County, there is a need for additional East-West traffic arteries in the southern portion of the county to ease expected traffic conditions. The St. Lucie County Expressway Authority employed consultants and conducted public hearings to determine the best location for such a roadway. Prior to selecting the location for the proposed East-West Expressway, the St. Lucie County Expressway Authority examined feasibility studies, traffic count reports and engineering and road design proposals on alternative alignments and found the proposed corridor to be the best choice from both an economic and environmental standpoint. The proposed expressway route connects Interstate 95 to U.S. Highway 1. Phase 1 of the project would begin in the southern portion of St. Lucie County at U.S. Highway 1 and continue east, following existing transmission lines owned by Florida Power and Light Company and extend to a point which is now called East Torino Parkway. The total length of Phase One of the project is approximately 2.6 miles. Phase Two would extend the project to Interstate 95. The St. Lucie County Expressway Authority expects to obtain funding for construction of the East-West Expressway from various sources including the State of Florida's Toll Facilities Revolving Trust Fund, the Florida Department of Transportation and state-backed revenue bonds. The use of state-backed revenue bonds would require St. Lucie County to pledge a certain portion of its gas tax revenue as security to cover the bonds in the event that the expressway did not generate enough money from tolls to pay back the bonds. A public hearing is scheduled for January, 1988 at which the St. Lucie County Commission will review updated feasibility studies and traffic count estimates to determine whether to pledge the necessary funds to support the bonds. Assuming that approval is obtained for state-backed revenue bonds, the letting of a contract to construct the East-West Expressway could be accomplished by July 1, 1989. The time period for construction of a project such as the East-West Expressway is approximately two (2) years from the date that the contract for construction is executed. Thus, under the most optimistic outlook and projections, the proposed East-West Expressway could be completed by July of 1991. However, difficulties in obtaining funding and/or necessary environmental permits could delay completion of the expressway for ten (10) years, or until 1997. In conjunction with the preparation of plans for construction of the East-West Expressway, the St. Lucie County Expressway Authority filed "right-of- way reservation maps" on October 13, 1986, in accordance with Section 337.241, Florida Statutes. The reservation maps were filed and approved by the St. Lucie County Expressway Authority in compliance with all applicable statutes and regulations. The purpose of filing the right-of-way reservation maps by the St. Lucie County Expressway Authority is to preclude development of properties within the proposed corridor of the East-West Expressway while final construction and engineering plans are being prepared, thereby preventing an increase in cost of acquisition of those properties pending eventual eminent domain proceedings. The right-of-way reservation maps will prohibit the granting of development permits, as defined in Section 380.031(4), Florida Statutes, by any governmental entity for a period of five (5) years from the date of recording of the reservation maps. This period may be extended for an additional five years at the option of the Expressway Authority pursuant to Section 337.241(2), Florida Statutes. The reservation maps do not prohibit sale, continued use of the property by its owners nor is any use prohibited which does not require a development permit as defined in Section 380.031(4), Florida Statutes. The engineering construction plans for the East-West Expressway encompass less area than the reservation maps. However, the larger reserved area will be utilized to facilitate construction of the project and for water retention on site. Thus, less private property will ultimately be taken than that which is included in the right-of-way reservation area. The property owned by Petitioners, T. L. Sloan, James Taylor and Bill Stewart (hereinafter referred to as the "Sloan property") consists of a front and rear parcel. The front parcel consists of 6.54 acres of which 2.28 are within the right-of-way reservation area. The rear parcel is physically separated from the front parcel by a drainage canal and consists of approximately 4.25 acres. The rear parcel is not within the reservation map area, but access to this parcel can only be gained by U.S. Highway 1 through the front property. The property owned by Petitioners Mark C. Walters and David J. Gonzalez (hereinafter referred to as the "Walters' property") measures approximately 55,450 square feet of which approximately 46,000 square feet are within the right-of-way reservation area. The Sloan and Walters' properties are located at the easternmost end of the proposed East-West Expressway and front the east side of U.S. Highway 1 in Ft. Pierce, Florida. Both properties were purchased in 1984 as investment property and are presently vacant, unimproved acreage. The front parcel of the Sloan property is zoned commercial general and the rear parcel is zoned multifamily residential at five units per acre. The Walters' property is zoned commercial general and is adjacent to the Florida Power and Light transmission lines. The St. Lucie County Expressway Authority intends to use the property within the reserved area for the construction of the entrance and exit ramps of the proposed expressway. The engineering design of the East-West Expressway was done with as little intrusion upon Petitioner's properties as practical and only that property absolutely necessary for construction will ultimately be taken. Pursuant to the right-of-way reservation maps, all of the highway frontage on U.S. Highway 1 for both properties has been reserved for the expressway construction. Because of existing regulations, the St. Lucie County zoning office will not issue any development permits for property which has no access to a public highway. Therefore, the local zoning office will not issue any development permits for any portion of the Petitioners' properties, whether included in the reservation area or not. Thus, all of the property owned by Petitioners has been affected by the right-of-way reservation maps. The Sloan property was listed for sale prior to the recording of the right-of-way reservation maps. The Walters' property was purchased with the intent to build a gun shop which is now operated by the present owners at another location. After the recording of the reservation maps, the Walters' property was actively listed for sale. After the recording of the reservation maps, purchase inquiries regarding the Sloan property began to rapidly decrease. Inquiries regarding the Walters' property have also been extremely slow. No written offers to purchase the subject properties have been submitted to any of the Petitioners. David Fuller, a real property appraiser called as a witness by Petitioners, prepared an appraisal estimating the effects of recording the right-of-way reservation maps on the Sloan and Walters' property. The testimony of Mr. Fuller is accepted as more credible and pertinent to the issues involved in this cause than the testimony presented by Mr. Davis, the Respondent's expert appraiser. Mr. Davis admitted that the purpose of his appraisal was to estimate the fair market value of the property in fee simple, the part "taken" and damages to the remainder for the purpose of eminent domain. Mr. Davis' analysis is more appropriate for an action sounding in eminent domain. Mr. Fuller used the Sales Comparison or Market Approach combined with a discounted cash flow method of appraisal in determining the difference in the value of the properties before the recording of the right-of-way reservation maps, and the market value of the properties immediately after recording of the reservation maps. The value of real property is directly related to the use to which it can be put. Thus, a particular parcel may have several different value levels under alternative uses. In determining what, if any, substantial impact the record of the right-of-way reservation maps had on the market value of the Sloan and Walters' property, Fuller evaluated the difference in the value of the properties utilizing their highest and best use before the filing of the right- of-way reservation maps and the highest and best use after the recording of the maps. The highest and best use for the Sloan property without the encumbrance of the right-of-way maps would be to improve the front commercial zoned parcel with a commercial use consistent with neighborhood use trends (i.e., strip shopping centers, rental storage buildings and/or automobile dealerships) and improve the rear multifamily zoned parcel with a support use for the front commercial property. The highest and best use of the Sloan property after filing of the right-of-way reservation maps would be to hold the property as vacant until the right-of-way reservation map filing expires. Although the Sloan property could be sold with the right-of-way reservation, a majority of the potential market would be eliminated and the remaining market would require a discount to purchase the property knowing that the restrictions exist. The potential market in the neighborhood consists of generally three types of investors; (1) the owner occupant; (2) the real estate investor seeking income from an improved property; and (3), the short term land speculator. The owner occupant seeking to immediately build would not consider the property in question because the potential to immediately construct a new improvement is not available. Likewise, the investor seeking to build an income producing improvement, either immediately or in the next three years, would not be interested in the property. The short term land speculator would not be interested because there is no certainty that the property would be able to be developed to its highest potential market value within the next two to three years. The highest and best use for the Walters' property without the encumbrance of the right-of-way reservation maps would be to improve the parcel in approximately one to two years with a commercial use consistent with the neighborhood trends (i.e., owner occupied small business and/or mini-storage property). Improved uses such as an automobile dealership or shopping center could not be physically constructed on a site the size and shape of the Walters' property. The highest and best use of the Walters' property after filing of the right-of-way reservation maps would be to hold the parcel vacant until the reservation filing expires. As with the Sloan property, although the parcel could be sold, a majority of the potential market would be eliminated and the remaining market would require a discount to purchase the property knowing that the restrictions exist. Mr. Fuller stated that in his opinion, using the discounted cash flow model of appraisal, the Sloan properties suffered a total loss in value of approximately $441,450.00 on the date the reservation maps were filed. As to the Walters' property, the loss was calculated at $78,480.00. Mr. Fuller's financial calculations as to loss are misleading and not very useful because they were specifically calculated for a period of time of ten years. In other words, Mr. Fuller's total loss of value calculations are based on the assumption that the reservation map restrictions would exist for the full initial five (5) year period and that they would be extended for an additional five (5) year period. The ability to develop vacant and unimproved commercial property and to put the land to its highest and best use is a substantial beneficial ownership interest arising out of the ownership of commercial property. Both of the properties owned by Petitioners are fully capable of development and no other impediments to development exist except for the reservation maps. Substantial payments on the mortgages for the properties are being made by Petitioners each year totalling over $58,000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the St. Lucie County Expressway Authority enter a Final Order in favor of Petitioners after which the Authority shall have 180 days from the date of said order to acquire the Petitioners property or initiate appropriate acquisition proceedings pursuant to the requirements of Section 337.241, Florida Statutes. DONE and ORDERED this 2nd day of December, 1987, in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-2279, 87-2517 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Findings of Fact 7 and 8. Adopted in Finding of Fact 7. Adopted in Findings of Fact 11, 12 and 13. Adopted in Findings of Fact 11, 12, 13 and 14. Adopted in Finding of Fact 15. Adopted in Finding of Fact 16. Adopted in Findings of Fact 9, 17 and 18. Adopted in substance in Findings of Fact 23, 25 and 27. Partially adopted in Findings of Fact 6 and 26. Matters not contained therein are rejected as misleading and/or argument. Adopted in substance inn Finding of Fact 27. Addressed in Conclusions of Law section. Addressed in Conclusions of Law section. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 8. Adopted in Finding of Fact 7. Adopted in Finding of Fact 7. Adopted in Finding of Fact 13. Adopted in Finding of Fact 10. Adopted in Finding of Fact 3. Adopted in Finding of Fact 9. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Findings of Fact 13 and 14. Adopted in Findings of Fact 13 and 14. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 18. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 15. Adopted in substance in Finding of Fact 10. Partially adopted in Finding of Fact 26. Matters not contained therein are rejected as misleading and/or not supported by the weight of the evidence. Rejected as contrary to the weight of the evidence. Adopted in substance in Finding of Fact 6. Rejected as misleading. The Petitioners' expert projected that "completion" and not "construction" could possibly take 10 years. Adopted in substance in Finding of Fact 9. COPIES FURNISHED: John T. Brennan, Esquire Post Office Box 3779 Ft. Pierce, Florida 33448-3779 Frank J. Lynch, Jr., Esquire Post Office Box 4027 Ft. Pierce, Florida 33448-4027 David Stuart Chairman St. Lucie County Expressway Authority Post Office Box 4027 Ft. Pierce, Florida 33448-4027
Findings Of Fact Petitioner is the general partner of Marstof, Ltd., which owns certain property located at Section 24, Township 28, Range 17, Hillsborough County, Florida, and consisting of approximately thirty acres. Its specific location is on the west side of Twelve Oaks Boulevard, and 400 feet north of Heatherfield Drive. Respondent is an expressway authority created under Chapter 348, Florida Statutes, with eminent domain authority pursuant to Chapter 74, Florida Statutes. The property in question is surrounded on the north by a railroad, vacant land, and a strip of commercial property. To the east and west is vacant land, while to the south are single family residences, with some environmentally sensitive areas. There are some trees on the site, but there is no significant vegetation. Petitioner signed a contract to purchase the subject property for $953,000 on September 27, 1985. The property was zoned "Agricultural" at that time, and since Petitioner intended to develop this property for residential uses, he immediately began preliminary lot layout for marketing, and preliminary layout of a proposed waste water treatment facility. These preliminary layouts were submitted to the Hillsborough County Department of Development Coordination in December, 1985. In early 1986, surveys were ordered, a well as soils and environmental studies, and final subdivision design began. By mid-1986, side and environmental plans, as well as plans for a temporary waste water treatment plant were submitted to state and local permitting agencies. In the fall of 1986, revised plans were prepared and submitted, as required. Petitioner began discussions in December, 1986, with General Homes Corporation for their purchase of all residential lots on the subject property. On December 22, 1986, Petitioner received a letter of intent from General Homes, and on March 4, 1987, General Homes executed a contract to purchase all lots in Petitioner's proposed subdivision for a total of approximately $2.5 million. On March 9, 1987, Petitioner filed an application for rezoning of the subject property from "Agricultural" to "Planned Development, Housing" This rezoning was approved on June 23, 1987. However, General Homes had canceled their contract with Petitioner on or about March 25, 1987. Other developers did express an interest in purchasing Petitioner's lots, but no subsequent purchase contract was executed. As part of the rezoning approval, Petitioner conveyed a portion of the subject property, without monetary consideration, to the County for an extension of Twelve Oaks Boulevard, as well as an additional portion used for environmental mitigation. Following approval of his rezoning application, Petitioner filed his revised site plan and request to use an interim waste water treatment plant, to which there was no objection. By October 10, 1987, Petitioner had obtained all necessary approvals and permits, as well as the rezoning of the subject property, to begin pulling permits for development of this residential subdivision consisting of 128 approved lots with a wholesale value of approximately $2.68 million, or $21,000 per lot. He did not begin development, however, because of concerns about the possible impact of the Northwest Expressway on his development. Although no map reservation had been filed, it appeared to Petitioner that it was likely that the proposed route of the Expressway would be through his property. He did not proceed because he was concerned about the marketability of homes next to, or near, the eventual site of the Expressway, the possibility of default on any development loan he would have to obtain if the Expressway was located through his property, and he also wanted to avoid inflating the eventual cost of the property if it had to be taken through eminent domain. The map of reservation filed on July 8, 1988 by Respondent shows that the Expressway right of way crosses directly through the subject property in an east-west direction. The right of way varies from approximately 250 to 290 feet in width. To the south of the Expressway right of way is a portion of the subject property owned by Petitioner of approximately 10 acres on which 34 residential lots could be located. To the north of the right of way is an area that the parties agree is not developable because the Expressway will cut off all access to this northern parcel. The developable southern parcel of approximately 10 acres cannot be profitably developed with only 34 lots. Petitioner testified that no more than 34 lots can be developed on this parcel, and this testimony is supported by a revised site prepared by his consulting engineer and land surveyor. There is no evidence to the contrary. It is not economically feasible to develop this southern parcel due to the original land cost, and the deflating impact which the location of the Expressway next to this parcel will have. Petitioner has invested a total of approximately $1.15 million in the acquisition of the subject property, including its rezoning, site plans, and obtaining all necessary permits and approvals to commence development. He estimates that he could reasonably receive $2.75 million through the bulk sell- out of 128 finished lots at current market conditions, if it were not for the proposed location of the Expressway through his property. Due to the filing of the map of reservation by Respondent for the Northwest Expressway, Petitioner cannot proceed with any portion of the development of residential lots on the subject property. The only evidence in the record is that Petitioner has been deprived of a substantial portion of the beneficial use of the subject property.
Recommendation Based upon the foregoing, it is recommended that the Respondent enter a Final Order granting Petitioner the relief sought, and within 180 days either acquire Petitioner's property, amend the map, withdraw the map, or file appropriate proceedings. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of December, 1988. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1988. COPIES FURNISHED: A. Broaddus Livingston, Esquire One Harbour Place Post Office Box 3239 Tampa, Florida 33601 William C. McLean, Esquire 707 Florida Avenue Tampa, Florida 33602 Ray Speer, Executive Director Tampa-Hillsborough County Expressway Authority 412 East Madison, Suite 802 Tampa, Florida 33602
Findings Of Fact David Gangelhoff operates a boat sales and service facility on property he owns at 405 North Fort Harrison Avenue. This property is divided into two parcels by Hart Street, which dead end at the back of a building facing North Fort Harrison. For the past few years the Appellant has been buying lots in two parcels separated by Hart Street and intends to acquire all the lots in the entire two blocks. After acquiring all of the lots he proposes to request the City to vacate Hart Street. Appellant currently owns the property abutting both sides of Hart Street and the setback requirements for Hart Street will disappear if the City abandons its right- of-way over Hart Street. Building and zoning regulations require a 17' 3" side setback on a building siding on Hart Street, a 3' buffer zone between parking and the property line, landscaping in the 3' buffer zone between the parking area and the north property line, and a 3' setback in the fence parallel to the south property line along Hart Street. Variances (1) and (4) involve the property line abutting Hart Street and variances (2) and (3) involve the north property line of the property where parking is to be provided. Appellant apparently stores some of his boats in an open area toward the back of the property. He proposes to erect a one-story building on a portion of the property north of Hart Street and to construct the south side of this building one foot from the property line abutting Hart Street. This will provide more inside storage. A proposed canopy area along the main building on the north side of the property is to be used for additional storage and to provide better security in the high crime area in which this business is located. The property is zoned CG. The variance in setback in buffer zones for landscaping which are requested by Appellant are such that practically no setback would remain nor would there be a buffer zone if the variances are granted. Allowing Appellant use of his property to the boundary lines would be beneficial to Appellant's business as it would provide a better facility with more enclosed space to provide security for the boats and equipment. No evidence was presented that other property owners in the vicinity have been granted variances similar to those denied to Appellant or that the special conditions and circumstances exist which make this property unique so that denial of the variance would create an undue hardship on the Appellant.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received including a consideration of Respondent's Proposed Findings of Fact, I make the following relevant factual findings. A new segment of the interstate highway system (I -95) was completed from Gatlin Boulevard to the Martin County line in St. Lucie County, Florida on February 26, 1982. That segment was barricaded, and not opened to the motoring public until April 12, 1985, since there was no interchange open to the motoring public south of the newly completed segment. Lockridge Sales & Marketing Company, Inc., Petitioner, submitted applications to Respondent on July 1, 1986 for state sign permits for site locations at 500 feet, 2,000 feet, and 3,500 feet south of Gatlin Boulevard, on the east side of I-95, 15 feet from the highway right-of-way, in Port St. Lucie, St. Lucie County, Florida. Petitioner's applications were reviewed by Respondent's outdoor advertising inspector, Vanna Kinchen, who recommended denial of the applications "because the prospective sign site were on a new highway outside an urban area". (Respondent's Exhibit 2). Thereafter, Petitioner's applications were forwarded to Respondent's District Outdoor Administrator, who also reviewed the permit applications and denied them by memorandum of the returned applications on July 11, 1986. (Respondent's Exhibit 3). Current urban area boundaries are based on 1980 U.S. Census designations with recommendations from the metropolitan planning agency and approval by the Department (Respondent) and the Federal Highway Administration. Urban area boundaries can be inside or outside the city limits depending on population density. Typically, urban areas are outside the city limits, however, the current urban area designation for the Fort Pierce area, which includes St. Lucie County and Port St. Lucie, shows the area south of Gatlin Boulevard, adjacent to the east side of I-95, to be outside the subject urban area boundary. Petitioner's General Manager, Gary Hodge, takes the position that since the section of I-95 here under consideration was accepted by the State as completed during 1982, it was a highway at that time. Petitioner offered no evidence to refute Respondent's position that the subject segment of the interstate highway was not opened to the motoring public prior to April 12, 1985. It is therefore found that the subject segment of I-95 was not a highway until April 12, 1985. On April 12, 1985, the subject highway was a "new highway" situated outside an urban area.
Findings Of Fact Respondent is engaged in the business of trucking, and has its principal Florida office in Orlando. Respondent utilizes truck tractor and semitrailer combinations. Some of its semitrailers exceed 48 feet in length. One hundred of the National Freight semitrailers which exceed 48 feet in length operate with permits issued to National Freight by Petitioner in October, 1983. These 100 permits are assigned numbers M57683 through M57779 and M57678 through M57680. In 1983, the Florida Legislature amended Section 316.515(3)(b), Florida Statutes (F.S.). The amendment, which became effective July 1, 1983, prohibited the operation of semitrailers over 48 feet in length except for those in operation on Florida highways as of December 1, 1982. Petitioner's representative initially stated that Respondent and at least one other trucking company would be allowed to obtain operating permits for the oversize semitrailers provided they were on order as of December 1, 1982, and in operation on Florida highways by July 1, 1983. This policy was unwritten and has never been formalized by rule. In September, 1983, Petitioner informally requested Respondent to furnish a list of such trailers assigned to Florida. Respondent's list of the 100 trailers at issue here was provided and the permits were subsequently issued. None of the 100 trailers listed by Respondent were in Florida on July 1, 1983. Although Respondent's reply did not state they were in operation, neither did the reply suggest these trailers had not been delivered by July 1, 1983. Petitioner did not require proof of registration at that time. However, by letter of January 16, 1985, Petitioner demanded such proof, which Respondent was unable to provide. Petitioner's letter of January 16, 1985, also advised Respondent that its permits would be revoked if the proof of registration were not provided. This letter and Respondent's demand for hearing are the basis for these proceedings.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner rescind its stated intent to revoke Permits M57683 through M57779 and M57678 through M57680. DONE and ENTERED this 13th day of August, 1985 in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1985.
Findings Of Fact At all times pertinent to the matters in issue herein, the Respondent, Department of Transportation, was the state agency responsible for the monitoring and control of vehicular access to and traffic control on the state highways of this state. Petitioner, Pablo Sanchez, owns the property in issue. This property is a 24 x 40 foot house located on a 70 x 103.62 foot lot located at the corner of East 8th Avenue (LeJeune Road) and East 7th Street in Hialeah, Florida. LeJeune Road, depending upon the location, both has and does not have a restrictive median. At this location it does not. Mr. Sanchez currently and historically, over the 3 years he has lived in the property in question, enters and exits the property, which has no formal driveway, from LeJeune Road. By the same token, guests who visit him enter and exit the property the same way. During this 3 year period there have been no accidents or traffic problems as a result of this use even though traffic on LeJeune Road, a main thoroughfare, is heavy. There is no obstruction on or near the property to hinder visibility of either an individual exiting the property onto LeJeune Road or a driver on LeJeune Road observing anyone coming off the property. In Mr. Sanchez' opinion, a permitted driveway practically would change nothing from the current situation. The area in which the property is located is rapidly changing from residential to commercial. Mr. Sanchez is trying to have the zoning of his property changed from residential to office use. His efforts in this regard are with the City of Hialeah. If his application for zoning change is approved, it is his intention to use the house as an office for his insurance business which is currently conducted at a different location at 24th Street and LeJeune Road. The current office is located on a corner lot from which Mr. Sanchez has access onto LeJeune Road and it is his contention there have been no traffic problems at that location either. No evidence to rebut this contention was forthcoming. There are currently commercial businesses in operation on both sides of LeJeune Road between the area now being used as a business by Petitioner and the area for which he submitted his application. The majority of these enter onto LeJeune Road. Mr. Sanchez contends that the use of the property in issue as an insurance office would not generate as much traffic as either the neighboring bank or service station in the area, and if he were to receive the driveway permit for this property, he claims, the amount of traffic onto LeJeune Road from it would not be increased by any significant amount. He submitted his application and paid the $1,000.00 fee. Most of Mr. Sanchez' time is spent at his business building because his parents live at that location and when he is not working, he spends a great deal of time with them. His experience has been that he can easily go from his home to his office on LeJeune Road at any time without difficulty, and he goes up and back each day expending 6 or 7 minutes for each trip. Petitioner introduced photographs of several businesses purported to be in the area which, he claims, have commercial entrances onto LeJeune Road. Respondent entered no evidence to contradict the identity or location of the sites reflected in the photos and they are, therefore, accepted as offered. One of them is a bank which, he contends, has been in operation for approximately 10 years. Another is a service station which has been in operation for "a considerable amount of time." This facility was there before Petitioner arrived in the area. Another business depicted, Marina Insurance, opened approximately two years ago. The facility used to be a residence and Mr. Sanchez does not know when or if a driveway permit was issued for that property. Another service station in the area was opened "many years ago" and a store for wedding gowns was opened "seven or eight years ago." The photographs fail to show any traffic, however, either in front of, exiting, or entering the properties. Mr. Sanchez claims they are active businesses and have been contributing to traffic on LeJeune Road for many years. In the absence of evidence to contradict that assertion, it is accepted. Mr. Sanchez' contentions were supported by his son, Joel, who is in business with his father and who used to live in the house in question with his father, his mother, his wife and his two children. With four adults living there, three cars were frequently in use, and all usually entered and exited the property from LeJeune Road. On occasion, they would come in or exit from 7th Street, but between 80 and 85% of the time the LeJeune Road access was utilized, primarily because the property faces on LeJeune Road. Visitors to the property usually park to the right of the front door, and so far there has been no problem getting on or off of LeJeune Road. The younger Sanchez confirms his father's testimony that entrance onto or exit from LeJeune Road from either the current residence or the current business property has not been a problem over the years, and he sees no traffic hazard. According to Joel Sanchez, LeJeune Road is no longer a residential street. He confirms his father's statement that new businesses are constantly going in and all seem to have been able to get driveway access onto LeJeune Road. The older businesses have had access to LeJeune for a long time and there appears to have been no problem with traffic. The property in issue here became a problem only when the Sanchezes tried to rezone it. Notwithstanding the fact that at the residence they already use an access onto LeJeune Road, according to the city zoning officials, if the property were to be converted into a business use property, a formal access onto LeJeune, to accommodate 8 parking spaces on the property, would be necessary. The only way 8 parking spaces could be placed onto the existing property would be to place the entrance and exit onto LeJeune Road. From a practical standpoint, the only change would be the actual paving of access ramps out to the highway instead of driving onto and off the property across the lawn as is the current practice. The number of the customers the business would bring to the new site would not be heavy, no more than 6 or 7 per day. This would be a maximum, Petitioner claims, because the nature of the insurance business he is conducting is changing to that which would reduce to an even lesser amount the traffic required. Most of the business customers are now renewals who deal with the company by mail, and the only traffic would be new business. In that regard, they are changing more to commercial lines of insurance, dealing with businesses, which does not have a large office visit rate. Neither of the Sanchez men have any training in traffic management or safety, but both sincerely feel their proposal will not increase traffic or pose a risk to traffic safety in the area. Debora Moran Rivera, a traffic engineer with the Department's Miami District is familiar with the instant permit application and, in fact, reviewed it when it was submitted. When first received by the District, the application was sent to the field for comments. It was determined that a 25 foot radius exit was required. Photographs were received along with the comments and based on the review by both the field office and the District office, it was determined that the application here was not consistent with the rules of the Department governing permits of this nature. As a result, on February 26, 1991, a Notice of Intent to Deny the application was sent to Mr. Sanchez in which the reason for denial was the availability of access to the State Highway from another public road, (East 7th Street). Sometime thereafter, Ms. Rivera was contacted by Joel Sanchez who asked for a formal denial which could be appealed and thereafter, a formal denial letter dated March 19, 1991 was sent. This letter indicated the Department rules limited access to a point at least 115 feet from the nearest connection, East 7th Street. The denial decision was based on information provided by the field operations office to whom the application was sent for verification. The decision to grant or deny is a joint one made by several individuals whose identity is dependant upon where the property in question is located. Mr. Pego, Ms. Rivera's supervisor and Ms. Rivera were the individuals who made this decision based upon the input from the staff in the field. In this case, the field information consisted of a statement based upon his visit to the site and two photographs. Based on this information along with that provided by the applicant, the decision to deny was made. Admittedly no traffic study of the area in question was made by either party. Further, in evaluating the application, however, Ms. Rivera did not look at any other driveway permits for property in the immediate area. She thinks she went out to visit the site before the official denial letter was sent out on March 19, 1991 but she does not recall what the business characteristics of the area were like. While she is generally familiar with the area, she does not recall the specifics. Based on the evidence presented, nothing was put before the undersigned to demonstrate the insufficiency or impropriety of the Department's evaluation and decision making process and it is accepted that the process was sufficient and adequate. There is some indication from the testimony of Petitioner that he had called the District office to request a Spanish speaking representative come out to the property. In response, the District sent out a Mr. Montez. According to Mr. Sanchez, Montez initially told him that the application would probably not be approved because the property fronted on LeJeune Road. However, Sanchez claims Montez later changed his mind and indicated the application would probably be granted because of the small nature of the business. The evidence on this point is unclear as to whether the visit by Mr. Montez is the site visit described by Ms. Rivera. No evidence was presented to clarify this, but in any case, there is no showing that Montez had any authority to commit the Department to a position. His opinions, therefore, are irrelevant.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case denying Petitioner's application for a connection from his property located at 700 East 8th Avenue, Hialeah, onto East 8th Avenue, (Lejeune Road). RECOMMENDED in Tallahassee, Florida this 29th day of January, 1992. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1992. COPIES FURNISHED: Juan Carlos Perez, Esquire 4770 Biscayne Blvd. Miami, Florida 33137 Michael A. Bienstock, Esquire 25 SE 3rd Avenue, Suite 1240 Miami, Florida 33134 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Thornton J. Williams General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The parties stipulated that but for the grounds stated in Respondent's letter of denial, Petitioner was qualified for certification as an independent direct service provider. The issues are whether Petitioner failed to consistently follow through on arranging support coordination services for clients of the developmental disabilities program, and whether this constitutes ground of denial under unadopted rules of Respondent.
Findings Of Fact Petitioner, Susan Dos Santos, applied for certification as in independent direct service provider to persons with developmental disabilities. Respondent, Department of Children and Family Services, is authorized pursuant to Chapter 393, Florida Statutes, to regulate the provision of services to the developmentally disabled and to certify persons who are direct service providers and independent support coordinators. Respondent and Petitioner stipulated at hearing that, except for the reasons set forth in Respondent's letter denying Petitioner's certification, Petitioner was qualified for certification. The grounds stated in the letter of denial were that Petitioner consistently failed to follow through on arranging support coordination services for her clients while employed as a treating provider. Evidence was presented that the records of Petitioner's work for her employer with developmentally disabled persons were reviewed pursuant to an unadopted rule of Respondent and Petitioner's work performance failed to meet the criterion established by an unadopted rule of Respondent for completeness and thoroughness. It was on this basis that Respondent denied the application of Petitioner. Petitioner testified in her own behalf. She did not know that her work was subject to review for purposes of certification and did not know about the standards of review. None of her clients ever failed to have services provided, although she did refuse to meet with one client who was assigned to another counselor with whom she had had a prior physical altercation. No information reflecting adversely on the good character of Petitioner was introduced.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Respondent certify Petitioner. DONE AND ENTERED this 17th day of September, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 September, 2002. COPIES FURNISHED: Susan Dos Santos 2472 Glade Spring Drive Jacksonville, Florida 32246 Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
Findings Of Fact Petitioner proposes to erect outdoor advertising signs along the south side of I-10, 0.2 miles and 0.4 miles, respectively, east of U.S. 41. The Petitioner has acquired a lease on the sites proposed for these signs. The sites in issue are in Columbia County and Columbia County is unzoned. These sites are outside any incorporated town or city and the area is rural in nature. A radio transmitting or relay tower is located between the proposed sites and a small concrete block building is located near the base of the tower. These are the only structures in the area. Each of the two sites for which a permit is sought is within 800 feet of this small building. The building is unoccupied and is reported to contain materials used in the maintenance of the tower. The tower is owned by B & B Communications located in Lake City, Florida. Opinion testimony was offered by Petitioner that the highest and best use of small tracts of this land would be for outdoor advertising signs. Exhibit 10, Building and Zoning Code for the City of Jacksonville, Florida, which is coterminous with Duval County, establishes a category of Open Rural Districts (OR) in which permissible uses by exception include radio or television transmitters, antenna and line-of-site relay devices. The zoning code for Tallahassee shows one of the principal uses for land zoned A-1 Agricultural District is for "(8) Broadcasting towers, radio and television transmission stations and studios." There are six or seven signs located in the general area along the I-10 between U.S. 41 and U.S. 441, most on the north side of I-10. Those permitted signs were "grandfathered in" and no permit has been issued for any sign erected in this area since 1979.
The Issue Whether Respondent committed an unlawful employment practice in violation of Sections 760.10(1), Florida Statutes.
Findings Of Fact The Respondent, Beard Equipment Company, Inc., sells and maintains heavy equipment in Panama City, Florida. The Petitioner, Robert G. Harrison began employment with the Respondent in Panama City, Florida, in September, 1988. The Petitioner was employed as a janitor. Petitioner's duties included running numerous and varied errands which required driving of a motor vehicle. In April of 1989, Petitioner was hospitalized in order to adjust his medication for what he indicated was a bipolar disorder. However, at the hearing, Petitioner produced no expert testimony to establish that he was mentally handicapped or had bipolar disorder. At that time, Respondent became aware that Petitioner had a medical problem. Later, Petitioner was hospitalized in order to adjust his medication on two more occasions in 1989, and twice in 1992. On each occasion the Respondent accommodated Petitioner by making arrangements to hire temporary employees or readjust other employees' duties so that they could perform Petitioner's duties while he was hospitalized. In early 1992, the Respondent's liability insurance company conducted a random audit of employee driving records. The Respondent was notified by its insurance company that no coverage would be provided for any accident where the employee/driver had a DUI conviction. This random audit prompted Respondent to conduct a complete company- wide internal audit of driving records of all employees. The driving record audit resulted in some transfers for those employees for whom driving was an essential part of their job duties, but whose driving records would prohibit them from being covered under Respondent's liability policy. Employees who could not fulfill the duties of a non-driving position were terminated. Respondent could not afford to allow employees to drive who could not be insured by Respondent's liability carrier. The in-house driving record audit revealed that Petitioner had a DUI conviction on his record. Respondent had no other non-driving positions for which the Petitioner was qualified. Respondent was therefore forced to discharge the Petitioner since he could no longer fulfill the duties of his employment. Petitioner was discharged in November of 1992. When Petitioner was terminated, Petitioner was advised by Mark Veal, his supervisor, that the driving record audit had revealed that Petitioner had a DUI conviction, and because he would not be covered under the company insurance policy, they had no alternative but to discharge him. Within a day or so, Petitioner's wife called and requested his discharge letter in writing. Veal prepared the letter, indicating that due to Petitioner's medical history, his operating a motor vehicle would be too much of a liability. Although the real reason for Petitioner's discharge and the reason given him at the time was the DUI conviction, Veal tried to write the discharge letter in such a way as to minimize any embarrassment for the Petitioner due to his DUI conviction. Therefore, the termination letter does not support the conclusion that Respondent discriminated against Petitioner based on a mental handicap. In fact, there was no substantial evidence that Respondent terminated Petitioner based on a mental handicap. The evidence clearly showed Respondent was terminated for his driving record and his lack of qualifications to fill any other non-driving position. Moreover, Petitioner failed to establish that his position was filled by a person not in a protected class or that Respondent is an employer employing more than 15 employees. Given these facts, Petitioner has not established a prima facie case that Respondent committed an unlawful employment practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his alleged handicap in violation of the Florida Human Rights Act and that the petition be dismissed. DONE AND ORDERED this 22nd day of December, 1994, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1994.
