The Issue At issue herein is whether or not the City's application to open an at- grade crossing at NE/NW 2nd Street, Boca Raton, Florida (Milepost 324 + 2350') should be granted and is in keeping with the dictates of Section 338.21, Florida Statutes, and Chapter 14-46.03(2)(a), Florida Administrative Code.
Findings Of Fact Based on a careful consideration of the testimony of the witnesses and their demeanor while testifying, the documentary evidence and the other arguments of counsel, ,the following relevant facts are found. The City of Boca Raton filed an application to open an at-grade railroad crossing at NE/NW 2nd Street, which is situated at Railway's Milepost 324 + 2350' and the Florida East Coast Railway Company filed an application to close Palmetto Park Road at-grade crossing, which is situated at Milepost 324 + 2988'. Due to the close proximity of the two crossings, a joint hearing was held. The Railway, in filing its application to close Palmetto Park Road, noted that its application was alternative to and contingent upon the granting of the City's application to open NE/NW 2nd Street. The Railway's position is that one of the two crossings is adequate. The Applicant's position respecting this application was presented through Mr. John Carroll, City Engineer since approximately September of 1977, and Mr. Joseph Pollack, P.E., of Kimley-Horn and Associates. Palmetto Park Road is a major east/west arterial road serving the City. The most recent traffic counts for Palmetto Park Road in May, 1978, indicate a peak traffic count of approximately 24,000 vehicles per day at the intersection of Palmetto Park Road, Dixie Highway and the existing crossing. This represents a volume/capacity ratio for that intersection of approximately 1.35 or approximately 35 percent greater than the designed capacity for the intersection. Such a condition is known as "forced flow." Based thereon, the City argues that there have been an increasingly high number of vehicle-to- vehicle and vehicle-to crossing gate accidents at the subject intersection and crossing. Thus, for example, the City points out that during calendar year 1977, the most current year that statistics were available, there were eighteen accidents at the intersection and crossing, with seven of those accidents directly involving the crossing gates closing on vehicles waiting to clear the crossing (See City Exhibit 10). According to Dr. Carroll, several additional crossing gate accidents were never reported. The West Palm Beach Urban Area Transportation Study (WPBUATS) indicates a 1955 traffic volume on Palmetto Park Road of 18,000 vehicles per day and 1990 traffic volume of 26,000 vehicles per day (City's Exhibits 4A, 4B, 5A and 5B). Such projections are based upon the City's construction of alternate east/west corridors which are not now in existence and, if such alternative routes are not constructed, the above projected traffic volume increases would be greater. Without question, the NE/NW 2nd Street project would reduce congestion on Palmetto Park Road. Testimony introduced during the hearing reveals that the NE/NW 2nd Street project will draw approximately 4,000 vehicles per day from Palmetto Park Road. If such reduction results, the volume/capacity ratio on Palmetto Park Road at the existing crossing and Dixie Highway intersection would reduce the current "forced flow situation to its approximate designed capacity. During the hearing, testimony was submitted to the effect that in addition to eliminating the "forced flow" condition at Palmetto Park Road, the subject project will facilitate emergency vehicle response time, would be more convenient to citizens desiring access to the central business district and would, if calculated, result in a fuel consumption saving. The NE/NW 2nd Street project was first envisioned by the City in 1964 and since that date, the City has acquired substantial amount of the necessary rights-of-way to accomplish completion of this project. Specifically, in 1973, the City acquired rights-of-way between Federal Highway and First Avenue, and in 1974 and 1976, the City required certain developers to dedicate other necessary rights-of-way. In September, 1977, the City's electorate approved a bend issue totaling $1,770,000 for road improvements, which included $448,000 for the NE/NW 2nd Street project. Mr. Pollack testified credibly that his firm designed the NE/NW 2nd Street project and the crossing to meet all applicable design safety criteria. The Railway's opposition to the opening of a crossing at NE/NW 2nd Street was based partially upon the close proximity of the proposed crossing to the existing crossing at Palmetto Park Road and also upon the Railway's opinion that opening of the NE/NW 2nd Street crossing would do little in terms of reducing the over-utilization of the crossing at Palmetto Park Road. 10. It was noted during the hearing that by 1990, the average traffic vehicle using the Palmetto Park Road crossing will approach 30,000 vehicles. It is undisputed that the additional crossing at NE/NW 2nd Street will draw vehicles from the Palmetto Park Road crossing. In terms of alternative routes, the City conducted feasibility studies which reveal that either in terms of widening Palmetto Park Road or alternatively constructing an above-grade crossing at the Railway's mainline track, both alternatives are prohibitive in terms of cost and thus, not feasible. The prohibitive costs stem from the fact that the property abutting Palmetto Park Road in the close proximity of the existing crossing is presently developed for commercial uses. Finally, all parties agreed that regardless of whether the proposed NE/NW 2nd Street crossing application was granted, the closing of Palmetto Park Road would be disastrous.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That the application of the City of Boca Raton to open an at-grade crossing at NE/NW 2nd Street (Milepost 324 + 2350') be GRANTED. It is further recommended that the application of the Railway to close the Palmetto Park Road at-grade crossing (Milepost 324 + 2988') be DENIED. RECOMMENDED this 25th day of June, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact Lior Hason is the owner of Britt's Cafe, a restaurant which occupies property owned by the Petitioner's Stanislaw and Kasimiera Budzinski. On or about December 19, 1995, Harry S. Cline, an attorney for Mr. Hason and the Budzinskis, filed an application for a variance from the City of Clearwater's Development Code, for the purpose of eliminating three required parking spaces from the front of the subject property for the construction of an outdoor cafe at 201 South Gulfview Boulevard. The Code requires one parking space per 200 square feet of gross floor area, and a variance was required to remove three existing parking spaces from the unit's parking space inventory. The matter was brought before the City's Development Code Adjustment Board at its January 11, 1996 meeting. Mr. Cline appeared at the meeting on behalf of the applicant and presented the project. No one else was present to speak in support of or in opposition to the request. However, four letters in opposition from neighboring business owners were submitted. Notwithstanding these objections, the Board determined that the applicant had substantially met all standards for approval listed in the City's Land Development Code; and upon vote of the Board, the application was approved, subject to certain conditions, by a three to two majority. Mr. Hason entered into discussions with City officials to determine what was necessary. Official City reaction was initially favorable. Mr. Hason was advised of the requirements for the project and had plans drawn which called for a deck with a 35 to 36 inch railing with landscaping around it, and with posts and lights. When the plans were submitted to the City officials, the only change suggested was to raise the railing height to 45 inches, which was done, after which the City approved the plans and the permit was granted. The deck was then constructed exactly according to the approved plans. At some time during 1996, Mr. Hason discussed with some City employees putting an awning over the deck. During these discussions, the City employees sent Mr. Hason a copy of Section 41.221(1)(c), Clearwater City Code, which provides for awnings to be removable. Mr. Hason considered the sending of this Code provision to be tantamount to a favorable reply to his inquiry, and, based on that, he finalized his plans for the installation of a removable awning. The proposed awning is designed in such a fashion as to be extendible and retractable on a frame, capable of easily being pulled up against the front of the building like a drapery. With a minimum of further effort, consisting of the removal a several bolts, the entire awning construction can be removed from the frame. Mr. Hason submitted his application for the variance to install the awning on February 2, 1997. In the interim, the City employees with whom Mr. Hason discussed the project changed their position from favoring the project to opposing it. He was ultimately advised in December 1996 or January 1997 that the awning could not be permitted because an awning could not be approved over a deck for which a permit should not have been issued and for which the issuance was a mistake. Though the Board had not yet voted on the application, no information was given to Mr. Hason as to what he could do to make the project approvable. His application, on February 2, 1997, was submitted because, Hason claims, he had been told, by someone not further identified, that applying for a variance for the awning would make everything right. The Variance Staff Report submitted to the Board by the appropriate City employees acknowledged that the frame over which Mr. Hason proposed to put the awning does not meet code because it was constructed within a required setback area from South Gulfview Boulevard, but since the frame was built pursuant to a City-issued permit, consistent with City policy, the City accepted its existence. In its final recommendation to the Board, the staff concluded that notwithstanding the encroachment into the setback area, the project "appears to comply with all standards for approval, provided attention is given to the external appearance of the cafe:" The staff then went on to recommend approval of the project subject to certain conditions, all of which, Mr. Hason accepts and agrees to. Nonetheless, the Board denied the permit by a vote of four to one. Mr. Hason contends that the Board vote was an attempt by the Board to get back at him because of what it perceived as his failure to comply with the conditions placed upon the issuance of the first permit and his alleged misrepresentation of the scope of his project at the time. Mr. Hason, however, categorically denies he has done anything contrary to the dictates of the City. He went back to City officials many times during the construction of the deck to make sure the project was built as required. The majority of the Board members believe, however, that the deck as constructed, goes far beyond the limited structure approved by the granting of the parking space variance in January 1996. This animosity toward the project can be seen from a review of the audio record of the February 13, 1997, Board meeting where, during a colloquy between a Board member and Mr. Hason, it appeared the member was somewhat put out by the entire situation. His analysis indicates a less than complete recollection of the matter, however. Whereas one of the conditions to the issuance of the initial permit was that the area of the outdoor cafe should not be greater than 25 percent of the indoor area of the restaurant, this member pointed out that the 69 outdoor seats were far in excess of 25 percent of the 115 or so indoor seats. This constituted a confusion of seating as opposed to area. No evidence was presented concerning whether Mr. Hason had violated the area constraint. In the main, however, while it appeared that a majority of the Board members were unhappy about the way the project developed, and expressed the opinion that the project did not conform to what they had intended to approve, there was no indication any member s vote was motivated by anything other than a sincere belief in the correctness of his position. There was no indication of any inappropriate or vindictive action by anyone on the Board or its staff. Stephen Sarnoff, a central permitting specialist with the City reviewed the plans for the initial construction and for the current application. As he recalls, the plans for the initial deck construction did not show any support beams, fans, overhead structure or latticework fencing, and the deck, as built, does not conform to the plans as submitted. City Code requirements call for a railing of from 30 to 42 inches high. The current railing of 45 inches does not conform to that standard, and Mr. Sarnoff is not aware of any request from the City that the railing be raised to that height, as Mr. Hason claims. By the same token, while there is no requirement in the ordinance that a deck be of a certain height, anything higher than 12 inches is considered a structure and a waiver is required. This deck was approved for 12 inches. A certificate of occupancy is usually issued for a deck, but in the instant case, such a certificate has not been issued because the deck, as built, is not in compliance with the 1996 approval. If it is brought into compliance, it will be approved. Sarnoff is aware of and familiar with other outdoor restaurant decks built at various locations in the Clearwater area, as indicated by Mr. Hason. Some are not within the CR-28 zone and do not come under the same standards as are applicable here. Others, which must conform to the instant requirements appear to have movable awnings which are acceptable. Still others are in a different zoning district with different set-back requirements, and some were initially denied, but were subsequently approved when they were brought into compliance with the requirements. John Richter, a senior planner for the City, was the individual who prepared the staff report on the instant project and initially recommended approval, contingent upon changes to the external appearance of the facility. He made suggestions and has discussed the project with Hason on his several visits to the property. He did discuss an awning with Hason at some point, but their discussions did not deal with its mobility. All in all, Mr. Richter concluded that the project appears to meet the standard for approval, provided attention is given to the external appearance of the cafe. David S. Shuford, the City's central permitting director and development code administrator indicated that the variance required for the awning, which was an integral part of the structure already built, was not automatically granted with the granting of the permit for the deck structure. Section 42.221, Clearwater City Code, was adopted to promote a more festival atmosphere in some of the outdoor tourist areas. The intent of subsection (l)(c) of that provision was to require the use of moveable items and to design structures that would meet wind requirements and not interfere with pedestrian traffic. The term "moveable" means what it says, and in Shuford's opinion, from the plans he saw, the proposed awning would not be easily moveable on a daily basis. The Clearwater City Code establishes the area in question as one where, once guidelines are developed, they will be adopted and be complied with. Mr. Shuford opines that the current deck, in the rafter area, goes beyond what was proposed at the time the project was submitted for the parking variance and was approved. This is what appears to be the source of the difficulty the Board members have with it. However, if designed to comply with the guidelines, this awning could be approved. He would agree with the conditions outlined in the staff recommendation so far as they relate to painting and architectural matters.
The Issue The issues here concern the transfer of a portion of State Road 211 in Duval County, Florida, referred to as Grand Avenue. This transfer would be made upon Respondent's contention that the road is functionally classified as a collector and properly the subject for maintenance and control by Petitioner. The City of Jacksonville has opposed this transfer based upon its belief that Respondent's classification of the road as a collector was inappropriate and that the aspect of the road, constituted of the Ortega River Bridge, is in a substandard physical condition when contrasted with contemporary roads of like age and existing functional classification within Duval County and Jacksonville, Florida. See Subsection 335.04(1), Florida Statutes. WITNESSES AND EXHIBITS Petitioner presented the witnesses Stanley K. Nodland, City Engineer, Jacksonville, Florida; Charles E. Ison, Sr., Junior Engineer, Bridge Inspections Section, City of Jacksonville; Morris M. Napier, Associate Engineer, Bridge Inspections Section, City of Jacksonville, and Robert Lee Hill, Jr., City Highway Engineer, City of Jacksonville. Petitioner offered five (5) exhibits which were received. Respondent called as its witnesses James H. Pittman, District Planning Engineer, Department of Transportation; James A. Moss, District Maintenance Engineer, Department of Transportation, and Stephan Fregger, Chief of Bureau of Transportation Systems Statistics, Department of Transportation. Respondent offered Exhibits 1, 1A and 2-12, which were admitted.
Findings Of Fact Following a series of workshops and meetings between the parties in this cause, allowing public comment in these sessions, Respondent determined to transfer approximately 3.1 miles of road to Petitioner for maintenance purposes. In formulating this policy decision, Respondent functionally classified the road as a collector. The road is referred to as Grand Avenue and includes the Ortega River Bridge. It is located in the City of Jacksonville, Duval County, Florida. The purpose of functional classification of the roadway in question was part of the classification exercise mandated by Subsection 335.0A(1), Florida Statute which began in late 1977 or early 1978. The overall classification requirement related to the entire state of Florida and it was to be concluded effective July 1, 1982. In addition to the sessions held between the parties and the general public, related to the road classification in question, other sessions were held in-house between the central office, Department of Transportation and its District Offices, to include District II. District II is the locale in which Duval County is found. This consultation by staff was designed to insure uniformity in the endeavor. To conclude the process of the state-wide classification, Respondent acted in accordance with Chapter 14-12, Florida Administrative Code, and relied on those definitional statements set forth in Subsection 334.03(14), (15), (16) and (17), Florida Statutes 1/, in establishing qualitative criteria for the statewide functional classification activity. In effect, definitions in the provisions form the basis of the criteria. In the case of the subject road, particular emphasis was placed upon traffic volume, trip length, speed and access or mobility. Following the qualitative or subjective examination, Respondent decided that the Grand Avenue section should be classified as a collector road, as opposed to an arterial road or local road. Petitioner does not agree that the read should be classified as a collector, based upon the belief that the Department has failed to promulgate and apply necessary criteria to functionally classify the road in question. Moreover, Petitioner is concerned that the bridge feature of the road is substandard. Therefore, on June 2A, 1982, steps were taken leading to the present Subsection 120.57(1), Florida Statutes, hearing. See Petitioner's Exhibit No. 4, admitted into evidence. Respondent's Exhibit No. 1-A, admitted into evidence, is a traffic count map showing a substantial number of roads in Jacksonville. It depicts the average of four (4) traffic counts taken in 1977, at northwestern and southern ends of the road sought for transfer. At the southern end, 3,415 trips a day were averaged and in the northwestern area, 5,135 trips per day were averaged. This is a close approximation of the traffic circumstance on the road at the time of hearing. The map also features traffic counts for other collector roads in Duval County. Those counts are roughly comparable to the counts on the road in question. Speed limit on Grand Avenue in the subject area varies from 25 miles per hour on the lower end of the street, to 15 miles per hour on some of the curves and in the northern area of the road, the speed limit is 35 miles per hour. The road has two (2) traffic lanes and the Ortega bridge is a two-lane bridge. The road is primarily designed to give access to surrounding property as opposed to granting mobility for through-traffic. There is a high number of local streets adjacent to the road and a number of driveways giving access to the road. The road is located in a predominantly residential area, constituted primarily of single family dwellings, with some apartments in the area of the bridge and small commercial complexes, referred to as neighborhood family stores. Respondent's Exhibit No. 2, admitted into evidence, is a map depicting the proposed system under functional classification. It shows state highways, county roads, collectors, minor arterials, city streets, and the urban boundaries of the area where the Grand Avenue section is found. With the exception of the state highway system tape, all other roads would be part of the city system for maintenance purposes. At the northwest corner of the road in question, at the junction with Herschel Street and San Juan Avenue, the traffic count changes as you proceed north on Herschel Street. It increases to approximately 9,200 trips per day. Proceeding west on San Juan Avenue from the junction at Herschel, Grand and San Juan, the traffic counts increase to some 16,000 as measured in 1977. See Respondent's Exhibit No. 1A. For this reason and based upon other classification criteria, those sections of San Juan and Herschel are arterials and part of the state system. As an example of other criteria differences, San Juan Avenue is basically a commercial area with longer trip lengths than in the case in the area of the subject road. Respondent's Exhibit No. 3, admitted into evidence, is a map depicting the roads by functional classification in the greater part of Duval County, Florida, with a second sheet which more particularly indicates functional classification in the area where the transfer would be made. Respondent's Exhibit No. 4, admitted into evidence, contains a map depicting select collectors and arterial roads in Duval County. This map, in conjunction with other maps, demonstrates the similarity between the subject road and other collectors in Duval County in terms of traffic count, length of roadway and access or mobility. This map also identifies state, national and interstate roads. Respondent's Exhibit No. 4 also has an element constituted of two (2) paces of charts comparing select collectors as to length, average daily trips, number of lanes, nested speed and land use. These charts establish the overall similarity between the collectors and the overall similarity between the arterials. These two (2) groups, i.e. the Duval collectors and arterials, bear strong resemblance respectively to the definitions set forth in Subsections 334.03(15) and (16), Florida Statutes, supra. With the exception of the bridge surface, the roadway in question was resurfaced in April, 1982. In comparison with roadways of other collectors in Duval County, with the exception of the bridge, the condition of the road surface in the subject area is good. The bridge surface is fair. In summary, the facts as reported herein evidence the propriety of functionally classifying the 3.1 miles of State Road 211, known as Grand Avenue, to include the Ortega River Bridge, as a collector. One of the major sections of the road to be conveyed is constituted of the Ortega Bridge. The bridge was built in 1926 and opened to traffic in 1927. It has a bascule span referred to as a walking or rolling bascule. This is the span that moves to allow boat traffic under the bridge. The draw span is operated by two (2) electric motors, activated by a bridge tender. The fixed portion of the structure is an arched type beam construction. The construction composition is made of concrete with reinforcing material. The bridge allows a load rating of H-20. The bridge is depicted in Petitioner's Composite Exhibit No. 2, a series of photographs, admitted into evidence. While forty (40) years is the average life of a bridge, this bridge has lasted fifty-seven (57) years. The present condition of the bridge is spoken to through a series of inspection reports and ratings given the structure. Respondent, through its bridge inspection section examined the fixed spans of the bridge on August 10, 1981. A copy of the report that ensued may be found as Respondent's Exhibit No. 10, admitted into evidence. In speaking to the major elements of the fixed spans, the report has a numerical rating of the various elements. The ratings range from adequate in describing the fender system in the canal to excellent when describing the drainage system. On August 19, 1981, Respondent also made an inspection of the movable spans. Respondent's Exhibit No. 10, supra. These numerical ratings range from fair, in describing such things as rack gears, curve tracks and flat tracks of the bascule span machinery, to excellent in describing the gear assemblies in the movable span elements. The gears had been subject to major overhaul in the years 1978 and 1979. Notwithstanding the basically sound condition of the bridge as borne out by the 1901 inspection, a number of deficiencies were noted related to cracks in bridge columns, caps, webb walls and abutments/indents. Cavities were found in the rip-rap bags at abuttment 1. Cracks were noted in the beams and diaphragms. The asphalt surface of the deck was cracked and spalled and had bulges at certain areas of the joints throughout the structure, related to faulty expansion. (The approach slabs were improved with the resurfacing in April, 1982.) Spalled areas were found in the deck underside. The fender system had deteriorated substantially due to marine borers. The top track and walking pinion gear on the north side of the east leaf was found to not mesh properly when the bridge is being opened and closed. There was some deterioration found in beams/stringers/girders related to the movable span. All these matters and other deficiencies are more particularly described in Respondent's Exhibit No. 10, to include photographs. The report is found to be an accurate depiction of the bridge condition. Respondent conducted a further inspection of the movable span in August, 1982, above water and underwater. A copy of the inspection report may be found as Respondent's Exhibit No. 9, admitted into evidence. These observations are substantially the same as was the case in the 1981 inspection of the movable spans. The observations in this report and the photographs with the report are found to be accurate. A sufficiency rating through structure and inventory appraisal is reflected in a computer printout prepared on December 6, 1982. The rating is 71.5. It relates to all the major elements of the bridge. This information is basically comparable to the inspection reports alluded to before and is accepted as being substantially accurate. See Respondent's Exhibit No. 8, admitted into evidence. The ratings setting forth the principle elements of the bridge are taken from the Recording and Coding Guide for the Structure Inventory and Appraisal of the Nation's Bridges, a copy of which is Respondent's Exhibit No. 12, admitted into evidence. This is a publication of U.S. Department of Transportation/Federal Highway Administration. By utilization of the code system set forth in Respondent's Exhibit No. 12, the rating which is established through the structure inventory and appraisal printout ranges from marginal condition in appraising the deck geometry, to fair condition in describing the substructure, to generally good condition in describing the deck surface, as examples. An estimate of the cost of improvements, as set forth in the Exhibit No. 12, would be $80,000. The $80,000 improvements cost relates to the suggested improvements set forth on page 29 of the Respondent's Exhibit No. 10 and would cover such matters as sealing cracks, repair to rip-rap, etc. Some of those improvements are constituted of periodic maintenance, a prioritized item by the Department of Transportation. The state had not reached the place of making the periodic maintenance improvements to the bridge at the time of the final hearing in this cause. For planning purposes, the Department of Transportation feels that the bridge would last at least five (5) years, from the date of the preparation of the structure inventory and appraisal information set forth in Respondent's Exhibit No. 12. In October, 1982, Petitioner, through its bridge inspection section, examined the Ortega River Bridge. This inspection did not entail examination below the waterline. The results of the inspection are set forth in the Petitioner's Exhibit No. 1, admitted into evidence. Petitioner's Exhibit No. 2, which has been described, are photographs taken during the course of the inspection. Some of the highlights of this report indicate substantial deterioration at the ends of the bascule span, exposing the wire mesh used to bond the asphalt surfaces which are adjacent to the bascule span. It depicts the difference in elevation between the bascule span and the adjacent asphalt spans. Nonetheless, automobiles are able to safely utilize that portion of the bridge where the asphalt span and bascule span are joined. It points out the deterioration of the tender system which is made of timber and has been decimated by marine borer infestation. It specifically points out the disarray of electrical wiring in the area where the electrical motors are found, which constitutes a safety hazard. Per the report, the deflection of the ends of bascule leaves, when in operation, is causing impact loading and vibration in the movable sections, especially when used by heavier vehicles. Essentially, the Petitioner' a inspection is commensurate with the observations of the Respondent in its inspection reports, Respondent's Exhibits 9 and 10. The City's reported observations on the bridge condition are accurate. One of the support pillars for the bridge structure has rotated. The significance of this rotation was not established at the hearing; however, the rotation could reach a point where the pillar was no longer capable of bearing the load. Likewise, the significance of the numerous cracks in the bridge members was not clearly established, other than the common agreement by both parties that those items need attention. Neither the Respondent nor petitioner has done extensive testing such as core sampling of the concrete material, sonigrams or x-rays to determine the relative strength and condition of the bridge structural members. After considering the presentation of both parties on the subject of the bridge, and remainder of the road being transferred, as compared to other roads which are functionally classified in Duval County as collectors, the subject road is found to be physically comparable in its condition and appropriate for transfer. This determination relies on the fact that the road is being transferred as a unit. The bridge is not regarded as an item which warrants its own comparison to other bridges, when considering the transfer of the Grand Avenue section of State Road 211. Therefore, no factual discussion is made of a comparison of the Ortega River Bridge to other bridges in Duval County or out of the county.
The Issue Whether Petitioner is entitled to bus transportation for his children to and from Liberty Pines Academy, pursuant to section 1006.21(3)(a), Florida Statutes; Florida Administrative Code Rule 6A-3.001; and operative rules of the St. Johns County School Board.
Findings Of Fact Petitioner, Ryan A. Johnson, is the parent of two elementary-school-aged children who attend the Academy, a public school operated by Respondent. The Academy is located on Russell Sampson Road in northern St. Johns County. Petitioner and his children reside at 120 South Arabella Way in the St. Johns Forest subdivision (“the subdivision”) in St. Johns County. The subdivision is a large, gated, planned unit development in northern St. Johns County. The subdivision is roughly bounded by County Road 2209 (“CR 2209”) on the east, Russell Sampson Road on the west, and County Road 210 West (“CR 210”) on the south. Respondent, St. Johns County School Board, is the constitutional entity authorized to operate, control, and supervise the public schools within St. Johns County. See Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Respondent is required to provide transportation for public school students “whose homes are more than a reasonable walking distance” from their designated school, as defined by the rules of the State Board of Education. § 1006.21(3)(a), Fla. Stat. The State Board of Education defines “reasonable walking distance” as “not more than two (2) miles between the home and school.” Fla. Admin. Code R. 6A-3.001(3). Background Prior to the 2018-2019 school year, Respondent provided bus transportation for Petitioner’s children as “courtesy riders,” students who live within two miles of their assigned school, but for whom transportation is provided by special authorization of the Superintendent. In this case, there was a direct route of two miles or less between the subdivision and the Academy. Part of the route proceeded through a wooded area out of sight of the roadway. Respondent deemed the route “too great a risk” for the students,1/ and provided bus transportation by special authorization. Prior to the beginning of the 2018-2019 school year, the Florida Department of Transportation built an interchange at the intersection of CR 2209 and State Road 9B (“SR 9B”), northwest of the subdivision. SR 9B is a divided highway that runs from Interstate 295, across Interstate 95, to CR 2209. In connection with the interchange construction, a new sidewalk was constructed connecting the existing sidewalk along CR 2209 to the Academy, via a route parallel to CR 2209 and a portion of the SR 9B entrance ramp. In the spring of 2018, Respondent’s transportation staff reevaluated the eligibility of students residing in the subdivision for bus transportation to and from the Academy. Based on the reevaluation, the Superintendent recommended termination of bus transportation to and from the subdivision. On October 9, 2018, Respondent voted to approve the Superintendent’s recommendation to terminate bus transportation between the Academy and the subdivision. The decision to terminate was based on Respondent’s finding that the subdivision is located within a reasonable walking distance from the Academy. Petitioner’s Challenge Petitioner challenges Respondent’s decision to terminate bus transportation on three grounds. First, he asserts that Respondent incorrectly calculated the distance of the most direct traveled route between the Academy and his residence. Second, Petitioner asserts that the route constitutes a hazardous walking condition under state law. Third, Petitioner argues Respondent’s decision was arbitrary, capricious, oppressive, erroneous, an abuse of agency discretion, or an invalid exercise of delegated authority. Respondent’s Calculation To determine whether Academy students living in the subdivision would be eligible for bus transportation for the 2018-2019 school year, Respondent’s transportation staff calculated the walking distance from their homes to the Academy, measured from the end of their driveways, along interior subdivision sidewalks, through the North Arabella Way pedestrian gate, along the CR 2209 sidewalk to the Academy front door. Transportation staff determined this route to be the “most direct traveled route” to and from the school. Petitioner’s home is located 6,740 feet (1.276 miles) from the Academy, calculated based on the most direct traveled route. On that basis, Respondent determined Petitioner’s children are not entitled to bus transportation to and from the Academy. Petitioner disputes the calculation because the designated “most direct traveled route” requires access through the North Arabella Way pedestrian gate, which he argues is not accessible to school-aged children. The gate is equipped with a locking mechanism. Residents may gain access from the sidewalk into the subdivision at the gate with an electronic access card issued by the subdivision’s homeowner’s association (“HOA”). Pursuant to the subdivision’s master property owners’ association rules and regulations, no electronic access card may be issued to residents under the age of 15. The subdivision’s declaration of covenants and restrictions states, in pertinent part: Minors shall not be permitted to use the Common Area except under the supervision of an adult Owner or lawful occupant over the age of eighteen (18) years, except under such conditions as the Board may from time to time establish. (emphasis added). The Common Area is defined broadly to include “all real property dedicated to, owned by, or held by the Association, or intended by the Declarant to be devoted to the common use or enjoyment of the Members,” and includes streets, landscaping, fencing, signage, buffer areas, conservation areas, and “entry features,” as well as the clubhouse and recreational facilities. The subdivision’s controlling documents allow for exceptions to be made at the Board’s discretion. In other words, the subdivision’s HOA, not Respondent, has control over whether Academy students can access the North Arabella Way pedestrian gate. Petitioner did not introduce any evidence supporting a finding that Respondent is required to consider, in determining the most direct traveled route, whether access is limited by private property restrictions. Nothing in the state statute or rules require Respondent to consider whether a pedestrian entry point is privately controlled. The HOA has the authority to create an exception to the gate entry restriction, which apparently would not even require an amendment to the subdivision covenants and restrictions. Further, pursuant to rule 6A-3.001, the reasonable walking distance “shall be measured from the closest pedestrian entry point of the property where the student resides” to the closest school entrance. The rule provides that the pedestrian entry point of the residence “shall be where private property meets the public right-of-way.” Fla. Admin. Code R. 6A-3.001(3). The public right-of-way is located 81 feet west of the North Arabella Way pedestrian gate, where the subdivision’s private property ends. The rule does not require Respondent to include in its measurement the distance between Petitioner’s driveway and the right-of-way. Thus, the rule does not anticipate consideration of any gate, or other entry structure, beyond the right-of-way. The distance from the public right-of-way outside the North Arabella Way entrance to the school entrance is 0.816 miles. Respondent’s much more generous calculation errs in favor of Petitioner’s children.2/ Hazardous Walking Conditions Even if the subdivision were less than two miles from the Academy, Respondent would be required to provide transportation for Petitioner’s elementary school children if they were subject to hazardous walking conditions on the most direct traveled route. See § 1006.21(3)(b), Fla. Stat. Petitioner argues that his children are entitled to bus transportation to and from the Academy because the most direct traveled route identified by Respondent subjects his children to hazardous walking conditions. Section 1006.23 defines hazardous walking conditions with respect to walkways parallel to a road, perpendicular to a road, and crossings over a road. In the instant case, Petitioner’s children will travel through the North Arabella Way pedestrian gate and follow a sidewalk parallel to CR 2209, and parallel, for a short distance, to the SR 9B entrance ramp. For walkways parallel to a road, “[i]t shall be considered a hazardous walking condition with respect to any road along which students must walk . . . if there is not an area at least 4 feet wide adjacent to the road . . . having a surface upon which students may walk.” § 1006.23(2)(a)1., Fla. Stat. This requirement is referred to as a “suitable walk area,” and is not required to contain a paved sidewalk. The walk area parallel to CR 2209 and entrance ramp to SR 9B is improved with a continuous concrete sidewalk that is a minimum of five feet wide. The statute additionally requires, where the road is uncurbed, the walking area be offset three feet from the edge of the roadway. In the instant case, CR 2209 and SR 9B are both curbed roadways. Nevertheless, the sidewalk along the walking route is set off a minimum distance of three feet from the edge of the curb. That area is referred to as the “utility area” and is a grassed area between the edge of the curb and the edge of the sidewalk. There are no other applicable statutory components to the definition of hazardous walking condition. Despite the conformance of the route with the “suitable walk area” requirements, Petitioner maintains the walking route poses a hazardous walking condition because of the speed with which traffic travels the adjacent roadways, the proximity of the sidewalk to those roadways, and documented instances of vehicle accidents in the area, at least one of which resulted in an overturned car on the subject sidewalk. The posted speed limit on CR 2209 is 45 miles per hour. The posted speed on the SR 9B entrance ramp increases to 50 miles per hour. The posted increased speed limit is located on the ramp after the subject sidewalk “jogs” away from SR 9B to the Academy. Petitioner points to School Board Rule 8.13(8), which provides as follows: Maximum regard for the safety of students and due consideration for the protection of health of all students transported shall be primary requirements in the routing of buses, establishing student stops, appointing drivers, and in providing and operating transportation equipment. Petitioner argues that Respondent’s decision to terminate bus transportation to his children violates this rule. He argues that making his children walk along roadways with a posted speed limit of 45 miles per hour, and along an entrance ramp where cars are accelerating to a speed of 50 miles per hour, and where documented accidents have occurred, including one which resulted in an overturned car on the sidewalk, does not take into account maximum regard for their safety. He argues that maximum regard for their safety dictates providing bus transportation between the subdivision and the Academy. Petitioner’s argument fails because rule 8.13 applies to Respondent’s transportation program, not determinations of hazardous walking conditions. Subsection (8) governs decisions regarding bus routes, establishing bus stops, selecting and appointing drivers, and operating buses and equipment. Subsection (8) does not govern Respondent’s decisions whether to provide courtesy bus transportation to students within a reasonable walking distance to the Academy.3/ The route identified by Respondent for Petitioner’s children to walk to and from the Academy does not contain any hazardous walking condition as defined in section 1006.23(2)(a).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns County School Board enter a final order dismissing Petitioner’s challenge and affirming its decision to terminate bus transportation for Petitioner’s children, unless a special authorization is granted by the Superintendent. DONE AND ENTERED this 5th day of April, 2019, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 5th day of April, 2019. 1/ T.148:16-17.
Findings Of Fact In 1927, the City of Haines City and the Atlantic Coastline Railroad Company entered into a written agreement to construct a crossing at Charles Street, now known generally as Currie Street. The city expended public funds in the construction of the crossing. The construction agreement contained no termination date and the crossing has been open and in use since its construction in 1927. The crossing is one of seven inside the city limits which are located along a two mile length of track. The track services four (4) passenger trains and ten (10) freight trains daily. While the train speed limit at the Charles Street crossing is seventy miles per hour for passenger trains and fifty miles per hour for freight trains, it is not possible for trains traveling at such speeds to stop quickly in the event of a blockage on the track. A passenger train would require approximately three quarters of a mile to stop while a freight train would require roughly one mile. Passenger trains primarily utilize the track during the day while freight trains utilize the track during an entire twenty-four hour period. Safety is the main factor considered by the Department in determining whether to open or close a railroad crossing. The Charles Street crossing is somewhat dangerous because of its "Z" shaped design which requires cars approaching the crossing to travel parallel to the tracks, thus hindering visibility. Visibility on the west side of the crossing is restricted because of the presence of an overpass and bridge piers. While visibility is impaired to a degree by the piers, a driver approaching the crossing has an adequate line of sight in both directions. The approach to the crossing is extremely rough and traffic by necessity crosses Charles Street at very low speeds. The crossing is not heavily utilized by vehicular traffic. Additionally, traffic noise from the nearby overpass could blend with a whistle signal thus causing a safety problem. However, on the days when readings at the crossing were taken, the adjacent noise level did not drown out the train whistle. In the opinion of the Department's Railroad Committee, the occurrence of accidents at the crossing is not required before the Committee determines a particular crossing to be hazardous. The Department also considers the need for emergency services and fire and police protection in determining whether to recommend closure. The proposed alternate crossing, McKay Street, is closer to the fire and police departments than Charles Street. However, because locomotives sometimes block the McKay Street crossing to service several industries located east of the crossing, 1/ emergency vehicles attempting to service certain residential areas would be required to travel an added distance of as much as two miles. Although the Railroad plans to install motion sensor devices, it does not appear that such devices would be satisfactory in a situation where a train was totally blocking a crossing. Although the railroad has a procedure for moving trains in emergency situations, it would be quicker to travel the approximate four minutes it could take to cover the added two miles rather than utilize the existing procedures. Moreover, response time is a factor in determining fire safety and is of added importance in this case because of the type of housing located in the area. Because of these factors, it appears that the closing of Charles Street could unduly inhibit the movement of emergency type vehicles. The alternative McKay Street route proposed by the Department and Railroad is through an existing residential area. McKay Street was neither designed nor built to accommodate heavy truck traffic. Additionally, a city ordinance prohibits driving semi-trucks through a residential area. The businesses utilizing the Charles Street crossing include a carnival operator and an automobile garage. Both businesses require the use of heavy equipment and trucks. McKay Street is not a viable alternative route for these businesses because of the cities prohibition on use of McKay Street for truck traffic and the manner in which the street was constructed. If the ordinances were not amended, these property owners and possibly others could lose lawful access to their property and businesses. The Department's Railroad Committee which recommends which rail/highway crossings should be closed, considers the existence of a feasible or viable alternate route to be critical to the recommendation regarding closure. If a viable alternate route does not exist, the committee would not recommend that a crossing be closed. While the Charles Street crossing has a number of features which could increase the chances of an accident occurring at the crossing, no such accidents have occurred.
Recommendation Based upon the above Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petition of the Florida Department of Transportation and Seaboard Coast Line Railroad Company, Inc., to close the rail/highway crossing at Charles Street is DENIED. DONE and ORDERED this 25th day of August, 1980, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether Petitioner meets the requirements of Section 471.015, Florida Statutes1, for licensure as a professional engineer by endorsement or, in the alternative, whether Petitioner is entitled to a variance and waiver of Florida Administrative Code Rule 61G15-21.001(1), which requires an applicant for licensure to have passed a written examination provided by the National Council of Examiners for Engineers and Surveyors (NCEES).
Findings Of Fact Petitioner Rashad M. Hanbali applied for licensure by endorsement with the Board by filing a written application. The application was signed and dated February 20, 2008, and was received by the Board on or about February 22, 2008. Petitioner received a Bachelor of Science degree in civil engineering from California State University, Fresno, in 1981. This program was accredited by the Engineering Accreditation Commission of the Accreditation Board for Engineering and Technology, Inc. (EAC/ABET), which is the accrediting body for engineering programs that is recognized by the Board pursuant to Florida Administrative Code Rule 61G15- 20.001(2)(a). Petitioner received a Master of Science degree in civil engineering from Marquette University in 1989. In 1992, Petitioner received his Doctorate of Philosophy degree in civil engineering, also from Marquette University. Marquette's undergraduate program is accredited by the EAC/ABET. Petitioner was licensed as a professional engineer by the State of Wisconsin on June 21, 1993. The State of Wisconsin did not require Petitioner to take the NCEES fundamentals of engineering or principles and practice of engineering examination, and Petitioner did not take either of those examinations. In lieu of passing examinations, Petitioner was able to meet Wisconsin's alternative requirement that a licensee must be a graduate of an EAC/ABET-accredited engineering school and possess 8 years of experience in engineering work of a character satisfactory to the examining board and indicating that the applicant is competent to practice engineering. See Section 443.04(1)(d), Wisconsin Statutes (1993).2 Wisconsin required the applicant to take and pass a "barrier free design" examination regarding special needs access to public buildings. Petitioner took and passed this examination. Petitioner was licensed as a professional engineer in traffic engineering by the State of California on January 25, 2008. The State of California required Petitioner to take and pass a traffic engineering licensing examination. The subject areas tested in this examination are similar to those tested in the transportation portion of the NCEES principles and practice examination. The State of California recognizes only three practice act engineering licenses: civil, mechanical, and electrical engineering. A "practice act" discipline is one in which a license is required in order for a person to practice in the field. The State of California recognizes several other "title act" licenses, including the traffic engineer's license. "Title act" means that no license is required to practice in a field such as traffic engineering in California, but a license is required in order for the practitioner to employ the title of "traffic engineer." In September 2006, Petitioner passed the certification examination offered by the Transportation Professional Certification Board, Inc., a national organization that bestows the certification of "professional traffic operations engineer." The subject areas tested in this examination are similar to those tested in the transportation portion of the NCEES principles and practice examination. Petitioner has not taken either the fundamentals examination or the principles and practice examination given by the NCEES. Florida Administrative Code Rule 61G15-21.001(1) requires a license applicant to take and pass both the fundamentals and the principles and practice examinations. Section 471.013(1)(d), Florida Statutes, deems that an applicant has passed the fundamentals exam if the applicant has obtained a doctorate degree in engineering from an institution that has an undergraduate program that is accredited by the EAC/ABET and has taught engineering full time for at least three years at the baccalaureate level or higher after receiving that degree. After obtaining his PhD from Marquette, Petitioner was an associate professor and taught traffic engineering courses at Tennessee Technological University from August 2001 through August 2004. The Board has agreed that Petitioner's education and experience comply with the requirements of the statute and he is deemed to have passed the fundamentals examination. Petitioner has more than four years of active engineering experience, which meets the experience requirement of Section 471.013(1)(a), Florida Statutes. In summary, Petitioner meets the education and experience requirements for licensure as a professional engineer, and Petitioner is deemed to have passed the fundamentals examination. The only bar to Petitioner's licensure in Florida is his failure to take the principles and practice examination. Petitioner contends, on two grounds, that he should not be required to sit for the principles and practice examination. First, he states that the California traffic engineering licensing examination he passed in 2008 was "substantially equivalent" to the NCEES principles and practice examination. Petitioner is correct that the California examination is substantially equivalent to the transportation portion of the NCEES examination. However, the transportation portion constitutes only 20 percent of the NCEES principles and practice examination. The NCEES examination also covers the following subjects: construction (20 percent), geotechnical (20 percent), structural (20 percent), and water resources and environmental (20 percent). Thus, the California traffic engineering licensing examination cannot be considered the substantial equivalent of the NCEES principles and practice examination. Second, Petitioner seeks exemption from the examination requirement by reference to Section 471.015(3)(b), which provides: (3) The board shall certify as qualified for a license by endorsement an applicant who: * * * (b) Holds a valid license to practice engineering issued by another state or territory of the United States, if the criteria for issuance of the license were substantially the same as the licensure criteria that existed in this state at the time the license was issued. Petitioner contends that his license to practice engineering in Wisconsin, obtained in 1993, meets the requirements of the quoted statute because the Wisconsin criteria for issuance were substantially the same as the Florida criteria as of 1993.3 Petitioner bases his contention on language from Florida Administrative Code Rule 21H-21.002(2), the Board rule in effect in 1993, indicating that the principles and practice examination at that time was limited to the particular discipline in which the applicant proposed to practice rather than the broad field of general engineering as it is administered in Florida today.4 (Petitioner assumes, without evidence, that in 1993 the Board administered a specialty examination in "traffic engineering.")5 However, as found above, Petitioner did not take an examination in Wisconsin. Thus, a comparison of the examination requirements of the two states is irrelevant. Because Petitioner obtained his license in Wisconsin by virtue of an exemption from examination based on his education and experience, the "criteria for issuance of the license" that must be "substantially the same" between the two states are those under which a waiver from examination is obtained. Florida law in 1993 made provision for waiver of the examination requirement based on education and experience. Section 471.015, Florida Statutes (1993), provided, in relevant part: (5)(a) The board shall deem that an applicant who seeks licensure by endorsement has passed an examination substantially equivalent to part I of the engineering examination when such applicant: Has held a valid professional engineer's registration in another state for 15 years, and Has had 20 years of continuous professional-level engineering experience. (b) The board shall deem that an applicant who seeks licensure by endorsement has passed an examination substantially equivalent to part I and part II of the engineering examination when such applicant: Has held a valid professional engineer's registration in another state for 25 years, and Has had 30 years of continuous professional-level engineering experience. The terms of the 1993 statute indicate that had Petitioner sought licensure in Florida, he could not have waived the principles and practice examination because he lacked the requisite 25 years' licensure as a professional engineer and 30 years of continuous professional-level engineering experience. The criteria for issuance of the license in Wisconsin were not substantially the same as those for issuance of the license in Florida in 1993. Petitioner does not satisfy the requirements for licensure by endorsement because he has not taken and passed the principles and practice examination, or other licensing examination that is "substantially equivalent," as required by Section 471.015(3), Florida Statutes. Petitioner has not demonstrated any ground for an exemption to the requirement that he pass the principles and practice examination. In the alternative, Petitioner seeks a waiver of the examination requirement of Florida Administrative Code Rule 61G15-21.001, pursuant to Section 120.542, Florida Statutes. However, the impediment to Petitioner's licensure by endorsement is not merely the Board's rule but Subsections 471.015(3) & (5), Florida Statutes. An agency does not have authority to grant a variance or waiver from a statute. § 120.542(1), Fla. Stat.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Florida Board of Professional Engineers enter a final order denying Petitioner's application for licensure as a professional engineer by endorsement, and denying Petitioner's petition for a variance or waiver. DONE AND ENTERED this 26th day of October, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 26th day of October, 2009.
Findings Of Fact The sign here in issue was erected in 1992 and remained in the same location until December 1986. The sign is located along the west side of U.S. 19 in Pasco County, Florida, 41 feet from the western edge of the pavement. The DOT right-of-way at this location is 57 feet. U.S. 19 is part of the state highway system. Respondent stipulated that the sign was located in the DOT right-of-way and was in violation. Upon receipt of the violation notice, the association relocated the sign off of the DOT right-of-way within ten days of the notice of violation (December 11, 1986).
The Issue The issues in this case are whether a sign owned by the Respondent is in violation of Section 479.07(1) and 479.11(1), Florida Statutes, and, if so, what remedial action should be taken by the Department of Transportation.
Findings Of Fact Heinl's Nursery, a division of American Nursery Products, Inc., is the owner of a sign located in Dade County, Florida, on the west side of Krome Avenue (State Road 997) about 36 feet north of its intersection with S.W. 126th Street. The subject sign is located approximately 23 feet from the right-of- way of Krome Avenue. The subject sign has been at that location for a number of years. The face of the sign is made of wood and measures approximately 4 feet by 8 feet. The sign is mounted on metal poles. The message on the sign consists of the owner's name, a logo or graphic decoration, and an arrow pointing towards the right. The Department of Transportation has not issued a permit for the sign. The area in which the sign is located is not zoned commercial or industrial and is not an unzoned commercial or industrial area. The sign is not located on the business premises of the sign owner. Krome Avenue (State Road 997) is part of the federal-aid primary highway system. By notice dated March 21, 1989, the owner of the sign was advised that the sign was in violation of the applicable statutes and must be removed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a Final Order providing for the immediate removal of the subject sign. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of July 1989. MICHAEL M. PARRISH 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 31st day of July 1989. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Mr. Mike S. Waters 15000 S.W. 192nd Avenue Miami, Florida 33187 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas H. Bateman, III, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact Petitioner, David A. Mancino, was a candidate on the 1982 Architecture Design and Site Planning Examination administered on June 14 through 16, 1982, by Respondent, Department of Professional Regulation, Board of Architecture. He is a 1979 graduate of the University of Texas and is presently employed by an architectural firm in Fort Lauderdale, Florida. On September 10, 1982, Petitioner was advised by Respondent that he had received a failing grade on Part A of the examination. After reviewing his examination with the Executive Director of the Board in December, 1982, Petitioner requested a formal hearing to contest his failing grade. That request prompted the instant proceeding. The professional architectural examination consists of two parts, Part A and Part B. The former part is known as the Site Planning and Design portion of the examination and requires a candidate to draw a solution to a problem involving (a) site plans, (b) floor plans, (c) building sections, (d) two significant building elevations, (e) diagrams of structural systems, (f) diagrams of environmental control systems, and (g) a typical wall section. Part A is blind-graded by at least three examiners designated and approved by the Department. Each examiner judges the individual applicant's entire work product pursuant to prescribed evaluation criteria set forth in Rule 21B-14.03(1), Florida Administrative Code. Grades are awarded by each examiner ranging from 1 through 4 depending on the quality of the work. An applicant must have a minimal average of 3 in order to pass this part of the examination. On the June, 1982 examination all candidates were required to design a small municipal airport terminal building in a midwestern location. The problem required a site plan, ground level plan/north elevation, second level plan, and a cross-section of the facility. Petitioner's solution has been received as Hearing Officer Exhibit 1. Petitioner received scores of 2, 2 and 2 on Part A of the examination. Generally, his solution was found to be weak in the following broad areas: (a) site planning and site location, (b) building planning and design, and (c) technical aspects. Specifically, the solution was weak as to the following aspects of site planning and site design: handicapped parking location/access from parking area across traffic lanes, service area location and traffic circulation, service drive curb cut, and site aesthetics, including trees, walls and pedestrian crosswalks. In building planning and design Petitioner's solution was less than acceptable in appropriate positioning and indication of ancillary elements, logical pedestrian circulation in relation to services, vertical circulation, conformance to program area requirements, conformance to life safety requirements, and building aesthetics in response to surrounding area, activities and owner goals. Finally, the technical aspects of the solution were weak in terms of the use of appropriate materials and construction methods, and vertical loads (roofs, columns and walls) All such deficiencies were confirmed by the Department's expert witness who reviewed and analyzed the examination, and who would have assigned a grade of 2 to the examination had he been an examiner. Petitioner generally disagreed with the noted weaknesses, and contended his solutions were satisfactory. He also questioned whether the problem was "fair", since the typical architect would probably never be called upon to design an airport terminal building during his or her career. Other than his own testimony, he offered no other evidence to contradict the examiners' conclusions.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of David A. Mancino be DENIED. DONE and RECOMMENDED this 7th day of March, 1983, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 1983. COPIES FURNISHED: Mr. David A. Mancino 2791 Northeast 57th Street Fort Lauderdale, Florida 33308 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Christopher T. Mancino, Esquire Suite 2200 One Financial Plaza Fort Lauderdale, Florida 33394 John J. Rimes, III, Esquire Department of Legal Affairs Room 1601 - The Capitol Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent's intended decision to award a contract, challenged by Petitioner, is contrary to Respondent's governing statutes, rules, policies, or the proposal specifications.
Findings Of Fact Admitted Facts Per Joint Pre-Hearing Stipulation The Department advertised for proposals and bids for the Project under procurement contract number E5R63. Commercial was a bidder on the Department's contract E5R63 for the Project. Commercial reviewed the Department's advertisement for proposals and bids for the Project. The Project consists of replacing the existing Daytona Avenue Bridge (Bridge No.: 795502). The Project was advertised as a low bid design-build Project. Commercial did not file a challenge to the specifications for the Project. The advertisement for the Project included pre- qualification requirements for design professionals and pre- qualification work class requirements for the contractor. The advertisement for the Project included requirements for design professional services 8.1 and 8.2, Florida Administrative Code Rule Chapter 14-75.5/ The bids and technical proposals for the Project were due at the Department's District 5 offices by no later than 2:30 p.m., on June 18, 2012. Commercial submitted a technical proposal for the Project in response to the advertisement for procurement E5R63. Commercial submitted a bid price for procurement E5R63. The technical proposal submitted by Commercial for procurement E5R63 did not contain a firm or individual pre-qualified by the Department to perform work types 8.1 and 8.2. District 5 representatives contacted Commercial and sought to clarify who had been identified in Commercial's technical proposal to meet the pre-qualification requirements for work types 8.1 and 8.2. Andrus Gaudet was identified in response to the inquiry regarding who would satisfy work type 8.1 and 8.2 pre- qualification requirements. As of June 18, 2012, Andrus Gaudet had not been pre- qualified by the Department in work types 8.1 and 8.2 under rule chapter 14-75. The Department determined that Commercial was non- responsive based on its failure to include a firm or an individual possessing the pre-qualification requirements in work types 8.1 and 8.2 as advertised in the procurement solicitation. The advertisement states on page one that "all qualification requirements must be met prior to the Response Deadline." The Department sent a letter to Commercial that informs all responding firms that in order to be considered for the award, the team must be pre-qualified in the areas in the advertisement. Commercial could not be considered for award of this contract since it did not comply with the pre-qualification requirements. Additional Findings of Fact The Department's advertisement summarized the key terms for the Project, which included the following: NOT TO EXCEED BUDGET AMOUNT OR MAXIMUM BUDGET AMOUNT OR BUDGET AMOUNT*: $798,000 * Actual commitment and final execution of this contract is contingent upon an approved legislative budget and availability of funds ESTIMATED CONTRACT TIME: 300 Contract Days SELECTION PROCEDURE: Low Bid Design-Build RESPONSE REQUESTED: Fax Order Form STIPEND AMOUNT: No Stipend PREQUALIFICATION REQUIREMENTS: CONTRACTOR-WORK CLASS REQUIREMENTS Minor Bridges DESIGN-PROFESSIONAL SERVICES WORK TYPE REQUIREMENTS Major: 4.1.2-Minor Bridge Design Minor: 3.1--Minor Highway Design 4.1.1--Miscellaneous Structure 7.1--Signing, Pavement Marking and Channelization 8.1--Control Surveying 8.2--Design, Right of Way, and Construction Surveying 9.1--Soil Exploration 9.2--Geotechnical Classification Lab Testing 9.3--Highway Materials Testing 9.4.1--Standard Foundation Studies TECHNICAL QUESTIONS SHOULD BE ADDRESSED TO: http://www2.dot.state.fl.us/construction/bid questionmain.asp. The selection procedure for a low bid design-build project is that the Department's technical review committee starts with the lowest price bidder and reviews that bidder's technical proposal to determine if it meets the technical requirements or if it is non-responsive. If the lowest bidder's technical proposal is deemed non-responsive, the technical review committee proceeds to review the technical proposal of the next lowest bidder. The technical proposals of other bidders are not reviewed at all for responsiveness unless and until the committee deems the lowest bidder's proposal non-responsive. The technical review committee prepares its recommendations as to the responsiveness of the proposals reviewed and identifies which bidder, if any, should be deemed the lowest responsive bidder. The technical review committee recommendations are then submitted to the selection committee, which makes the final decision that is posted as the Department's intended decision. Commercial submitted the lowest bid for the Project in the amount of $780,000. Therefore, the technical review committee began with a review of Commercial's technical proposal. After that review, the technical review committee made the following recommendation: The Technical submitted by [Commercial] was reviewed and is recommended as non- responsive. [Commercial] did not identify how the advertised prequalification requirement on 8.1--Control Surveying and 8.2--Design, Right of Way, and Construction Surveying would be met within their Technical. The technical review committee proceeded to the next lowest bidder, Gregori, with a bid price of $817,500. Gregori's technical proposal was reviewed and found to meet the technical requirements for the Project. The technical review committee recommended that Gregori be deemed the lowest responsive bidder. The decision to award the contract to Gregori was made by the selection committee, which agreed with the technical review committee's recommendations. Before making that decision, the selection committee considered whether Gregori's bid price was reasonable. The selection committee made the judgment that Gregori's bid price, which exceeded the engineer's estimate used to establish the budget amount by a relatively small percentage, was reasonable. Funds for contracts must be provided for in the Work Program. When an RFP is issued, the Department sets aside funds in the Work Program in the estimated budget amount. Therefore, in order for the selection committee to award a contract for a bid price that exceeds the estimated budget amount, the selection committee must get approval to fund the excess amount in the Work Program. In this case, the selection committee obtained approval to add $20,500--the amount by which Gregori's bid price exceeded the advertised budget amount--to the Work Program. Commercial did not contend or attempt to prove that Gregori's bid price was unreasonable. Instead, Commercial's challenge to the intended contract award was that the Department was required to reject the bid as non-responsive, because the bid price exceeded what Commercial referred to as the "advertised not to exceed budget amount." Thus, Commercial's challenge hinges on its characterization of the advertisement as specifying a "not to exceed budget amount." However, the actual language in the advertisement was: "NOT TO EXCEED BUDGET AMOUNT OR MAXIMUM AMOUNT OR BUDGET AMOUNT*: $798,000." Commercial was unable to point to any statute, rule, or RFP specification that narrowed the quoted language or that required the Department to deem a proposal non-responsive solely because the bid price is higher than the advertised budget amount. Without more, the dollar amount identified in the advertisement cannot be considered a "not to exceed budget amount." Instead, the amount was either a "not to exceed budget amount," or a "maximum amount," or simply a "budget amount." Commercial unsuccessfully attempted to prove that the Department's prior practice was to declare non-responsive any bids over the advertised budget amounts. To support its position, Commercial relied on the Department's prior practice in connection with an earlier solicitation for the same bridge replacement project, designated contract no. E5R48 (project E5R48), which resulted in a Department decision to reject all bids and re-advertise. The evidence established that the advertisement for project E5R48 set forth a "NOT TO EXCEED BUDGET AMOUNT OR MAXIMUM BUDGET AMOUNT OR BUDGET AMOUNT" of $650,000. The advertisement specified the same "PREQUALIFICATION REQUIREMENTS" in the same work type categories as did the advertisement for the Project at issue here. Potential bidders were given the opportunity to review the RFP and submit questions to the Department. The questions and answers were posted. One question/answer provided as follows: [Question:] The advertisement makes mention of a Maximum Budget for the project. The RFP is silent as to a Maximum Allowable Bid for the project. Is the budget estimate provided in the Advertisement a maximum bid price and will our bid be non-responsive if it is over that amount? [Answer:] No. Technical proposals and bids were submitted by two bidders in response to the solicitation for project E5R48. Following the same selection procedure as for the Project at issue in this case, the technical review committee first reviewed the technical proposal of the bidder with the lower bid, which was in the amount of $798,000. The technical review committee recommended as follows regarding the lower bidder: The Technical submitted by United Infrastructure Group was reviewed and is recommended as non-responsive. United Infrastructure Group did not identify how the advertised prequalification requirement on 9.3--Highway Materials Testing would be met within their Technical. The technical review committee for project E5R48 did not also recommend that the United Infrastructure Group's proposal be declared non-responsive for the additional reason that its bid of $798,000 exceeded the advertised budget amount of $650,000. The technical review committee for project E5R48 then considered the other bidder's proposal, with a bid price of $1,100,000. However, it did not proceed to review that bidder's technical proposal for compliance with technical requirements, for the following reason: The Technical submitted by Superior Construction Company has not been reviewed. The bid submitted by Superior Construction Company is 69% over the Department's advertised Budget Amount. The Technical Review Committee recommends rejecting all bids and readvertising this project. The selection committee for project E5R48 agreed with the technical review committee's recommendations and made the decision to reject all bids and re-advertise. The Department's representative at the final hearing, who served on the selection committees for both bid solicitation rounds for the Daytona Avenue bridge replacement project, confirmed that the selection committee's decision to reject all bids for project E5R48 was not based on a determination that the two bids were "non- responsive" because the bid prices were higher than the advertised budget amount. Instead, the lower bidder for project E5R48 was deemed non-responsive for the same reason that Commercial was deemed non-responsive in this case (non- compliance with all pre-qualification requirements as of the response due date); and the only other bidder proposed a price that was found to be unreasonably high. The Department has the discretion to award contracts when the amounts bid are higher than the advertised budget amounts, absent an RFP specification to the contrary. In deciding whether to exercise that discretion, one factor the Department considers is the magnitude by which the bid price exceeds the advertised budget amount. For project E5R48, after the low bidder was found non-responsive, the only other bid was so much higher than the advertised budget that the Department reasonably exercised its discretion to reject all bids and re-advertise. When bids come in much higher than estimated for a project, the Department will go back to review the engineer's estimate from which the budgeted amount was derived to determine if something needs to be changed in a re-advertisement, such as clarification of the project terms, increase in the budget amount, or both. In this case, the Department clarified the Project terms and increased its budget amount in the re-advertisement of the Project (but not nearly to the level of the very high bid that the Department refused to consider). The Department's exercise of discretion in the prior solicitation round to not consider a bid exceeding the budgeted amount by 69 percent does not dictate that the Department reject Gregori's bid as non-responsive. Instead, the Department's prior practice was shown to be entirely consistent with the Department's exercise of discretion in this case to consider Gregori's bid that was only three percent higher than the advertised budget amount. Petitioner failed to prove any Department's prior practice of rejecting bids as non-responsive when they exceed the advertised budget amount. The evidence showed otherwise. The evidence regarding project E5R48 also demonstrated that the Department's prior practice has been to reject proposals as non-responsive for failure to meet the advertised pre-qualification requirements as of the response submission deadline. That prior practice is consistent with the Department's decision to deem Commercial's proposal non- responsive because the proposal failed to satisfy all of the advertised pre-qualification requirements as of the response submission deadline of June 18, 2012.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Transportation, dismissing the formal protest of Petitioner, Commercial Industrial Corporation. DONE AND ENTERED this 20th day of November, 2012, 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 20th day of November, 2012.
