Findings Of Fact Respondent is the owner of a sign located alongside I-4 25.03 miles east of U.S. 301 (Exhibit 2). This sign is located outside the city limits of Lakeland, Florida, and is within ten feet of the beginning of the transition of pavement going to the off ramp from the I-4. When inspected in September, 1978, the sign did not have a permit affixed thereto and the records of Petitioner do not indicate this sign has ever been permitted. In 1978 the panels on this sign read "Hilton Inn." When inspected on 25 October 1982, the photograph (Exhibit 1) was taken. This photo shows the panels are missing and the Hilton Inn message does not appear.
The Issue The issue is whether Petitioners are entitled to an award of attorneys’ fees and costs pursuant to section 57.111, Florida Statutes (2017).1/ Petitioners are entitled to such an award if: Petitioners were the prevailing parties in a previous administrative proceeding initiated by the Department of Transportation (“the Department”); (b) the Department’s actions were not substantially justified; and (c) no special circumstances exist that would make an award of fees and costs unjust.
Findings Of Fact The following Findings of Fact are based on the oral and documentary evidence adduced at the final hearing, matters subject to official recognition, and the entire record in this proceeding: The Parties The Department is the state agency responsible for coordinating the planning of a safe, viable, and balanced state transportation system that serves all regions of Florida. § 334.044(1), Fla. Stat. As part of its duties, the Department regulates “[v]ehicular access and connections to or from the State Highway System . . . in order to protect the public health, safety, and welfare.” § 335.182(1), Fla. Stat. Crum’s Service is owned by Ronald Crum and has been in operation for over 50 years. It is located in Panacea, Florida, adjacent to State Road 30/61 (“Highway 98”). Crum’s Service has less than 10 employees, and Mr. Crum’s net worth is less than two million dollars. Coastal Restaurant is owned by Rita Sadler and has been in her family since the 1950s. It is next to Crum’s Service and is also adjacent to Highway 98. Coastal Restaurant has approximately seven full-time employees, and Ms. Sadler’s net worth does not exceed two million dollars. Kelli Boxberger operates The Funky Fiddler located on Highway 98 in Panacea. The Funky Fiddler has been in operation since the 1950s. Driveway connections on state roads must be permitted or grandfathered. § 335.1825, Fla. Stat.; Fla. Admin. Code R. 14-96.011(3)(a). Because Petitioners’ driveways were in place before 1988, they are grandfathered. § 335.187(1), Fla. Stat. Facts Specific to the Instant Case On April 7, 2014, the Wakulla County Board of Commissioners voted unanimously to support the design and construction of sidewalks and multiuse paved paths. In order to further that effort, Wakulla County requested that the Department fund sidewalk construction from Piney Street to Jer Be Lou Boulevard in Panacea. The proposed sidewalk was intended to address safety concerns associated with people walking along Highway 98. The Department funded the sidewalk project and incorporated it into a separate project to resurface a seven mile portion of Highway 98 running through Wakulla County. The sidewalk project required the Department to evaluate whether existing driveways along Highway 98 needed to be modified for pedestrian safety. If the Department determined that particular driveways needed to be modified, then it sent written notification to the property owners. On August 4, 2017, the Department issued letters to Mr. Crum, Ms. Sadler, and the Boxbergers referencing work on the portion of Highway 98 running from the Franklin County line to Boykin Road in Wakulla County. The letters stated the following: While developing the above-referenced project, [the Department] is required to evaluate existing driveway access connections and modify those which will create a traffic operations or safety problem. As part of this project, sidewalk will be constructed between Piney Street and Dickson Bay Road. The existing driveways adjacent to the proposed construction work for this project also required evaluation for safety of pedestrians. The Department has completed this evaluation and is notifying you of its proposed action with this Notice of Intent to Modify Driveway Connection(s). The letters then state that “[p]ursuant to Sections 334.044(14) and 335.182, Florida Statutes, the Department is initiating action to alter the existing connection of your property to [Highway 98] as identified on the enclosed “DRIVEWAY DETAIL.” In other words, the Department was providing notice that it intended to install a sidewalk in front of Crum’s Service and Coastal Restaurant. The proposed sidewalks would have modified the driveways onto the properties, but would not have closed them. The Department’s proposed modification to the Boxberger property involved a 39-foot wide driveway connection and a sidewalk on either side of the driveway. All of the Department’s proposed modifications pertained to land completely within the Department’s right-of- way. The Department’s August 4, 2017, letters closed by advising Mr. Crum, Ms. Sadler, and the Boxbergers that they had 21 days to request a formal administrative hearing if they disagreed with the Department’s proposed action. Mr. Crum was concerned that the proposed sidewalk would “totally annihilate” his business. Many of his customers use cars or trucks to tow boats. According to Mr. Crum, the Department’s proposal would have resulted in there being insufficient space in his parking lot for vehicles towing boats. Ms. Sadler was concerned that the proposed sidewalk would destroy the parking spaces in front of her restaurant. On August 17, 2017, staff members from the Florida House and Senate organized a constituent meeting at a local restaurant to hear concerns about the resurfacing project. Mr. Crum, Ms. Sadler, a handful of constituents, two legislative staff members, and Reid Carter Johnson, a government affairs liaison from the Department, attended the meeting. Business owners told Mr. Johnson that the proposed sidewalk would impair access between their property and Highway 98. Mr. Johnson told those present that the Department’s engineers would confer with anyone who had concerns about the proposed sidewalk.2/ On approximately August 18, 2017, Mr. Crum and Ms. Sadler hired Ronald A. Mowrey, Esquire, to represent them in this matter. On August 23, 2017, Crum’s Service and Coastal Restaurant filed petitions seeking to challenge the Department’s proposed action through formal administrative hearings. Engineers from the Department conducted a site visit with Mr. Crum, Ms. Sadler, and their attorney on August 29, 2017, at Crum’s Service and Coastal Restaurant. After listening to Mr. Crum and Ms. Sadler’s concerns, the engineers stated that they would review all of the information. Engineers from the Department also met with Ms. Boxberger on August 29, 2017, in order to conduct a site visit pertaining to the location of The Funky Fiddler. At that time, Ms. Boxberger had not retained counsel. Ms. Boxberger was concerned that the Department’s proposed modification would prevent her from displaying merchandise in front of her store on the Department’s right-of- way. She was also concerned that the Department’s proposal would deprive her business of three parking spaces. On September 18, 2017, Ms. Boxberger filed a petition to challenge the Department’s proposed action through a formal administrative hearing. Petitioners did not hear from the Department again until the Department issued each of them an “Amended Notice of Intent to Modify Driveway Connections(s)” (“the Amended Notice(s)”), on November 20, 2017. The Amended Notices stated that: [P]ursuant to Sections 334.044(14), 335.182 and 335.187, Florida Statutes, as well as Rules 14-96.011 and 14-96.015 Florida Administrative Code, the Department has reviewed the existing connection of your property to [Highway 98]. Subsequent to the initial Notice of Intent to Modify Driveway Connections, the Department met with you on- site on August 29, 2017 and engaged in other coordination efforts with your representative to consider information, documents, reports and alternative solutions. After taking into consideration the concerns expressed in these discussions, the Department has amended its plans as detailed in “EXHIBIT A”. The Amended Notices indicated that the Department decided against placing a sidewalk in front of Crum’s Service and Coastal Restaurant.3/ The Department’s Amended Notice to Ms. Boxberger clarified the substance of the Department’s proposed action but set forth no material changes. The Amended Notices to all three Petitioners stated that they could request a formal administrative hearing if they disagreed with the proposed action set forth in the Amended Notices. Mr. Crum and Ms. Sadler were satisfied and did not challenge the Department’s proposed action. As a result, the Department issued Final Orders dismissing the petitions filed by Mr. Crum and Ms. Sadler. As of August 31, 2017, the Department had not disposed of the petition filed by Ms. Boxberger.
The Issue Whether the Respondent by erecting the two subject signs violated the state and federal regulation and laws by erecting one sign on the right of way of U.S. 319, a Federal Aid Primary Road, and erecting one sign within five (5) feet of said highway. Whether subject signs should be removed for lack of permits.
Findings Of Fact Claimant contended and Respondent admitted that the two subject signs were in violation of set-back requirements of Chapter 479 and the Federal Beautification Act as charged.
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
The Issue The issues in this case are: (1) whether proposals by Richard and Mildred Olson to widen an existing bridge (designated Bridge 1) and construct two new pedestrian bridges (designated Bridges 2 and 4) across Bessey Creek in Martin County, Florida, qualify for the Noticed General Permit established by Rule 62-341.475; and (2) whether Petitioner participated in this proceeding for an improper purpose under Section 120.595(1). (Citations to sections are to the 2000 codification of Florida Statutes. Rule citations are to the current Florida Administrative Code.)
Findings Of Fact Richard and Mildred Olson own property in Rustic Hills Phase III in Martin County, Florida. The Olsons own lots 191, 192, 195, 212, 213, and 214. Each lot is approximately two acres in size. The Olson home is on lot 213, and a rental home is on lot 195. On their property, the Olsons raise miniature goats, guinea hens, and peacocks; they also have ducks, geese, chickens, and dogs. Bessey Creek winds through Rustic Hills and the Olsons' lots. The Olsons propose to use DEP's NGP for Minor Activities established by adoption of Rule 62-341.475 to widen one existing bridge and construct two others for access to their property across Bessey Creek. Bessey Creek is a tributary of the St. Lucie River, through man-made Canal 23. Navigating upstream on Bessey Creek, a boat would have to pass under the Murphy Road Bridge, which is 9 feet, one inch above mean high water (MHW), just before reaching the first of the four bridges involved in this case, Bridge 1. Bridge 1 is a steel span bridge (with no pilings in the water) that connects two portions of lot 191, which is split by the creek. The Olsons propose to widen existing Bridge 1. It is not clear from the evidence whether pilings will be required to widen Bridge 1. But it seems clear that a centerline stream clearance (horizontal width) of 16 feet and a bridge height above mean high water (MHW) (vertical clearance) of 9 feet will be maintained. Proposed pedestrian Bridge 2 is the next bridge upstream, at a point where the creek is only approximately 24 feet wide from MHW to MHW. It is designed to be a 192 square foot piling-supported bridge, with an 8-foot wide by 24-foot long walkway. To support Bridge 2, sets of pilings will placed in the creek bed so as to maintain a centerline stream clearance of 16 feet. The proposed vertical clearance for Bridge 2 is 8 feet above MHW. Existing Bridge 3, the next upstream, is at a point where the creek is approximately 35 feet wide from MHW to MHW. Bridge 3 is a wooden bridge approximately 25 years old. It connects lots 192 and 193 to lot 191. The Olsons use existing Bridge 3 on a daily basis. Bridge 3 was built to span the creek; later, two sets of wooden piles were added. There is a centerline stream clearance of 13 feet between the piles. Vertical clearance is 8 feet above MHW. Proposed pedestrian Bridge 4, the farthest upstream, is designed in the same manner as proposed pedestrian Bridge 2. It is located at a point where the creek is approximately 35 feet wide from MHW to MHW. Bridge 4 will connect lots 195 and 212. Navigability Proposed pedestrian Bridges 2 and 4 are designed to have the same 8-foot vertical clearance as existing Bridge 3; they are designed to have three feet more horizontal clearance than existing Bridge 3. Neither they nor widened Bridge 1 will restrict navigation as much as existing structures, natural conditions (including numerous fallen trees, underwater snags and low, overhanging vegetation), and docked boats. The United States Coast Guard and the Florida Fish and Wildlife Conservation Commission (FFWC) concur that the bridges would not have any deleterious effect on the navigation in this area of Bessey Creek. While not specifically alleging impedance of navigation, Petitioner alleged that existing Bridges 1 and 3 are lower than measured by the Olsons' environmental consultant. But there was no evidence to support such a finding. Meanwhile, the Olsons' consultant explained how he determined the vertical clearance of those bridges above MHW by measurements adjusted for MHW using NOAA tide charts. Even if existing Bridges 1 and 3 had less vertical clearance than determined by the Olsons' consultant, Bridges 2 and 4 are designed to have the same vertical clearance as the consultant determined Bridge 3 to have. For that reason, even if the consultant's determinations were incorrect, the vertical clearances of Bridges 2 and 4 are designed to be the same as the vertical clearance of Bridge 3, and the vertical clearance of Bridges 2 and 4 will not impede navigation any more than Bridge 3. Flooding Bessey Creek is a typical tidal creek. It has low volume and low velocity. Being influenced by tidal ebb and flow, its flow is not continuously downstream except during and just after times of high precipitation, such as hurricanes. Under these conditions, build-up of debris around pilings of these bridges would not be expected, and none was observed around at the existing bridges. The chances of vegetation or organic matter building up over time in the area of these bridges to create a beaver dam effect and cause flooding are small. The proposed new pedestrian bridges have four pilings, which is typically less than a single-family dock. The pilings of a single-family dock are closer to the shoreline and, particularly with a boat alongside, would have more potential to trap debris and cause flooding than the proposed bridges. The same can be said of the fallen trees and low, overhanging vegetation existing under natural conditions in Bessey Creek. The proposed bridges are not expected to have an adverse impact of a significant nature with respect to off-site flooding. Petitioner did not present any expert testimony regarding allegations of off-site flooding potential. Dan White testified as a lay person that flooding occurs in the area during times of high precipitation and that Petitioner was concerned that the proposed bridges would exacerbate those conditions. But, while the evidence was clear that flooding is a condition to be expected under certain conditions in low-lying areas like Rustic Hills Phase III, White failed to make any causal connection between existing periodic flooding and the bridges, existing or proposed. Improper Purpose Petitioner's request for hearing, by letter dated November 16, 2000, thanked DEP for "this opportunity to contest the granting of a Noticed General Permit to the Olson's [sic]" and also requested "an Administrative Review to ensure your department has all the information needed to make a fair decision regarding this matter." It also requested: "Since we are a small community, I hope the Department will review this petition in light of the author's lack of familiarity with the specific form and format used by the environmental consultants and those who work with you on a regular basis." Petitioner "respectfully submit[ted] the following information which is required to dispute the Department's actions and to request an Administrative hearing if necessary." In response to Petitioner's letter, DEP referred the matter to DOAH. Apparently, Petitioner (and the other parties) did not receive a copy of the Initial Order. Petitioner, which was not represented by counsel at the time, failed to comply with the Amended Initial Order entered on March 23, 2001. But apparently neither did the Olsons, who also were not represented by counsel at the time, or DEP, which was. The Olsons complained by letter filed April 26, 2001, that Petitioner had not contacted them. But there was no indication or evidence that, up to that point in time, the Olsons attempted to contact Petitioner or DEP, or that DEP attempted to contact Petitioner or the Olsons, in response to the Amended Initial Order. The Joint Response to Initial Order filed by the Olsons and DEP on May 1, 2001, recited that Petitioner's contact person-of-record, Treasurer Jim Fyfe, "no longer was associated with Rustic Hills" and that Petitioner's President, Dan White, was "out of town and could not be reached." Based on the Joint Response to Initial Order filed by DEP and the Olson's, final hearing was scheduled for May 24, 2001. The Order of Pre-Hearing Instructions entered along with the Notice of Hearing on May 3, 2001, required that the parties exchange witness lists and copies of exhibits and file their witness lists by May 14, 2001. Petitioner complied with the requirement to file a witness list and also included a list of exhibits. There was no indication or evidence that Petitioner did not exchange exhibits as well. The Order of Pre-Hearing Instructions also required: "No later than May 18, 2001, the parties shall confer with each other to determine whether this cause can be amicably resolved." When the Olsons' environmental consultant, Bruce Jerner, went to Dan White's home on May 14, 2001, to provide him a copy of the Olsons' exhibits, he invited White to discuss settlement in accordance with the Order of Pre-Hearing Instructions. White responded to the effect that, even if Petitioner did not have a strong case, Petitioner preferred to go to hearing, and White did not want to mediate or discuss settlement with Jerner. At that point, Jerner indicated that he would be sending White a letter confirming the Olsons' attempt to comply with the Order of Pre-Hearing Instructions. The letter dated the next day requested "an informal conference to determine whether the above referenced case can be amicably resolved and avoid hearing proceedings." Significantly, there was no indication or evidence that DEP complied with the Order of Pre-Hearing Instructions in any respect. It appears that DEP distanced itself from the dispute between Petitioner and the Olsons, preferring to allow them to settle or litigate as they saw fit. In view of DEP's noncompliance, DEP at least certainly may not rely on Petitioner's noncompliance as a ground for an award of attorney fees and costs. In addition, while DEP's noncompliance does not excuse Petitioner from complying, it helps put Petitioner's actions in context and is relevant on the question whether Petitioner's noncompliance was evidence of improper purpose. In this regard, White testified to his belief that he had complied with all ALJ orders but did not "know why I would be obligated to respond to the consultant for Mr. Olson with regard to hearing or any other matters." While DEP and the Olsons in part cite Petitioner's failure to follow prehearing procedures, they primarily rely on the weakness of Petitioner's presentation at final hearing and posthearing efforts as evidence of improper purpose. But this evidence must be evaluated along with other factors resulting in the weakness of Petitioner's case. Not only did White misinterpret the Order of Pre- Hearing Instructions, the evidence indicated that he was unfamiliar with the administrative process in general and also was confused about the difference between the administrative hearing scheduled for May 24, 2001, and the County permitting proceedings on the bridges which also were on-going. White indicated repeatedly during final hearing that he and Petitioner had just recently learned more about distinctions between the administrative and County permit proceedings. As a result, White was beginning to recognize that several issues Petitioner had attempted to raise in this administrative proceeding may be relevant to on-going County permit proceedings but not this administrative proceeding. When it was established and explained at final hearing that DEP had no jurisdiction to require demolition or repair of existing bridges in this proceeding, White agreed to withdraw that part of Petitioner's request for relief. When it was established and explained that issues Petitioner raised relating to the "public interest" test under Rules Chapter 21-18 were premature, White did not object to those issues being dropped. Later, when Petitioner attempted to raise water quality issues relating to excrement from Olson livestock crossing these bridges, and it was ruled that no such issue was raised in Petitioner's request for hearing, White accepted the ruling. Final hearing proceeded on the only remaining issue specifically raised by Petitioner (alleged off-site flooding) (together with navigability--an issue addressed in the Olsons' presentation but not raised in Petitioner's request for hearing). To use White's words, Petitioner did not "have a very sophisticated presentation." Petitioner had no expert testimony, and White's lay testimony did not make a causal connection between flooding and the bridges. After the presentation of evidence, Petitioner did not withdraw its request for hearing in view of the evidence presented; but, in fairness, neither was Petitioner asked to do so. Petitioner did not order a Transcript, or a copy after the Olsons ordered a Transcript, and did not file a PRO. It is fairly clear from the evidence that Petitioner did not participate in this proceeding primarily to cause unnecessary delay. Even if Petitioner had never requested a hearing, the Olsons did not have all of the authorizations required of DEP for their proposals. In addition, County permits apparently also are required. It seems reasonably clear that, had Petitioner retained a competent expert to evaluate its case, the expert probably would have advised Petitioner that it would not be able to make a causal connection between flooding and the bridges. Had Petitioner retained counsel prior to final hearing, counsel probably would have advised Petitioner not to proceed with its request for hearing because, without a causal connection between flooding and the bridges, Petitioner would not be able to prevail. But there was no indication or evidence that Petitioner had and disregarded the benefit of professional advice. Under the totality of these circumstances, it was not proven that Petitioner's participation in this proceeding was for an improper purpose--i.e., primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of the Olsons' applications.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order: denying Petitioner's challenge to the propriety of the Olsons' use of the NGP for minor activities for their proposals; authorizing the Olsons to use the NGP for their proposals (DEP File Nos. 43- 0137548-002 and 43-0158123-002) subject to the design criteria limitations and other conditions in the applicable general permit rules; and denying the Motion for Attorney's Fees from Petitioner under Section 120.595(1). Jurisdiction is reserved to enter a final order on the part of the Motion for Attorney's Fees seeking sanctions under Section 120.569(2)(e). DONE AND ENTERED this 30th day of July, 2001, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 30th day of July, 2001. COPIES FURNISHED: Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Dan White, President Rustic Phase III Property Owners Association 3337 Southwest Bessey Creek Trail Palm City, Florida 34990 Tim Morell, Esquire 1933 Tom-a-Toe Road Lantana, Florida 33426 Elizabeth P. Bonan, Esquire Cornett, Googe, Ross & Earle, P.A. 401 East Osceola Street Stuart, Florida 32991 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 David B. Struhs, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building Tallahassee, Florida 32399-3000
Findings Of Fact JTA and DOT seek a complex air source permit from DER for construction of the Dame Point Bridge project in Jacksonville, Duval County, Florida. The application for the permit and supporting documents were filed and considered by DER in evaluating the permit. The proposed project is a 10.94 mile segment of a proposed easterly bypass around the City of Jacksonville. The project consists of a limited access, four and six-lane expressway which will become a portion of the Interstate 295 bypass system for Jacksonville. It will principally serve through traffic around urbanized Jacksonville and resident north-south traffic. The project extends from Monument Road, south of the St. John's River, to existing I-295 at U.S. 17, north of the River, and includes a six lane bridge over the St. John's River in the vicinity of Mill Cove and Dame Point. In addition to the bridge over the St. John's River, approximately 10,000 feet in length, the project includes seven grade separated intersections where major arterial roads serving urbanized Jacksonville intersect the project. The project will traverse high to medium density residential neighborhoods south of the St. John's River and medium to low density residential neighborhoods, developing industrial centers, and some rural property north of the River. Pursuant to Section 403.182, Florida Statutes, DER by formal agreement may delegate preview and evaluation of permit applications to qualified local programs. Such an agreement has been in force between DER and the Duval County Bio-Environmental Services Division since February 9, 1976. In compliance with that agreement, the Duval County Bio-Environmental Services Division reviewed and processed the Dame Point State Road 9-A extension application for a complex air source permit, determined that reasonable assurances of non-violation of ambient air quality standards was provided, and certified that conclusion to DER. DER then published a letter of intent to issue the permit on August 29, 1978. The Final Environmental Impact Statement (FEIS) for the project which was submitted with the application concluded that the project would be beneficial to the economic growth of the area by providing an improved transportation network. In addition, testimony established that the project would be needed in the near future by virtue of increasing traffic demand. Approximately forty to sixty percent of the north-south through traffic in the Jacksonville area is expected to use the facility. The proposed project would provide an efficient bypass for this traffic and could divert 7,000 to 10,000 vehicles per day from the downtown Jacksonville area upon completion. Evidence established that, as a direct result of construction of the project, downtown traffic congestion would be relieved; existing industry would receive more efficient transportation service; commuter traffic from southeastern Jacksonville to northern Jacksonville would be reduced by miles; transportation routes to education facilities would be improved; and tourist traffic would be routed around downtown Jacksonville. The benefits to costs ratio of the project is positive in that for every dollar spent to construct the facility, $2.80 might reasonably be expected to be returned to the community in the form of increased economic activity and more efficient transportation. Increased traffic demand in the Jacksonville-Duval County area is of such magnitude that, according to testimony at the final hearing, in the year 2000 the demand to cross the St. John's River is expected to exceed the capacities of all existing bridges, plus the proposed facility, if constructed, and another bridge crossing south of the city. JTA and DOT prepared projections for average anticipated future use of the project using the most recent, accurate and acceptable information available. Initial projections were based upon the Jacksonville Urban Area Transportation Study Network, 11WC. When the network was revised in 1977, JTA, in coordination with the Jacksonville Area Planning Board, revised the projections to be consistent with the updated Transportation Network plan for Jacksonville. This planning information, plus extensive historical data on population growth, urban development and changing land use patterns in the area of the project, were utilized to project future vehicle use for the project. The evidence clearly establishes that the proposed project generally will relieve downtown traffic congestion by diverting traffic around the city. Traffic projections indicate that the total vehicle miles traveled daily in Duval County might be reduced by as much as 600,000 miles if the project is constructed. Most of this reduction would result from eliminating circuitous routes through the downtown area. Traffic projections were in part based upon past experience with similar projects over a 10-year period, and included a factor for added traffic which might be generated by construction of the facility. The proposed project will be linked to I-95 north of Jacksonville, and will serve the southeast area of the city and provide a connection to the industrial center around Imeson Park to the north, in addition to offering a shorter and speedier route to local beaches. Average vehicle speeds through the open roadway portions of the project, and through intersections, were calculated according to commonly accepted traffic engineering methods. The evidence establishes that general roadway speeds should average 55 miles per hour through 1992, with a potential decline to 50 miles per hour by the year 2002. Average intersection speeds should vary from 45 to 20 miles per hour over the same time period. These calculations are based upon well-recognized and, long accepted traffic engineering data contained in the Highway Capacity Manual, 1965 edition. The method employed in these calculations is that commonly used by DOT throughout the State of Florida, and included consideration of potential future congestion as well as probable signalization of traffic at some intersections. The evidence establishes that JTA and DOT accurately analyzed roadway and intersection speeds for the proposed project according to accepted traffic engineering methods, and that reasonable predictions of air pollution loading along the project corridor based upon these speed calculations can reasonably be relied upon to establish non-violation of ambient air quality standards. Further, evidence in the record establishes that traffic speeds through the toll plaza to be constructed as a part of the proposed project were adequately analyzed. Average speeds and queuing through the toll booth facility were calculated using accepted average daily traffic projections for the project and assumed a 1,000 foot zone of deceleration/acceleration on either side of the toll booth. These calculations included deceleration, queuing, stopping at the toll booth, and acceleration away from the toll booth facility. The method employed in formulating these calculations followed recognized techniques outlined in the Transportation Traffic Engineers Handbook. DOT has asserted in the permit application here under consideration that the construction and operation of the proposed project will not violate DER ambient air quality standards. Using the traffic projections and average vehicle speeds discussed above, DOT utilized various computer modeling techniques which analyzed and modeled projected worst one-hour and eight-hour concentrations of carbon monoxide along the roadway and around critical intersections and the toll plaza. The Mobile I computer model was used to predict emissions of automobile related pollutants based upon the aforementioned traffic data. Included in the Mobile I computer program were various factors including highway speed, traffic volumes, vehicle mix, "cold" versus "hot" starts, ambient temperature, and pavement height. Emission factors generated from this computer model result in predicted pollutant loadings in grams per vehicle mile. In addition, another method, AP 42, Supplement 5, was also utilized to generate comparable emission factors. Data obtained from the Mobile I computer program and from AP 42, Supplement 5, is then programmed into another computer model, Caline II, which is a basic diffusion model designed to estimate concentrations of carbon monoxide at various points along and distances from the roadway. This computer model is a mathematical equation that simulates or predicts the concentration of pollutants at various points after they are released from their source and allowed an opportunity to mix with the atmosphere. The Caline II model can only project future expected carbon monoxide concentration levels. No computer model was used to project expected concentrations of hydrocarbons, nitrogen oxides, photochemical oxidants or other pollutants expected to be associated with the project because no such model is presently available to accurately project concentrations of those pollutants. This is due, at least in part, to the greater reactivity of those pollutants with other elements in the atmosphere. Factors included in the Caline II computer model in order to predict expected concentrations of carbon monoxide along a line source include traffic volume; a "K" factor, which is a percentage of daily traffic at a given point in "peak hour" conditions; highway width and height; wind speed; stability class; and wind direction. The result of this computer program is an expected "worst case" condition for one-hour and eight- hour concentrations of carbon monoxide along the roadway for the years 1982 and 1992. Computer program results, which included background ambient conditions for eight-hour concentrations, affirmatively established that expected concentrations of carbon monoxide will be considerably less than the DER one- hour standard of 40 milligrams per cubic meter, and the eight-hour standard of 10 milligrams per cubic meter. These DER standards were not exceeded at any of the intersections or along the roadway at any point. As indicated above, no computer modeling technique was utilized fox hydrocarbons, nitrogen oxides, photochemical oxidants, sulphur dioxide or total suspended particulate matter. Estimates concerning these pollutants were based upon AP 42, Supplement 5, which is a document promulgated by the United States Environmental Protection Agency, and the Mobile I computer program. These methods do not predict concentrations, but instead deal only with total emissions. The result of this analysis was that, given background levels of hydrocarbons in Duval County, the project, if constructed, either in whole or in the segment which is the subject of this permit application, hydrocarbon levels may be expected to be reduced, at least in part due to the increased average speed of vehicles using the proposed facility. In addition, since hydrocarbons appear to act as a precursor to the formation of photochemical oxidants, any reduction in the emissions of hydrocarbons can also be expected to reduce the levels of photochemical oxidants, which are a particular problem in Duval County, which has been designated a "non-attainment area" for photochemical oxidants. Further, data derived from AP 42, Supplement 5, and Mobile I, together with data from local monitoring programs, established that no violations of ambient standards are to be expected for nitrogen oxides and, since sulphur dioxide and total suspended particulate matter are not emitted in significant quantities from automobiles, no violation of air standards for these pollutants is to be expected as result of the project. In summary, testimony adduced at the final hearing demonstrated that studies submitted to DER in support of the permit application were prepared in accordance with valid, professionally and scientifically accepted methodologies. These studies adequately establish, not only that the project will not result in violations of state air quality standards, but that positive social, economic and environmental effects will accrue from construction of the proposed facility. Petitioners, JTA and DOT have submitted proposed findings of fact. Petitioner's Proposed Findings of Fact numbered 1 through 4 have been substantially adopted herein. JTA's and DOT's Proposed Findings of Fact have also been substantially adopted in this order. To the extent that proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
The Issue Whether a sign owned by Respondent and located on the northbound side of 27, at 853 U.S. 27 South, Lake Placid, Florida, is located in the road right-of-way, and must be removed.
Findings Of Fact The Florida Department of Transportation (DOT) is the state agency charged with the duty to administer and enforce the provisions of Chapter 479, Florida Statutes, which regulates outdoor advertising structures along the state highway system. U.S. 27 in Highlands County, Florida, is a part of the state highway system, and title to the right-of-way for said highway is held in the name of the State. Respondent is the owner, and maintains a two sided sign structure (sign) located at 853 U.S. Highway 27 South, Lake Placid, Florida, in Highlands County, which has been erected in the DOT right of way of U.S. Highway 27, inventory section 44, approximately 300 feet South on the North bound side of the highway. The sign is approximately 8 foot by 8 foot made of wood with wooden poles, and contains the advertising copy: "Mrs. CLAIR Psychic...Tarot...Palms...(Se habla espanol)", followed by a telephone number. On March 22, 1991, Respondent was served with a Notice of Violation from the DOT concerning said sign, and was advised that said sign was erected in violation of Florida law, and must be removed within ten working days of the notice. Said sign is presently standing in the DOT right-of-way, as of the date of the formal hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent's request for an exemption from the provisions of Section 479.11(8), Florida Statutes, be DENIED and that Respondent be ordered to remove said sign from the DOT right of way, in accordance with the provisions of Section 479.107, Florida Statutes. DONE AND ENTERED this 23rd day of December, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 23rd day of December, 1991. Copies furnished: Jay O. Barber, Esq. Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Laura Uwanawich Mrs. Clair 853 U.S. 27 South Lake Placid, FL 33852 Ben G. Watts, Secretary Attn: Eleanor F. Turner, M.S. #58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
Findings Of Fact Blackhawk is the owner of a mine located in Palm Bay, Florida, which, since 1982, has produced cemented coquina shell material for use as a base material in the building of roads. FDOT is the state agency responsible for the construction and maintenance of state roads. FDOT approves sources of supply of road base materials, including cemented coquina shell, for use by contractors in the construction of FDOT road projects. FDOT approval is intended to assure that the producer is capable of providing material in accordance with the standard specifications for that material. Approved source status is required for a producer to sell its material to a contractor for use on FDOT projects, or on non-FDOT projects (some cities and counties) which require that material be from an FDOT-approved source. Approval may be obtained upon the producer's request, after inspection and evaluation performed by FDOT's Bureau of Mining and Materials in accordance with the Standard Operating Procedure for Evaluation, Approval and Control of Mineral Aggregate Sources ("SOP") and Section 915 of FDOT's Standard Specifications for Road and Bridge Construction (("Section 915"). Approval does not guarantee that the producer's material will be used by a contractor. Contractors bidding on FDOT projects are given options of base materials from which to choose. Once the base material is chosen, the contractor selects a producer from the FDOT approved source list. A source's approval will expire if it has not furnished material for Department usage for a period of one calendar year; that period may be extended for one additional year upon the producer's written request. Section 915 defines the composition of cemented coquina shell material, provides for approval of material sources in accordance with the SOP, provides that the material shall be free of specified deleterious substances and sets forth the physical and chemical properties of the material, including the requirement that, "the minimum percentage of carbonates of calcium and magnesium shall be 50." (Petitioner's exhibit #2) Prior to amendment in 1986, Section 915 contained a provision granting the State Materials and Research Engineer the discretion to waive the requirement for minimum carbonates content if the material was determined to be equally suitable for its intended use. The 1986 amendment removed the waiver provision. The 50 percent minimum carbonate content provision has been in effect since 1969 or 1970. Section 915 is less than two pages within a 786-page document ("the Blue Book") entitled FDOT Standard Specifications for Road and Bridge Construction, 1986 Edition. The October 1986 version of Section 915 is in a separate two-page supplement. The Blue Book covers a vast array of subjects relating to contracts, construction, and materials for roads and bridges. The specifications change to keep up with developments in technology. The changes are placed in packets of supplemental provisions, like the current version of Section 915, and those provisions are eventually printed in a new edition of the "Blue Book". The standard specifications are incorporated into all FDOT road and bridge construction contracts, along with relevant supplements, and with "special provisions" which address the unique requirements of the project under contract. The SOP is a 28-page document which (in its words) "...establishes the Florida Department of Transportation's policy of accepting Limerock, Cemented Coquina and Shell Base materials produced for Department use through a producer Quality Control (QC) Program... [and] ...provides the producer with information related to the methods and levels of source approval, the minimum requirements for QC programs and approval, and the criteria by which the Department will maintain that approval. ..." (Petitioner's Exhibit #3, SOP, p. 1) Neither Section 915 nor the SOP have been adopted as rules pursuant to the requirements of Section 120.54, F.S. Blackhawk was an FDOT approved source of cemented coquina shell material in 1983 and 1984. The mine was given conditional approval in January 1985, for six months. The conditional approval expired in July 1985, and approval was suspended for failure to meet the carbonates requirement of Section 915. Blackhawk was not granted a waiver. While it was approved, Blackhawk provided material for two FDOT projects and for several other projects that required FDOT approval. Approximately one- third of its projects had a requirement that the rock come from a DOT-certified source. Blackhawk lost an ongoing contract on a county road project as a result of FDOT's suspension of its approval. Blackhawk continues in business, selling its material to sources which do not require FDOT approval. Blackhawk's President, Andrew Machata, has met with various individuals at FDOT regarding its status and Section 915 and the SOP. Initially, he was told that he had no administrative remedies, as FDOT personnel does not consider the process as subject to the Administrative Procedures Act. There is now pending a Section 120.57(1) F.S. proceeding related to Blackhawk's claim that it should be an approved source. (DOAH #85-4366) FDOT has promulgated administrative rules governing the prequalification of contractors to bid on FDOT projects, Chapter 14-22 FAC, and rules of procedure governing contract bidding and bid protests, Chapter 14-25 FAC. FDOT grants administrative remedies in both the prequalification procedure and in the bidding and bid award procedures. Blackhawk is not qualified to bid as a prime contractor of FDOT projects, nor is it seeking that qualification. It is seeking approval as a source of cemented coquina shell material, without which approval it cannot sell material to prime contractors for projects requiring FDOT approval.
Findings Of Fact Two signs are located 0.8 mile west of State Road, 79 on Interstate 10, and 0.8 mile east of State Road 79 on Interstate 10. Both signs do not have permits attached to them. Both signs bear messages which are visible from the traveled way of Interstate 10. Neither sign is located within an incorporated municipality or town. Both signs advertise in part Simbo's Restaurant. Mr. Jim Williams, Outdoor Advertising Inspector for the Department of Transportation, testified that he had spoken with Mr. Simms on June 28, 1978. Williams stated that he asked Simms if Simms would remove the signs; however, Williams did not identify the signs to which he was referring. According to Williams, when Simms was asked if he would take the signs down, Simms stated he would leave them up and go to court. There was no substantial and competent evidence introduced that Simms was referring to the signs in question in this case. Both signs were measured by Charles Averitt, a surveyor with the Department of Transportation, and the sign 0.8 mile west of State Road 79 on Interstate 10 was determined to be 16 feet from the edge of the right-of-way of Interstate 10. The sign 0.8 mile east of State Road 79 on Interstate 10 was determined to be 16.5 feet from the edge of the right-of-way of Interstate 10. Gene Simms testified that he was the owner and operator of Simbo's Truck Stop and Restaurant. Simms testified the signs in question were the property of Simms' Enterprises, Inc., and had been at all times pertaining to this complaint. Simms stated that he owned 50 percent of the stock in Simms Enterprises, Inc., and the remainder was owned by his brother, Jimmy Simms. The notice of violation in this cause names Gene Simms as the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation take no action regarding the subject DONE and ORDERED this 22nd day of March, 1979, in Tallahassee, Leon County, Florida STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1979. COPIES FURNISHED: Phillip S. Bennet, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Richard C. Hurst, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. Gene Simms Simbo's Auto-Truck Stop and Restaurant Route 1, Box 186 Bonifay, Florida 32425
