The Issue Whether the Respondent committed the violation alleged in the Administrative Complaint dated September 17, 1998, and if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with the responsibility for investigating and prosecuting complaints pursuant to Chapters 455 and 475, Florida Statutes (1997). The Florida Real Estate Commission operates within the Department and is the entity directly responsible for licensing and disciplining persons licensed under Chapter 475, Florida Statutes (1997). Section 475.02, Florida Statutes (1997). The Division of Real Estate operates within the Department and assists the Commission in carrying out its statutory duties. Section 475.021, Florida Statutes (1997). Mr. Lista is, and was at all times material to this proceeding, a licensed real estate salesperson, having been issued Florida license number SL-0647732. Mr. Lista's license is currently on inactive status. Mr. Lista submitted to the Department an Application for Licensure as a Real Estate Salesperson dated January 14, 1997, and received by the Department on January 27, 1997. Question number 9 on the application requests that the applicant answer "Yes" or "No" to the following: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "Yes," attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Mr. Lista answered "No" to question number 9 on the application for licensure. He signed his name below the Affidavit of Applicant, which provides as follows: The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s)(he) is the person so applying, that (s)(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever; that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division of Administrative Hearings or its representatives, by him/her in response to inquiries concerning his/her qualifications. Mr. Lista's signature was notarized, and he submitted the application to the Department in January 1997. The Department approved Mr. Lista's application and issued a Florida real estate salesperson license. The Department subsequently learned that, on December 10, 1985, Mr. Lista pleaded guilty to one misdemeanor charge of Disorderly Intoxication, one misdemeanor charge of Resisting an Officer Without Violence to His Person, and one misdemeanor charge of Assault. Adjudication was withheld by the court, and Mr. Lista was sentenced to probation for a period of six months. Mr. Lista was represented by an attorney in the criminal proceedings, who appeared in court and handled the matter for Mr. Lista. At the time of the final hearing, Mr. Lista recalled being arrested, going to the police station, and being released after about 30 to 45 minutes without having to post bond, and he recalled the details of the 1985 incident leading to his arrest. Mr. Lista also recalled receiving copies of the dispositions of the criminal charges against him. Mr. Lista testified that, at the time he was filling out the application for licensure, he did not recall the guilty pleas and the sentence of probation because the incident had happened 12 years previously. The evidence presented by the Department is sufficient to establish with the requisite degree of certainty that Mr. Lista misrepresented his criminal history by answering question number 9 in the negative. At the very least, the evidence supports a finding that Mr. Lista acted carelessly in answering question number 9 in the negative; certainly, had he reflected for a few moments, he would have recalled the 1985 incident, as well as the guilty pleas and sentence of probation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order finding that Emilio Daniel Lista is guilty of violating Section 475.25(1)(m), Florida Statutes (1997); suspending his real estate salesperson license for a period of one year; and imposing an administrative fine in the amount of $1,000.00. DONE AND ENTERED this 14th day of July, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 14th day of July, 2000.
Findings Of Fact On March 26, 1979, the Department filed an application for the closing of two railroad grade crossings known as Orange Street at Milepost A-825.48 and Murphy Street at Milepost A-830.30. Both crossings are located within the corporate limits of Davenport, Florida. The track which intersects the crossings services four passenger and ten freight-trains each day. The speed limit over the crossings is restricted by city ordinance to fifty miles per hour. Neither of the crossings is equipped with active grade crossing traffic control devices. Prior to recommending the closing of a crossing, a Railroad Committee within the Department meets and reviews petitions for closure. The committees primary concern in deciding whether to close a crossing is public safety and a secondary concern is public necessity. Additionally, convenience of the local population Is considered. The Orange Street crossing is utilized primarily by passenger cars and small trucks. In the twenty-four hour period in which traffic was counted, 696 vehicles used this crossing. The profile of the Orange Street crossing is very poor because the road is approximately seven feet higher than the railroad tracks, thus requiring a motorist to stop on a steep downhill grade when approaching the crossing. Cross-bucks are the only signalization at the crossing. The Department has proposed two alternate routes, Magnolia and Bay Streets, for the traffic presently utilizing the Orange Street crossing. Magnolia Street has recently been renovated and is scheduled for installation of flashing lights and gates in October, 1980. Because of the renovation and installation of lights, Magnolia can accommodate the expected added traffic. Bay Street currently has flashing lights and can accommodate the anticipated added traffic since it had a traffic count of 547 vehicles in a twenty-four hour period. There would be no substantive difference in adverse travel time for a motorist using either Magnolia or Bay Streets as opposed to Orange. Both crossings are safer than Orange Street. The Department does not propose to close sidewalks which cross the tracks at Orange Street and are utilized primarily by residents of a nearby retirement home. In regard to the other crossing which the Department seeks to close, Murphy Street, two alternate crossings are suggested, Magnolia Street and Bargain Barn Road. During a twenty-four hour period in which traffic was counted, 256 vehicles used the Murphy Street crossing. This crossing is inherently dangerous for long trucks or tractor-trailer vehicles due to its abrupt vertical profile or "hump." The Murphy Street crossing ends in a "T" intersection and its closing would not hinder police or emergency services. The Magnolia Street crossing can accommodate the increased traffic which will result from the closing of Murphy Street. This crossing is almost level and is approximately 1,600 feet from Murphy Street crossing. Bargain Barn Road or State Road 547, is another alternate crossing. This crossing is safer than Murphy Street in that lights and gates were installed in March, 1980. It is 1,200-1,300 feet or a quarter of a mile away from the proposed closed crossing and would not cause adverse travel for local motorists presently using Murphy Street. The current traffic count at Bargain Barn is approximately 732 cars per day which would increase to approximately 860 if Murphy Street were closed.
The Issue Whether three signs of Respondent are in violation of the Federal and State laws, rules and regulations by violating the set-back requirements and the requirements for state permit.
Findings Of Fact Respondent was issued a thirty (30) day Violation Notice by Petitioner for a sign located .5 of a mile west of State Road 79 on the south side of I-10 approximately twenty (20) feet from the fence on the outer edge of the right-of- way of I-10. The sign advertised gas, oil, food, camping, road service, and CEO radio shop and is owned by Respondent Rich Oil Company, Bonifay, Florida, a business in operation about .9 of a Mile from the sign. The violations were listed as improper set-back and no permit. A thirty (30) day violation notice was issued to the Respondent by Petitioner on a sign located .6 of a mile east of State Road 79 on the north side of I-10 approximately twenty (20) feet from the fence located on the outer edge of the right-of-way. The products advertised were gas, oil, food, camping, road services, CB radio shop of the business operation of Respondent which business was located about .9 of a mile from the sign. The violations were listed as improper set-back and no permit. A thirty (30) day violation notice was issued to Respondent by Petitioner for a sign located on the southeast corner of St. Johns Road and State Road 79 located six (6) to twelve (12) feet from the outer edge of the right-of-way of State Road 79 advertising the products of Respondent: gas, oil, food, camping, road service, CB radio shop. The business was Operated about one hundred and eighty (180) feet from the sign. The violation was listed as improper set-back and no permit. No state permits were applied for or granted for any of the three subject signs. The signs were set back from the federal aid highway as indicated on the Violation Notices. The signs referred to in (1) and (2) above located east and west of the intersection of State Road 79 and I-10 were placed there by Respondent who stated that they were essential for his business and that the business would be diminished if the signs were removed. The sign described in (3) above on State Road 79 is shown by photograph to have a trailer nearby with a sign on it. Said sign on the trailer is not a subject of this hearing.
Recommendation Remove the signs that are located east and west of the intersection of State Road 79 along the right-of-way of I-10 and described in Findings of Fact (1) and (2) herein. Remove the sign located along State Road 79 described in Findings of Fact (3) herein unless the Respondent removes said sign and relocates it within fifteen (15) feet of the nearest edge of the right-of-way after obtaining a state permit. DONE and ORDERED this 4th day of February, 1977 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Russell A. Cole, Jr., Esquire 123 N. Oklahoma Street Bonifay, Florida 32425 John W. Scruggs, Esquire Department of Transportation Chipley, Florida 32425 George L. Waas, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. Glen E. Rich Rich Oil Company Post Office Box 158 Bonifay, Florida 32425 Mr. J. E. Jordan District Sign Coordinator Department of Transportation Post Office Box 607 Chipley, Florida 32428 Mr. O. E. Black Administrator Outdoor Advertising Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Philip Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION FLORIDA DEPARTMENT OF TRANSPORTATION, Petitioner, vs. CASE NO. 76-1605T RICH OIL COMPANY, Respondent. /
The Issue The issue is whether Respondent, Todd Voigt, should be terminated from employment with the City of Clearwater (City) for violating City policies as alleged in the City's Termination and Dismissal Notice (Notice) dated August 3, 2016.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board make a determination that the charges in the Notice are sustained, and that Mr. Voigt be terminated as a City employee. DONE AND ENTERED this 7th day of December, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 7th day of December, 2016.
The Issue The issue in this case is whether the Petitioner is entitled to additional points on the October 1996 Civil Engineering exam.
Findings Of Fact In October 1996, Jane A. Caldera (Petitioner) took the Principles and Practice of Engineering Examination. By grade report dated February 17, 1997, the Petitioner was notified by the Department of Business and Professional Regulation (Department) that she had received a score of 67 points on the exam. A minimum score of 70 points was required to pass the October 1996 engineering examination. The Petitioner challenges the scoring of her responses on question 121 and question 423 (parts 1, 2 and 4). Question 121 required mathematical calculation of channel flow rates based on a hypothetical set of facts. On question 121, the Petitioner received four points from a total of ten available points. The evidence establishes that the Petitioner should have received a total of six points for her response to question 121. The scoring plan for question 121 provides that six points are awarded for "minimum competence." The scoring plan for question 121 defines minimum competence as follows: Must attempt all parts of part (a) and gives answers for flow depth and flow discharge within [plus or minus] 5 percent but omits flow state. OR Solves flow depth and flow discharge within accuracy of [plus or minus] 10 percent, for both, and provides demonstrated answer for flow state. OR Neglects inlet loss in solution of flow depth and flow discharge, and provides demonstrated answer for flow state. (Emphasis supplied.) The Petitioner asserts that her answer to question 121 meets the level of minimum competence because she provided the correct answer for flow state, depth and discharge, but neglected to allow for the inlet loss in her answer. The greater weight of the evidence supports the Petitioner's assertion. Respondent's Exhibit 4, a re-score result by the National Counsel of Examiners for Engineering and Surveying states that the Petitioner is not entitled to additional points on question 121 because the "examinee's solution does not meet the accuracy criteria set for a score of 6 and did more than required for a score of 2. Therefore, the solution was scored at a level of 4." The re-scoring report is uncorroborated hearsay. The re-scoring report does not appear to follow the specific criteria set forth in the scoring plan for the examination. The scoring of the Petitioner's response to question 121 was arbitrary and capricious. Question 423 requires calculations related to motor vehicle traffic flow. A hypothetical set of facts are included which identifies the percentages of passenger cars, three-axle trucks, four-axle trucks, and five-axle trucks passing a traffic count station. Question 423, part one, states "[t]he annual number of passenger cars (vehicles) passing through this count station is most nearly:" and provides four possible answers. In order to answer question 423, part one, an examinee must determine the total number of vehicles and then calculate the total number of passenger cars as a percentage of the total vehicle count, in order to correctly answer the question. Question 423, part two, states "[t]he annual number of five-axle trucks (vehicles) passing through this count station is most nearly:" and provides four possible answers. In order to answer question 423, part two, an examinee must determine the total number of vehicles and then calculate the total number of five-axle trucks as a percentage of the total vehicle count, in order to correctly answer the question. The word "(vehicles)" in question 423 parts one and two is extraneous. The question can be answered without inclusion of the reference to "(vehicles)." The Petitioner asserts that inclusion of the reference to "(vehicles)" in the question is confusing and prevents an examinee from responding appropriately. The evidence fails to support the Petitioner's assertion. Question 423, part four, states "[t]he 30th highest hourly volume (vehicles) at the count station is most nearly:" and provides four possible answers. In order to respond to question 423, part four, the "K-factor" must be considered. A K-factor is a ratio commonly expressed as a subscript, related to traffic flow computation. In question 423, part four, the hypothetical fact states that the "K-factor is 0.10" but does not state the K- factor in the form of a subscript. The Department asserts that the examinee should have assumed a value of K30. The Petitioner asserts, and the evidence establishes that the appropriate K-factor in an urban setting is K200. The Department's expert witness was asked if there was any basis to assume that the K-factor in the problem was K30 "as opposed to any of the other K's that are used in traffic engineering problems," to which he replied that there was not. The evidence fails to establish that question 423, part four, contains sufficient information which would lead an examinee to reasonably assume a factor of K30 was applicable under the set of hypothetical facts provided in the question. The Department's assertion that a factor of K30 should be assumed by an examinee is arbitrary and capricious.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation enter a Final Order awarding to Jane A. Caldera such additional points as are set forth herein. DONE AND ENTERED this 16th day of June, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1998. COPIES FURNISHED: R. Beth Atchison Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Jane A. Caldera 16810 Stanza Court Tampa, Florida 33624 Mario Romero, Esquire Bull and Associates, P.A. 111 North Orange Avenue, Suite 1700 Orlando, Florida 32801 Lynda L. Goodgame, General Counsel Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The road segments in question are located totally within the City of Palm Bay in Brevard County and the Urbanized Area designated by Petitioner as "Cocoa-Melbourne." The segments are: Malabar Road between Minton Road on the west and Interstate 95 on the east; Palm Bay Road between Babcock Street on the west and Robert J. Conlan Boulevard on the east; and Robert J, Conlan Boulevard in its entirety from Palm Bay Road on the southwest to U.S. Route 1 on the northeast. At all material times, the above-described road segments ("Road Segments") have been classified as Urban Collector Roads and have been under the jurisdiction of Brevard County. The Palm Bay Road segment in question ("Palm Bay Segment") runs in an east-west direction a distance of approximately 1 1/2 miles. Palm Bay Road lies entirely inside the City of Palm Bay except for a portion of the road running between Minton Road on the west and about one-eighth of a mile west of Babcock Road on the east. This part of Palm Bay Road, which is west of the Palm Bay Segment, marks the boundary between the City of Palm Bay and the unincorporated area of Brevard County. The parties stipulated that the center line of this part of Palm Bay Road constitutes the boundary. Palm Bay Road west of the Palm Bay Segment is classified as an Urban Collector Road and is assigned to Brevard County. Petitioner does not propose changing this assignment. Babcock Street, which marks the westerly end of the Palm Bay Segment, is classified as an Urban Minor Arterial Road. Palm Bay Road east of the Palm Bay Segment is classified as an Urban Collector Road entirely within the limits of the City of Palm Bay and assigned to Respondent. Petitioner does not propose changing this assignment and Respondent does not challenge it. Palm Bay Road west of Robert J. Conlan Boulevard is designated by Petitioner as County Road 516. In 1981, Petitioner, in an effort to reflect traffic patterns, re- designated the east end of County Road 516 so that it no longer followed Palm Bay Road (with a couple of turns) to U.S. 1, but instead turned north and followed Robert J. Conlan Boulevard to its termination at U.S. 1. At the same time, Petitioner designated Palm Bay Road east of Robert J. Conlan Boulevard plus short sections of Main Street and Hickory Avenue as County Road 5070. Robert J. Conlan Boulevard runs north off Palm Bay Road and then in a northeasterly direction to U.S. 1 for a total distance of 1.7 miles. The Malabar Road segment in question ("Malabar Segment") runs in an east-west direction a distance of 2.443 miles. The Malabar Segment is part of Malabar Road, which runs east into unincorporated Brevard County. The east end of the Malabar Segment is marked by an interchange at Interstate 95. East of the interchange, Petitioner has classified Malabar Road as an Urban Minor Arterial Road and assigned it to the State of Florida. Malabar Road runs west of Minton Road, but remains within the city limits and terminates at the boundary between the city and the unincorporated area of the county. Petitioner introduced an Urbanized Area Characteristic Evaluation Points scoresheet for each of the three Road Segments, although the point sheet for the Palm Bay Segment included County Road 5070. Petitioner's expert witnesses, although lacking any detailed knowledge of the roads and road segments in the subject Urbanized Area, opined that the Road Segments were properly classified as Urban Collector Roads. Respondent's expert witness was its City Engineer, Harry Lampe. He testified that Palm Bay Road is one of only two east-west arteries serving downtown Palm Bay, which is an extremely fast-growing area whose population center has dramatically shifted westward in the past eight years to a point in the vicinity of Interstate 95. Mr. Lampe testified that specific characteristics of all three Road Segments were undervalued by Petitioner and opined that the Road Segments should be classified as Urban Minor Arterial Roads. No evidence was presented, however, as to the relative value of the points that either Petitioner or Respondent assigned to any of the Road Segments. According to Respondent's map, the traffic volume on the greater part of the Palm Bay Segment significantly exceeds the traffic count for the portion of Malabar Road that Petitioner has classified as an Urban Minor Arterial Road. Petitioner offered no traffic count for the Palm Bay Segment. Petitioner's traffic count covered a road segment consisting of the Palm Bay Segment plus the less-traveled County Road 5070. It was never clear if Petitioner's traffic count even reflected traffic conditions on the Palm Bay Segment. The segment of Palm Bay Road between Minton Road and Robert J. Conlan Boulevard and the segment of Malabar Road between U.S. 1 and Interstate 95 are comparable in length, service as the only east-west arteries in the Palm Bay area, and interstate access by way of an interchange. The interchange is under construction at Palm Bay Road--a fact that Petitioner admittedly did not take under consideration. Although there was no evidence as to the number of lanes, divided-or-undivided status, or speed limit of Malabar Road east of Interstate 95, the Palm Bay Segment received the maximum points for lanes and divided status and was in the second highest category as to speed limit. The five characteristic evaluation points it conceivably could lack if the above- described segment of Malabar Road had a higher speed limit were offset by the heavier traffic on the above- described segment of Palm Bay Road.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Transportation enter a Final Order assigning Malabar Road between Minton Road and Interstate 95 to the City of Palm Bay. DONE and ORDERED this 20th day of February, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1990. COPIES FURNISHED: Ben Watt, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Leonard A. Carson John D.C. Newton, II Lu Ann Snider Carson & Linn, P.A. Mahan Station 1711-D Mahan Drive Tallahassee, FL 32308 Vernon L. Whittier Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, FL 32399-0458 =================================================================
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The segment of road in question is located entirely within the City of Leesburg, Florida. The segment in question, Main Street, begins at a junction of CR 468 and SR 44 and heads in an easterly direction, is intersected about midpoint by SR 25 (US 27), then continues easterly to a junction with SR 44 on the east edge of the city, a distance of 3.670 miles. SR 25 in the urban limits of the city and where it is intersected by Main Street is classified as an urban principal arterial. SR 44 at the western and eastern terminus of Main Street is classified as an urban minor arterial. The Respondent evaluated the entire length of Main Street (3.670 miles) as one segment rather than two segments, one east of SR 25 and one west of SR 25. Main Street is bounded by SR 44, a road of higher classification than the present classification of Main Street, an urban collector, and of equal classification to the proposed classification of Main Street, a minor arterial. The traffic flow on Main Street is a continuous flow and is not significantly interrupted by the intersection of SR 25. Before evaluating Main Street under the criteria of a minor arterial the Respondent, using a method similar to the method for minor arterial classification but designed for urban collector classification, evaluated Main Street as an urban collector and calculated a System Attribute Score (SAS) of 90 which indicated a higher classification. This calculation resulted in Main Street being evaluated as a minor arterial. Respondent, in determining the functional classification of Main Street, utilized the criteria set out in Rule 14-12.015, Florida Administrative Code and scored Main Street on 5 attributes: (1) Average Daily Traffic (ADT), minimum 4,000; (2) Speed (lowest posted), minimum 35 mph; (3) Traffic Signals, minimum 3; (4) Street Length, minimum 3.5 miles; and (5) Lanes, minimum 3, with each attribute receiving a score of 1 if it met the minimum level set forth in Rule 14-12.015, Table Number 3, Florida Administrative Code. For the ADT attribute, Respondent utilized an ADT figure of 8,581, an average of 3 figures furnished verbally to the Respondent by the City Engineer. These ADT figures were not collected in accordance with Rule 14-12.017, Florida Administrative Code, as required by Rule 14-12.015(1)(b), Florida Administrative Code nor certified as required by that same rule. The Respondent was not certain of when, where or how the ADT figures furnished by the City Engineer were obtained, but the Respondent was of the opinion that the figures were obtained from a segment of Main Street east of SR 25, mainly in the heart of the City of Leesburg, Florida. The Respondent did not collect Average Daily Traffic (ADT) figures for Main Street. The Respondent used 40 miles per hour (mph) for speed attribute, but the lowest posted speed on Main Street was less than 35 mph. For the traffic signal attribute, the Respondent used 4 but there was credible evidence that 6 traffic signals were located on the 3.670 miles of Main Street. The Respondent used 2 lanes for the lanes attribute and there was no dispute as to the number of lanes. For the length attribute, the Respondent used 3.670 miles and there was no dispute as to the length. The Respondent assigned a score of 1 to each of the attributes, with the exception of lanes which was assigned a score of zero, for a total score of 4 which when multiplied by the system element coefficient of 15, found in Part II-Small Urban Area System Elements and Coefficients, Table 4, Arterial to Arterial, as required by Rule 14-12.015(3), Florida Administrative Code, equals a SAS of 60. However, since the Respondent relied on invalid ADT figures and on incorrect speed limit the correct SAS would be 30 which required the Respondent to classify Main Street as a minor arterial. In 1982, the City of Leesburg, Florida contemplated an urban renewal project which would involve Main Street and therefore requested the Respondent to reroute that segment of SR 44 within the city (what is currently known as Main Street was then SR 44) so that Main Street could become a city street. Public hearings were held on the rerouting of SR 44 and there were no objections. However, before rerouting SR 44 the Respondent required the Petitioner to pass a resolution stating that it did not object to the rerouting or to removing those segments of CR 468 and CR 33 involved in the rerouting from the County Road System and transferring those segments of CR 468 and CR 33 to the State Road System. The resolution was adopted by the county, but there was no indication, other than that Main Street would become a city street, that the County was acting on a representation by the Respondent that Main Street would always remain classified as a city street and under the jurisdiction of the City of Leesburg. Although the Petitioner expended funds on CR 468 and CR 33 prior to transferring them to the State Road System, there was no evidence that the Respondent required this expenditure prior to the transfer of the roads or that because of this expenditure, or for any other reason, the Respondent represented to the Petitioner that Main Street would always remain classified a city street and under the jurisdiction of the City of Leesburg. There was no evidence that the Petitioner relied on Main Street being transferred to the jurisdiction of the City of Leesburg to make any expenditure of funds for the improvement of CR 468 and CR 33 or for the expenditure any other funds. Main Street does not meet the minimum attribute level for classifications as an urban principal arterial in a small urban area.
Recommendation Based upon the Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, RECOMMENDED that Respondent, Florida Department of Transportation enter a Final Order assigning jurisdiction over Main Street in Leesburg, Florida beginning at a junction of CR 468 and SR 44 and moving in an easterly direction to a junction with SR 44 on the east edge of the City of Leesburg, Florida to Petitioner. Respectfully submitted and entered this 25th day July, 1988, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4388 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact l. Adopted in Finding of Fact 4. 3-6. Adopted in Finding of Fact 9. 7. Adopted in Finding of Fact 7 but clarified. 8-9. Adopted in Findings of Fact 12 and 13 respectively. 10-11. Rejected as immaterial or irrelevant to any determination in this case. 12-14. Adopted in Finding of Fact 17. Rejected as immaterial or irrelevant to any determination in this case. Adopted in Finding of Fact 19 but clarified. Adopted in Finding of Fact 18 except that reclassification of Main Street was not the subject of the resolution. Rulings on Proposed Findings of Fact Submitted by the Respondent The first 2 sentences are rejected as immaterial or irrelevant to any determination in this case. The third sentence is rejected as not being supported by substantial competent evidence in the record in that Main Street was located entirely within the city limits of Leesburg. The fourth, sixth, and seventh sentence are adopted in Findings of Fact 1, 8, and 12, respectively. The fifth sentence is adopted in Findings of Fact 6. The eighth and ninth sentence is adopted in Finding of Fact 13. The tenth sentence is adopted in Findings of Fact 14 and 15. The first 2 sentences are rejected as not being material or relevant to any determination in this case. The third sentence is adopted in Finding of Fact 5. The fourth and fifth sentences are adopted in Finding of Fact 16. The first 6 sentences are rejected as not being material or relevant to any determination in this case. The balance of paragraph 3 is adopted in Findings of Fact 17, 18, 19, 20 and 21 but clarified. COPIES FURNISHED: Sanford A. Minkoff, Esquire 1150 East Highway 441 Tavares, Florida 32778 Vernon L. Whittier, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458
Findings Of Fact Petitioner applied for a permit to erect a sign along the north side of SR 688, 500 feet west of U.S. 19 facing east (Exhibit 1). This application was disapproved because the proposed location is within 1000 feet of an existing sign along SR 688, facing in the same direction. With respect to outdoor advertising signs the character of SR 688 and U.S. 19 change at their intersection. North of SR 688 U.S. 19 is a federal-aid primary highway, south of SR 688 U.S. 19 is a federal-aid urban highway. For sign permitting purposes U.S. 19 is a controlled highway north of SR 688 and an uncontrolled highway south of SR 688. Similarly, SR 688 is a federal-aid primary highway east of U.S. 19 and is uncontrolled west of U.S. 19. A duly permitted sign, facing east, is located along the north side of SR 688 approximately 200 feet east of U.S. 19. This sign is within 1000 feet of the location for which Petitioner seeks the permit at issue in these proceedings. The proposed sign is intended to serve westbound traffic along SR 688; however, the sign can be seen by motorists traveling on U.S. 19 while stopped in the middle of the intersection of SR 688 and U.S. 19, but the message on the sign would be unreadable to the naked eye. Respondent contends the proposed sign is governed by the spacing requirements because the sign is located within 660 feet of the right-of-way of the federal-aid primary highway portion of U.S. 19.
Findings Of Fact On December 8, 1986, Respondent owned a sign that had been erected along the east side of U.S. 19 in Pasco County, Florida, approximately 51 feet from the nearest edge of the nearest through lane. U.S. 19 at this location is a part of the State Highway System. The DOT right-of-way at this location extends approximately 82 feet east of the eastern edge of the nearest northbound through lane of U.S. 19. Upon seeing the DOT violation notice posted, someone notified Respondent. Respondent had the sign removed from the DOT right-of-way within ten days of the notice of violation.
Recommendation It is RECOMMENDED that a final order be entered assessing a $75 fine against All American commercial Properties, Inc., for owning a sign on the DOT right-of-way along the east side of U.S. 19 in Pasco County on December 8, 1986. ENTERED this 22 day of July, 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1987. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0450 All American Commercial Properties, Inc. Attn: Shelley A. Balduf 6847 County Road 54 New Port Richey, Florida 33552 Kaye N. Henderson, P.E. Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Attn: Eleanor Turner, M.S. 58 Thomas H. Bateman, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department was the state agency responsible for regulating vehicular access and connections to or from the State Highway System in accordance with Sections 335.18 through 335.188, Florida Statutes, known as the State Highway System Access Management Act. The property which Petitioner filed an application for an access connection to US Highway 17 (SR 35) is located on the southeast corner of the intersection of SR 35 and Sixth Street in Fort Meade, Polk County, Florida. Petitioner's property abuts the east right-of-way of SR 35, with frontage of approximately 235 feet and the south right-of-way of Sixth Street, with frontage of approximately 235 feet. SR 35 has been designated as an intrastate system route. The segment of SR 35 involved in this proceeding has been assigned an Access Management Classification of Four with a design speed of 50 miles per hour and a posted speed of 40 miles per hour . Also, this segment of SR 35 has a "non-restrictive median" as that term is defined in Rule 14-97.002(23), Florida Administrative Code. The distance between all cross streets running east and west which intersect SR 35 within Fort Meade, Florida, including Sixth Street, is approximately 440 feet. (See Petitioner's exhibit 2, Department's aerial photo of the area) Petitioner's application proposes a full movement access connection to be located south of Sixth Street on SR 35 with a connection spacing between Sixth Street and the proposed connection of 190 feet. This distance was determined by measuring from the south edge of the pavement of Sixth Street to the north edge of pavement of proposed access in accordance with Rule 14- 97.002(19), Florida Administrative Code. The centerline of the proposed connection on SR 35 is located approximately 220 feet south of the centerline of Sixth Street. Petitioner's application also proposes an access connection to Sixth Street which would give Petitioner indirect access to SR 35 through Sixth Street. The centerline of the proposed connection on Sixth Street is located approximately 135 feet east of the east curb of SR 35 presently in place. Petitioner's proposed access connection to SR 35 is located immediately north of a crest of a rise over which SR 35 traverses. Both south and north of the crest is a depression through which SR 35 traverses. The point where Sixth Street intersects SR 35 is located approximately at the bottom of the depression north of the crest. A motorist attempting to enter SR 35 from the proposed access connection would have a full view of any vehicle moving north through the depression to the south of the crest or moving south through the depression to the north of the crest. A motorist attempting to enter SR 35 from the east on Sixth Street would have only a partial view of a vehicle moving north through the depression to the south of the crest but a full view of any vehicle moving north through the depression north of the crest. Both Dennis Wood and Michael Tako testified that each had viewed the traffic moving north through the depression south of the crest from a point where Sixth Street intersects SR 35. They also testified that each had, from a point where Sixth Street intersects SR 35, at least a partial view at all times of the vehicles moving north through the depression south of the crest. Based on the above and their assumption that the distance between cross streets along SR 35 was 600 to 700 feet rather than approximately 440 feet as indicated in Petitioner's exhibit 2, Department's aerial photo of the area, Wood believed and Tako concluded that there was minimum clear sight distance that would allow a motorist exiting Sixth Street to cross SR 35 safely, or turn left to enter the southbound lane of SR 35 safely or turn right to enter the northbound land of SR 35 safely. Because of the continuous partial view of the vehicles moving north through the depression south of the crest from a point where Sixth Street intersects SR 35 it may appear that there was minimum clear sight distance in that area. However, there is insufficient evidence to establish facts to show that a minimum clear sight distance was established because the height of the originating clear sight line above the pavement or the height of the clear sight line above the pavement at the vehicle observed, which are required to establish a minimum clear sight distance (See Department's exhibit 10), were not established. Also, the estimate of the distance between the originating point of the clear sight line and the ending point of the clear sight line at the vehicle observed was flawed due to the use of incorrect distances between the cross streets. There is insufficient evidence to show that a motorist looking south from the point where Sixth Street intersects SR 35 would have the required minimum clear sight distance as calculated by Department, as shown in Department's exhibit 10, to allow a motorist to cross SR 35 safely or turn left to enter the southbound lane of SR 35 safely or turn right to enter the northbound lane of SR 35. Presently, there are three access connections of approximately 20 feet in width on SR 35 where Petitioner's property abuts SR 35. These access connections where constructed before Petitioner had ownership of the property. However, since there will be a change in land use, these access connections will be closed if the site is developed whether this access permit is granted or denied. Petitioner plans to close two of these access connections and extend the opening to the third one if the application is approved. SR 35 is a moderate volume road with approximately 17,000 average daily trips (ADT's), increasing approximately 500 ADT's annually over the past five years. Sixth Street has approximately 100 to 150 ADT's at present with the ADT's projected to increase to approximately 300 if the site is developed and Petitioner's application for the access connection to SR 35 is denied. However, the number of vehicles entering SR 35 which constitutes traffic utilizing Petitioner's establishment will be the same no matter where this traffic enters SR 35. Without the direct access connection to SR 35 there will be problems with internal customer traffic flow and with the movement of semi-tractor trailers that Petitioner uses to make deliveries to its store. Although the present site plan design may be modified so as to utilize the indirect access to SR 35 through Sixth Street, the modification of the site plan design would create problems that would most likely result in the City of Fort Meade not approving the modified site plan design. Although using Sixth Street as an indirect access to SR 35 from the site may provide a safe ingress and egress to and from SR 35, the lack of a minimum clear sight distance notwithstanding, the Petitioner's proposed access connection would provide a much safer ingress and egress to and from SR 35 because of a better clear sightdistance. Although the indirect access to SR 35 through Sixth Street may provide safe ingress and egress to and from SR 35, the indirect access does not provide reasonable access to the site as the term "reasonable access" is defined in Rule 14-96.002(22), Florida Administrative Code. The primary purpose of limiting access to SR 35 is to provide safer conditions for vehicles utilizing SR 35.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order granting Petitioner's Connection Application Number C-16-010-90 and issuing Petitioner a nonconforming permit for the construction of the access connection to SR 35 as designed and shown in the site plan attached to the application with conditions deemed appropriate by the Department and provided for under Rule 14.96.009, Florida Administrative Code. RECOMMENDED this day 30th of October, 1995, at Tallahassee, Florida. WILLIAM R. CAVE, 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 30th day of October, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2794 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner in this case. Petitioner's Proposed Findings of Fact. Proposed findings of fact 1 through 16 are adopted in substance as modified in Findings of Fact 1 through 21. The Respondent elected not file any proposed findings of fact. COPIES FURNISHED: Ben G. Watts, Secretary ATTN: Diedre Grubbs Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thornton J. Williams, Esquire General Counsel Department of Transportation 562 Haydon Burns Building 695 Suwannee Street Tallahassee, Florida 32399-0450 Douglas E. Polk, Jr., Esquire BROWN CLARK & WALTERS, P.A. 1819 Main Street, Suite 1100 Sarasota, Florida 34236 Francine M. Ffolkes, Esquire Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, Florida 32399-0458
