The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2004),1 by retaliating against Petitioner because he engaged in protected activity.
Findings Of Fact The Department is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Petitioner was hired by the Department in 1978 as an Examiner I in Bartow and has continuously worked for the Department since his hiring. He held various positions within the Department through the years, including Supervisor I and Assistant Regional Administrator. In 1998, Petitioner held the position of Hearing Officer in the Bureau of Administrative Review. In February 1998, Petitioner suffered a heart attack and underwent open heart surgery for the placement of two stents to repair the blockage to his arteries. On April 7, 1998, Petitioner submitted to Tommy Edwards, assistant director of the Division of Driver Licenses, a letter requesting a voluntary demotion from Hearing Officer to a word processing position, in order to reduce the stress and pressure of his employment. Petitioner's request was granted. Later in 1998, Petitioner's health improved and he began applying for promotions, but was consistently passed over. He learned that for one Examiner I position, he had been the top candidate, but was not selected because of the letter he had written to Mr. Edwards and because Mr. Edwards had expressed concerns about placing Petitioner in a high stress position. Petitioner wrote a second letter to Mr. Edwards, dated February 9, 1999, to clarify that his physician had given him a clean bill of health, with no restrictions as to the type of job he was able to handle. This situation led to Petitioner's filing a complaint against the Department in 2000, in the Circuit Court for the Tenth Judicial Circuit, in and for Polk County, Case No. GC-G-00-0141, based on 42 U.S.C. §§ 12111 et seq., the Americans with Disabilities Act, and Chapter 760, Florida Statutes, the Florida Civil Rights Act. On July 8, 2003, the parties entered into a Settlement Agreement and Release resolving this litigation. As a condition of the settlement, Petitioner agreed to release all claims against the Department connected with his complaint. The Amended Employment Charge of Discrimination, filed on October 26, 2004, with the FCHR, alleges that the Department has denied Petitioner promotions and transfers in retaliation for his previous complaint. At the final hearing, testimonial and documentary evidence was elicited as to Petitioner's applications for six positions within the Department. The selection processes for four of the positions, 903481, 2333, 902315, and 2986, occurred after the Settlement Agreement and Release was signed and less than 365 days before the Amended Employment Charge of Discrimination was filed. The Selection processes for two of the positions, 5350 and 5234, occurred after the Settlement Agreement and Release was signed, but more than 365 days before the Amended Employment Charge of Discrimination was filed. Evidence concerning the latter two positions was admitted for the limited purpose of demonstrating a pattern of discrimination by the Department. The Department's selection process for an open position commences with advertising the opening. Applications are received, and a Department employee conducts an initial screening of the applications to determine which candidates meet the minimum qualifications for the position in question. Those applications passing the initial screening are then subjected to a detailed screening in which they are scored according to work experience and the knowledge, skills and abilities pertinent to the position, as well the state-mandated veterans' preference. The Department personnel in charge of filling the position set a cutoff score to ensure an adequate pool of interviewees, then a panel conducts interviews of the selected applicants. These interviews are scored, and the highest scoring candidate is generally offered the position. The Department does allow the second highest scoring candidate to be selected, if his or her score was within 10 points (on a 100-point scale) of the highest ranked applicant. The applicant interviews are not free-form, but are conducted according to a process dictated by the Department. For the positions in question, the Department provides the interview panel with a list of five questions. Each candidate is given the list of questions and has fifteen minutes to read them and prepare a response. The interview panel then meets with the candidate, asks each question and listens to the answers. The interviewers then score the responses according to an answer key provided by the Department, which contains several "correct" answers to each question. A candidate may receive full or partial credit for his responses, depending on how many of the correct answers he provides. The candidates may also be given written exercises that are graded and scored by the interview panel. Each candidate for a given position is provided the same set of questions and written exercises. The entire selection process, from initial screening of all applicants to final interview scores and selection of the successful applicant, is recorded on a spreadsheet document called the Applicant Selection Guide ("ASG"). Department policy provides that an existing ASG may be used to fill a subsequent comparable position, provided the second position is filled within six months of the process that generated the ASG, and the candidate who fills the second position is the highest ranked candidate remaining on the ASG, or is within 10 points of that candidate. The first position Petitioner applied for was position 5350, a compliance examiner position in Pinellas County for the Division of Motor Vehicles. The application deadline was June 4, 2003. Out of 162 applicants, five were selected for interviews, including Petitioner. At the conclusion of the interview process,3 the highest scoring candidate was Gary Konopka. Petitioner and Allen Shaffer tied for second. The position was offered to Mr. Konopka, who declined it for personal reasons. The position was then offered to Mr. Shaffer, who accepted it.4 Richard Roth was the regional administrator for the Division of Motor Vehicles at the time position 5350 was filled. He retired in August 2003, shortly Mr. Shaffer was hired. Mr. Roth testified that he made the decision to hire Mr. Shaffer, but had no present recollection of how he decided to break the tie between Petitioner and Mr. Shaffer. Mr. Roth had no knowledge of Petitioner's complaint of discrimination, or of his lawsuit against the Department. Assistant Bureau Chief Edwin Robcke, Bureau Chief Charles Gowan, and Margaret Lamar, the senior consultant in the office of employee relations, who investigates discrimination charges within the Department, all testified that they were unaware of any Department-established procedure for breaking tie scores between applicants. Petitioner next applied for position 5234, an operations analyst5 position in Hillsborough County for the Division of Driver Licenses' Bureau of Administrative Reviews. The application deadline was October 31, 2003. Deborah Todd, the program manager who would be the direct supervisor of the employee hired to fill position 5234, performed the detailed screening of the applications. Out of 113 applicants, five were selected to be interviewed, including Petitioner. Ms. Todd conducted the interviews along with Eileen Bishop, an operations analyst in the bureau of administrative reviews. Stephen Walter was the top scoring candidate, but a recent disciplinary action in his current job rendered him ineligible for the promotion that position 5234 would have offered. Ms. Todd made the decision to offer the position to Deborah Leto, who had the second highest score. Ms. Leto accepted the position. Petitioner finished fifth out of the five candidates interviewed,6 and was notified by letter dated January 2, 2004, that he had not been selected for the position. At the hearing, Ms. Todd testified that Petitioner's interview was "fair," in the sense of "not bad." His answers to the oral questions were too short, but he did receive the maximum points possible for his written work exercise. Ms. Bishop likewise testified that Petitioner did "fair" on his interview. Ms. Todd testified that she had not met Petitioner before the interview and had no knowledge of his prior lawsuit against the Department. Petitioner next applied for position 902315, a compliance examiner position in Orange County for the Division of Motor Vehicles' Bureau of Field Operations. The application deadline was March 4, 2004. The ASG for position 902315 indicates that the interview process was conducted by Department employees Donn Lund and Marie Smith of the Winter Park office. Neither Mr. Lund nor Ms. Smith was called to testify in this proceeding. The ASG indicates that approximately 125 people submitted applications and that 11 applicants were interviewed. Petitioner had the highest screening score of any candidate. However, it appears that once again Petitioner's interview was less than impressive. The successful applicant, Esteban Capo, received a score of 90 out of a possible 100 points. Petitioner received a score of 37 points, placing him in a tie for last place among the candidates interviewed. At the hearing, Petitioner's recollection of his interview for position 902315 was lacking in detail. He simply testified that he recalled nothing untoward occurring during the interview that would account for his low score. Petitioner next applied for position 2333, a compliance officer position in Hillsborough County for the Division of Motor Vehicles' Bureau of Field Operations. The application deadline was June 16, 2004. Out of 190 applicants, five were selected for interviews, including Petitioner. In the detailed screening, Petitioner scored 83 points, which tied him for the high score with Lina Botero. Ms. Botero had the high score for the interview process, scoring 82.08 points, was offered position 2333, and accepted the position. Thomas Thayer had the second highest score, with 74.96 points. In August 2004, the ASG for position 2333 was used by region administrator Gary Konopka to fill the opening for position 5350 created by the promotion of Allen Shaffer to a field supervisor position. Position 5350 was offered to Mr. Thayer, who accepted the position. In the interview process for position 2333, Petitioner scored 60.84 points, finishing fourth out of the five applicants interviewed. The interviewers for position 2333 were Mr. Konopka, field supervisor Clyde Schmitz, and Kelly Cook, who no longer works for the Department and did not testify in this proceeding. Mr. Schmitz testified that he had no recollection of Petitioner's interview for the position. Mr. Konopka recalled that Petitioner's answers to the interview questions were "very curt, very brief, almost as if he were going through the motions." In contrast, Ms. Botero was extremely animated and very talkative. Mr. Konopka pointed out that the scoring criteria award points for multiple responses from a candidate, and, thus, Ms. Botero was better served by speaking more. As Mr. Konopka put it, "the more you talk, the better off you are because you may stumble into the answer." Mr. Konopka recalled that Mr. Thayer was a little nervous, but, like Ms. Botero, he gave several answers during the oral questions. Mr. Konopka characterized Mr. Thayer's written submissions as "superb." Mr. Konopka testified that he knew nothing of Petitioner's complaint against the Department at the time of the interviews for position 2333 and that none of the members of the interview panel discussed Petitioner's complaint. Petitioner next applied for position 2986, a senior highway safety specialist position in Orange County7 for the Division of Motor Vehicles. The application deadline was June 29, 2004. Out of 31 applicants, five were selected to be interviewed. Petitioner was not selected for an interview. Dennis Valente, chief investigator of the Division of Driver Licenses, conducted the screening for position 2986. Mr. Valente testified that, after an initial screening to make sure the candidates met the bare minimum qualifications for the job, he then conducted a detailed screening to ascertain the candidates' education, experience, and special knowledge, skills and abilities. After the detailed screening was completed, Mr. Valente set a cut-off score to ensure that five to seven candidates were interviewed. Mr. Valente did not know Petitioner and was not aware that Petitioner had filed a complaint against the Department.8 For position 2986, the cut-off score was established as 88 out of a possible 100 points and five candidates were interviewed. Petitioner's score on the detailed screening was 72 points. Mr. Valente recalled that Petitioner received maximum scores for four out of five of the "experience" factors on the detailed screening, but that he received no points for education. Petitioner is a high school graduate and points were available only for post-secondary education.9 The successful applicant for position 2986, Clark Brookstone, had a master's degree in mass communication, in addition to his bachelor's and associate of arts degrees. Petitioner next applied for position 903481, an operations and management consultant position in Hillsborough County for the Division of Driver Licenses' Bureau of Administrative Reviews. The application deadline was July 6, 2004. Out of 66 applicants, seven were selected for interviews. Petitioner was not selected for an interview. Danny Watford, chief of the Bureau of Administrative Reviews, performed the screening, then conducted the interviews for position 903481 with Deborah Todd. Mr. Watford testified that he performed no initial screening, and that every candidate received a detailed screening. At the time of the screening, Mr. Watford did not know that Petitioner had filed a complaint of discrimination. Mr. Watford set the cut-off for obtaining an interview at 40 points. Petitioner received 24 points on his detailed screening. Mr. Watford testified that Petitioner was minimally qualified for the job, but that the job opportunity announcement stated a preference for a candidate with a bachelor's degree. The successful candidate, Gordon Brown, had a bachelor of science degree from California State University at Fullerton. As noted above, Petitioner is a high school graduate. At the final hearing, Petitioner listed eight other positions for which he applied and was not offered the job. These positions were not applied for or filled within the time frame pertinent to this proceeding. Petitioner conceded that there was no direct evidence of discriminatory or retaliatory intent on the part of the Department employees who conducted these employment screenings and interviews. In fact, those Department employees who were familiar with Petitioner spoke highly of his work. Charles Gowan, Bureau Chief of Field Operations, testified that Petitioner has done a good job as an employee in his bureau.10 On August 8, 2003, Mr. Gowan awarded Petitioner with a letter of commendation for Petitioner's work as temporary office manager for the Lakeland driver license office. Patricia Connery, a senior highway safety specialist with the Department, testified that Petitioner had done a good job as her supervisor in 1994. Ms. Connery also testified that she obtained her current position through a telephone interview, without going through a formal application and interview process. Petitioner contends that this incident, coupled with the unexplained method used to break the tie between Petitioner and Mr. Shaffer for position 5350, and the alleged subjectivity of the interview process, demonstrates that the Department's selection process is a sham designed to allow the Department's administrators to hire whom they please without regard to the candidates' merits. In this instance, Petitioner alleges, the sham process was employed to retaliate against him for having brought a discrimination complaint and lawsuit against the Department. The evidence established that there were minor variations among the Department's offices as to the precise methodology employed in the hiring process. However, the evidence also established that the process was internally consistent, i.e., any local variations in the process were uniformly applied to all applicants for a given position. Ms. Connery's internal promotion by means of a telephone interview was an aberration and was unrelated to any position for which Petitioner was a candidate. Petitioner contends that someone in the Department's central office in Tallahassee was the real decision maker for these positions, and in each case insured that Petitioner was not the successful applicant. The evidence did not support this contention. In each instance, the hiring decision was made by the senior employee on the interview committee at the district level. While it is true that those decisions were submitted to Tallahassee for ratification, in no instance was the district-level decision overturned. Petitioner did not establish that any of the interview panel members or candidate screeners was aware of his discrimination complaint or lawsuit at the time their respective decisions were made. Mr. Gowan was aware of Petitioner's lawsuit at the time of the interviews for position 2986, but Petitioner was not interviewed for that position. The greater weight of the evidence establishes that, while Petitioner was at least minimally qualified for the positions in question, Petitioner's lack of a college degree and his indifferent interview skills were the chief reasons for his failure to obtain any of the positions for which he was interviewed. The greater weight of the evidence establishes that the Department personnel conducting detailed screening of applicants considered only Petitioner's application and accompanying materials submitted by Petitioner in determining whether, or not Petitioner should be interviewed. Petitioner's applications were treated no differently than the applications of other candidates.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Department of Highway Safety and Motor Vehicles did not commit any unlawful employment practice and dismissing the Petition for Relief. DONE AND ENTERED this 10th day of October, 2006, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2006.
Findings Of Fact The sign here in issue was erected in 1992 and remained in the same location until December 1986. The sign is located along the west side of U.S. 19 in Pasco County, Florida, 41 feet from the western edge of the pavement. The DOT right-of-way at this location is 57 feet. U.S. 19 is part of the state highway system. Respondent stipulated that the sign was located in the DOT right-of-way and was in violation. Upon receipt of the violation notice, the association relocated the sign off of the DOT right-of-way within ten days of the notice of violation (December 11, 1986).
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by William F. Quattlebaum, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice Of Voluntary Dismissal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and Respondent shall abide by the terms of the Settlement Agreement entered into in this matter. Filed September 11, 2014 2:09 PM Division of Administrative Hearings DONE AND ORDERED this \\ day of September, 2014, in Tallahassee, Leon Cobur Julie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 County, Florida. Filed with the Clerk of the Division of Motorist Services this } { day of September, 2014. NOTICE OF APPEALRIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jdc Copies furnished: Richard A. Filson, Esquire Filson and Penge, P.A. 2727 South Tamiami Trail Sarasota, Florida 34239 filsonlawfirm@gmail.com Damaris E. Reynolds, Esquire Department of Highway Safety And Motor Vehicles 2900 Apalachee Parkway, Room A430, MS61 Tallahassee, Florida 32399 damarisreynolds@flhsmv.gov William F. Quattlebaum Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 6 fees. eat
The Issue Whether Relocation Assistance Appeal of Petitioner should be granted. Petitioner was not represented by legal counsel or other representative at the hearing. After an explanation of her rights in administrative hearings conducted under the provisions of Chapter 120, Florida Statutes, Petitioner stated that she wished to proceed in her own behalf.
Findings Of Fact Petitioner moved into an apartment located at 1013 West Broward Boulevard, Fort Lauderdale, Florida on June 9, 1977. (Testimony of Petitioner, supplemented by Exhibit 2) On August 3, 1977, Petitioner acknowledged receipt of a letter from Respondent which notified her that Respondent was in the process of acquiring right-of-way for a state road project located where she lived and that negotiations for the purchase of the property had begun on June 23, 1977. The letter enclosed an informational brochure entitled "YOUR RELOCATION" and expressed the desire of Respondent to assist in Petitioner's relocation necessitated by the property acquisition. (Exhibit 1) In late November or early December, 1977, Petitioner vacated her apartment upon the request of the landlord for non-payment of the rent. (Testimony of Petitioner, supplemented by Exhibit 2) Respondent purchased the property where Petitioner had resided from the West Broward Land Corporation on February 8, 1978. The purchase was accomplished pursuant to the Federal Highway Aid Program (PL 91-646) and involved the widening of Broward Boulevard (SR 842). Guidelines under the federally funded program are implemented by the Federal Aid Highway Program Manual and by Chapter 14-14.05, F.A.C., which incorporates by reference Respondent's Right-of-way Bureau Operating Procedures. These procedures include eligibility criteria for receipt of monetary payments by individuals who have been displaced from real property as a result of its acquisition by the state. (Testimony of Moon, Exhibit 3) On February 15, 1978, Petitioner was present at the residence of another tenant of the apartment building at the time Respondent's right-of-way agent was explaining relocation benefits to that individual. Petitioner asked the agent if she could return to her former apartment and resume occupancy, but he explained that he had no authority to grant such permission. Thereafter, Petitioner moved back into the apartment. She testified at the hearing that one of Respondent's employees named Bill Barnette had told her she could occupy the premises. This alleged authorization however, took place at the time Petitioner was given a check for $320 for moving expenses by Barnette sometime in March, 1978. (Testimony of Way, Petitioner, Crawford, Johnson, supplemented by Exhibits 2, 5) Thereafter, Petitioner made application with Respondent for rent supplement payments, but by letter of October 2, 1978, Respondent denied any such payment on the ground that Petitioner was not living on Broward Boulevard when the state obtained legal possession of the property. (Testimony of Moon, Case File)
Recommendation That Petitioner's appeal be denied. DONE and ENTERED this 13th day of March, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1978. COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Sallie Mae Ray 429 1/2 North West 7th Terrace Ft. Lauderdale, Florida 33311 Also mailed to Ms. Ray at: Apartment 14 North West 10th Avenue and 7th Street Fort Lauderdale, Florida
The Issue Whether Respondent’s proposed modifications to Petitioner’s driveway connections provide the public with reasonable access to or from the State Highway System.
Findings Of Fact The Department, pursuant to section 334.044(14), Florida Statutes, has a duty: [t]o establish, control, and prohibit points of ingress to, and egress from, the State Highway System, the turnpike, and other transportation facilities under the department’s jurisdiction as necessary to ensure the safe, efficient, and effective maintenance and operation of such facilities. By correspondence to Petitioner dated September 23, 2019, the Department advised of its plans to modify, as part of a reconstruction and resurfacing project, certain existing driveways that connect from Petitioner’s property to US 27 and SR 60. According to the Department, the modification of Petitioner’s driveway connections “will improve safety or traffic operations on the state roadway.” The planned US 27/SR 60 interchange reconstruction (US 27/SR 60 interchange) seeks to change certain operational and design features of the two roadways. In the area of Petitioner’s property, SR 60 is classified as a Class 5 road with a posted speed limit of 45 miles per hour. The Class 5 designation is assigned to roads where adjacent land has been extensively developed and where the probability of major land use change is not high. In the area of Petitioner’s property, US 27 is classified as a Class 3 road with a posted speed limit of 50 miles per hour. The Class 3 designation is assigned to roads where abutting land is controlled to maximize the operation of the through traffic movement, and the land adjacent to these roadways is generally not extensively developed. Petitioner, since approximately 1968, has continuously owned and operated a Sunoco gas station on approximately a one-acre parcel, located at 19300 U.S. 27 South, Lake Wales, Florida. It is undisputed that the existing driveway connections from Petitioner’s property to the State Highway System have been in continuous use since 1968. According to the testimony of Department witness Leanna Schail, current Department access management standards provide that a driveway connection on a Class 5 road must be at least 225 feet from an intersection and at least the same distance from other connections. As for Class 3 roads, the access standards provide that a driveway connection must be at least 660 feet from an intersection and at least the same distance from other connections. The respective distance standards are necessary in order to facilitate the reduction of driver confusion and rear-end collisions. U.S. Highway 27, at its location nearest Petitioner’s gas station, is a north-south highway that intersects SR 60, which runs east and west. Petitioner’s gas station is located southwest of the US 27/SR 60 interchange. The parcel where Petitioner’s gas station is located appears essentially square-shaped, with the northern edge of the parcel abutting the exit ramp from SR 60. The eastern edge of Petitioner’s parcel abuts US 27. The southern edge of Petitioner’s parcel abuts Oak Avenue. The western edge of Petitioner’s parcel abuts private property. West of the “private property” is Mulberry Street, which runs north and south, and connects to the south with Oak Avenue, and to the north at the SR 60 exit ramp. EXISTING ACCESS TO AND FROM STATE HIGHWAY SYSTEM In its current configuration, eastbound motorists on SR 60 who are west of the SR 60/US 27 interchange must transition to the right to access the exit ramp which has direct access connections to Mulberry Street, Petitioner’s property (two turn-in points), and US 27 South. The Department’s witness credibly testified that the “two turn-in points” from the SR 60 exit ramp are less than 225 feet from the existing and planned SR 60/US 27 interchange and do not meet current design standards. Westbound motorists on SR 60 do not have direct access to Petitioner’s gas station. In its current configuration, southbound motorists on US 27 have direct access to a driveway connection to Petitioner’s gas station. Northbound motorists on US 27, who are south of the SR 60/US 27 interchange, properly access Petitioner’s gas station by turning left on Oak Avenue and then right onto Petitioner’s driveway connection to Oak Avenue.2 Southbound motorists on US 27 can also indirectly access Petitioner’s gas station by turning right onto Oak Avenue and then right on Petitioner’s driveway connection to Oak Avenue. In its current configuration, motorists leaving Petitioner’s gas station have right-turn-only direct access from the two driveways that connect to the SR 60 exit ramp, right-turn-only direct access to US 27 South, and indirect 2 A reasonable inference deduced from the evidence is that motorists turning left to access Petitioner’s gas station from US 27 North will be inclined, under certain conditions, to avoid Oak Avenue by driving north a short distance on the US 27 South travel lanes (i.e. in the wrong direction) so as to access that portion of Petitioner’s driveway that connects directly to US 27 South. The Department’s proposed design change to this driveway connection will lessen the probability of a motorist engaging in this dangerous driving maneuver. Additionally, the Department’s proposed redesign of this driveway connection will improve traffic movement through the interchange by enhancing bicycle and pedestrian safety. access to US 27 by turning left on Oak Avenue and then right on US 27 South. PROPOSED ACCESS TO AND FROM STATE HIGHWAY SYSTEM Beginning at a point approximately 1,000 feet west of the SR 60/US 27 interchange, the Department proposes to construct near the southern edge of SR 60 a bi-directional frontage road which will abut and run parallel to the SR 60 eastbound travel lanes. The eastern-most segment of the bi-directional frontage road will terminate at Mulberry Street. Motorists travelling east on the frontage road who desire to access Petitioner’s gas station will be able to do so by way of a one-way extension that runs from Mulberry Street east to the northwest portion of Petitioner’s property. The addition of the frontage road eliminates the second eastern-most access point to Petitioner’s property from the current SR 60 exit ramp, but still allows for direct ingress to Petitioner’s property from the new frontage road. In its proposed configuration, eastbound motorists on SR 60 who are west of the SR 60/US 27 interchange, and who desire to exit to US 27 South, will transition from SR 60 via a redesigned exit ramp which will bypass the northern portion of Petitioner’s property and take motorists to US 27 South, where they will have one direct and one indirect access point to Petitioner’s gas station. The direct point of ingress to Petitioner’s gas station will be at a point nearest to the central eastern quadrant of Petitioner’s property which abuts US 27 South. If a motorist misses this point of direct ingress, then the motorist may proceed to the indirect point of ingress by turning right from US 27 South on Oak Avenue, and then making a second right turn to access Petitioner’s property. These same access points are available to motorist travelling southbound on US 27. The totality of the evidence shows that egress from Petitioner’s property to the State Highway System has dropped from three direct access points (two onto the SR 60 exit ramp/one onto US 27 South) to only one indirect access point (Oak Avenue). Furthermore, the evidence shows that ingress to Petitioner’s property from the State Highway System has been reduced from three direct access points (two from SR 60 exit ramp/one from US 27 South) to two direct access points (frontage road/US 27 South), with no material change to the indirect access point from Oak Avenue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order finding that the proposed modifications to the driveway connections of the J. Glenn Wright Trust property provide the public with reasonable access to or from the State Highway System, and denying the challenge of the J. Glenn Wright Trust to the Amended Notice of Intent to Modify Driveway Connection issued on September 23, 2019. 3 See Footnote two regarding concerns associated with motorists traveling northbound on US 27. DONE AND ENTERED this 13th day of February, 2020, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 13th day of February, 2020. COPIES FURNISHED: David W. Holloway, Esquire David W. Holloway, P. A. 10764 70th Avenue, Suite 6206 Seminole, Florida 33772 (eServed) Richard E. Shine, Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 (eServed) Erik Fenniman, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 (eServed) Kevin J. Thibault, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 57 Tallahassee, Florida 32399-0450 (eServed)
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 Whether the Department of Transportation (hereinafter referred to as the "Department") should close the median opening on Northwest 79th Street, immediately west of Northwest 27th Avenue, near Respondent's business located at 2770 Northwest 79th Street, Miami, Florida?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent owns and operates a business, J'S Trading Post, which is located on the south side of Northwest 79th Street, just west of Northwest 27th Avenue, in Miami, Florida. Northwest 79th Street is an east-west roadway that is part of the State Highway System, having been designated State Road 934. Although Northwest 79th Street is part of the State Highway System, that segment of the roadway at issue in the instant case has not yet been given an access classification by the Department. The roadway segment has a posted speed limit of 40 miles per hour. Northwest 27th Avenue is a north-south roadway that is also part of the State Highway System, having been designated State Road 9. Northwest 79th Street and Northwest 27th Avenue form a "four legged" intersection. Northwest 27th Avenue is the major approach to the intersection. It has three through lanes (including a combined through/right turn lane), as well as an exclusive left turn lane, in each direction. Northwest 79th Street is the minor approach to the intersection. It also has three lanes (including a combined through/right turn lane) in each direction. Left turns from Northwest 79th Street onto Northwest 27th Avenue, however, are not presently permitted. Both Northwest 79th Street and Northwest 27th Avenue have restrictive medians at the intersection approaches. The Department conducted a traffic study and analysis of the intersection of Northwest 79th Street and Northwest 27th Avenue in 1993, which revealed, among other things, the following: the average speeds of eastbound and westbound traffic in the intersection were 35 and 38 miles per hour, respectively; the intersection's morning and afternoon peak hour volumes were 4,588 and 5,250 vehicles, respectively; the levels of service (LOS) for the intersection's morning and afternoon peak hours were D (with a 39.3 second delay) and F (with an undetermined amount of delay), respectively; and the intersection had been the site of a significant number of accidents.1 Following the completion of the study and analysis of the intersection, the Department reasonably determined that, in the interest of operational efficiency and safety, exclusive left turn lanes should be added to Northwest 79th Street at the intersection. There is presently an opening in the restrictive median that separates the eastbound and westbound lanes of Northwest 79th Street to the west of the intersection. The distance from the centerline of the median opening to the centerline of the intersection is 260 feet. The median opening is near, but not directly across from, the driveway that connects Respondent's property with the eastbound lanes of Northwest 79th Street. Westbound motorists on Northwest 79th Street use the median opening to access Respondent's property and other nearby driveways, even though such a maneuver is dangerous inasmuch as it involves the motorist travelling westbound for a short distance in the eastbound lanes of the roadway. The planned addition of an exclusive left turn lane on eastbound Northwest 79th Street will result in the closure of the median opening and the elimination of this safety hazard. Notwithstanding that it will be more inconvenient for westbound motorists on Northwest 79th Street to get to and from Respondent's business, it is prudent, from a traffic engineering and safety perspective, to close the median opening. Although Respondent's and his customers' direct access to and from Northwest 79th Street will be restricted if the median opening is closed, such access will not be eliminated entirely as a result of the closure. They will still have direct access to and from the eastbound lanes of the roadway.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order rejecting Respondent's challenge to the Department's proposed closure of the median opening on Northwest 79th Street, immediately west of Northwest 27th Avenue, near Respondent s business. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of September, 1994. STUART M. LERNER 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 19th day of September, 1994.
Findings Of Fact On July 31, 1987, a sign owned by Hodessa Corporation for whom Gia Associates is the agent was located on the right-of-way of U.S. 19 in Pasco County, .3 mile north of Floramar. When erected by the sign company some months earlier the sign was located in a legal location and not on the right-of-way of U.S. 19. Considerable construction work was being done on the property owned by Hodessa. Upon completion of the parking lot the sign was moved by the construction workers onto the right-of-way of U.S. 19. As soon as this error was discovered by Respondent the sign was relocated to its proper position.
The Issue Whether Respondent, Department of Transportation ("Respondent"), has demonstrated that Petitioner, Frank C. Kunnen, Jr., d/b/a U.S. 19 Commerce Center's ("Petitioner"), right-out driveway to U.S. Highway 19 will present a safety and operational problem following Respondent's reconstruction of Highway 19. Whether Petitioner's access to the state highway system will be reasonable if Petitioner's existing right-out driveway is closed. Whether Respondent is legally entitled to administratively close Petitioner's driveway, pursuant to Rule 14-96.011, Florida Administrative Code, and applicable Florida Statutes.
Findings Of Fact Petitioner is the owner of real property located within the city limits of Clearwater, in Pinellas County, Florida, which property abuts U.S. Highway 19 (State Road 55). It has a right-in and right-out driveway connection to U.S. Highway 19. Petitioner's current right-in, right-out driveway does not create a safety or operational problem with the existing configuration of U.S. Highway 19. Respondent is an agency of the State of Florida created pursuant to Chapter 20, Florida Statutes. Respondent regulates access to the state highway system. Respondent initially cited Rule 14-96.011, Florida Administrative Code, in the Notice as authority for the intended agency action. This Rule pertains to closure or modification of permitted driveways. At hearing on March 20, it was discovered that Respondent had intended to cite Rule 14-96.012, Florida Administrative Code, which pertains to closure or modification of unpermitted driveways that had been in existence since before July 1, 1988, the effective date of the State Highway System Access Management Act. The Rule refers to these driveways as "grandfathered." As of March 20, Respondent was not aware that Petitioner's driveway might have been permitted. In order to provide Petitioner all due process to which he was entitled, Respondent requested that the hearing be continued. After reviewing its files, Respondent indicated to Petitioner on June 28, 2001, that Respondent would be requesting an additional continuance to conduct an engineering study pursuant to Rule 14- 96.011, Florida Administrative Code.¹ Petitioner agreed to both continuances. The study was dated August 20, 2001, and was delivered to Petitioner's counsel just after that date. This study was presented as Respondent's Exhibit 5 at the resumption of the hearing on September 20, 2001. The Study sets out the essential safety and operational bases for Respondent's agency action in this case and was signed and sealed by a professional engineer registered in the State of Florida. Prior to the reconvened hearing, Petitioner did not seek to depose the author of the engineering study nor did he request documents utilized in creating the study. Petitioner decided to wait until the hearing and make a series of objections to the study's admissibility. Prior to and after the study was admitted into evidence, Petitioner's counsel conducted extensive cross-examination of the engineer who signed and sealed the study, Vibert Griffith, P.E., and his assistant in the creation of the study, Julian Parsons. Petitioner did not present any evidence of prejudice resulting from the timing of the creation of the study. Any prejudice which may be presumed was cured by Respondent's requesting a continuance specifically to search its records for evidence of a permit; Respondent's requesting another continuance to create that study; Petitioner's agreeing to both continuances; and Respondent's producing the study approximately one month prior to hearing. This gave Petitioner time to conduct discovery regarding the study, not to mention sufficient time to prepare for the hearing itself. The Notice did not state whether mediation was available in this case. However, the lack of mention of mediation in the Notice was of no prejudice to Petitioner in light of the fact that that Petitioner proposed several alternative driveway designs to Respondent, and that these alternatives had been closely studied and considered. Petitioner did not present any evidence that he had asked whether mediation was available or was denied an opportunity to mediate this case. Accordingly, any error in the lack of information regarding mediation in the Notice was harmless, and any prejudice was cured. Petitioner elicited testimony with respect to a third procedural point in this case. Rule 14-96.011(1)(e), Florida Administrative Code, states that if Respondent seeks to close a driveway, Respondent will offer to meet with the property owner or his representative on-site. As Petitioner's counsel stated during his opening remarks, however, there is a long history of litigation between Petitioner and Respondent, including two pervious mediations. Again, the unrebutted testimony at hearing was that over the last several years Respondent evaluated three alternative designs submitted by Petitioner for access to U.S. Highway 19. Petitioner did not present any evidence of prejudice in not being able to meet on-site with Respondent in this case. Any error in relation to this issue was harmless. U.S. Highway 19 runs north-south through Pinellas County, Florida and is a part of the Florida Intrastate Highway System. In the vicinity of Petitioner's property, U.S. Highway 19 has three lanes of traffic each for northbound and southbound traffic (total of six lanes). As part of the reconstruction of U.S. Highway 19, Respondent has plans to create "grade separated intersections" or "urban interchanges" at the cross street to the south and north of Petitioner's property. The cross street to the south is Drew Street, and the cross street to the north is Coachman Road. Also, just to the north of Petitioner's property, U.S. Highway 19 is elevated over railroad tracks, and will continue to be so elevated after reconstruction. In its reconstructed state, vehicles will reach mainline U.S. Highway 19 by a series of frontage roads and on and off ramps. Vehicles that stay on mainline U.S. Highway 19 will not have to stop for signals at intersections with cross streets because the mainline will travel over the cross streets. The effect of U.S. Highway reconstruction will be to create a more efficient transportation facility by improving safety and capacity. The overall improvements to U.S. Highway 19 are necessary. Although Respondent is closing Petitioner's right-out driveway to mainline U.S. Highway 19, Respondent is not acquiring any property from Petitioner. Accordingly, Respondent provided Petitioner with notice of the intended agency action and right to an administrative hearing (the "Notice"). Respondent's Proposal Respondent proposes, as part of its planned improvements to U.S. Highway 19, to provide Petitioner a right- in only entrance from a frontage road running adjacent to and parallel to U.S. Highway 19. Respondent also proposes to build a new two-way road, referred to as Access Road A, which runs north-south, parallel to U.S. Highway 19, intersects Drew Street, and from that point provides vehicles the option of traveling either north or south on mainline U.S. Highway 19, or east or west on Drew Street. Petitioner's northerly neighbor, a maintenance yard owned by Pinellas County, would also send all of its traffic, including large trucks and emergency vehicles, out Access Road A to Drew Street. Other properties, including several car dealerships, to the south of Petitioner's property would also have access to Access Road A. No other property owner, including Pinellas County, objected to Respondent's proposed access system. It is undisputed that Respondent has all of the right-of-way necessary to construct Access Road A to Petitioner's property line. During construction, the City of Clearwater will install a temporary traffic signal at the intersection of Access Road A and Drew Street. Based on a traffic study conducted by the Pinellas County MPO and endorsed by the City of Clearwater and Pinellas County, the traffic light will become permanent when construction is completed. Even if the temporary light is removed after construction, Access Road A will function properly for right turns onto Drew Street which will provide access to the northbound and southbound mainline lanes of U.S. Highway 19. This is true, even assuming that all of Petitioner's neighbors send all of their traffic out Access Road A. In addition, Petitioner's neighbors to the south have several alternate means of access to travel west on Drew Street and either north or south on U.S. Highway 19. Respondent is closing Petitioner's right-out driveway to U.S. Highway 19 because, post-construction, the driveway would be located on an on-ramp. The frontage road and on-ramp, as currently designed by Respondent, would prevent placement of a right-out driveway in such a location. It is Petitioner's position that Respondent could have designed the frontage road and on-ramp in front of Petitioner's property in such a way as to allow the safe operation of a right-out driveway in the approximate location of Petitioner's current right-out driveway. Petitioner's Proposal In support of his contention that Respondent could have designed a right-out driveway, Petitioner offered an aerial map and overlay (Petitioner's Exhibit 3), which purported to show that Respondent could have designed an on-ramp from Drew Street and an off-ramp to Coachman Road to the north in such a way as to allow Petitioner a right-out driveway. Petitioner's Exhibit 3 was a concept based upon what was referred to as the "Lochner Study" at hearing. The "Lochner Study" was a study performed by the engineering firm H. W. Lochner, and showed a right-in, right-out driveway from Petitioner's property onto a frontage road/on-ramp in approximately the same location as Petitioner's current driveway. In the past Petitioner had proposed other alternatives for access to U.S. Highway 19. Petitioner withdrew from consideration at this hearing all other alternative designs for a right-out driveway for Petitioner. The Lochner Study was undertaken with the specific purpose of determining whether needed improvements to U.S. Highway 19 could be safely constructed within right-of-way already owned by Respondent. The Lochner Study concluded that placing a driveway for Petitioner in the location shown in the study would provide "substandard operation and is very undesirable from a safety stand point." The primary reason for this conclusion was that the physical separation of northbound mainline U.S. Highway 19 and the frontage road ended south of the driveway's location. This lack of physical separation would allow vehicles on northbound mainline U.S. Highway 19 to cross over the frontage road and enter Petitioner's property, creating unsafe traffic movements. Petitioner's witnesses agreed that this lack of separation would be a safety problem. Petitioner's Exhibit 3, prepared and testified about by Reginald Mesimer, attempted to alleviate this admittedly unsafe aspect of the Lochner plan by extending the physical separator between northbound mainline U.S. Highway 19 and the frontage road/on-ramp to a point just beyond the location of where Petitioner's driveway would be. The area of physical separation is the "gore" area. In effect, this extension also would shift the beginning of the on-ramp to the point of Petitioner's driveway. Thus, the issue raised was whether the location of the on-ramp could be safely designed to co-exist with the location of the off-ramp for the next interchange at Coachman Road. The standards for determining whether this design is safe are set by the American Association for State Highway and Transportation Officials ("AASHTO"), who publish these standards in the "Green Book," known as the "Bible" of transportation engineers. In examining Petitioner's Exhibit 3, as well as the requirements of AASHTO submitted in this case, it is clear that the requirements for an on-ramp followed by an off-ramp are: (1) an acceleration area for the on-ramp; (2) a weaving area for vehicles going from the on-ramp to mainline, and for vehicles going from mainline to the off-ramp; (3) a deceleration area for the off-ramp, and (4) a queue area for vehicles at the terminus of the off-ramp. Petitioner's Exhibit 3 shows the start of the acceleration area for the on-ramp at the location of Petitioner's right-out driveway, which indicates that the on- ramp for vehicles leaving Petitioner's property would begin at his driveway. Petitioner's Exhibit 3 shows a 2,000-foot weave area, also beginning at the location of Petitioner's right-out driveway. Placing the start of the acceleration area and the weave area at the same point on an on-ramp is contrary to AASHTO design standards. The beginning of the weave area should be near the end of the acceleration area, which, on Petitioner's Exhibit 3, is supposed to be where vehicles on the on-ramp are traveling at the design speed of the highway they are attempting to enter. AASHTO places the beginning of the weaving area where the outside lane of the mainline and the inside lane of the on- ramp are separated by two feet. The weave area extends to a point where there is a twelve-foot separation of the mainline and off-ramp lanes at the next interchange. The design speed of U.S. Highway 19 is 55 miles per hour. It is uncontested that vehicles leaving Petitioner's property will be in a stopped condition prior to entering the on-ramp. Thus, looking at Petitioner's Exhibit 3, the beginning of the weave area should be placed approximately 965 feet to the north of the current location shown on Petitioner's Exhibit 3. In turn, this forces the deceleration area for the off-ramp to Coachman Road shown on Petitioner's Exhibit 3 to be shifted 965 feet to the north. Petitioner's expert testified that the off- ramp deceleration area at Coachman Road could be shifted between 300 and 400 feet to the north. Assuming this to be correct, this places the start of the off-ramp deceleration area approximately 965 feet to the north of its current location, which is 565 to 665 feet beyond the farthest point Petitioner's expert testified it could be moved. Respondent's experts also examined Petitioner's Exhibit 3 under the dictates of AASHTO. Unlike Petitioner, Respondent assumed a design speed of 50 miles per hour, and assumed that shorter distances for acceleration, weaving, and deceleration could be applied in this situation under AASHTO. Respondent's findings demonstrate that under the "Petitioner's best case scenario" the off-ramp at Coachman Road would still have to be moved approximately 600 feet to the north, which is at least 200 feet past the farthest possible shift testified to by Petitioner's expert. Moving the off-ramp would obviously require redesign and delay of the Coachman Road project to the north, already designed and funded for construction. Further, Petitioner's Exhibit 3 also did not take into account any need for increased acceleration distance on the on- ramp due to the grade of the road. For certain portions of the acceleration area of the on-ramp in Petitioner's Exhibit 3 the grade is steeper that 3 percent, and averages over 2 percent. AASHTO does not require an increase in acceleration distance where the grade is "less that two percent." AASHTO requires an increase when the grade is more than 3 percent. This is, according to Petitioner's witness, a "gray area" in AASHTO. In this situation, while AASHTO may not require a multiplier be applied to the entire acceleration distance, it would be safer for the traveling public to apply the multiplier at least to the portions above 3 percent and perhaps to the entire acceleration distance, and to acknowledge that the grade of the road militates against application of strict minimum AASHTO standard distances. Adjusting at all for grade would result in a longer on-ramp and require pushing the off-ramp at Coachman even further north, which makes Petitioner's Exhibit 3 alternative even less viable. Another factor that Petitioner's Exhibit 3 did not take into account was that a significant amount of traffic leaving the proposed right-out driveway would be fully-loaded heavy trucks both from Petitioner's property and the Pinellas County maintenance yard. The AASHTO acceleration distance of 965 feet shown in that Exhibit is for automobiles. Knowing that heavy, fully loaded trucks would be utilizing this driveway on a regular basis, the acceleration distance for such trucks reaching 55 or even 50 miles per hour would be longer than for a normal passenger vehicle. Petitioner's alternative proposal was fatally flawed in its misplacement of the weave area, and was defective in other respects such as not considering the slower heavy truck traffic or the grade of the road. Thus, it is apparent that under any interpretation of the AASHTO standards, Respondent could not safely design an on-ramp from the Drew Street area and an off-ramp to the Coachman Road interchange and provide Petitioner a right-out driveway in the approximate location of his existing right-out driveway. Based upon all the evidence presented at hearing, Respondent demonstrated that AASHTO standards preclude moving the on-ramp to the location proposed by Petitioner. Therefore, closing Petitioner's right-out driveway to reconstructed U.S. Highway 19 is mandated for safety and operational reasons. Access-Reasonableness Issues Following the reconstruction of U.S. Highway 19, the access proposed by Respondent for Petitioner's property is reasonable. An objective comparison of the alternative proposed by Petitioner and Respondent's proposal reveals that Respondent's design results in safer and more efficient access to the state highway system for Petitioner and direct access to east and west travel on Drew Street. One measurable point of comparison is the relative distance a vehicle would have to travel to reach the state highway system under Respondent's proposal versus Petitioner's. Prior to Petitioner's withdrawing from consideration all alternatives other than what was represented in Petitioner's Exhibit 3, Respondent presented testimony regarding two of Petitioner's earlier alternative concepts. These previous alternatives were referred to as Proposal One and Proposal Two. Proposal One was basically a right-out driveway in the form of an on-ramp that would have tied in to mainline U.S. Highway 19 prior to the railroad tracks. Proposal Two was a right-out driveway/on-ramp that tied into the off-ramp for Coachman Road. As far as comparing relative travel distances, both Proposals One and Two are similar to the alternative in Petitioner's Exhibit 3. For vehicles to travel north from Petitioner's property on U.S. Highway 19 in Respondent's design, vehicles travel south on Access Road A, west on Drew Street, and then south on the frontage road/on-ramp. This is a distance of .44 miles. To reach the same point using the access provided in Proposal One, Proposal Two, or Petitioner's Exhibit 3, a vehicle must travel north to the Coachman interchange, and double back south, a distance of approximately 1.45 miles. Thus, when added together, the distances for vehicles to travel north and south on U.S. Highway 19 in Respondent's design total 1.12 miles, or .33 miles less than the 1.45 miles to reach the same points using any of Petitioner's alternative driveway proposals. In addition, for vehicles that wish to travel east or west on Drew Street from Petitioner's property, Respondent's alternative is much shorter. It is .32 miles to reach Drew Street along Access Road A, and 1.6 miles to reach Drew Street from Proposal One, Proposal Two, or Petitioner's Exhibit 3. Another measurable point of comparison are conflict points, places such as intersections and merge areas where vehicles can be expected to change lanes. In Respondent's design, there are four or five conflict points to travel north on U.S. Highway 19, three or four to travel south on U.S. Highway 19, and one to travel east or west on Drew Street. Petitioner's Exhibit 3 shows two conflict points to travel north (right-out turn to on-ramp and merge to mainline), six or seven to travel south on U.S. Highway 19, and seven or eight to travel east or west on Drew Street (same as south on U.S. Highway 19 plus turn from off-ramp). For vehicles traveling north and south on U.S. Highway 19 from Petitioner's property, the number of conflict points in either Respondent's design or Petitioner's alternative are essentially even, but when travel on Drew Street is included in the comparison Respondent's design is clearly safer. A third point of comparison is that Petitioner's alternative provides one way in and one way out. Respondent's design provides two ways in and one way out. Respondent's design provides reasonable access to Petitioner's property. In comparison to Petitioner's alternative, Respondent's design provides for shorter combined travel distances. In regard to conflict points, Respondent's design is as safe as Petitioner's alternative, and safer if travel on Drew Street is included in the comparison. Finally, Respondent's design provides an additional point of ingress. Both witnesses called by Petitioner opined that the access proposed by Respondent was not reasonable, primarily because the access is not "direct." The basis of that opinion was limited to their belief that a "better" access plan, the alternative shown in Petitioner's Exhibit 3, was viable. Neither of Petitioner's witnesses knew the relative travel distances, nor did either witness testify about actual conflict points or any other possible objective points of comparison. Petitioner's witnesses' view are flawed because the alternative shown in Petitioner's Exhibit 3 is not viable. Assuming, arguendo, that Petitioner's Exhibit 3 reflected a safe design, and assuming that this access is reasonable, it would be contrary to logic to conclude that Respondent's design results in unreasonable access. The only "advantage" in Petitioner's Exhibit 3 versus Respondent's proposal is a right-out "direct" connection to U.S. Highway 19 via the on-ramp. However, comparing travel distances, conflict points, and points of ingress, Respondent's design is comparable if not superior, and thus, reasonable. Petitioner stressed that all other property owners along the U.S. Highway 19 corridor have right-in and right-out driveways on frontage roads, and that Petitioner is the only property owner required to use a facility like Access Road A for egress. Even if true, this circumstance does not in and of itself change Respondent's designed access for Petitioner's property into unreasonable access. Based upon objective criteria, Respondent's design is comparable or superior to Petitioner's alternative, and Respondent's design is comparable or superior to the access enjoyed by all other property owners in this vicinity. Engineering Study Pursuant to Rule 14-96.011, Florida Administrative Code, Respondent conducted an engineering study to examine the closure of Petitioner's right-out driveway. Normally, an engineering study is prepared prior to Respondent serving its Notice of Intent to close or alter a permitted driveway connection. The engineering study documents that there is a safety or operational problem with a particular driveway connection, and ensures that Respondent has an engineering basis to seek closure or alteration of the driveway. However, at the time this case came to hearing on March 20, 2001, Respondent was not aware that Petitioner's driveway may have been permitted. That is the reason the study was conducted during a continuance of this case and delivered to Petitioner on or around August 17, 2001. Petitioner agreed to the continuance for Respondent to conduct the study, and Petitioner had adequate time to conduct any further discovery in this case after receipt of the study. Thus, any procedural error in the timing of the study was waived by Petitioner and/or cured by Respondent. The Study does provide safety and operational bases for Respondent's agency action in this case. The study summarizes the history of the U.S. Highway 19 improvement project, discusses the current conditions, explains the proposed improvements, and reviews the safety and operational issues specific to Petitioner's right-out driveway in the post construction condition. The study also explains why two alternative right-out driveway configurations were not acceptable to Respondent. The study contains exhibits showing traffic patterns in the existing and possible future post construction conditions. The study was signed and sealed by a professional engineer registered in the State of Florida. The study did not discuss the Petitioner's alternative advocated at hearing. The reason the study did not address this concept was that at the time of its creation, Respondent did not have Petitioner's Exhibit 3. One other item not addressed was traffic accident data. Since the improvements of U.S. Highway 19 have not been constructed, there is no accident data for the right-out driveway in the post construction condition. Respondent stipulated that Petitioner's existing right-out driveway is safe, so any accident data relating to current conditions is not relevant.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Transportation enter a final order approving the closure of Petitioner's right- out driveway as part of the future constructed improvements to Highway 19 and the construction of Access Road A. DONE AND ENTERED this 14th day of December, 2001, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 December, 2001.
