Findings Of Fact The attorney for the Respondent thereafter filed a statement in part as follows: "It is my understanding that the issues to be presented for decision are whether the sign in question violates the set- back and permit requirements under state and federal law. After a thorough review of the factual background, it appears that the respondent has no alternative but to, and does hereby admit the allegations, end consent that the sign was erected in vio- lation of the setback and permit require- ments It is therefore obvious that: the sign should be removed and I would request that he be allowed a period of thirty days from the date of this letter to remove the sign so as to avoid the necessity of further action on the part of the Florida Depart- ment of Transportation." The above statement was contained in a letter from Richard Wayne Grant, attorney for Sefton Miller, Respondent, and is considered dispositive of the issue.
Recommendation Remove subject sign after November 20, 1977, unless said sign has previously been removed by the Respondent. DONE and ORDERED this 31st day of October, 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: Philip S. Bennett, Esquire Department of Transportation Hayden Burns Building Tallahassee, Florida 32304 Mr. O. E. Black, Administrator Outdoor Advertising Section Department of Transportation Hayden Burns Building Tallahassee, Florida 32304 Richard Wayne Grant, Esquire Post Office Box 209 Marianna, Florida 32446
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that: Respondent Department of Transportation enter a final order denying the application of petitioner V. J. Allen, d/b/a The Seafood Shack, for a sign permit. RECOMMENDED this 25th day of January, 1985 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 25th day of January, 1985.
The Issue The issues in this case are whether a sign owned by the Respondent is in violation of Section 479.07(1) and 479.11(1), Florida Statutes, and, if so, what remedial action should be taken by the Department of Transportation.
Findings Of Fact Heinl's Nursery, a division of American Nursery Products, Inc., is the owner of a sign located in Dade County, Florida, on the west side of Krome Avenue (State Road 997) about 36 feet north of its intersection with S.W. 126th Street. The subject sign is located approximately 23 feet from the right-of- way of Krome Avenue. The subject sign has been at that location for a number of years. The face of the sign is made of wood and measures approximately 4 feet by 8 feet. The sign is mounted on metal poles. The message on the sign consists of the owner's name, a logo or graphic decoration, and an arrow pointing towards the right. The Department of Transportation has not issued a permit for the sign. The area in which the sign is located is not zoned commercial or industrial and is not an unzoned commercial or industrial area. The sign is not located on the business premises of the sign owner. Krome Avenue (State Road 997) is part of the federal-aid primary highway system. By notice dated March 21, 1989, the owner of the sign was advised that the sign was in violation of the applicable statutes and must be removed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a Final Order providing for the immediate removal of the subject sign. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of July 1989. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July 1989. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Mr. Mike S. Waters 15000 S.W. 192nd Avenue Miami, Florida 33187 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas H. Bateman, III, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact On or about October 28, 1987, a DOT sign inspector observed a portable sign owned by and advertising Furniture World apparently on the right-of-way of U. S. 19 in front of the Furniture World business in Pinellas County. At this location, the right-of-way of U. S. 19 extends 100 feet from the centerline and 50 feet from the edge of the pavement of U. S. 19. Measurements taken from the edge of the pavement of U. S. 19 to the sign showed the sign to be 42 feet from the edge of the pavement. Prior to October 28, 1987, the owners of Furniture World removed the sign from its normal location in front of the business to a location where it was not visible from U. S. 19. Furniture World had stopped its nightly openings, and the face of the sign advertised the store as "open tonight." Sometime during the evening hours of October 27, 1987, the sign had been placed on the U. S. 19 right-of-way by a person or persons unknown to the owners of Furniture World. The sign was observed by the owners when the store opened on October 28, and they were awaiting the arrival of the son of one of the owners to remove the sign when the sign was cited by Petitioner.
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
Findings Of Fact On June 18, 1986, Department of Transportation sign inspector observed a sign advertising Michael's Foods along U.S. 19 35 feet east of the edge of the pavement of U.S. 19. The easterly boundary of the right-of-way of U.S. 19 at this location is 57 feet east of the edge of the pavement. U.S. 19 is a federal-aid primary highway.
Findings Of Fact By notice of alleged violation dated January 19, 1979, the Department charged that the Respondent, Chevron, U.S.A., installed a sign on 1-4, 23.86 miles east of U.S. 301, without a permit in violation of Rule 14-10.04, Florida Administrative Code. The notice also alleged that the sign was too close to an off ramp of 1-4, in violation of Title 23, Section 13, U.S. Code Para. 2(B). The parties stipulated that the sign is located along 1-4, a part of the Federal Interstate Highway Systems which was open to vehicular traffic in 1959-1960 and that the sign is located in the unincorporated area of Polk County. On or about October 22, 1969, the Respondent contracted with Pickett and Associates, of Tampa1 Florida, a general contractor, to construct a complete operating service station at 1-4 and SR 35-A. Included in the contract price was the cost of constructing the sign in question. An engineer for Chevron, J. L. Edgar, requested on June 4, 1969, that Pickett and Associates proceed to obtain all permits prior to construction. Due to no direct fault of the Respondent, the necessary permits to install the sign were never obtained from the Department. This fact was discovered when a sign inspector noticed the sign to be in poor condition and in need of repair. The contractor who erected the sign was contacted regarding the permits but all records relating to this particular job have been discarded. Chevron was unaware that the sign was never permitted until the notice was issued by the Department. The sign is located within five hundred (500) feet of the exit ramp off 1-4 to Kathleen Road (SR 35-A) , as measured from the spot where the road widens to the exit. No evidence was submitted to show that the sign was on the same property of the station or within one hundred (100) feet thereof.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED: That the Respondent's sign be found in violation of Rule 14- 10.06(1)(b)(2)(b) , Florida Administrative Code and Section 479.07, Florida Statutes. DONE and ORDERED this 18th day of August, 1980. in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. A. Scott Chevron, U.S.A., Inc. 3908 10th Avenue Tampa, Florida 33605 Charles Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
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.
Findings Of Fact On February 29, 1984, DOT received bids on a highway construction project designated as follows: Federal Aid Project No. F-300-2(3)(JOB No. 11070-3504), Lake County, Florida ("the project"). Six bids were submitted. Intervenor was the apparent low bidder, having submitted a bid in the amount of $5,479,403.76. Petitioner was the apparent second low bidder at $5,491,602.16. Following a review of the bid submitted by Intervenor, DOT determined Intervenor to be the lowest responsible bidder and announced its intention to award the project to Intervenor by posting the bid tabulations on April 9, 1984. Thereafter, Petitioner filed its notice of protest with DOT within the time provided in Section 120.53, Florida Statutes. The project at issue in this proceeding is a federal aid project. In order for DOT to receive federal aid funding from the United States Department of Transportation for the project, the Federal Highway Administration must concur in DOT's decision to award the contract to a particular contractor. At the time of the bid letting, Petitioner held a Certificate of Qualification with DOT. Thereafter, however, on April 20, 1984, Petitioner was convicted by the United States District Court for the Northern District of Florida, Tallahassee Division, of conspiring to submit collusive, non- competitive and rigged bids in violation of Title 15, United States Code, Section 1. Thereafter, on June 1, 1984, DOT sent Petitioner a notice by certified mail that it intended to revoke Petitioner's Certificate of Qualification pursuant to Section 337.165, Florida Statutes. The notice advised Petitioner that it could request a hearing within ten days of receipt of notification, but Petitioner chose not to request such a hearing. Thereafter, by final agency action of June 18, 1984, DOT revoked Petitioner's Certificate of Qualification to participate as a contractor on DOT projects for a period of 36 months commencing June 18, 1984. On June 18, 1984, the Federal Highway Administration declared Petitioner unacceptable for employment on any future highway projects requiring Federal Highway Administration approval or concurrence for a period of six months commencing June 1, 1984, and ending December 17, 1984. This action was based upon Petitioner's aforementioned conviction.
