Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Dismissing Case and Relinquishing Jurisdiction and Petitioner’s Notice of Voluntary Dismissal, a copy of which is attached and incorporated by reference in this order. Accordingly, it is hereby ORDERED that this case is CLOSED. DONE AND ORDERED this ay day of August, 2013, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Motorist Services Filed August 29, 2013 2:07 PM Division of Administrative Hearings this “ve of —_ 2013 Yea _ f fekses- ee ‘ficens NOTICE OF APPEAL RIGHTS 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. Copies furnished: Jimmie Murphy, Manager Jimmie Shane Murphy, LLC 4601 Saufley Field Road Pensacola, Florida 32523 Damaris E. Reynolds Assistant General Counsel Department of Highway Safety And Motor Vehicles 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 Diane Cleavinger Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 i)
Findings Of Fact Respondent is a company owned by Jack Williams that leases portable signs to businesses desiring to advertise. These signs are constructed to attach letters to spell out the advertised message on the sign and illuminate the sign at night if desired. The signs are sufficiently small and light that they can be readily moved as the lessee desires. On June 18, 1986, one of Respondent's signs leased to a car dealer was found to be in the DOT right-of-way along U.S. 19, 0.28 miles of Candlewood Drive and in front of the business advertised. The nearest edge of the sign to the highway was 46 feet from the easterly edge of the pavement. The eastern edge of the DOT right of way at this point is 50 feet from the edge of the paved surface of U.S. 19. U.S. 19 is a federal-aid primary highway. Respondent's lease agreement (Exhibit 8) is in the form of a statement billing the lessee of the sign for one month use of the sign. That statement provides it shall be the customer's responsibility to comply with state and local laws and regulations.
The Issue The issues to be decided in this case are those associated with the question of whether the Respondent is required to have a permit for the connection of his business property to State Road 206 or is exempt from that requirement. See Section 335.187, Florida Statutes. If he is required to have a permit the issue becomes the acceptability of his current drive, i.e., does it comply with the commercial use design criteria contemplated by Chapter 335, Florida Statutes, and further described in the Florida Department of Transportation "Policy and Guidelines for Vehicular Connections to Roads on the State Highway System," February, 1985, which was recognized and incorporated by reference through Rule 14- 15.013, Florida Administrative Code. These issues are raised through an alleged violation of the Florida Statutes and Florida Administrative Code set out in the Notice to Show Cause which was forwarded to Respondent from Petitioner leading to the formal hearing. The date of that Notice to Show Cause was July 18, 1989. Within the statement of violations there were also allegations concerning irregular signs as alleged under Section 479.11(8), Florida Statutes, associated with the commercial activities by Respondent and the unauthorized parking on the right-of-way at State Road 206 in violation of Section 337.406, Florida Statutes. These latter allegations were conceded by the Respondent at hearing and are resolved through those concessions.
Findings Of Fact At the time of the hearing Respondent operated a roadside fruit and vegetable stand at property adjacent to State Road 206 in St. Johns County, Florida. In addition to fruits and vegetables, by local ordinance of St. Johns County, Florida, he is allowed to sell poultry and fish. There is no indication that he has taken advantage of that opportunity other than to sell fresh shrimp from a cooler during 1989. In addition to these products he sells honeys, jellies, and jams. He also sells soft drinks from a dispensing machine. A mainstay in his business is peanuts which he sells fresh. Another product sold is pork skins. The drink machine that is described was added in March, 1989. Before that time he sold fountain drinks and cold drinks that were dispensed from a cooler. He has always had soft drinks available from the inception of his operation of the roadside stand. That began in March, 1985. At the time the Respondent purchased the property there was an operation ongoing whereby fruit was being sold on two tables. Respondent replaced those structures with a portable trailer which was anchored to the lot, and display and sell of fruit on a 16-foot table and use of an 8-foot table upon which tomatoes were displayed and sold. The trailer was used to store his products over night. The trailer described was a pop-up camper trailer. The principal products being dispensed at that time were peanuts, vegetables, and tomatoes. Through Ordinance No. 86-68, passed by St. Johns County, a copy of which may be seen as Respondent's exhibit No. 1, the property was recognized as C1, commercial intensive, with the conditions that the property would be limited to outdoor sale of produce, vegetables, fruit, poultry, and fish. It was also stated that there would be no access/egress to United States Highway 1, which is also known as State Road 5. This property is located at the intersection of State Road 5 and State Road 206. Present access/egress to the property is from State Road 206 and that has been the situation since Respondent purchased the property. The ordinance described dates from August 12, 1986. Over time Respondent has taken a number of steps to improve his business. In March, 1988, Respondent obtained permission from St. Johns County to place a storage shed on his property. In August of that year he obtained permission to install a metal awning or carport of dimension 18 feet by 45 feet which is anchored to the ground. At that same time he placed the body from an old milk truck on the property for purposes of cold storage. In March, 1988, he had received an electrical permit from St. Johns County. Prior to that time he did not have electricity. In the spring of 1989, a well was drilled to provide running water. Prior to that time Respondent used bottled water. Respondent's composite exhibit No. 2 admitted into evidence describes various permits obtained from St. Johns County. If Respondent was required to remove the structures on his property it could be done in three days. This goes to identify the nature of the structures and to demonstrate that they are not permanent fixtures to the realty. According to Respondent, whose testimony is accepted, the business that he is experiencing at present has remained fairly constant in dollar amounts. He does not sell as many peanuts as he did before. Concerning traffic, Respondent indicates, and his testimony is accepted, that the number of cars that are located at his business would be a maximum of 12 on a busy Sunday afternoon and that at most times there are one or two cars. The hours of the business are from 8:00 a.m. until 6:00 p.m. in the winter time and somewhat longer in the summer time. The business is open seven days a week. A rough description of the nature of the property by design may be found in the documents contained in Respondent's exhibit No. 2 admitted into evidence. The property is approximately 280 front feet and 280 feet at the rear with 41 feet on each side. The frontage runs approximately east-west on State Road 206 and one of the sides abuts State Road 5. The basic design of the driveway entrance from State Road 206 is also set out in those drawings. As Marshall W. Sander, engineer in the permit department for Petitioner in its St. Augustine, Florida, maintenance office, explains the driveway is an unimproved dirt shell connection. This is the same driveway that was there at the time that Respondent purchased the property and has remained in that state since that time. Notwithstanding Mr. Sanders' concern that the driveway is not up to current commercial business criteria for access/egress, there have been no accidents as a result of access/egress from the business. There are two turnouts or turn- ins into the property. Mr. Sander believes that at least one paved driveway is needed leading into the property. The dimensions of that drive would be 24-foot wide which allows a 12-foot wide lane in and a 12-foot wide lane out. This impression of Mr. Sander is drawn in the face of the Respondent's presenting himself at the office of Petitioner in St. Augustine, Florida, with an application and plan showing the intention to improve the property to include restrooms, a beer and wine cooler with parking on site. Under those circumstances Mr. Sander felt it necessary to improve the drive connection. At hearing there was no suggestion that restrooms are available on the premises or will be in the near future, nor was there any indication that a beer and wine cooler would be installed. Therefore it cannot be said that the basic nature of the business has changed from its inception to the present. Mr. Sander concedes that within the records of the Petitioner there are no indications that the business has increased by way of records concerning traffic flow or otherwise. His remarks about increased traffic at Dupont Center is not specific enough to gain a useful impression of that circumstance. Mr. Sander relies upon the observations of the State of Florida, Department of Health and Rehabilitative Services and the St. Johns County Public Health Unit as were testified to by George L. Sigman, Environmental Health Director II for that organization. He also spoke to certain records of the health unit which may be found as Petitioner's composite exhibit 1 admitted into evidence. Nothing about his testimony or that exhibit identifies a noteworthy change in the basic nature of the business from Respondent's establishment of the roadside stand in March, 1985 until the present. Throughout the existence of his business Respondent has operated without the benefit of a driveway permit issued by Petitioner.
Recommendation Based upon the consideration of the facts found and in view of the conclusions of law reached, it is, RECOMMENDED: By way of disposition of the Notice to Show Cause, that a Final Order be entered which recognizes the concessions made by the Respondent concerning the sign in question, calling for its removal if still in existence and his acknowledgment of the problem of parking on the right-of-way and which absolves the Respondent of any necessity to obtain a driveway permit. DONE and ENTERED this 9th day of March, 1990, in Tallahassee, Florida. CHARLES C. ADAMS 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 9th day of March, 1990. APPENDIX The following discussion is given concerning proposed facts. Petitioner' s Facts Paragraphs 1 and 2 are subordinate to facts found. The first sentence in Paragraph 3 is subordinate to facts found. The second sentence is contrary to facts found. The third sentence is subordinate to facts found. Sentences 4 and 5 depict testimony as opposed to suggesting fact finding. However, the last sentence in that paragraph is one upon which facts were found in the Recommended Order. Respondent' s Facts Paragraphs one and two pertain to withdrawal of the request for hearing concerning signs and parking and are not part of fact finding. The first sentence in paragraph 3 is subordinate to facts found. The remaining sentence is legal argument, as are paragraphs 4 and 5. Paragraphs 6-11 are subordinate to facts found. Paragraph 12 is not relevant. Paragraphs 13 and 14 are subordinate to facts found. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, FL 32399-0458 Leo O. Myers, Esquire Post Office Box 1621 Jacksonville, FL 32201 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, FL 32399-0458
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
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).
Findings Of Fact Respondent, Arrowhead Campsites, owns a sign located one mile east of State Road 71 on Interstate Highway 10 in Jackson County, Florida. The sign is located 139 feet from the edge of the highway, and is clearly visible from the main traveled portion of that highway. At the time of the petition in this case, no permit tag was located on the sign, and, additionally, no permit tag was on the sign when last inspected on October 2, 1978, four days prior to hearing in this cause. Respondent, Arrowhead Campsites, owns a sign located .6 miles west of State Road 69 on Interstate Highway 10 in Jackson County, Florida. This sign is clearly visible from the main traveled portion of the roadway, and is located 188 feet from the edge of the roadway. In addition, the sign is located 240 feet from an interchange on Interstate Highway 10. At the time the petition in this cause was filed on March 28, 1978, no permit tag was located on the sign, and, further, no permit tag was located on the sign on October 2, 1978, four days prior to the hearing in this cause. Both the sign located one mile east of State Road 71 on Interstate Highway 10 and the sign located .6 miles west of State Road 69 on Interstate Highway 10 bear copy advertising Arrowhead Campsites. Both of the signs in question are located outside any incorporated city or town. Any proposed findings of fact submitted by Respondent and not incorporated in this recommended order are specifically rejected.
The Issue The issues in this case are: (1) whether Petitioner has standing to bring this action; and if so, (2) whether Respondent properly denied his application for a driveway/connection permit.
Findings Of Fact On February 24, 1998, Petitioner submitted a Driveway/Connection Application, Number 98A3940018 to Respondent. Petitioner's application sought a permit to construct a driveway/connection to a proposed retail sales office project for Lot 13, Block 396, Avolon Beach Subdivision, in Santa Rosa County, Florida. The site of the proposed project is located at 2996 Avolon Boulevard (State Road 281), between the I-10 exit ramp and San Pablo Street. STANDING Petitioner entered his name on the application as owner of the subject property. Petitioner signed the application as owner with title to the property. He signed the application certifying that he was familiar with the information contained in the application and that to the best of the applicant's knowledge and belief, the information contained therein was true and correct. Petitioner did not fill out a section of the application entitled, "Are You An Authorized Representative?" Respondent relied on Petitioner's certification that he was the owner of the property and processed his application. During the hearing, Petitioner initially testified that he bought the subject property in February of 1998. There was no driveway connection from Lot 13 to Avolon Boulevard in February of 1998. Petitioner did not have a copy of the deed to the subject property with him at the hearing. He admitted on the record that a deed indicating his ownership interest was not filed with the public records in Santa Rosa County. He also admitted that no such deed existed. Petitioner claims that the land was under contract but "had not gone to closing yet." Petitioner did not have a copy of the contract to offer as an exhibit at the hearing. Respondent produced copies of two deeds for the subject property at the hearing. The most recent of these deeds was recorded on July 14, 1997. It indicates that the property is owned by the George H. Moss Trust, George H. Moss, Trustee. Petitioner's post-hearing exhibit consisted of two documents. The first is a Memorandum Agreement dated February 2, 1998. The memorandum indicates that Tim Oden, Agent for 3/0 Partners, LLC, paid $500 in earnest money as a deposit for the purchase of the subject property belonging to George Moss, with the closing to take place on or before April 15, 1998, contingent on specified terms of purchase. One of the terms of purchase requires proof of legal access to San Mateo Avenue which is the subject of this proceeding and has not been fulfilled. Additionally, Petitioner did not present evidence that any of the other conditions of the contract have been fulfilled. The Memorandum Agreement is signed by Tim Oden, Agent for 3/0 Partners, LLC, as buyer and George H. Moss as seller. The second document included in Petitioner's post- hearing exhibit is a copy of a cancelled check in the amount of $500 payable to George Moss for the subject property and signed by Tim Oden. Mr. Moss endorsed the check for deposit. Petitioner's name does not appear anywhere on the Memorandum Agreement. There is no direct evidence showing Petitioner's relationship to Tim Oden or 3/0 Partners, LLC. He has not demonstrated that he has an ownership interest in the property. PERMIT APPLICATION In a Notice to Deny Permit dated March 23, 1998, Respondent advised Petitioner that his application was denied. Respondent's notice gave the following reasons for denying the application: The Limited Access Right of Way and fence were not shown on the plans. A field review found this proposed connection within the Limited Access Right of Way. This section of State Road 281 is a Limited Access Facility, in conjunction with I-10. Access to the property can not be permitted through the Limited Access Fence or across the Limited Access Right of Way. Access rights were acquired for the construction of I-10 and the interchanges. Access can not be permitted to the ramps or ramp tapers. On or about April 7, 1998, Petitioner provided Respondent with a revised Driveway Permit Drawing showing the Limited Access Right-of-Way and fence. Petitioner admitted in a telephone conversation with Respondent's permit engineer that a previous owner had been compensated for the loss of access to Avolon Boulevard when the I-10 interchange was constructed. The subject property did not have an existing driveway connection when the I-10 interchange was constructed. The Shell service station and the used car lot, which are located at the Avolon Boulevard interchange, had existing driveway connections before the interchange was constructed. Similarly, driveway sites near the intersection of Davis Highway, in Escambia County, and I-10, were in existence at the time the I-10 interchange ramps were constructed. These existing driveways were allowed to remain after construction of the ramps. New driveway connections would not be permitted at these locations. Permits will not be granted if these properties undergo a substantial change in use which requires a change in permitting. Petitioner's description of the location of the off ramp, ramp taper, and limited access area of Avolon Boulevard are erroneous. The proposed driveway for the subject property is located in the off ramp lane. Federal highway regulations require control of connections beyond the ramp terminal of an interchange for at least 100 feet in urban areas and 300 feet in rural areas. This control for connections to crossroads must be effected by purchase of access rights, providing frontage roads, controlling added corner right-of-way areas, or denying driveway permits. Petitioner's proposed driveway would be located within 300 feet from the end of the taper of the off ramp. Federal regulations prohibit the issuance of a new connection permit for a site within that area. Additionally, Petitioner's proposed driveway connection would cause a safety and operational problem on the state highway system due to its location in the off ramp of the I-10 interchange. There is no persuasive evidence that Santa Rosa County has abandoned the street which is adjacent to Lot 13 and the Shell station, 32nd Avenue. Petitioner did not establish that there is no legal access from Lot 13 to Avolon Boulevard other than by issuance of the subject permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order dismissing Petitioner's appeal for lack of standing and/or dismissing Petitioner's appeal on its merits. DONE AND ENTERED this 14th day of December, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 14th day of December, 1998. COPIES FURNISHED: Brian F. McGrail, Esquire Department of Transportation Mail Station 58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Hugh Allen Oden 8612 Westview Lane Pensacola, Florida 32514 James C. Myers, Agency Clerk Department of Transportation Mail Station 58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Mail Station 58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
