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 Beginning on October 18, 1971, Respondent, Walton Neeham Seiler (Seiler) was employed by Marion County (County) as a County Building Inspector. Sometime prior to December 2, 1976, Seiler was promoted to Chief Building Inspector. From December 3, 1976 to October 8, 1984, Seiler was employed with the County as the Building and Zoning Director. According to Seiler, his duties as Building and Zoning Director included the same duties he had as Chief Building Inspector as well as additional supervisory responsibilities. On October 9, 1984, Seiler became the County Administrator and was employed in that capacity until he was terminated from his position on August 26, 1986. The Block Exam is a construction licensing examination furnished by a company called H. Block and Associates (Block). Prior to 1975, the Block Exam was not given in Marion County. Persons wishing to take the test had to go to Gainesville, Florida. Prior to December, 1975, if a person desired to take the Block Exam, the person would go to the County Building Department, fill out an application, give the application to the County employee along with a check made out to Block. County employees would prepare a letter for each applicant and mail the letter, application and check to Block in Gainesville. County employees would also send a letter to the applicant, advising the applicant to call Block within three days of the receipt of the letter and arrange for a time to take the exam in Gainesville. Block would mail the test results to the County. County employees would prepare and send a letter to the applicant, advising the applicant of his test score. At a meeting on December 9, 1975, Seiler approached the County Commission and asked that the County sponsor the Block Exam to be given in the County. The County Commission agreed to sponsor the licensing exams and to enter into an agreement with the local community college to rent space in which to conduct the exams. However, the community college required the County to provide liability insurance and to indemnify the college for any damages resulting from the use of the college facility. The County Commission could not agree to the insurance and indemnification requirements. The County Commission gave Seiler permission to conduct the Block Exams on his own. At the time permission was granted Commissioners Melin, Kirkland, and Fugate were unaware that Seiler intended to make a personal profit and they assumed that any excess funds would be given to the County. The issue of Seiler personally making a profit was not discussed at the time the County Commission gave Seiler authority to conduct the Block Exams without involving the County. Seiler administered the Block Exams in Marion County from December 20, 1975 until July, 1986. Persons desiring to take the Block Exams during the time Seiler was giving the exams, filled out an application form and left it, with their fee, at the counter at Seiler's County office. Checks for the fees would be made out to Seiler. County employees accepted the applications and gave them to Seiler. When Seiler received a minimum number of applications, he would rent a room for the exam and advise Block that he wanted to give the exam on a certain date. Seiler would fill out a form letter to the applicants, assigning them an exam number and advising them of the date of the exam. He gave the information to the County and County employees mailed out the form letters. A County Employee would order the exam from Block. The test results would be sent to Seiler. He would compile a list of the applicants and their scores and give the list to the County. County employees would mail each applicant a notice of his exam score. County employee time relating to the Block Exams included a minimum of six to eight hours per exam. The letters to Block and to the applicants were sent out on County letterhead and the County paid for the postage. Seiler wrote a letter dated November 1, 1983 to Rodney Buckland on County letterhead, advising Mr. Buckland that the check he submitted to Seiler for the Block Exam was returned to Seiler for insufficient funds. Seiler further advised Mr. Buckland that he would not release Mr. Buckland's exam grade until the exam fee was paid plus $1.00 for a return item fee. Seiler signed the letter as Director of Building and Zoning. When Seiler first began giving the tests, he charged an application fee of $30. Over time, the fee went up to $35, then $40, and $45. The application fee was at least $30 from December 1975 through December 1980 and at least $45 from January 1980 through July 1986. No part of any application fee was ever remitted to the County. Seiler used the application fees which he collected to pay Block for the exams and proctor fees, to rent the room in which the tests were given and to reimburse himself for travel expenses. Seiler kept any amounts that were remaining after these expenses were deducted. Based on Seiler's testimony given at his criminal trial in 1986, I find that the room rent ranged from $125 to $150 per exam. Based on Advocate's Exhibit Number 5, I find the following: The Block Exam was given by Seiler on December 20, 1975. Block invoiced Seiler for $864.88, which was for 42 exams and proctor fees and expenses. The Block Exam was given by Seiler on June 12, 1976. Block invoiced Seiler for $1,283.88, which was for 66 exams and proctor fees and expenses. The Block Exam was given by Seiler on September 11, 1976. Block invoiced Seiler for $634.88, which was for 33 exams and proctor fees and expenses. The Block Exam was given by Seiler on December 11, 1976. Block invoiced Seiler for $545.88, which was for 25 exams and proctor fee and expenses. The Block Exam was given by Seiler on June 4, 1977. Block invoiced Seiler $1,422.88, which was for 64 exams and proctor fees and expenses. The Block Exam was given by Seiler on August 27, 1977. Block invoiced Seiler for $1,374.88, which was for 60 exams and proctor fees and expenses. The Block Exam was given by Seiler on December 17, 1977. Block invoiced Seiler for $1,966.88, which was for 76 exams and proctor fees and expenses. The Block Exam was given by Seiler four times in 1978. Block billed Seiler $5,369.64, which was for 219 exams and proctor fees and expenses. The Block Exam was given by Seiler four times in 1979. Block billed Seiler $8,108, which was for 292 exams and proctor fees. The Block Exam was given by Seiler on April 19, 1980. Block invoiced Seiler $2,636, which was for 98 exams and proctor charges. The Block Exam was given by Seiler on October 25, 1980. Block invoiced Seiler $3,0006, which was for 103 exams and proctor charges. The Block Exam was given by Seiler four times in 1981. Block invoiced Seiler $8,800, which was for 297 used exams, 8 unused exams and proctor charges. The Block Exam was given by Seiler four times in 1982. Block invoiced Seiler $8,980, which was for 301 used exams, 8 unused exams, and proctor charges. The Block Exam was given by Seiler five times in 1983. Block invoiced Seiler $10,099 which was for 346 used exams, 24 unused exams, and proctor charges. The Block Exam was given by Seiler five times in 1984. Block invoiced Seiler $7,683, which was for 260 used exams, 27 unused exams, and proctor charges. The Block Exam was given by Seiler six times in 1985. Block invoiced Seiler $9,711, which was for 329 used exams, 15 unused exams, and proctor charges. The Block Exam was given by Seiler at least two times in 1986. Block invoiced $3,604, which was for 119 used exams, 8 unused exams, and proctor charges. It was approximately seventy miles round trip from Seiler's home to the examination site. Seiler claimed 22 per mile as travel expenses. This equates to $15.40 for travel expenses per exam. Based on Advocate Exhibit 5, Seiler's criminal trial testimony that the high range of the room rental rate was $150 for each exam, the finding that Seiler charged at least $30 per exam from 1975 to 1980 and $45 per exam from 1980 to 1986 (unused exams were not counted in determining the gross income), and the travel expenses claimed by Seiler, I find that Seiler received gross and net income related to the Block Exams in the following amounts: YEAR GROSS NET 1975 1260 230.60 1976 3630 669.16 1977 6000 785.36 1978 6570 538.76 1979 8760 -81.60 1980 6030 57.20 1981 13365 3903.40 1982 13545 3903.40 1983 15570 4644.00 1984 11700 3190.00 1985 14805 4104.60 1986 5355 1420.20 Seiler's gross salary from his public employment for the years 1976, 1980, 1983, 1984, and 1986 was as follows: 1976 13,894.12 1980 22,678.08 1983 29,888.00 1984 34,931.21 1985 44,172.20 In 1985, Seiler received $20,000 in income in the sale of his share of Bellview Underground Utilities, Inc. (Bellview). Based on Seiler's deposition testimony, I find that Seiler received no other income in 1976, 1980, 1983, and 1984 except the income derived from his public salary. In 1985, Seiler derived his income from his public salary and the sale of Bellview. During the years 1976, 1980, 1983, 1984, and 1985, Seiler's gross income derived from the Block Exams exceeded his gross income for those years by more than 5 percent. Seiler did not report any of his income from administering the Block Exams on his financial disclosure filings for 1976, 1980, 1983, 1984, or 1985. Bellview was a for-profit corporation formed by Seiler, and two others on March 22, 1985. In 1985, the Development and Construction Corporation of America (DECCA) began work on a residential development in Marion County to be known as Oak Run. At this time, Marion County regulations required that access to property (roads) be by a right of way granted by the property owner to either the County or to a homeowner's or other group which would own and maintain the road. County regulations also required that road right of ways be 60 foot in width. At the meeting of the Marion County Plat Committee (Plat Committee) held July 31, 1985, DECCA requested a variance from the County to provide that access for ingress and egress, and for drainage and utilities in it Oak Run project would be by easement instead of right-of-way, with such easements to be 54 feet wide instead of 60 feet. The Plat Committee believed the variances could give rise to two problems. First, the Plat Committee understood that if access were by right of way, building setbacks would be measured from the edge of the right-of-way (the edge of the road); whereas, if access were by easement, the building setbacks would be measured from the center line of the easement (the center of the road); therefore, the Plat Committee reasoned, access by easement would allow the developer to build residences much closer to the road than local regulations allowed. This was the primary concern expressed by the Plat Committee in it July 31, 1985 memorandum recommending denial. The Plat Committee was also concerned that a 54 foot road would simply not be big enough to accommodate the utilities and drainage which would go beneath it. The Plat Committee recommended denial of the request. The variance issue was again raised at the Plat Committee meeting of August 7, 1985. This meeting was attended by DECCA attorney Steve Ryder, DECCA Oak Run Project Engineer Bob Farner, Attorney Mike Milbrath and County Commissioner Murray Fugate, in addition to the Plat Committee members. Mr. Ryder stated that DECCA was asking for access by easement wherein the property line goes to the center of the roads. The Plat Committee again voted not to recommend the requested variance. The issue of the variance came up a third time on August 23, 1985, at a special meeting of the Plat Committee. Seiler appeared at the August 23rd meeting and represented to the Plat Committee that DECCA was no longer seeking an easement but a right of way. Seiler advocated in an assertive and forceful manner that the Plat Committee recommend that a variance be granted to DECCA. At the time that Seiler appeared at the Plat Committee on August 23, 1985, Bellview had submitted a bid to DECCA to perform the underground utility work for the Oak Run Project. DECCA awarded the contract to Belleview on September 24, 1985. The Plat Committee declined to recommend a variance allowing a 54 foot access by right of way. Seiler told the Chairman of the Plat Committee to put in writing the reasons why the Plat Committee would not recommend the granting of a variance and to submit the reasons to him. Seiler advised that he would take it to the County Commission. The Plat Committee submitted their reasons for denial in writing to Seiler. The memorandum did not address the concern the Plat Committee had concerning the property line extending to the center of road because the Plat Committee was under the impression that an easement was no longer at issue. With the exception of one member, all the members of the Plat Committee worked for the County in subordinate positions to Seiler. As County Administrator, Seiler had the authority to "supervise all personnel except the County Attorney," and "suspend, discharge or remove any employee under the jurisdiction of the Board pursuant to the Marion County Personnel Rules." Seiler appeared at the County Commission meeting on August 27, 1985, at which time the County Commission considered the variance request by DECCA for the Oak Run project. Seiler advocated that the County Commission grant the variance for a 54 foot road by easement. At the time that he appeared before the County Commission, he did not advise the Commissioners that Bellview was bidding for work with DECCA on the Oak Run project. Commissioners Cross, Gilman, and Fugate were unaware at the time that they voted on the DECCA variance that Seiler had an interest in Bellview or that Bellview was seeking a contract with DECCA. Commissioner Abshire was aware that Seiler had an interest in Bellview but was unaware that Bellview was bidding for a contract with DECCA for the Oak Run project. The County Commission approved a 54 foot right of way by easement in the Oak Run project with three foot utility easements on each side of the road. Access by easement did have the effect of establishing the lot owner's property line in the center of the road, rather than at the edge of the road.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order and Public Report be entered finding that Respondent, Walton Neeham Seiler, violated Section 112.313(6), Florida Statutes in both instances alleged and violated Section 112.3145 and 112.313(7)(a), Florida Statutes. I further recommend that a civil penalty of $2000 be recommended for each violation of Section 112.313(6) for a total of $4,000, that a civil penalty of $500 be recommended for the violation of Section 112.3145, that a civil penalty of $1000 be recommended for the violation of Section 112.313(7), and that a public censure and reprimand be recommended for each violation. DONE AND ENTERED this 2nd day of March, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 2nd day of March, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1511EC To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. Paragraphs 1-5: Accepted in substance. Paragraph 6: This paragraph does not contain a complete sentence; thus, it is impossible to address it. Paragraphs 7-8: Accepted in substance. Paragraph 9: Rejected as not supported by nonhearsay evidence that the employees other than Seiler answered questions. The remainder of the paragraph is accepted in substance. Paragraphs 10-17: Accepted in substance. Paragraph 18a: Except as to the net amount, the paragraph is accepted in substance. The net amount listed is not supported by the greater weight of the evidence. Paragraph 18b: Except as to the number of times the test was given, the remainder of the paragraph is rejected as not supported by the greater weight of the evidence. Paragraph 18c: Except as to the number of times the test was given, the remainder of the paragraph is rejected as not supported by the greater weight of the evidence. Paragraph 18d: Except as to the net amount, the paragraph is accepted in substance. The net amount listed is not supported by the greater weight of the evidence. Paragraph 18e: Except as to the net amount, the paragraph is accepted in substance. The net amount listed is not supported by the greater weight of the evidence. Paragraph 18f: Except for the number of times the exam was given, the remainder of the paragraph is rejected as not supported by the greater weight of the evidence. Paragraph 18g: Except for the net amount the paragraph is accepted in substance. The net amount is not supported by the greater weight of the evidence. Paragraph 18h: Except for the net amount the paragraph is accepted in substance. The net amount is not supported by the greater weight of the evidence. Paragraph 18i: Except for the net amount the paragraph is accepted in substance. The net amount is not supported by the greater weight of the evidence. Paragraph 18j: Except for the net amount, the number of exams ordered, and the gross amount collected, the paragraph is accepted in substance. The remainder is rejected as not supported by the greater weight of the evidence. Paragraph 18k: Except for the net amount, the paragraph is accepted in substance. The net amount is not supported by the greater weight of the evidence. Paragraph 18l: Except for the net amount, the paragraph is accepted in substance. The net amount is not supported by the greater weight of the evidence. Paragraph 19. The first sentence is rejected as not supported by the greater weight of the evidence. The remainder is rejected as subordinate to the facts actually found. Paragraphs 20-22: Accepted in substance. Paragraph 24: Rejected as subordinate to the facts actually found. Paragraphs 25-28: Accepted in substance. Paragraph 29: Rejected as constituting argument. Paragraphs 30-35: Accepted: Paragraph 36: The last sentence is rejected as unnecessary. The remainder of the paragraph is accepted. Paragraphs 37-38: Accepted. Paragraphs 39-40: Rejected as unnecessary. Paragraph 41: Accepted in substance. Paragraph 42: The first sentence is accepted in substance. The remainder of the paragraph is rejected as constituting argument. Paragraph 43: Rejected as unnecessary. Paragraphs 44-49: Accepted in substance. Paragraph 50: Rejected as unnecessary. Paragraph 51: Accepted in substance. Paragraph 52: Rejected as unnecessary. Paragraph 53: Accepted in substance. Paragraph 54: The first sentence is accepted in substance. The remainder is rejected as constituting argument. Paragraphs 55-56: Rejected as subordinate to the facts actually found. Paragraphs 57-58: Accepted in substance. Paragraph 59: The last sentence is rejected as constituting argument. The sentence concerning Commissioner Abshire is rejected as not supported by the greater weight of the evidence to the extent that Abshire did know that Seiler did have some relationship with Bellview. However, Abshire did not know that Bellview was bidding for a contract with DECCA on the Oak Run Project. Paragraphs 60-64: Rejected as constituting argument. Respondent's Proposed Findings of Fact. Section 1 Paragraph 1: Accepted in substance. Paragraph 2: As to the first full sentence, it isrejected that the County was giving the exams. It is accepted that the County did collect the $100 fee and send it to Block. The second sentence is accepted in substance to the extent that the County employees were performing the work described in Paragraph 3 of the Findings of Fact in this Recommended Order. The third sentence is accepted in substance. Paragraph 3: The first sentence is rejected as not supported by the greater weight of the evidence. The second sentence is not supported by the evidence presented. Paragraph 4: Rejected as constituting argument. Paragraph 5: Accepted in substance. Paragraph 6: The first sentence is rejected as constituting argument. The remainder is subordinate to the facts actually found. Paragraph 7: Accepted in substance. Paragraph 8: Rejected as subordinate to the facts actually found. Paragraphs 9-10: Rejected as constituting argument. Paragraph 11: The first sentence is accepted in substance but rejected to the extent that it implies that Seiler did not make a profit. The second sentence is rejected as subordinate to the facts actually found. Paragraph 12: Rejected as constituting argument. Section 2 1. Paragraph 1: The first full sentence is accepted. The second sentence is rejected as not supported by competent substantial evidence. The second sentence is rejected as not supported by the greater weight of the evidence. The last sentence is rejected as constituting argument. Section 3 Paragraphs 1-4: Rejected as subordinate to the facts actually found. Paragraph 5: Rejected as constituting argument. Section 4 Paragraph 1: The first full sentence and the second sentence are rejected as constituting argument. The third sentence is rejected as Mr. Sheffield's testimony was not credible. The remainder is is rejected as subordinate to the facts actually found. Paragraphs 2-4: Rejected as constituting argument. COPIES FURNISHED: Virlindia Doss Advocate For Commission on Ethics Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 Carrie Stillman Complaint Coordinator Post Office Box 15709 Tallahassee, Florida 32317-5709 Walton Needham Seiler Route 3, Box 3911 Ft. McCoy, Florida 32137 Bonnie Williams Executive Director Florida Commission
Findings Of Fact Based upon my observation of witnesses and their demeanor while testifying, documentary evidence received, the parties' joint stipulation of facts and the entire record compiled herein, I hereby make the following relevant factual findings. On May 28, pursuant to approval and authorization by the Federal Highway Administration (FHWA) and pursuant to pertinent provisions of Florida Statutes and Florida Administrative Code, FDOT received sealed bids, one of which was from Petitioner, in response to FDOT's public advertisement soliciting competitive bids for award of the contract for construction of a public works project known as Allapattah H.O.V. Station, a parking structure to be situated at the southeast corner of Northwest 12th Street and Northwest 36th Street in Miami, Florida, designated as FDOT Job Nos. 87270-3414, 87270-3519 and 87085- 3502, and as Federal Aid Project Nos. I-95-I(364)IV, ACIR-95-1(366)4 and M- 6155(2). Prior to solicitation of bids for the project, FDOT submitted plans, specifications and a pre-bid estimate to FHWA for review and approval. FHWA reviewed and approved the plans, specifications and pre-bid estimate for the project, and by separate written communications dated March 17 and April 17, FHWA authorized FDOT to proceed with solicitation of competitive bids for the project. Pursuant to that authorization and approval from FHA, FDOT caused its advertisement soliciting competitive bids for the Allapattah project to be published in newspapers of general circulation throughout the southeast and Atlantic coast states, and, in so doing, classified the Allapattah project as a public works project set aside and restricted to competitive bidding solely among qualified contractors certified as disadvantaged business enterprises. Before Petitioner submitted its bid, FDOT determined that Petitioner is a qualified contractor and certified it as a disadvantaged business enterprise, thus rendering Petitioner eligible to bid for award of the contract to construct the Allapattah project. When FDOT opened the bids it received for award of the contract to construct the Allapattah project on May 28, it was apparent to FDOT that Petitioner's bid of $15,193,048.40 was the lowest responsive bid, but that Petitioner's bid exceeded the pre-bid estimate of the cost to construct the Allapattah project by twenty-one and three tenths percent (21.3 percent). At the time FHWA approved the plans, specifications and pre-bid estimate for the Allapattah project, it was understood and agreed between FHWA and FDOT that if a contract to construct the project was awarded in the amount of the pre-bid estimate, which was $12,523,233,06, FHWA would fund the contract to the extent of $11,647,074.70 and FDOT would fund the contract to the extent of $876,158.36, and that FDOT would also fund the equal employment opportunity training required under the contract at an estimated cost of $200,353.26, thus bringing the total funds planned to be expended by FDOT to $1,076,511.62. FDOT follows a policy that provides for automatic award of the contract to the lowest responsible bidder if [the] bid is within seven percent (7 percent) of the pre-bid estimate of the cost to construct the project in question. If the bid submitted by the lowest responsible bidder exceeds seven percent (7 percent) of the pre-bid estimate of the cost to construct the project, FDOT follows a policy of reviewing that bid and the pre-bid estimate in an effort to account for the disparity between the bid and the pre-bid estimate and to determine whether the bid is or is not competitive. If FDOT finds that the bid is not competitive, it follows a policy of rejecting all bids and resoliciting bids for the project. If FDOT finds that the bid is competitive, it awards the contract to construct the project in question to the bidder who submitted that bid. Because Petitioner's bid was not within seven percent (7 percent) of the pre-bid estimate of the cost to construct the Allapattah project, following the opening of bids, FDOT contacted Petitioner and requested Petitioner to meet at FDOT's offices in Miami, Florida, to review Petitioner's bid. On June 4, representatives of Petitioner met with representatives of FDOT in FDOT's Miami offices, at which time FDOT requested Petitioner to provide FDOT a breakdown of the lump sum Petitioner quoted for the bid item entitled "Parking Garage" whereupon Petitioner did so. The breakdown which Petitioner presented to FDOT at that time showed each category of work involved in constructing the Parking Garage in accord with FDOT's plans and specifications for the project, and also showed the price applicable to each such category of work. Before receiving the above described breakdown, FDOT assured Petitioner that all such information would be held confidential and would not be published or disclosed to any other person. Upon receiving the above described breakdown, FDOT informed Petitioner that the information contained therein was sufficient to enable FDOT to complete its evaluation of Petitioner's bid. Before the meeting concluded, Petitioner informed FDOT that if any additional information was needed, to please let Petitioner know in which event appropriate efforts would be made to remotely provide such additional information to FDOT. On June 16, FDOT's Technical Review Committee and Contracts Award Committee met to decide what action to take respecting the bids it had received on May 28, for award of the contract to construct the Allapattah project. FDOT then decided: (a) to reject all bids, to reclassify the project from one that is set aside and restricted to bidding solely among qualified contractors certified as minority business enterprises to one that is open to competition from all qualified general contractors, and to re-solicit bids for the project, and (b) to request FHWA's concurrence therein. On June 17, Petitioner inquired of FDOT as to what action had been taken respecting award of the contract to construct the Allapattah project and was then informed that the foregoing decisions had been made. Petitioner then asked FDOT why it had decided to reject Petitioner's bid, whereupon FDOT stated that Petitioner's bid was rejected because, when compared with FDOT's pre-bid estimate of the cost of constructing Allapattah project, Petitioner's bid appeared unrealistically high and non-competitive. On June 19, Petitioner, filed with FDOT's clerk of agency proceedings a written notice of protest of FDOT's above described decisions. Such notice of protest was submitted within the required time and is in accord with applicable provisions of Section 120.53(5), Florida Statutes, thus stopping FDOT from taking any further action to implement its above-described decisions. In its notice of protest, Petitioner, also requested of FDOT an early opportunity to informally meet and confer respecting Petitioner's protest in an effort to amicably resolve the same on mutually acceptable terms and conditions. Notwithstanding the fact that FDOT was not to take any further action to implement its above-described decisions, by letter dated June 20, addressed to FHWA, FDOT confirmed its above-described decisions and requested FHWA to concur therewith. On June 27, FHWA expressed its concurrence with FDOT's above- described decisions. On June 30, representatives of FDOT and Petitioner met informally in FDOT's central offices in Tallahassee, Florida, at which time Petitioner presented certain information tending to show that the pre-bid estimate of the cost to construct the Allapattah project was out of date, unrealistically low and that Petitioner's bid was realistic and reasonably competitive. The meeting concluded with an understanding between the parties that FDOT would reconsider its above-described decisions and, pursuant thereto, representatives of FDOT and Petitioner would again meet in FDOT's Miami offices on July 2, to review certain documentation to be presented by Petitioner related to its bid preparation of its May 28, bid. During the July 2 meeting, FDOT asked Petitioner to provide certain additional information documenting Petitioner's preparation of its May 28 bid, whereupon Petitioner did so. As a result of the information presented by Petitioner during the June 30 meeting, FDOT realized that the pre-bid estimate of the cost to construct the Allapattah project, which was initially prepared in October, 1984, by its architectural/engineering consultant, who also designed the project, the Kaiser Transit Group, had not been updated to reflect any increase in costs attributable to inflation. Although FDOT had in February, reviewed its architectural/engineering consultant's October, 1984 estimated cost of construction and made minor adjustments thereto in the process of converting such estimate to the computerized format customarily used by its Estimates Office, FDOT did not address the impact of inflation on the estimate. Thus, following the June 30, meeting with Petitioner, FDOT decided to develop a new estimate for the project, whereupon its Estimates and Architectural Offices jointly undertook the task of considering inflationary impact. The resulting new estimate stated a cost of $14,317,608.00 to construct the project. That cost exceeded the pre-bid estimate that FDOT had used in its initial evaluation of Petitioner's bid by approximately Two Million Dollars, thus bringing Petitioner's bid within seven percent (7 percent) of FDOT's estimated cost to construct the project and causing Petitioner's bid to be subject to FDOT's automatic award criteria. On June 25, FDOT received competitive bids for award of the contract to construct another public works project known as Earlington Heights H.O.V. Station, a parking structure to be situated at Northwest 22nd Avenue and Northwest 41st Street in Miami, Florida, designated as FDOT Job Nos. 87270-3523, 87270- 3490, and 87003-3515, and as Federal Aid Project Nos. I-95-1 (352)4, ACIR-95-1(380)4 and F-030-1(33). The Earlington Heights project was also classified as a public works project set aside and restricted to competitive bidding solely among qualified contractors certified as disadvantaged business enterprises. Petitioner submitted a responsive bid in the amount of $7,449,130.04 for award of the contract to construct the Earlington Heights project, but was the second lowest bidder. The low bidder was a company known as Three-W Corporation which had previously been determined by FDOT to be a qualified contractor and had been previously certified by FOOT as a disadvantaged business enterprise eligible to bid for award of the contract to construct the Earlington Heights project. Three W Corporation's low bid for the Earlington Heights project was $7,080,000.00 and exceeded the pre-bid estimate to the cost to construct the Earlington Heights project by seventeen and three tenths percent (17.3 percent). The pre-bid estimate of the cost to construct the Earlington Heights project was initially prepared in October, 1984, by the Kaiser Transit Group, the same architectural/engineering consultant that designed and prepared the initial pre-bid estimate for the Allapattah project in October, 1984. Before soliciting bids for award of the contract to construct the Earlington Heights project, FDOT reviewed its architectural/engineering consultant's October, 1984, estimate which stated that the cost to construct the Earlington Heights project was $5,481,000.00 and increased the same approximately ten percent (10 percent) to $6,037,298.36 to reflect FDOT's estimate of the extent construction costs had increased as a result of inflation between October, 1984, and June, 1986. When FDOT and Petitioner met on June 30, FDOT was engaged in evaluating Three-W Corporation's low bid for the Earlington Heights project. FDOT then reconsidered Petitioner's low bid for the Allapattah project and found that the low bids submitted for each such project comparable in that Three-W Corporation's low bid established a cost per square foot to construct the Earlington Heights project of $ 23.02 and Petitioner's low bid established a cost per square foot to construct the Allapattah project of $22.40. Because the low bid for the Earlington Heights project also exceeded FDOT pre-bid estimate by more than seven percent (7 percent), FDOT met and conferred with representatives of Three-W Corporation to review certain information related to preparation of the bid it had submitted on June 25, for the Earlington Heights project. FDOT then decided to also develop a new estimate for the Earlington Heights project, and its Estimates and Architectural Offices did so. The resulting new estimate increased FDOT's $6,037,298.36 pre- bid estimate by approximately $1,000,000.00, thus bringing the low bid submitted by Three-W Corporation within seven percent(7 percent) of the estimated costs to construct the Earlington Heights project and causing its bid to be subject to FDOT's automatic award criteria. In successive meetings of FDOT's Technical Review Committee and Contract Awards Committee on July 16, FDOT concluded its evaluation of the low bid for the Earlington Heights project and its reconsideration of its decisions to reject all bids and re-solicit bids for the Allapattah project by deciding that FDOT's pre-bid estimates of the cost to construct both projects were out- of-date, unrealistically low, and not indicative of a reasonably competitive cost to complete either project. Three-W Corporation's bid for the Earlington Heights project and Petitioner's bid for the Allapattah project appeared realistic and indicative of reasonably competitive costs to complete each project. FDOT's decisions in the foregoing respects were confirmed in the minutes of the July 16, meetings of its Technical Review Committee and its Contract Awards Committee, and in letters dated July 18 and July 21, addressed to FHWA, wherein Respondent requested FHWA to concur in FDOT's decisions to award contracts for construction of the Earlington Heights project and the Allapattah project to Three-W Corporation and Petitioner, respectively. On July 22, FDOT was informed by FHWA that it concurred in FDOT's decision to award the contract for construction of the Earlington Heights project to Three-W Corporation, but that it did not concur in FDOT's decision to award the contract for construction of the Allapattah project to Petitioner. In so doing, FHWA stated that it did not concur in FOOT's decision to award the contract for construction of the Allapattah project because the reasons expressed in FDOT's June 30, letter to FHWA requesting it to concur in FDOT's decision to reject all bids and re-solicit bids for the project were more persuasive than the reasons given by Respondent in support of its July 21, decision to award the contract for construction of the Allapattah project to Petitioner. After receiving the July 22, letter from FHWA, FDOT informed Petitioner of what had transpired and stated that on August 18, the results of the May 28, bid opening would be formally posted and published to provide public notice that all bids submitted for award of the contract to construct the Allapattah project had been rejected and that FDOT would re-advertise the project to re-solicit bids. Petitioner then requested FDOT to ask FHWA to reconsider its July 22, decision, but FDOT refused to do so. However, FDOT then suggested that Petitioner was free to request FHWA to reconsider its July 22, decision and that if Petitioner succeeded in persuading FHWA to agree that Petitioner's bid was realistic and to agree to award Petitioner the contract for construction of the subject project, FDOT would do so. On August 18, FDOT posted its notice that all bids submitted on May 28, for award of the contract to construct the Allapattah project were rejected and that it intended to re- solicit bids. On October 1, FDOT discovered that FHWA had not received certain documentation related to FDOT's July 16 decisions to award contracts for construction of the Earlington Heights Project to Three-W Corporation and the Allapattah project to Petitioner. Accordingly, by letter dated October 1, from William F. Ventry, FDOT's Deputy Assistant Secretary for Technical Policies and Engineering Services, to P. E. Carpenter, FHWA's Division Administrator, FDOT provided such documentation to FHWA and formally requested FHWA to reconsider its decision not to concur with FDOT's decision to award the Allapattah contract to Petitioner. By letter dated October 9, from James E. St. John, FHWA's Assistant Division Administrator, to Mr. Ventry, FHWA replied to FDOT's October 1, letter stating its basis for refusing to concur with FDOT's decision to award the contract for construction of the Allapattah project to Petitioner and informed FDOT that FHWA will now deobligate the (federal) funds authorized March 17, (for construction of the project) pending your request for further Federal- aid activity on this project. Upon receiving FHWA's October 9, letter, it became apparent to FDOT that FHWA had misapprehended or overlooked certain critical facts related to FDOT's reconsideration of its decision not to award the contract for construction of the Allapattah project to Petitioner. Mr. Ventry requested Vernon E. Dixon, FDOT's Preliminary Estimates Engineer, to draft an appropriate letter to Mr. St. John, setting out the facts FHWA had apparently overlooked or misunderstood. By letter from Mr. Dixon to Mr. St. John dated October 13, FDOT presented those facts to FHWA. On October 14, Mr. Dixon met and conferred with Mr. St. John and discussed the matters addressed in the October 13, letter. At the conclusion of that meeting, Mr. St. John indicated that the information and explanation presented by Mr. Dixon had indeed caused him to finally obtain a full and complete understanding of the facts and reasoning which led FDOT to reconsider its earlier decision and to finally decide to accept Petitioner's bid and to award the contract for construction of the Allapattah project to Petitioner. Mr. St. John cautioned that he would have to consult with certain FHWA officials in Washington to determine whether FDOT's development of a new estimate of the cost to construct the Allapattah project after bids were received and opened would preclude FHWA from concurring with FDOT to award the Allapattah project to Petitioner. By letter dated October 22, from Mr. St. John to Mr. Dixon, FHWA informed FDOT that FHWA would not concur with FDOT's decision to award the Allapattah project to Petitioner, that the project is no longer authorized, and that the federal funds authorized for construction of the project have been deobligated. Although the procedure followed by FDOT in reevaluating Petitioner's bid for award of the contract to construct the Allapattah project was the same procedure it followed in evaluating the bid submitted by Three-W Corporation for award of the Earlington Heights project, FHWA refused to concur with FDOT's reconsidered decision respecting Petitioner's bid. Petitioner's bid for award of the contract to construct the Allapattah project was responsive, realistic and reasonably competitive in all material respects. Any substantial difference between the amount of Petitioner's bid and FDOT's pre-bid estimate for the Allapattah project is attributable to inflationary factors. Although FDOT has now acknowledged these facts to be true with respect to both the Allapattah project and the Earlington Heights project, FDOT has failed to implement its decision to accept Petitioner's bid and to award the contract to construct the Allapattah project to Petitioner. If FDOT had implemented its decision to accept Petitioner's bid and to award the contract to construct the Allapattah project to Petitioner, the amount of the contract would have equalled the amount of Petitioner's bid, $15,193,048.40. If FDOT implements its decision to accept Petitioner's bid and to award to Petitioner the contract to construct the Allapattah project and FDOT then obtained no more than the $11,647,074.70 in federal funds committed pre-bid by FHWA to fund construction of the Allapattah project, FDOT would have to increase its pre-bid commitment of state funds by $2,469,361.08 to provide sufficient funds to equal the amount of Petitioner's bid. If FDOT implements its decision to accept Petitioner's bid and award to Petitioner the contract for construction, and pays one hundred percent (100 percent) of the cost of construction from state funds, FDOT would have to increase its pre-bid commitment of state funds to provide sufficient funds to equal the amount of Petitioner's bid. Although Petitioner was and continues to be a qualified contractor, although Petitioner was and continues to be certified as a disadvantaged business enterprise eligible to bid for award of the contract to construct the Allapattah project, FDOT has not yet awarded that contract to Petitioner. The only reasons FD0T has stated for having not yet awarded the contract to construct the Allapattah project to Petitioner is that FHWA has not concurred with FDOT's decision to accept Petitioner's bid and to award the contract for construction of the Allapattah project to Petitioner. FDOT must have FHWA concurrence in order to receive federal funds. The federal funding participation for this project is approximately 90 percent. FHWA has deobligated federal funds for the project in question. Without federal funding, this project will probably be recycled to the bidding process as a non-set aside project. If anticipated financing is not available for one project, FDOT reviews all projects to determine if that one project warrants eliminating other projects. For those projects where federal funding constitutes such a large portion of the funding, that project reverts and competes against other projects in other funds categories because at present, State funds are consumed. This competing process will resume beginning in 1988. This prioritization process is incorporated in FDOT's 5-year plan (the plan). The plan serves not only as a work plan but also as a finance plan. The comptroller uses the plan to certify that a particular project is indeed a part of the plan and that the money has been provided for. Funds are not available if they are not provided for in the plan. If changes are to be made after the plan is published, FDOT seeks legislative concurrence with those changes and without such concurrence, the changes cannot be made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED: The Florida Department of Transportation enter a Final Order rejecting Petitioner's bid for Job Nos. 87270-3414, 87270-3519 and 87085-3502 and readvertise said job. RECOMMENDED this 3rd day of April, 1987 in Tallahassee, Florida. JAMES E. BRADWELL 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 3rd day of April, 1987.
The Issue Whether the Second Amended Notice of Driveway Modification, in which Respondent, Florida Department of Transportation (“FDOT”), seeks to modify the driveway used by Petitioners, John Majka, individually and on behalf of Harry E. Miller, and Intervenor, JPM Ventures, Inc. (“JPM”), is consistent with sections 335.181, 335.182, and 335.1825, Florida Statutes, and Florida Administrative Code Rules 14-96.011 and 14-96.015; and whether FDOT engaged in conduct in violation of section 120.569(2)(e).
Findings Of Fact Background and Existing Driveway FDOT is the state agency responsible for regulating access to the state highway system, which includes SR 80. § 335.182, Fla. Stat. Based on a request by Lee County’s Metropolitan Planning Organization (“MPO”), FDOT began designing plans to build a four to five mile shared use path for pedestrians and bicyclists along SR 80 (“Project”). In that area, SR 80 is a class three road with a 45 mph speed limit. Petitioners’ property is within the Project and uses a 98-foot wide, unpermitted driveway to access SR 80. The Estate of Harry Miller owns the easternmost parcel on which the entire driveway and an office building are located. Mr. Majka’s business, JPM Ventures, is a licensed motor vehicle dealer and uses the Miller parcel as both an office (the right half of the building) and to store recreational vehicles, such as motor homes, campers, and trailers. Mr. Majka owns the three adjacent parcels to the west and leases those parcels to Superior Sheds, which sells sheds that are delivered to and picked up from the property on large trucks. Superior Sheds uses the 3 As detailed in Orders dated October 21, 2020, and November 10 and 30, 2020, the undersigned made extraordinary efforts to accommodate Petitioners throughout this case, including granting several extensions to file their PRO. But, instead of doing so, Petitioners’ representative spent that time filing numerous motions raising untimely and already- rejected issues while arguing that he was too sick to file the PRO. The Orders denied Petitioners’ motions and explained that the undersigned could no longer acquiesce to these improper efforts to delay the resolution of this case. Miller parcel as an office (the left half of the building) and to access SR 80 via the driveway, and uses the Majka parcels to store its sheds. The following photo taken in January 2018 depicts the driveway and the two business’s operations, which are delineated by the two dotted-lined boxes: Petitioners’ driveway has been in existence since at least the 1960s and remains unchanged today. Aerial photographs from 1986 and 1990 confirm the presence of a building on the Miller parcel, the driveway in its current form, and the Majka parcels being used for what appears to be parking or storage. Mr. Majka purchased his parcels in 1998 and has been using the driveway continuously since. JPM Ventures has operated on the Miller parcel and Superior Sheds has operated on the Miller and Majka parcels since as early as 2015. Superior Sheds uses a paved pathway so its trucks can travel between the Majka parcels, where the sheds are stored, and the driveway. Based on the weight of the credible evidence, Petitioners’ driveway has existed and been continuously used since 1988. Though the vehicles and/or storage containers located on the Majka parcels may vary and a pathway was paved on the Majka parcels to allow for easier access to the driveway, the evidence did not establish significant changes to the buildings, facilities, or overall use of the property that “caus[ed] an increase in the trip generation of the property exceeding 25 percent more trip generation (either peak hour or daily) and exceeding 100 vehicles per day more than the existing use,” as required by section 335.182(3)(b). The Project and Proposed Modifications to Petitioners’ Driveway Based on the MPO’s request, FDOT began planning for the Project in 2014. FDOT retained AIM Engineering to design the Project. Ms. Ratican, an AIM employee, is one of the engineers of record on the Project. FDOT identified 24 driveways along the Project that required modification. In late 2017, FDOT’s project manager, Mr. Weeks, went door-to-door along SR 80 to try to meet with as many property owners as possible and discuss the Project. FDOT thereafter sent certified letters to all property owners to notify them about any proposed modifications to their driveway. On December 7, 2017, FDOT issued its Notice advising Petitioners of its plans to modify the driveway to improve safety and operations along SR 80. FDOT sought to reduce the driveway width from 98 feet to a design standard of 24 feet. Upon receipt, Mr. Weeks met on site with Mr. Majka. At the time of the 2017 meeting and as depicted in the following photograph, there was a covered parking spot in front of the left half of the building (Superior Sheds’ office), but there were neither defined parking spots with painted lines along the front of the right half of the building (JPM Ventures’ office) nor a fence next to the covered parking spot that separated the two business operations: Mr. Majka objected to the smaller driveway and requested a hearing. FDOT transmitted the Notice to DOAH and it was assigned Case No. 18-4433. While that case was pending at DOAH, the parties engaged in numerous discussions to try to reach an amicable resolution. In July 2018, Mr. Weeks, several FDOT employees, and a state Senator’s aides met Mr. Majka on site to discuss the proposed modifications. Mr. Majka presented a PowerPoint and argued that the driveway could not be modified because it was grandfathered. At that time, there were no parking spots with painted lines or a fence perpendicular to the front of the building; vehicles simply parked diagonally or parallel to SR 80 in that area. Over the next few months, FDOT proposed several options for driveway widths between 30 and 53 feet, relocating the driveway to the east side of the Miller parcel, creating a second driveway on the Majka parcels, and others. Petitioners rejected each of them. In January 2019, after jurisdiction in the prior case was relinquished for failing to properly serve the Miller Estate, FDOT served its Amended Notice. FDOT now sought to modify the driveway to improve safety and operations on SR 80 as part of a sidewalk project. FDOT proposed a non- standard driveway width of 53 feet. Petitioners objected and requested a hearing, which began the instant case. At some point between July 2018 and April 2019, and while on notice of FDOT’s intent to modify the driveway, Petitioners made changes to the paved lot in front of the building. They added lined parking spaces perpendicular to the front of the building and a fence extending beyond the new parking spots that divided the two business operations. The following photograph taken in April 2019 depicts these changes: Petitioners apparently had not obtained a permit to add the parking spaces, which may not have even been possible because the spaces are so close to the property line that vehicles would have to use FDOT’s right-of-way—i.e., a large portion of the paved lot between the bottom of the parking spaces and the top of the shared use path, as shown in the diagram in paragraph 17 below—in order to back out of the parking spaces and exit the property. Notwithstanding, FDOT attempted to design subsequent proposals with minimal impacts to those parking spaces to appease Petitioners and their existing business operations. In May 2019, FDOT Southwest District Secretary L.K. Nandam met with Mr. Majka and his professional engineer, Mr. Trebilcock, to discuss Petitioners’ concerns with the Amended Notice, which were outlined in an Access Connection Report (“ACR”) prepared by Mr. Trebilcock in April 2019. The ACR focused on the two business operations and on site circulation problems that allegedly would exist due to the size of the trucks using the driveway. To alleviate those problems, the ACR proposed retaining the existing 98 feet of pavement, but utilizing a 45-foot-wide, double-yellow-lined area to limit the operational width of the driveway to 53 feet. The meeting resulted in additional proposals by FDOT and another phone call between Secretary Nandam, Mr. Majka, and Mr. Trebilcock. FDOT created another proposal that sought to address Petitioners’ concerns and use information they provided as to the size of the trucks. Based on Petitioners’ request for all of the engineers to meet, FDOT facilitated a meeting at its Southwest District office with Mr. Majka, Mr. Trebilcock, several FDOT employees, Ms. Ratican, and her supervisor. Because the latest proposal did not address all of their concerns, Petitioners rejected it. In August 2019, FDOT served a Second Amended Notice, on which the final hearing proceeded. As corrected, it proposes the following design: FDOT seeks to modify the driveway to improve safety and operations on SR 80 as part of a 10-foot-wide shared use path project. The decision to revert back to a shared use path was made by the MPO at a public meeting. FDOT proposes a non-standard driveway width of 53 feet, which is about 15 to 20 feet wider than a standard design for this portion of SR 80 and larger than any other modified driveway within the Project. A mountable, five-inch-tall type E curb outlines a triangular concrete island on the right side of the driveway, which larger trucks can slowly drive over to maneuver on site. A non-mountable, six-inch-tall type F curb extends from the concrete island to the property line, discouraging vehicles from driving over it and crossing the shared use path. FDOT also moved the shared use path closer to SR 80 in this proposal to accommodate the trucks that Petitioners claimed visited the property frequently and granted Petitioners an 11-foot area to circulate vehicles within FDOT’s right-of-way, which minimizes interference with Petitioners’ newly-created, lined parking spaces. Based on the weight of the credible evidence, FDOT’s proposed modifications are necessary to improve the safety and operational characteristics of SR 80. The existing driveway is hazardous to pedestrians and bicyclists using the shared use path. It is as wide as an eight-lane highway and contains no barrier to protect those crossing it. Vehicles can enter and exit the driveway at high speeds and at multiple angles, which creates numerous conflict points and confusion for pedestrians and bicyclists who have little time to react. By reducing the driveway width to 53 feet and utilizing mountable and non-mountable curbs, FDOT has reduced the speed with which vehicles can enter and exit the property, prevented vehicles from driving through the shared use path beyond the driveway, limited conflict points, and lessened the risk of confusion for pedestrians and bicyclists. A safety report prepared by AIM, which was signed and sealed by Ms. Ratican, conducted a crash assessment along the Project corridor for the prior five years. It revealed 750 crashes, seven of which involved pedestrians and bicyclists. Although no crashes occurred at this driveway, the report found FDOT’s design would reduce the risk of crashes by 70 percent, decrease the time it takes pedestrians and bicyclists to cross the driveway by 38 percent, and improve their awareness of vehicles using the driveway. And, though FDOT is allowing a driveway that is wider than standard, the design will reduce the risk associated therewith and enhance pedestrian safety through the use of curbs. Petitioners presented no credible evidence to suggest that FDOT’s proposed design would not improve safety or the operational characteristics of SR 80. Indeed, Mr. Trebilcock offered no specific testimony on this subject. Petitioners instead focused on how FDOT’s proposal purportedly failed to provide them with reasonable access. But, they conceded in pleadings that FDOT’s design arguably constituted reasonable access and they presented no credible evidence disputing the reasonableness of FDOT’s proposed reduction in the width of the driveway to 53 feet. Petitioners will maintain the same number of access connections and the evidence showed that the trucks that Petitioners claim frequent the site can safely enter and exit the property from either direction on SR 80. The modifications simply will neither impact the ability of vehicles to enter and exit the property safely nor affect roadway traffic patterns. Nevertheless, Mr. Trebilcock opined that reasonable access will be lacking because FDOT’s design will cause multiple problems on site. Specifically, trucks must drive over mountable curbs, through existing parking spaces and fences, and over pervious surfaces, which could create permitting issues. The weight of the evidence established otherwise. It is true that FDOT’s design may cause trucks to have to maneuver on site differently than before. But, that is expected given the reduction in the width of the driveway. The potential issues identified by Mr. Trebilcock do not prevent access, but rather create reasonable limitations that would only arise (if at all) once the vehicles are on site. FDOT also took into account information provided by Petitioners as to the types of trucks that regularly visit the property. FDOT used auto-turn software to demonstrate how the trucks could safely enter and exit the property and maneuver on site. FDOT’s witnesses explained that the auto- turn exhibits illustrate one way that the vehicles could maneuver on site and that additional maneuvering could be performed to avoid the parking spots, fences, and pervious surfaces. The weight of the credible evidence also undermined testimony as to the purported problems that FDOT’s design will cause on site. As to interference with the lined parking spaces, Petitioners created the very problems about which they are complaining because they installed them with knowledge of the Project, including FDOT’s intent to reduce the width of the driveway. Additionally, photographs introduced by Petitioners into evidence show that JPM Ventures already uses the pervious surface along the right side of the Miller parcel to park vehicles it has for sale—the same pervious surface that Mr. Trebilcock testified could create permitting issues if vehicles had to traverse over it to maneuver on site. Mr. Trebilcock also testified extensively as to two alternative designs that he believed were equally safe, but avoided any issues on site. First, he proposed the following design that retained the original 98 feet of pavement, but utilized a double-yellow-lined area to reduce the operational width of the driveway to 53 feet: Second, Mr. Trebilcock proposed the following design that essentially retained the original 98 feet of pavement, but used a truck apron with a three-inch tall, RA mountable curb to reduce the operational width of the driveway to 53 feet: Mr. Trebilcock testified that this design aligned with the recommendation in the AIM safety report to use a truck apron. Mr. Trebilcock acknowledged that vehicles could drive over either the double-yellow-lined paved area or the truck apron and RA curb. But, he opined that both were just as safe as FDOT’s design because they created separation between the driveway and the shared use path and forced vehicles to reduce their speed. Because the vehicles could make similar movements to enter and exit the property as they could with the existing driveway, the alleged on-site problems he identified would be avoided. However, Ms. Ratican credibly explained why these two designs were not as safe. She believed the first design provided less protection because there was no physical separation between the driveway and the shared use path except for the painted lines, which could be driven over without slowing down. She believed the second design was safer than the first, but still provided less protection because vehicles could drive over the three-inch RA curb more easily and at a faster speed than the five-inch type E curb in FDOT’s design. Further, despite the fact that the conclusion section of FDOT’s safety assessment report recommended a truck apron, she confirmed that the design exhibits included within the report and attached to the Second Amended Notice clearly use a type E curb. She confirmed that FDOT never proposed a truck apron for this driveway. In sum, the weight of the credible evidence showed that Petitioners’ existing driveway is unsafe and poses a safety risk for pedestrians and bicyclists using the shared use path. FDOT’s proposal is a safe design that substantially reduces that risk consistent with the operational characteristics of SR 80, and continues to provide Petitioners with reasonable access. Although Petitioners prefer their alternative designs, they pose a greater safety risk to users of the shared use path. Petitioners also challenge the proposed modifications based on alleged procedural failures.4 However, the evidence was to the contrary. 4 Petitioners also have repeatedly argued that the Project as a whole should not occur, that this case was prematurely brought because the Project lacks federal approval and/or funding, that FDOT failed to comply with the National Environmental Policy Act (“NEPA”), and that FDOT submitted a different driveway design to the SFWMD to obtain an environmental resource permit for the Project, among other arguments. Because jurisdiction in this case is limited to determining if FDOT’s proposed driveway modifications are consistent with the design and safety standards under Florida law and provide Petitioners with reasonable access, arguments as to why the Project is ill-advised and whether it will ever be funded or approved by federal or other governmental agencies are not addressed herein. Petitioners questioned the validity of the exhibits attached to the Second Amended Notice because they were not signed and sealed by a professional engineer. Ms. Ratican and her design team at AIM prepared the exhibits on FDOT’s behalf. Ms. Ratican acknowledged that they were not signed and sealed by her or another engineer of record, but that was because they were preliminary in nature. She confirmed that the final plans would be signed and sealed once this case was resolved. Petitioners also argued that FDOT failed to hold a public hearing in violation of section 335.199. Throughout the Project’s development, the MPO and FDOT worked together. The MPO and other local government entities have held numerous public meetings, at which FDOT employees attended. Mr. Majka has attended many of them, too. In fact, he has made over 30 presentations to the various entities about both the Project and the proposed modifications to Petitioners’ driveway. The MPO also received substantial public input and approved revisions to the Project based thereon. FDOT has conferred with Petitioners multiple times and adjusted its proposed modifications based on the input received. The weight of the credible evidence established that FDOT received substantial input about the Project generally from the public’s involvement at the MPO and about Petitioners’ driveway specifically from the multiple meetings with Mr. Majka and his engineer. Lastly, Petitioners have repeatedly argued that FDOT acted in bad faith in seeking to modify their driveway and, as such, should be sanctioned. Contrary to Petitioners’ argument, there is no credible evidence to find that FDOT’s pleadings, positions, or other actions in this case were made in bad faith or for an improper purpose, as required by section 120.569(2)(e). Mr. Trebilcock testified that he did not believe FDOT acted in bad faith or for an improper purpose with any of its proposals. Although he believed FDOT initially failed to understand the business operations on site and the process could have gone better, he testified that FDOT’s proposals improved after it received more information and further input from him and Mr. Majka. The weight of the credible evidence established that FDOT made extraordinary efforts to take Petitioners’ concerns into account and revised its proposed modifications numerous times in a good faith effort to accommodate their individual needs. FDOT employees met on site with Mr. Majka twice and at FDOT’s office once. FDOT employees engaged in multiple conversations with Mr. Majka by telephone and e-mail. The district secretary had two meetings with Mr. Majka and his engineer, in person and over the phone. FDOT’s proposed modifications provide for a driveway that is significantly wider than any other within the Project corridor and provides for an 11-foot area within FDOT’s right-of-way to assist Petitioners with circulation on their property—an accommodation only one other owner received because he agreed to two driveways on his property, which Petitioners rejected when offered. FDOT not only treated Petitioners fairly, but accommodated them more than the other property owners.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order approving the proposed modifications to Petitioners’ driveway connection as outlined in the Second Amended Notice. DONE AND ENTERED this 15th day of January, 2021, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO 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 15th day of January, 2021. COPIES FURNISHED: John Majka 18700 Old Bayshore Road Fort Myers, Florida 33917 (eServed) David Tropin, Assistant General Counsel Florida Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 (eServed) Austin M. Hensel, Assistant General Counsel Florida Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 (eServed) Amber Greene, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 (eServed) Kevin J. Thibault, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450 (eServed) Sean Gellis, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 (eServed)
Findings Of Fact Petitioners purchased the property here involved in 1961 and occupied it as their residence until April 1991 when they moved to a new home they had just completed. The Hillsborough County Northwest Expressway was in the talking stage for several years before the final route for the Expressway was decided. Numerous public hearings were held before the final route of the Expressway was determined. Throughout most of these meetings and discussions Petitioners' property was deemed likely to be in the right-of-way of the Expressway and subject to taking. Anticipating their property would be taken for the Expressway, Petitioners, in 1989, purchased another lot on which to construct a residence. The Tampa-Hillsborough County Expressway Authority was designated as agent for the Florida Department of Transportation to acquire the necessary rights-of-way for the proposed Northwest Hillsborough County Expressway Project. In turn the Expressway Authority designated O.R. Colon Associates, Inc. (Colon) to serve as its agent in acquiring the property needed for this project. The ultimate route of the Northwest Expressway was determined and property owners on the selected route were sent a letter in January 1991 informing them that their property would probably be taken and that the Expressway Authority would negotiate with the owners of all parcels of property to be acquired to arrive at a fair price to be paid for their property. That letter further provided that: In order to facilitate construction of this project, the Authority will begin the appraisal and relocation survey of your property, after which you will be offered the fair market value of your property based upon an independent appraisal. * * * In addition to receiving payment for the fair market value of your property, you may be entitled to certain relocation assistance payments and other costs payable only during the settlement process. (Emphasis added) Petitioners also had a business occupying the same property on which their residence was situated. This business was incorporated and did not move from the property until after Petitioners had moved into their new residence in April 1991. Subsequent to moving their residence from the property to be taken for the Expressway project Petitioners were shown a relocation brochure (Exhibit 2) prepared by Colon which contained information regarding relocation benefits. The first personal contact with Petitioner was made by an employee of Colon on January 16, 1992 at which time a written offer to purchase the property for $116,400 was presented to Petitioners.
Recommendation It is recommended that a Final Order be entered dismissing Verlyn Spivey's and Sandra Spivey's application for relocation benefits associated with the taking of their property in the right-of-way of the Hillsborough County Northwest Expressway. DONE and ORDERED this 22nd day of December, 1992, in Tallahassee, Leon County, Florida. K. N. AYERS 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 22nd day of December, 1992. COPIES FURNISHED: RONALD R SWARTZ ESQ 610 WATERS AVE - STE J TAMPA FL 33604 CHARLES G GARDNER ESQ ASST GENERAL COUNSEL DEPARTMENT OF TRANSPORTATION HAYDON BURNS BLDG - MS 58 605 SUWANNEE ST TALLAHASSEE FL 32399 0458 THORNTON J WILLIAMS ESQ GENERAL COUNSEL DEPARTMENT OF TRANSPORTATION HAYDON BURNS BLDG - MS 58 605 SUWANNEE ST TALLAHASSEE FL 32399 0458 BEN G WATTS/SECRETARY ATTN: Eleanor F. Turner DEPARTMENT OF TRANSPORTATION HAYDON BURNS BLDG - MS 58 605 SUWANNEE ST TALLAHASSEE FL 32399 0458
Findings Of Fact On April 16, 1986, in conjunction with the preparation of plans for widening Southside Boulevard (State Road 115) in Jacksonville, Florida, the Department recorded a Map of Reservation pursuant to Section 337.241(1), Florida Statutes, which encompassed a portion of the Petitioner's property. It was stipulated by the parties that the Department complied with the necessary notice, filing, and approval requirements of Section 337.241(1), Florida Statutes. The property in question is located in Jacksonville, adjacent to the east side of Southside Boulevard at the intersection of Hogan Road. It is zoned commercial, but there is currently no development on the east side of Southside Boulevard in the immediate vicinity of Hogan Road. The west side of Southside Boulevard is developed commercially for its entire length. This property consists of a tract of land approximately 892 feet long by 15 feet deep which lies adjacent to a strip of land approximately 100 feet deep which is immediately adjacent to Southside Boulevard. The Department determined that there existed a need to widen Southside Boulevard from a two lane highway to a four lane, limited access facility accompanied by two one-way, parallel service roads. In designing the widening of this highway, the Department determined that the minimum right-of-way corridor width for the facility should be 250 feet. This minimum width was established by using official rules and criteria established by the Department, as well as the Rules of the American Association of State Highway Officials and those of the Florida Department of Highway Safety and Motor Vehicles. Presently, the Department has a 200 foot wide right-of-way corridor. Because of the requirement for at least 250 feet of width, the Department needed to take steps to assure that the extra 50 feet would be available by use of a Map of Reservation. The Department determined that land should be reserved on the east side of the right-of-way corridor for the needed 50 feet because the east side of Southside Boulevard in the area in question is undeveloped, while the west side is substantially developed. This was an economic decision based upon an alignment of the right-of-way corridor that would have the least economic impact on the acquisition of the additional right-of-way. The Department did not place all of the Petitioner's property under the Map of Reservation. Only the 50 feet required for the widening project is affected by the regulation. The owner of the subject property is an individual, E. W. Mayhew, and a corporation, Beta Development Company, Inc. The property was purchased in 1982 for development as office/warehouse space. The Petitioner E. W. Mayhew knew that the property was affected by a Limited Access Line across the property, which was established by the Department in the 1960's, well before the Petitioner's purchase of this property. Despite the presence of this Limited Access Line, the Petitioner did not realize until 1984 that the Line informed potential buyers that direct access to Southside Boulevard from the subject property would be eliminated eventually. Although it spent more than $43,000 to develop plans to promote its property, the Petitioner had not applied to the City of Jacksonville for any of the permits that are required in order to build its proposed office/warehouse project by the time the Map of Reservation was filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter its Final Order dismissing the Petition in this case. THIS Recommended Order entered on this 24th day of November, 1986, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS 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 24th day of November, 1986. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 86-1587 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-4. Accepted. 5.-16. Rejected, as irrelevant because the elements of reasonableness and arbitrariness were not proved. 17. Rejected, as not a proposed finding of fact. Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-9. Accepted. COPIES FURNISHED: Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel Department of Transportation Haydon Burns Building Tallahassee, Florida 32301-8064 Theresa M. Rooney, Esquire 1550 Florida Bank Tower Jacksonville, Florida 32202 Paul J. Martin, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064
The Issue Whether the Map of Reservation filed by Tampa-Hillsborough Expressway Authority in July, 1988 is unreasonable or arbitrary, and has the effect of denying General Homes of Florida, Inc. a substantial portion of the beneficial use of the property owned by General Homes within the limits of the Map of Reservation.
Findings Of Fact Petitioner was consolidated back to its parent corporation, and now operates as General Homes Corporation which is a large builder of single family homes in the Tampa area. The property affected by the Map of Reservation filed by Respondent was acquired by Petitioner in 1985 and comprises some 24 acres which have been platted into 96 lots known as Eastbrook Subdivision. Eastbrook Subdivision is the third housing development commenced by Petitioner in unincorporated northwest Hillsborough County. The first such subdivision started in 1980 was called Carrollwood Springs. That project was successful and when that development was nearly completed additional property in the vicinity was purchased and the Eaglebrook Subdivision was started. That project was of a similar size to the Carrollwood Springs Subdivision and, it too, was successfully developed and sold. The success of these developments led Petitioner to the purchase, in August of 1985, of the 24 acres to be developed as the Eastbrook Subdivision which is similar in size to the two former developments. At the time this purchase was made there were two proposed alignments of the northwest expressway, the Lake Le Clare Alignment and the Railroad Alignment. The Lake Le Clare Alignment, if adopted, would cross the Eastbrook property but the Railroad Alignment would not. Petitioner had closely monitored the selection process throughout 1985 and was under the impression that the Railroad Alignment would be selected for the Expressway. In 1986, the Expressway Authority selected the Lake Le Clare Alignment. However, the Map of Reservation was not filed until July, 1988. Petitioner proceeded apace with the development of the Eastbrook Subdivision by opening a sales center and five fully furnished model homes with the intention of selling single family homes in the subdivision. Weekly newspaper ads were run, billboard locations were rented and local realtor parties were hosted to draw more attention, and buyers, to the subdivision. In fiscal year 1986, General Homes spent some $300,000 in marketing efforts and sold some 56 homes in Eaglebrook closing out that subdivision. Eastbrook was opened and 16 lots were sold there. In 1987 General Homes spent over $400,000 in sales and marketing but sold and closed only 27 homes in Eastbrook. In fiscal year 1988 General Homes sold and closed 21 homes but incurred a loss of approximately $250,000. The expressway alignment was well known at this time and the public was aware the alignment would affect portions of the Eastbrook Subdivision. The Map of Reservation runs through the southern part of the Eastbrook Subdivision and Petitioner devoted most of its attention to developing the northern portion of the subdivision. However, the impending expressway and its impact on the Eastbrook Subdivision had a dampening effect on sales in this subdivision and in 1987 General Homes lost $231,000 in the Eastbrook Subdivision. In 1988, General Homes suspended all construction activities, discontinued speculative building and attempted to sell the unsold lots in the subdivision. In early 1988, General Homes sold ten lots in Eastbrock to Atlantic Homes who built homes on those lots. An option by Atlantic Homes to purchase additional lots was not exercised. Since the cessation of building activities, General Homes has held the land not sold as unproductive assets in which development costs have accrued, taxes and interest payments continue, but the lots cannot be sold for the erection of a single family home.
Recommendation It is RECOMMENDED that the Petition of General Homes of Florida, Inc. for a determination that the Map of Reservation filed by the Tampa-Hillsborough Expressway Authority is unreasonable or arbitrary and that it denies Petitioner a substantial portion of the beneficial use of its property be DENIED. DONE AND ENTERED this 21st day of June, 1989, in Tallahassee, Leon County, Florida. K. N. AYERS 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 21st day of June, 1989. COPIES FURNISHED: Peter J. Winders, Esquire One Harbor Place Post Office Box 3239 Tampa, Florida 33601 William C. McLean, Jr., Esquire Post Office Box 21 Tampa, Florida 33601 =================================================================
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
Findings Of Fact Respondent agency, FDOT, filed a Circuit Court eminent domain action to condemn certain property in Tallahassee, Leon County, Florida for the purpose of constructing, reconstructing and maintaining a state transportation facility for the use of the general public, including, but not limited to, rights-of-way, borrow pits, drainage ditches, drainage easements, construction easements and service roads. There is no dispute that this is a federally-funded project. The condemned property included a taking in limited access rights and a temporary construction easement from a larger parcel of commercially developed property, called "Plaza 10", owned by a group of individuals and controlled by William Grow as managing partner. Plaza 10 is located on the northwest corner of Raymond Diehl Road and Capital Circle NE. Petitioners, Furniture Showcase Inc. and Chrysalis Decorative Fabrics, had leased space in buildings located at Plaza 10 where each had profitably operated their respective businesses for at least nine years. An Order of Taking was entered in the eminent domain action on April 27, 1992, and title transferred to the Respondent within twenty days thereof when the sum of $10,000 was deposited in the court registry for the benefit of William Grow and his partners. Petitioners received nothing thereby. There is no dispute that there was a partial acquisition by FDOT of the property upon which Petitioners' respective businesses were located. Petitioners attended several public meetings pertaining to the proposed construction. Plaza 10 had two driveways providing ingress and egress for Plaza 10 onto Raymond Diehl Road, and FDOT's plans included closure of the westernmost driveway. However, Petitioners became aware of the extent of the proposed project and its potential impact on their businesses at a mediation meeting with FDOT held in December 1992 in connection with the eminent domain action. Petitioners could have renewed their leases upon favorable terms at Plaza 10, but on December 28, 1992, Furniture Showcase Inc. notified Plaza 10 that it would not renew its lease. Chrysalis notified Plaza 10 on December 29, 1992 that it would not renew its lease. Both Petitioners gave anticipated loss of business and profitability as their reasons for leaving Plaza 10. Petitioners moved their businesses from their prior location at Plaza 10 in February of 1993, prior to the commencement of any construction, but after surveying had begun. Construction was delayed because FDOT took bids three times and only settled on a contractor sometime in late 1993 or early 1994, at which time construction finally began. Both of Plaza 10's original driveways to Raymond Diehl Road remained open and in use as of the 1994 formal hearing herein. The City of Tallahassee and Leon County posed no impediments to Petitioners continuing in business at Plaza 10, whether or not a driveway is eventually closed. Petitioners filed claims in Circuit Court for business damages arising out of the anticipated loss of business and profitability arising from the loss of previously existing access rights to the lease-hold interest in Plaza 10. The result of this Circuit Court suit are not in evidence. Chrysalis relocated to Betton Place in February 1993, where it continues to conduct business. Furniture Showcase Inc. has moved its remaining business goods to the home of its principals and no longer conducts business, asserting at formal hearing herein that it has yet to find a profitable site for its business. Furniture Showcase Inc. sold solid wood and up-scaled upholstered furniture and was located in Plaza 10 for nine-and-a half years. In the whole of that time, it primarily received its shipments of furniture in full-sized WB- 50 tractor-trailer trucks or "semis," through the western driveway, which FDOT plans to close off. In reaching the decision to vacate Plaza 10 in 1993, Furniture Showcase Inc. concluded that it could no longer operate its business successfully at that location due to the inability to receive its freight, reduction in access, and the concern of its customers in accessing the site. Chrysalis Decorative Fabrics sold furniture, carpeting, decorative fabrics, wallpaper, and interior design items. It was located at Plaza 10 for nine years. It also received freight which was delivered by full-sized tractor- trailer trucks. The operation of its business is dependent upon receiving such deliveries, including but not limited to room-size carpets and fabric in 54 inch long/15 inch diameter rolls. When ordering its merchandise, Chrysalis Decorative Fabrics has no control over how the merchandise will be shipped and delivered by its suppliers or what type of vehicle the suppliers will employ. Usually, its suppliers also utilize "semis". At Plaza 10, these trucks also always used the western driveway. Chrysalis' principal, Arlene Wingate, did an informal poll of her clientele and suppliers and concluded she would lose business due to implementation of the FDOT design plan. Nevins Smith, P.E., was accepted as an expert witness in site planning and civil engineering. He opined, without refutation, that a retail establishment which constitutes a "destination-type" business on the site of Plaza 10 and relies on truck traffic could not stay in business. Businesses fall into two major classifications: "destination-type" and "convenience-type." Both these Petitioners fall in the "destination-type" classification because they attract and cater-to persons who select them before driving to them. Their clientele seek them out intentionally, as opposed to selecting them on the spur of the moment as one might suddenly turn into a "Seven-Eleven" for a bag of potato chips when hunger strikes. A roadside "convenience store" like "Seven-Eleven" is a prototype of a "convenience-type" business. "Destination type" businesses are not aided by increased traffic speed and flow and require as many routes in and out of their establishments as possible so that customers can comfortably and safely come and go from many directions. Mr. Smith also demonstrated effectively that the FDOT plans eliminated all but four of twenty-five customer entrance and egress route options for Petitioners' clientele. By a Final Judgment on Counterclaim entered May 5, 1994, the Circuit Court of Leon County determined in the eminent domain action that the landowners had "lost 84 percent of the accessibility enjoyed prior to the FDOT project and after construction of the project, [the] property is accessible only by a tedious and circuitous route to reach the premises which is patently unsuitable. The FDOT project converts the portion of Raymond Diehl Road abutting the Plaza 10 property from a land service road into a limited access facility. The construction of the unbroken median in front of the subject property extending from Capital Circle N.E. to the intersection of the Cabot Lodge entrance and Raymond Diehl Road constitutes a limited access fence for the specific protection of Interstate 10 (State Road 8) traffic utilizing Raymond Diehl as a limited access ramp. As a result of the condemnation of Plaza 10 and the proposed project, the extended construction of an interstate limited access fence will result in the closure of the westerly driveway connection. The proposed limited access fence will run along the west side of the property from the northwest end of the existing interstate fence, turning east along the south side of the property to a point beyond the existing westerly driveway, thereby closing the driveway connection. There exists no access to Plaza 10 from Capital Circle or the northern or western boundaries of the property. The only access to the property that will exist after completion of the construction project is the single easterly driveway connection. Unrefuted expert testimony established that the intersection of Capital Circle NE and Raymond Diehl Road (SE corner of Plaza 10) is the entrance to a high-speed Interstate 10 on-ramp. The radius of this turn lane allows cars to negotiate the turn onto Raymond Diehl at approximately 25-30 m.p.h. and to accelerate in front of the subject property. The unrefuted testimony of Nevins Smith, P.E., and the Petitioners establishes that the reduction in accessibility to the property will result in a loss of customers, adversely affecting the ability of the Petitioners to operate their business profitably. In addition to the overall reduction in accessibility of customers to the site, the closing of the westerly driveway will also substantially or completely impair the ability of Petitioners' businesses to receive freight deliveries. Full-sized WB-50 "semis" (tractor-trailer trucks) historically have been able to enter the property only through the westerly driveway because the site of the easterly driveway connection and the on-site space available prohibits the necessary turning motion. Petitioners testified without refutation that, based upon their years of experience and expertise in their respective businesses, the combination of the loss of customer access and inability to receive their individualized types of inventory caused them to conclude that continuing at the Plaza 10 location would be committing their businesses to an economic death.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Department of Transportation enter a Final Order be entered finding that the Petitioners, Furniture Showcase, Inc. and Chrysalis Decorative Fabrics, were required to move their businesses from the Plaza 10 site as a direct result of the partial acquisition of real property from the site of the project; that this necessitated move qualifies both Petitioners as "displaced persons" under the applicable law; and that appropriate measures shall be undertaken to establish the amount and reasonableness of Petitioners' respective claims for relocation expenses. RECOMMENDED this 31st day of October, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 October, 1994. APPENDIX TO RECOMMENDED ORDER 93-1252 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioners' PFOF: 1-9 Accepted and adopted. 10-12 Accepted, except that unnecessary, subordinate, and/or cumulative material was eliminated. 13-19 Accepted as minimally modified to remove conclusions of law and mere legal argument. 20 Covered in preliminary matters and conclusions of law. Respondent's PFOF: Respondents' proposed findings of fact begin with #6. Paragraphs 1-5 are preliminary matters not requiring a ruling pursuant to Section 120.59(2) F.S. 6-9 Accepted. 10 Rejected upon the greater weight of the evidence; covered within the Recommended Order. 11-15 Accepted. Rejected upon the greater weight of the evidence. See all Findings of Fact related to elimination of the western driveway and impairment of the eastern driveway. Rejected as out of context and immaterial. Although there was considerable testimony on safety factors, safety vel non was not a dispositive issue. Accepted. 19-20 Accepted but utilized only so far as relevant. 21 Accepted. 22-23 Covered under preliminary matters. Rejected as a conclusion of law. Accepted but immaterial. Accepted. Rejected as a conclusion of law. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 John H. Beck, Esquire BECK, SPALLY & BARRIOS 1026 E. Park Avenue Tallahassee, FL 32301 Ben G. Watts, Secretary Department of Transportation Attn: Eleanor F. Turner, M.S. 58 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams, Esquire Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450
The Issue The issue in the case is whether the Department of Transportation (Department) proposal to close a driveway connection between a state highway and property owned by the Kyriakou Revocable Trust Agreement (Petitioner) should be approved.
Findings Of Fact The Department is the state agency responsible for regulating access to the state highway system. The Department has commenced construction of highway improvements on US 19 in Pasco County, Florida. US 19 is a state highway, also identified as State Road 55. The project is known as the "US 19 Continuous Right Turn Lane Safety Improvement Project." The Pasco County portion of the project is 11 miles long, four miles of which are currently under construction. The project is intended to improve the safety of the highway by reducing the frequency of rear-end collisions, to improve pedestrian safety, and to facilitate mass transit operations. The project includes installation of a continuous right-turn lane, where feasible, as well as pedestrian sidewalks and median alterations. The addition of a continuous turn lane will allow drivers to execute right turns after leaving traffic lanes, thereby reducing the incidence of rear-end collisions. The Department is not planning to acquire additional property. The project is being constructed within existing right-of-way. The Petitioner owns a parcel of commercial property located at 1733 U.S. Highway 19, in Holiday, Pasco County, Florida. The parcel has been owned since 1986 by Soterios Kyriakou and Nomiki Kyriakou, as husband and wife, who transferred ownership to the Petitioner in 2005. The parcel is platted as a single lot and is bordered to the east by US 19 and to the north by a county road, Buena Vista Lane. Two driveways connect the parcel to US 19. One of the project goals was to reduce the numerous driveways that connect private parcels to US 19. Limiting driveway connections to the highway promotes safe traffic flow. In evaluating the four-mile segment prior to design, the Department reviewed more than 200 existing connections between the highway and adjoining parcels for compliance with safety and design criteria. Driveway width and space parameters are generally based on vehicle count and highway classification. Many of the existing connections were excessively wide or insufficiently spaced and failed to comply with appropriate design-safety standards. Improperly-sized or located connections increase the opportunity for accidents between cars and with pedestrians. In order to improve highway safety, the Department focused on limiting "conflict points" and providing for additional separation where possible, while providing for continued access at the existing connections. The relevant design standards applicable to the Petitioner's parcel would normally limit the width of driveways to 24 feet and require a minimum separation of 440 feet between driveways. The driveway connections between US 19 and the Petitioner's parcel exceed the appropriate width parameters. On the east side of the Petitioner's parcel, there are two separate 40-foot wide driveway connections to US 19, divided by a 25-foot wide grassy area. The Petitioner's driveway connections are substantially closer than the 440-foot minimum requirements. The northernmost connection between the parcel and US 19 is approximately 40 feet from the intersection of US 19 and Buena Vista Lane. The southernmost connection between the parcel and US 19 is approximately 105 feet from the corner of US 19 and Buena Vista Lane. The two driveways are approximately 25 feet apart. To the north side of the Petitioner's parcel, there is an 80-foot-wide connection to Buena Vista Lane, which will not be affected by the project. Although the Petitioner's parcel is not of sufficient width to allow compliance with the spacing standards, the Department has not proposed to eliminate both connections between the parcel and US 19. Similarly, the Department has not proposed to reduce the width of the remaining southernmost connection between the Petitioner's parcel and US 19. The Department has proposed only the closure of the northerly connection between the Petitioner's parcel and US 19. Continued use of the Petitioner's existing northernmost connection to the improved US 19 would present a significant conflict point for drivers entering US 19 from Buena Vista Lane and drivers intending to enter nearby Alternate US 19, with drivers turning onto or out of the Petitioner's parcel. There is an existing stop sign on Buena Vista Lane at the intersection with US 19. Persons driving east on Buena Vista Lane execute right turns at the stop sign and travel south on US 19. After the project is completed, such drivers will likely turn south into the new continuous turn lane before merging east into through lanes. The existing northernmost driveway located only 40 feet to the south of the intersection presents a conflict point for vehicles entering onto US 19 from Buena Vista Lane. A few hundred feet south of the Buena Vista Lane/US 19 intersection, US 19 connects to Alternate US 19. Drivers intending to travel west onto Alternate US 19 begin to move towards the right lane near the area of the Petitioner's parcel. After completion of the project, such drivers will likely be moving towards the new continuous turn lane, increasing the hazard presented by the Petitioner's existing northernmost driveway. The Department performed appropriate feasibility and engineering studies prior to proposing the closure of the connection at issue in this proceeding. There was no evidence presented that would suggest the studies were inaccurate or otherwise unreliable. There were multiple opportunities for public involvement during project development as well as direct contact between each impacted owner. The Department specifically notified the Petitioner of the proposal to close the northernmost connection between US 19 and the Petitioner's parcel. On more than one occasion, project representatives met with the Petitioner to discuss the proposal. The closure of the Petitioner's northernmost connection to US 19 will improve vehicular and pedestrian safety. The southernmost 40-foot driveway on US 19 and the 80- foot Buena Vista Lane connection provide reasonable access to the Petitioner's parcel. There are no practical alternatives that would improve vehicular and pedestrian safety while maintaining reasonable access to the Petitioner's parcel from US 19. The Petitioner asserted that the closure of the northerly connection will restrict access to his parcel, will significantly decrease the fair market value of the property, and will result in a loss of tenants and revenue. There was no credible evidence presented in support of the assertions, and they have been rejected. The Petitioner also asserted that flooding of Buena Vista Lane during rainstorms cause drivers to cross his property to avoid standing water. There was no evidence presented that the closure of the northernmost US 19 connection will have any impact on the referenced driver behavior or on any existing drainage issues.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a final order approving the closure of the northernmost driveway connection located at 1733 U.S. Highway 19, in Holiday, Pasco County, Florida. DONE AND ENTERED this 30th day of November, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 30th day of November, 2011. COPIES FURNISHED: Kathleen P. Toolan, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Soterios Kyriakou Kyriakou Revocable Trust Agreement 1010 Peninsula Avenue Tarpon Springs, Florida 34689 Deanna Hurt, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Gerald B Curington, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Ananth Prasad, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450
