Findings Of Fact At all times pertinent to the issues herein, the Department of Transportation, State of Florida, was the state agency responsible for the promulgation, within the limits of its delegated legislative authority, of administrative rules governing the construction and operation of public highways within the state. The Department's Notice of Rulemaking to amend Chapter 14-96, F.A.C., was published in the November 10, 1994 edition of the Florida Administrative Weekly. The Department proposed to substantially amend the provisions of Rules 14-96.001, .0011, .002, .003, .004, .005, .007, .008, .009, .011, .012, .015; to adopt new Rules 14-96.0121 and 14-96.016; and to repeal Rules 14-96.0031, .006, .010, .013, and .014. Forms were also to be incorporated into the rules by reference. Racetrac Petroleum, Inc., (Racetrac), which, by stipulation, the Respondent agrees has standing in general to contest this rule, operates 41 properties in Florida. Approximately 90 percent of these are located on the state highway system. There were, at the time of the hearing, two sites under construction and eight more in the permitting process. Future plans call for further development with as many as one hundred sites under consideration. Factors considered by Racetrac when it looks at property during site acquisition include traffic counts and access to major thoroughfares and to the roads which abut the property. There are also factors considered in determining the continued development of a specific site. These include the risk to investment capital, and the potential for future reduction in access to the property. Any reduction in or change to access to and from the property changes the risk factor. The Department has two primary objectives in designing highways. These are planning for a reasonable lifetime for the highway as initially constructed, and controlling vehicle conflicts. The latter relates directly to the capacity and safety of the highway. When it designs the highways for this state, the Department relys on principles of traffic engineering to address their safety and operation efficiency. These principles are based upon an understanding of driver behavior. It is better to anticipate future safety and operational conditions and design for them, than to have to address a problem after it occurs. Driver behavior is an integral part of the information considered by traffic engineers in analyzing safety and operations of the state highway system. Other information considered includes the Department's highway construction and expansion plans. Of great importance in highway design is the need to minimize vehicle conflicts as there is a demonstrated relationship between highway safety and the number of vehicle conflicts on that highway. In designing highways, the Department engineers rely on design manuals which outline the geometric design of the road and provide for such control devices as pavement markings and the like. Safety is also affected by the various decisions that a driver must make in any given time. The larger number of decisions to be made, the greater the safety problem. In order to reduce the number of conflicts, the Department must either separate the drivers or separate in time the opportunity for conflict. Separating conflicts in time allows the driver to make separate decisions for each conflict, and in so doing, improves the safety of the highway. Access regulation is an inherent factor in highway operation to insure the safety and efficiency of the highway. Access management includes four basic principles. These are (1) reducing the number of vehicle conflicts on a highway segment; (2) separating conflict points; (3) limiting deceleration in through traffic lanes; and (4) taking turning vehicles from through traffic lanes. Access connections may be in the form of private driveways and public streets which intersect with a state highway. Management of access through those connections includes the placement and design of those connections while maintaining the right of the abutting property owner to access to the State Highway System. Proposed Rule Chapter 14-96, F.A.C. is the Department's guideline for access management. It addresses the process by which an abutting property owner may secure a permit for a connection to the State Highway System and provides the means for the closure or modification, by the Department, of existing connections. The existing Rule 14-96 was adopted in April, 1990, prior to the amendment of the Access Management Act in 1992. The rule under consideration here is the Department's attempt to amend Rule 14-96 in response to the provisions of the 1992 Act amendments and to treat matters not addressed in the 1990 rule. The proposed rule in issue here seeks to control a technical operation - the management of connections between private driveways and the State Highway System. Inherent therein is the use of numerous terms, the definition of which must be understood if the rule is to be effective and accomplish its purpose. Proposed Rule 14.96.002(6) defines the relocation, alteration or closure of a connection. An "alteration" of a connection is defined as agency action which would "substantially reduce the width" of a connection. "Relocation" of a connection is described as action to "substantially relocate" a connection. In each case, the terms "substantially reduce the width" and "substantially relocate" have meanings which are generally understood within the transportation engineering community. The former is generally recognized as a narrowing of a connection by one lane or a narrowing which affects the ability of vehicles to make a turning movement through the connection. The latter is generally understood to mean a lateral movement of the connection by one lane width. These definitions, however, do not necessarily answer the question of whether a change adversely affects the property owner. In most situations, the change is fact specific. What may be a small change may well have a significant impact on a connected property owner. What may be a physically significant change to a connection may yet have little impact on the property owner served by it. Some reductive changes may have a positive and beneficial impact on the operation of the connection. Petitioner seeks to show that the Department does not provide notice to property owners before it engages in either relocating, modifying, closing or altering a connection. It is true that the Department's current rules regarding access management do not provide for written notice to property owners when minor changes to driveway connections are made. However, the evidence introduced at hearing indicates that as a general practice, the Department does make contact with property owners to discuss such changes before they are made. It is further clear that when driveway connections are changed, the Department issues notices of intended agency action along with a notice of appeal rights, and there is no evidence in the record to indicate that the proposed rule would, in any way, deny a property owner's right to an administrative hearing when a proposed Departmental action would adversely affect those substantial interests. Another issue in contest is whether a raised median can constitute a traffic control device, and what procedures are required to change median openings. Proposed Rule 14-96.003(6) classifies medians and median openings as traffic control devices or features, and provides that the Department may install, remove or otherwise modify such features to promote traffic safety and efficient traffic operations. The use of raised medians is designed to correct safety problems on state roads as they prevent unlimited left turns. Traffic engineering studies have shown that when raised medians are installed on highways, the crash rate goes down and the Department's standard for installing or modifying traffic control features to promote traffic safety and operations is consistent with the Department's other safety and operational enhancement practices, such as separating conflicts. To do so, the Department must have flexibility in the design of its roads. Since they provide guidance and direction to vehicles travelling on the highway, raised medians are recognized as traffic control devices. The openings in such medians are also considered traffic control devices because they are an integral part of the median design. Raised medians are safety devices constructed on multi-laned roads. Ordinarily there are two lanes on each side of the median to the edge of the road. Median openings are designed to allow a vehicle proceeding one side of the median to cross to the opposite of the road without proceeding to an intersection. A median opening is not, however, a method of ingress or egress for property abutting the highway. A vehicle exiting from a piece of abutting property can enter onto the highway and proceed in one direction without crossing the median. In order to get to the opposite side of the road, or into the traffic proceeding in the opposite direction, however, a driver must go through a median opening or an intersection on a road divided by a raised median. A median opening does not give access to the private property abutting the highway. Though it facilitates access from the opposite side of the road, it is not a part of the connection as a vehicle passing through a median opening toward property on the opposite side of the highway must traverse two or more lanes of the highway before it can reach the juncture between the property and the highway. Petitioner attempted to establish that median openings are a part of the connection to a state highway, and there is some evidence to support that position. However, the better weight of the evidence indicates that median openings which are aligned with driveways are generally not considered connections to state highways, but are merely a convenience to the property owner. By themselves, and with the driveway, they permit opportunity to use the driveway but are not considered access features. They do not connect private property to the highway, but merely allow traffic to cross from one side of the highway to the other. As was stated, a raised median with openings placed at appropriate places thereon, is a safety device promoting the safe and efficient operation of the highway. The design of raised medians and the location of the median openings is determined through a study and evaluation of the needs of that section of the highway, including the need to provide for left turn movements. Highway traffic engineers must have the latitude to design and place medians where they will have the most salutary effect on the traffic on that highway. The ultimate consideration of highway designers is to design a highway meeting the current and anticipated traffic needs in the area in such a way that promotes traffic safety and efficiency on the state highways. The term, "promote", is understood and used by transportation engineers, some of whom may, however, prefer to use the term "improve." In either case, however, whichever term is used in connection with traffic safety and efficiency, they are generally understood as meaning the creation of a driving environment that would minimize or reduce crashes. Whereas those terms are ordinarily used as criteria supporting highway construction and design, they also afford abutting property owners the opportunity to challenge a Department decision to close a median opening on the basis that neither traffic safety nor efficient traffic operations would be promoted by the closure. There are frequently solid bases for maintaining a median opening. Closing it may overload an intersection with traffic that would otherwise turn at the median opening. In addition, certain types of abutting properties, such as high volume or specialized vehicle operations, might justify maintaining a median opening. The current version of Chapter 14-96 does not require the Department to give notice to abutting property owners when a median opening is to be closed. Proposed Rule 14-96.003(5) also does not specifically provide for a written notice to an abutting property owner. However, it has historically been Department practice to provide such notice to property owners prior to taking closure action, and it is the intention of the Department, as evidenced by the testimony at hearing, to continue the practice of addressing the issue of notice on a case by case basis. Petitioner seeks to challenge the Department's definition of certain terms used within the proposed rule and outlined in Proposed Rule 14-96.002. One of these is the term, "connection permit" which is defined in subparagraph (5). This provision defines a connection permit as: "a written authorization issued by the Department allowing the initiation of construction of a specifically designed connection and any specific conditions related to the subject connection to the State Highway system at a specific location generating an estimated volume of traffic. Petitioner alleges this definition allows the Department to expand its control by specifically limiting a volume of traffic through a given connection in violation of the statute which permits limitations on vehicle use only on "non-conforming" access points. The Department rejects this assertion, claiming the phrase was included only to refer to the connection category applied for. The Department's position is a reasonable reading of the language in issue, and it is so found. Proposed Rule 14-96.002(13), challenged by the Petitioners as being arbitrary, seeks to list those organizations whose publications are considered "generally accepted professional practice", another term challenged by the Petitioner. This rule includes the Department as one of those agencies whose publications fall within that category. Petitioner claims it is inappropriate for the Department to list itself as an authority for determining what constitutes generally accepted professional practice when that is considered as a standard by which the Department will take action. At first glance it would seem that the practice is questionable. However, evidence at the hearing, from experts with national reputations in the fields of traffic engineering and traffic management, indicates that the Florida Department of Transportation is recognized as a national authority in the area of access management, the subject matter with which the rule in question deals. Some Department publications in this area, and that of transportation engineering, have been recognized nationally. It should also be noted that the proposed rule does not prioritize by way of use preference any of the publications listed, nor does it require applicants to use Department publications. By the same token, it does not make Department studies which have been based on Department publications, any more authoritative than those based on publications by others. It would appear, also, that including the Department as an authority in the proposed rule is consistent with "generally accepted professional practice" in transportation engineering, and the evidence also indicates it is generally accepted professional practice in engineering to use local publications in making engineering decisions for the local area. Some experts even suggest it would be improper to disregard local publications and give credence only to national publications. Another term used by the Department in the Proposed Rule at 14- 96.002(19), and challenged here by Petitioner is "non-restrictive median." Petitioner contends this definition contravenes the Manual and Uniform Traffic Control Devices, (MUTCD), (Rule 14-15.010) as it, allegedly, includes any painted center line as a non-restrictive median. It appears the Department has taken this definition directly from Rule 14-94.002(23). The MUTCD does not refer to "restrictive" as opposed to "non-restrictive" medians. It was the intent of the Department, in drafting this provision, to simplify the application of its spacing standards, and in doing so, has reduced the relevant categories of connections from twelve to six. "Reasonable access" is defined in Proposed Rule 14-96.002(22) as: ... the minimum number of connections, direct or indirect, necessary to provide safe ingress and egress to the State Highway System based on Section 335.18, Florida Statutes, the Access Management Classification, projected connection and roadway traffic volumes, and the type and intensity of the land use. Petitioner claims that the use of the word, "indirect" in this definition attempts to nullify the amendments to the Access Management Act, (AMA), which, according to Petitioner, eliminated the authority of the Department to consider either alternate or joint access as reasonable access. The term "reasonable access" in its definition, requires the consideration of varying factors. The Department has a concern for the safety of the traveling public as well as a recognition of the statutory mandate encompassed in the AMA that every owner of property which abuts a road on the State Highway System has a right to reasonable access to the abutting state highway. These countervailing forces have to be maintained in balance. The determination of what constitutes reasonable access requires the evaluation of several factors pertinent to the specific instance. Factors to be considered include traffic volume, safety, operational efficiency, highway characteristics, growth potential and the impact of the proposed connection on all of the above. Also to be considered is the basic statutory right of a property owner to reasonable access and the impact on him of denial of that access. No firm and fast formula for determining the reasonableness of access has been devised. Direct access is easy to determine. It is a connection which joins the highway directly. However, there are other means of providing access. These may include access gained by connection to a side street which directly connects with the highway, or the use of a joint easement or a service road and are called indirect access. In determining whether indirect access can constitute reasonable access, many factors, including those cited above, must be considered. Another definition challenged is that of "significant change", as defined in Proposed Rule 14-96.-002(27)as: ... a change in the use of the property, including land, structure or facilities, or an expansion of the size of the structures or facilities causing 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. If the Department determines that the increased traffic generated by the property does not require modifications to the existing permitted connections, a new permit application shall not be required. Petitioners claim that this provision tries to modify the definition of significant change as found in the AMA by giving the Department the authority to determine what is a significant change. Comparison to the AMA, (at Section 335.182(3)(b)), Florida Statutes, reveals that the first sentence of the rule definition is identical to the statutory definition of significant change. In the rule, however, the last sentence is added. It does not change the meaning or effect of the statutory definition but merely advises the public that a significant change need not necessarily require a new permit application. Proposed Rule 14-96.003(4), as it relates to the cost of alterations to a permitted connection, provides that the cost of all construction related to the permit shall be the responsibility of the permittee, with certain exceptions. If an existing permit requires alteration to meet current standards, the alteration will be done at no cost to the permittee, unless the permittee requests modifications beyond those required by the Department. In that case, the change shall be subject to Departmental approval and shall be the responsibility of the permittee. Petitioner claims this provision conflicts with the AMA where it grants authority to modify existing permitted or grandfathered connections. Petitioner reads into this provision authority which is not there. This provision deals particularly with the cost of any modification or alteration and does not purport to grant to the Department any authority not already within its charter. Petitioners claim that Proposed Rule 14-96.003(7) exceeds the authority granted to the Department by attempting to place a burden on a connection permit applicant to demonstrate that the proposed connection will create a benefit to the State Highway System. This provision states: If the requirements of rule chapter 14-97 or other adopted Department access management standards cannot be reasonably complied with, or if the standards can be met but the applicant desires to submit an alternative plan, the applicant may submit alternative plans which will require the approval of the Department's District Secretary or designee. The acceptance of any alternative plans shall be based upon maximum achievement of the purpose of Rule chapter 14-97 F.A.C. and Section 335.181, Florida Statutes. Any alternative access plan proposed under this section will need to provide document- ation, in a traffic study, signed and sealed by a professional engineer registered in the State of Florida, how the plan better serves the driving public and not just the applicant's clients or customers. The Department will also consider the transportation conditions stated in Section 335.184(3)(a), Florida Statutes. This provision provides for an applicant, who can meet the Department's standards but who prefers to submit a non-conforming proposal, to do so. The rule thereafter requires that applicant to show, by use of a professionally accomplished traffic study, where the alternative proposal serves the public better than the conforming plan. Once the applicant identifies the specifics of his alternative plan, the Department and the applicant discuss the alternative and the Department has the opportunity to stipulate any conditions pertinent to the alternative. If there is no agreement, though not specifically provided for in the rule, the Department claims the applicant has an opportunity to challenge any condition felt to be improper. The forum for or method of that challenge is not stipulated. Petitioner also challenges Proposed Rule 14-96.005(3)(a)&(b) on much the same grounds, but also alleges that these provisions require notice and a new application for any modification to an existing permit even when no significant change occurs. Petitioners claim there is no specific statutory authority for the Department to require this. Subsection (a) of the proposed rule merely requires, in the event of a significant change, an abutting property owner to seek of the Department a determination as to whether a permit application must be filed and whether changes to existing connections are required. If no significant change exists, no action is required by the property owner, and even should there be a significant change, if no modification to the connection is necessary, no new permit application is required. Subsection (b) of the proposed rule calls for the Department to issue notice to a property owner when a significant change has occurred and the property owner has not filed a required permit application. In any case, the Department claims, the property owner is granted opportunity to contest either or both the determination of significant change and the need to modify the connection in a hearing conducted under the provisions of Section 120.57(1), Florida Statutes. The Proposed Rule does not so provide, however. Petitioner contends that Proposed Rule 14-96.007(4)(c) & (d) constitute an unlawful indexing and creates an unlawful presumption of reasonable access in cases of joint or alternate access. To be sure, the proposed rule does establish a presumption that existing access is reasonable but it also provides an applicant seeking additional access with an opportunity to rebut this presumption. The presumption in subsection (d), that existing "grandfathered" access connections are reasonable, carries with it the opportunity for the applicant to show that it is not. In short, the presumptions created by the rule are rebuttable. Petitioner also claims that the requirement in Proposed Rule 14- 96.007(9) for recording of access permit conditions is not supported by any statutory authority. As noted in the rule requirement, the conditions are limited to only those contained in the access permit, and the recording requirement is no more than an effort to insure compliance and avoid the possibility of future misunderstanding. Another proposed provision in Proposed Rule 14-96.007(10) is contested by Petitioner who alleges there is no statutory authority to attempt to eliminate expansion of highway right of way through the acquisition of abandoned transportation corridors for access to state highways by abutting landowners. The rule in question states that abandoned rail corridors which are adjacent to state highways are considered intervening properties. This applies, however, only to those properties acquired for non-highway uses, not to that acquired for highway expansion. Petitioner also claims that through Proposed Rule 14-96.011(1)(d) the Department, without statutory authority, tries to make "potential" safety or operational problems grounds for revoking or modifying an existing connection. Section 335.187, Florida Statutes, which governs the revocation or modification of connections does not refer to "potential" problems. The proposed rule allows the Department to close or modify a permitted connection if it determines the connection poses a current or potential safety problem which is documented by an engineering study. There is no quarrel with action to close or modify a connection which is unsafe when that condition can be shown through existing factors. It is not enough to only react to existing problems, however. Department engineers must be able to predict those areas which can reasonably be expected to pose future safety problems. In doing so, they may use information which indicates the potential problem by expected changes to the conditions creating traffic on the highway. Petitioner contests Proposed Rule 14-96.012(2)(b) and (3)(b)3. Its challenge to the former is based on its contention that the proposed rules ignore the statutory mandate regarding closure or modification of unpermitted connections since they are applicable only to new connections. Petitioner also asserts that the latter unlawfully allows the Department to determine that a property owner's request for hearing was filed for purposes of delay and is, therefore, arbitrary and capricious. The proposed rule allows the Department to close or modify unpermitted connections for a variety of reasons. Included are: (1) that significant changes have occurred; (2) the safety or operational characteristics of the highway would be negatively impacted; and (3) the connection is not grandfathered. Notwithstanding the rule permits a property owner with an illegal connection to maintain that connection pending hearing or issuance of the permit, the Department may nonetheless close the connection if it can determine the owner's actions are for the purpose of delaying the Department's exercise of its jurisdiction. Further, though the Proposed Rule 14-96.012(2)(b) refers to conditions which "jeopardize the public safety", the Department considers that language to be operationally similar to the "current or potential safety problem" standard, as used elsewhere in the rule chapter, and it contends it does not intend to treat the two types of connections differently in regard to modifications or closures based on safety considerations. Petitioner also contends that the Department has no authority to modify existing permitted or unpermitted legal connections during construction projects as is provided for in Proposed Rule 14-96.015. While changes may be made, the rule does not permit changes to be made indiscriminately. Modifications may be made consistent with the Department's access management standards as outlined in Rule 14-96 and with the Standard Index. Further, the Proposed Rule provides for property owners to be given notice of proposed Departmental actions, except for eminent domain situations, which would afford the property owner the opportunity to challenge the propriety or necessity of the proposed modification. Notice is currently given in these situations even though the current rule does not require it.
The Issue The issues here concern the transfer of a portion of State Road 211 in Duval County, Florida, referred to as Grand Avenue. This transfer would be made upon Respondent's contention that the road is functionally classified as a collector and properly the subject for maintenance and control by Petitioner. The City of Jacksonville has opposed this transfer based upon its belief that Respondent's classification of the road as a collector was inappropriate and that the aspect of the road, constituted of the Ortega River Bridge, is in a substandard physical condition when contrasted with contemporary roads of like age and existing functional classification within Duval County and Jacksonville, Florida. See Subsection 335.04(1), Florida Statutes. WITNESSES AND EXHIBITS Petitioner presented the witnesses Stanley K. Nodland, City Engineer, Jacksonville, Florida; Charles E. Ison, Sr., Junior Engineer, Bridge Inspections Section, City of Jacksonville; Morris M. Napier, Associate Engineer, Bridge Inspections Section, City of Jacksonville, and Robert Lee Hill, Jr., City Highway Engineer, City of Jacksonville. Petitioner offered five (5) exhibits which were received. Respondent called as its witnesses James H. Pittman, District Planning Engineer, Department of Transportation; James A. Moss, District Maintenance Engineer, Department of Transportation, and Stephan Fregger, Chief of Bureau of Transportation Systems Statistics, Department of Transportation. Respondent offered Exhibits 1, 1A and 2-12, which were admitted.
Findings Of Fact Following a series of workshops and meetings between the parties in this cause, allowing public comment in these sessions, Respondent determined to transfer approximately 3.1 miles of road to Petitioner for maintenance purposes. In formulating this policy decision, Respondent functionally classified the road as a collector. The road is referred to as Grand Avenue and includes the Ortega River Bridge. It is located in the City of Jacksonville, Duval County, Florida. The purpose of functional classification of the roadway in question was part of the classification exercise mandated by Subsection 335.0A(1), Florida Statute which began in late 1977 or early 1978. The overall classification requirement related to the entire state of Florida and it was to be concluded effective July 1, 1982. In addition to the sessions held between the parties and the general public, related to the road classification in question, other sessions were held in-house between the central office, Department of Transportation and its District Offices, to include District II. District II is the locale in which Duval County is found. This consultation by staff was designed to insure uniformity in the endeavor. To conclude the process of the state-wide classification, Respondent acted in accordance with Chapter 14-12, Florida Administrative Code, and relied on those definitional statements set forth in Subsection 334.03(14), (15), (16) and (17), Florida Statutes 1/, in establishing qualitative criteria for the statewide functional classification activity. In effect, definitions in the provisions form the basis of the criteria. In the case of the subject road, particular emphasis was placed upon traffic volume, trip length, speed and access or mobility. Following the qualitative or subjective examination, Respondent decided that the Grand Avenue section should be classified as a collector road, as opposed to an arterial road or local road. Petitioner does not agree that the read should be classified as a collector, based upon the belief that the Department has failed to promulgate and apply necessary criteria to functionally classify the road in question. Moreover, Petitioner is concerned that the bridge feature of the road is substandard. Therefore, on June 2A, 1982, steps were taken leading to the present Subsection 120.57(1), Florida Statutes, hearing. See Petitioner's Exhibit No. 4, admitted into evidence. Respondent's Exhibit No. 1-A, admitted into evidence, is a traffic count map showing a substantial number of roads in Jacksonville. It depicts the average of four (4) traffic counts taken in 1977, at northwestern and southern ends of the road sought for transfer. At the southern end, 3,415 trips a day were averaged and in the northwestern area, 5,135 trips per day were averaged. This is a close approximation of the traffic circumstance on the road at the time of hearing. The map also features traffic counts for other collector roads in Duval County. Those counts are roughly comparable to the counts on the road in question. Speed limit on Grand Avenue in the subject area varies from 25 miles per hour on the lower end of the street, to 15 miles per hour on some of the curves and in the northern area of the road, the speed limit is 35 miles per hour. The road has two (2) traffic lanes and the Ortega bridge is a two-lane bridge. The road is primarily designed to give access to surrounding property as opposed to granting mobility for through-traffic. There is a high number of local streets adjacent to the road and a number of driveways giving access to the road. The road is located in a predominantly residential area, constituted primarily of single family dwellings, with some apartments in the area of the bridge and small commercial complexes, referred to as neighborhood family stores. Respondent's Exhibit No. 2, admitted into evidence, is a map depicting the proposed system under functional classification. It shows state highways, county roads, collectors, minor arterials, city streets, and the urban boundaries of the area where the Grand Avenue section is found. With the exception of the state highway system tape, all other roads would be part of the city system for maintenance purposes. At the northwest corner of the road in question, at the junction with Herschel Street and San Juan Avenue, the traffic count changes as you proceed north on Herschel Street. It increases to approximately 9,200 trips per day. Proceeding west on San Juan Avenue from the junction at Herschel, Grand and San Juan, the traffic counts increase to some 16,000 as measured in 1977. See Respondent's Exhibit No. 1A. For this reason and based upon other classification criteria, those sections of San Juan and Herschel are arterials and part of the state system. As an example of other criteria differences, San Juan Avenue is basically a commercial area with longer trip lengths than in the case in the area of the subject road. Respondent's Exhibit No. 3, admitted into evidence, is a map depicting the roads by functional classification in the greater part of Duval County, Florida, with a second sheet which more particularly indicates functional classification in the area where the transfer would be made. Respondent's Exhibit No. 4, admitted into evidence, contains a map depicting select collectors and arterial roads in Duval County. This map, in conjunction with other maps, demonstrates the similarity between the subject road and other collectors in Duval County in terms of traffic count, length of roadway and access or mobility. This map also identifies state, national and interstate roads. Respondent's Exhibit No. 4 also has an element constituted of two (2) paces of charts comparing select collectors as to length, average daily trips, number of lanes, nested speed and land use. These charts establish the overall similarity between the collectors and the overall similarity between the arterials. These two (2) groups, i.e. the Duval collectors and arterials, bear strong resemblance respectively to the definitions set forth in Subsections 334.03(15) and (16), Florida Statutes, supra. With the exception of the bridge surface, the roadway in question was resurfaced in April, 1982. In comparison with roadways of other collectors in Duval County, with the exception of the bridge, the condition of the road surface in the subject area is good. The bridge surface is fair. In summary, the facts as reported herein evidence the propriety of functionally classifying the 3.1 miles of State Road 211, known as Grand Avenue, to include the Ortega River Bridge, as a collector. One of the major sections of the road to be conveyed is constituted of the Ortega Bridge. The bridge was built in 1926 and opened to traffic in 1927. It has a bascule span referred to as a walking or rolling bascule. This is the span that moves to allow boat traffic under the bridge. The draw span is operated by two (2) electric motors, activated by a bridge tender. The fixed portion of the structure is an arched type beam construction. The construction composition is made of concrete with reinforcing material. The bridge allows a load rating of H-20. The bridge is depicted in Petitioner's Composite Exhibit No. 2, a series of photographs, admitted into evidence. While forty (40) years is the average life of a bridge, this bridge has lasted fifty-seven (57) years. The present condition of the bridge is spoken to through a series of inspection reports and ratings given the structure. Respondent, through its bridge inspection section examined the fixed spans of the bridge on August 10, 1981. A copy of the report that ensued may be found as Respondent's Exhibit No. 10, admitted into evidence. In speaking to the major elements of the fixed spans, the report has a numerical rating of the various elements. The ratings range from adequate in describing the fender system in the canal to excellent when describing the drainage system. On August 19, 1981, Respondent also made an inspection of the movable spans. Respondent's Exhibit No. 10, supra. These numerical ratings range from fair, in describing such things as rack gears, curve tracks and flat tracks of the bascule span machinery, to excellent in describing the gear assemblies in the movable span elements. The gears had been subject to major overhaul in the years 1978 and 1979. Notwithstanding the basically sound condition of the bridge as borne out by the 1901 inspection, a number of deficiencies were noted related to cracks in bridge columns, caps, webb walls and abutments/indents. Cavities were found in the rip-rap bags at abuttment 1. Cracks were noted in the beams and diaphragms. The asphalt surface of the deck was cracked and spalled and had bulges at certain areas of the joints throughout the structure, related to faulty expansion. (The approach slabs were improved with the resurfacing in April, 1982.) Spalled areas were found in the deck underside. The fender system had deteriorated substantially due to marine borers. The top track and walking pinion gear on the north side of the east leaf was found to not mesh properly when the bridge is being opened and closed. There was some deterioration found in beams/stringers/girders related to the movable span. All these matters and other deficiencies are more particularly described in Respondent's Exhibit No. 10, to include photographs. The report is found to be an accurate depiction of the bridge condition. Respondent conducted a further inspection of the movable span in August, 1982, above water and underwater. A copy of the inspection report may be found as Respondent's Exhibit No. 9, admitted into evidence. These observations are substantially the same as was the case in the 1981 inspection of the movable spans. The observations in this report and the photographs with the report are found to be accurate. A sufficiency rating through structure and inventory appraisal is reflected in a computer printout prepared on December 6, 1982. The rating is 71.5. It relates to all the major elements of the bridge. This information is basically comparable to the inspection reports alluded to before and is accepted as being substantially accurate. See Respondent's Exhibit No. 8, admitted into evidence. The ratings setting forth the principle elements of the bridge are taken from the Recording and Coding Guide for the Structure Inventory and Appraisal of the Nation's Bridges, a copy of which is Respondent's Exhibit No. 12, admitted into evidence. This is a publication of U.S. Department of Transportation/Federal Highway Administration. By utilization of the code system set forth in Respondent's Exhibit No. 12, the rating which is established through the structure inventory and appraisal printout ranges from marginal condition in appraising the deck geometry, to fair condition in describing the substructure, to generally good condition in describing the deck surface, as examples. An estimate of the cost of improvements, as set forth in the Exhibit No. 12, would be $80,000. The $80,000 improvements cost relates to the suggested improvements set forth on page 29 of the Respondent's Exhibit No. 10 and would cover such matters as sealing cracks, repair to rip-rap, etc. Some of those improvements are constituted of periodic maintenance, a prioritized item by the Department of Transportation. The state had not reached the place of making the periodic maintenance improvements to the bridge at the time of the final hearing in this cause. For planning purposes, the Department of Transportation feels that the bridge would last at least five (5) years, from the date of the preparation of the structure inventory and appraisal information set forth in Respondent's Exhibit No. 12. In October, 1982, Petitioner, through its bridge inspection section, examined the Ortega River Bridge. This inspection did not entail examination below the waterline. The results of the inspection are set forth in the Petitioner's Exhibit No. 1, admitted into evidence. Petitioner's Exhibit No. 2, which has been described, are photographs taken during the course of the inspection. Some of the highlights of this report indicate substantial deterioration at the ends of the bascule span, exposing the wire mesh used to bond the asphalt surfaces which are adjacent to the bascule span. It depicts the difference in elevation between the bascule span and the adjacent asphalt spans. Nonetheless, automobiles are able to safely utilize that portion of the bridge where the asphalt span and bascule span are joined. It points out the deterioration of the tender system which is made of timber and has been decimated by marine borer infestation. It specifically points out the disarray of electrical wiring in the area where the electrical motors are found, which constitutes a safety hazard. Per the report, the deflection of the ends of bascule leaves, when in operation, is causing impact loading and vibration in the movable sections, especially when used by heavier vehicles. Essentially, the Petitioner' a inspection is commensurate with the observations of the Respondent in its inspection reports, Respondent's Exhibits 9 and 10. The City's reported observations on the bridge condition are accurate. One of the support pillars for the bridge structure has rotated. The significance of this rotation was not established at the hearing; however, the rotation could reach a point where the pillar was no longer capable of bearing the load. Likewise, the significance of the numerous cracks in the bridge members was not clearly established, other than the common agreement by both parties that those items need attention. Neither the Respondent nor petitioner has done extensive testing such as core sampling of the concrete material, sonigrams or x-rays to determine the relative strength and condition of the bridge structural members. After considering the presentation of both parties on the subject of the bridge, and remainder of the road being transferred, as compared to other roads which are functionally classified in Duval County as collectors, the subject road is found to be physically comparable in its condition and appropriate for transfer. This determination relies on the fact that the road is being transferred as a unit. The bridge is not regarded as an item which warrants its own comparison to other bridges, when considering the transfer of the Grand Avenue section of State Road 211. Therefore, no factual discussion is made of a comparison of the Ortega River Bridge to other bridges in Duval County or out of the county.
Findings Of Fact Background State Road 80 is part of the State Highway System. The road runs in an east-west direction from Interstate I-75 at Fort Myers in Lee County to U.S. Highway 27 in Hendry County. The road improvement project currently under construction on State Road 80 involves the expansion of the road from two lanes to six lanes. A raised median separates the eastbound lanes from the westbound lanes. To provide access from either direction to homes and businesses that are adjacent to the road, turn lanes and median openings have been designed into the project. This is not a "limited access facility" as defined by Section 334.03(11), Florida Statutes. Rather, it is a "controlled access facility" as defined by Section 334.03(6), Florida Statutes. Service roads restore access to properties that were accessed from both directions prior to the improvements. Pursuant to routine agency practices, the median openings were set at the "60% phase" of the project design in June or July of 1986. Petitioner Stevens & Layton, Inc. is a Florida corporation in which Petitioners Robert Wilenius and Harvey W. Stevens are officers and directors. In September 1987, Petitioner Stevens and Layton had drawings of a site plan completed for the development of a commercial building complex. The plans for the buildings involved real property located behind an existing business that fronts State Road 80. The existing business had a driveway that accessed State Road 80. The owner of the entire parcel of land (which included the existing business and the site of the proposed building complex) agreed that the existing driveway could be used as an access drive to the complex. The site plans were reviewed by the Lee County Department of Community Development Review. On October 15, 1987, Lee County rejected the proposed site plan. Right and left turn lanes onto the property had to be provided by the developer, Stevens & Layton, Inc., before the project would be considered. On November 10, 1987, a meeting was held that included the project engineer, John Bosserman, Robert Wilenius of Stevens & Layton, Inc., Patrick Hunt of Lee County Department of Community Development Review, and D. M. Heflin of the Florida Department of Transportation. During the meeting, Mr. Heflin confirmed that the proposed expansion of State Road 80 was of high priority in the area and should be let for bid in June 1988. Based upon this representation, the county decided to waive the requirement that the developer provide turn lanes into the property during Phase I of the project. This construction phase involved the completion of an office building and a mini-storage warehouse. During his revisions of the site plan after October 15, 1987, the professional engineer hired for the commercial building project obtained a copy of the Department's plans for the improvement of State Road 80. Evidence submitted at hearing shows that these plans were reviewed by the engineer on or before November 17, 1987. The plans reviewed show where the raised medians and the median openings were to be located in the future on the state road. It is clear on these road improvement plans that the parcel of land on which the commercial building complex was to be located, was not going to receive direct access to the expanded state road from both directions. A median opening was not planned by the Department in the immediate area of the driveway into the complex. In addition, the closest median opening east of the driveway was not designed to accommodate long industrial vehicles that might approach the commercial building complex from the eastbound lanes. This median opening allows access to the Wilson property which is adjacent to the property in question. In addition, a service road from the former Wilson driveway which is now public right-of-way, restores access to the dominant estate in front of Petitioner's property from the eastbound lanes. The Petitioners knew or should have known prior to their purchase of the real property involved in the commercial building complex that a median opening was not being provided by the Department for direct access into their property, which is behind the dominant estate which fronts the state road, both eastbound and westbound lanes of the improved State Road 80. The Petitioners Robert Wilenius and Sarah Wilenius, with Harvey W. Stevens and Mary Lou Stevens, purchased the real property on which the commercial building complex developed by Petitioner Stevens and Layton, Inc. was to be located on January 8, 1988. This area of land was severed from the dominant estate that continues to include the business and the driveway that abuts State Road 80. In order for the Petitioners to have access to the property from the state road, the owner of the dominant estate granted the new owners of the back portion of the parcel a non-exclusive easement for roadway purposes, through the driveway and across the front of the parcel. The property, including easement, was purchased for less than $100,000.00 according to the documentary tax stamps on the deed. After various revisions were made to the site plan, the development plans were approved for a Final Development Order from Lee County on January 12, 1988, with the following stipulation: Frontage road agreement including sidewalk, to be submitted with phase one prior to C.O. Right turn lanes to be constructed with phase two prior to C.O. Based upon the site plan in evidence, it was anticipated in January 1988 that the future frontage road easement across the dominant parcel would connect with the paved access drive onto the Petitioners' property. Apparently, this frontage road easement would allow traffic from the eastbound lanes of State Road 80 to enter Petitioners' access drive from one of the median openings east of Petitioners' property. In August of 1988, Phase One the commercial building complex was under construction. During this time period, Walter D. Stephens, P.E., the Acting Director of the Lee County Department of Transportation and Engineering, Division of Transportation Planning and Permitting, examined the proposed median crossover locations on State Road 80. Mr. Stephens opined on August 10, 1988, that if the Petitioners' commercial building complex were to have heavy construction vehicle (low-boy trailer truck) activity, these large vehicles would not be able to safely move from the first median opening east of the property onto the proposed frontage road under the following conditions: If a low-boy trailer truck made a left turn movement from the Wilson drive onto the frontage road to move west towards Petitioners' access drive, the back of the truck would still be on State Road 80 if there were other vehicles in the Wilson drive waiting in front of the truck to make the same turn. Patrick Hunt, the Development Review Supervisor for Lee County Department of Community Development, was promptly advised of Mr. Stephens' opinion. A revised print of the site plan for the commercial building complex received the professional seal of the engineer on the project on November 14, 1988. Lee County Department of Development Review approved the revised site plan on November 15, 1988. It is unknown to the Hearing Officer exactly when the certificate of occupancy for Phase One of the development was issued. However, based upon the verified complaint filed by Petitioners in circuit court, the certificate was issued before the complaint was filed because Stevens & Layton was operating its contracting business from this location. If Stevens & Layton proposed to go forward with Phase Two of their development on the property, they were obligated to construct right turn lanes prior to receiving a certificate of occupancy for the second stage of development. The circuit court judge denied the temporary preliminary injunction, but encouraged the Department and the Petitioner to negotiate for a median relocation. The judge will hear the merits of the pending suit after the Petitioners have exhausted administrative remedies for a median opening providing direct access from eastbound and westbound lanes on State Road 80 to their property. The Problem The Petitioners are seeking to have the Department provide them with a median opening in front of the road access easement to their property in order to allow the 70' low-boy tractor trailer used in Stevens & Layton Inc.'s pipeline business to enter from the eastbound lane of State Road 80 without having to make a U-turn from the median opening east of the property. The Petitioners maintain that a serious safety hazard could result to the tractor trailer or other traffic, if the current road design is allowed to remain in the area due to the tractor trailer's use of the median opening just east of Petitioner's drive. Alternative Requests for Median Opening One request for a median opening submitted to the Department by Petitioners requested a median opening that gives them a turn lane into their property from both the eastbound and westbound lanes of traffic from State Road 80. The second alternative suggested by Petitioners is to place the median opening planned for the entry onto the Wilson property between the two existing driveways, still allowing those drives to remain in place. The proposed additional center driveway could carry two-way traffic and would have a sufficient turning radius for large trucks planning to turn left onto Petitioners' access easement from the dominant estate. First Alternative The first alternative suggested by the Petitioners would be approximately 240' west of the planned median opening that allows traffic to enter the drive in front of the Wilson property. In other locales with similar development and a similar roadway design, the Department does not allow median openings within 660' of other median openings. Speed is one of the prime considerations. Longer acceleration and deceleration lanes are needed on roads with higher speeds such as this one, to allow drivers reaction time to use the openings. A short lane, such as the one proposed, would create a safety hazard and would not solve the problem the Petitioners are seeking to solve: the difficulty a driver would have with the turn of the long low-boy trailer from the eastbound lane into their access easement back to their property. There is a conforming road connection which allows Petitioners a reasonable means of connection to the public roads system. Second Alternative The second alternative failed to detail information for all properties using the proposed median opening. In addition, there was no concurrence by all affected property owners on the joint driveway usage. The plan greatly enhances the value of Petitioners' property, which does not even front the existing road. The plan also significantly decreases the value of the adjoining Wilson property, the dominant estate to Petitioners' property, and the right-of-way previously purchased by the Department. The right-of-way was purchased to provide the dominant estate a reasonable means of connection to the public roads system from the driveway also used by Petitioner. Additional Findings Why the Requested for Median Openings Should Not Be Granted The Petitioners' purchase and use of this back portion of the parcel was not contemplated by the road designers at the time the road improvement design with median placements went into effect. Right-of-way was purchased by the Department to create a frontage road to provide reasonable access from the drive now used by Petitioners to the dominant estate that used the drive to connect to the public road system. The problem the Petitioners are seeking to cure with the proposed median opening is curable without obligating the State to create an additional median opening or improving the access to Petitioners' property while decreasing access to other property owners whose property abuts State Road 80. For example, the Petitioners could advance the construction of the westbound right turn lane relating to their Phase Two construction. This would provide additional pavement width to aid in the negotiation of a turn. It would also be at Petitioners' expense, as previously stipulated to with Lee County in its approval of the Development Order for the property. A driver could also select a more appropriate turning area further east of the property on State Road 80 to reverse the direction of the low boy. A circumferential route of I-75, SR 78, SR 31 and then west of SR 80, could be used by the low-boy driver to eliminate the left turn across opposing traffic. The low boy driver could use the present median opening as designed. The tractor trailer could cross at the present opening, enter the right-of-way in front of the Wilson drive, and turn left on the one way frontage road which accesses the easement to Petitioners' property. Drivers should be cautioned to use an alternative route if other vehicles are stored in the right-of-way in front of the Wilson drive, waiting to turn left. This could prevent the safety problem previously raised by Walter D. Stephens, P.E. If the Department permitted either of the proposed alternative median openings, federal funding on the entire project could be in jeopardy. This could require the state to pay $34.6 million for the improvement out of its own funds.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioners' application to relocate the median opening or for a joint use median opening be denied. DONE and ENTERED this 7th day of August, 1990, in Tallahassee, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE No. 89-4196 Petitioners' proposed findings of fact are addressed as follows: Rejected. See HO #4. Accepted. Accepted. See HO #10-#11. Accepted. See HO #6. Rejected. Irrelevant. See HO #7-#9. Rejected. Irrelevant. See HO #4, #7-#9, and HO #12. Rejected. Contrary to fact. The Petitioners were either acting under self- imposed blindness (see Conclusions of Law) or were trying to increase the value of their back parcel at public expense. Rejected. The letter was not even from Petitioners. In addition, the county could have made an application to change the roadway traffic patterns under Section 335.20, Florida Statutes. Alternative routes for low boy trailers could have then been explained to the county by the Department. Accepted except for the improper conclusion that an "impasse" has been reached. This is a mischaracterization of fact. See HO #17. Accepted. See HO #18. Accepted. See preliminary matters. Rejected. Contrary to fact. The Petitioners could resolve any safety issues. See HO #28-#33. Rejected. Contrary to fact. See HO #28-#33. Rejected. Improper Conclusion of Law. See Section 335.187, Florida Statutes. The Petitioners are on notice that a permit must be obtained due to the significant change in the use, design or traffic flow of the connection and the state highway. Rejected. Irrelevant. Rejected. Irrelevant. There was no showing that Mr. Hunt could render an expert opinion that should be given greater weight than that of the professional engineer presented by the Department. Rejected. Contrary to fact. See HO #34. Respondent's proposed findings of fact are addressed as follows: Rejected. These definitions are defined by law and rule as they relate to this case. Accepted. See HO #17-#18. Accepted. See preliminary matters. Rejected. Irrelevant. Petitioners could have borne expense. 5. Rejected. Irrelevant. Accepted. Accepted. See HO #1. Accepted. Accepted. Accepted. Accepted. See HO #3. Accepted. See HO #3. Accepted. Accepted. Accepted. Rejected. See pleadings as to Petitioners in this case. Rejected. See HO #4 and HO #10. There was no showing of the parties interests in all businesses. It is not a significant material fact in these proceedings. Accepted. Rejected. Irrelevant. Accepted. See HO #10-#11. Accepted. Accepted. See HO #6. Rejected. Irrelevant. See HO #7-#9. Rejected. Irrelevant. Stevens & Layton, Inc. had its own consulting engineer. See HO #7. Rejected. Irrelevant. See HO #7. Accepted. See HO #7. Accepted. See HO #30-#33. Rejected. Speculative. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #24. Accepted. See HO #26. Rejected. This was not sufficiently proved at hearing. There was no evidence the Committee reviewed the proposals. Rejected. There was no evidence the Federal Highway Administration has been approached regarding the change in the median opening. Accepted. Accepted. Accepted. See HO #24. Accepted. Rejected. See #37 above. Rejected. See #38 above. Accepted. Accepted. Accepted. See HO #26. Rejected. See #37 above Rejected. See #38 above. Accepted. Rejected. Contrary to law. See Section 335.187(1), Florida Statutes. Rejected. Contrary to evidence presented and law previously cited in #51 above. Rejected. Irrelevant. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #24. COPIES FURNISHED: Edward M. Chew, Esquire Department of Transportation P.O. Box 1249 Bartow, FL 33830 J. Jeffrey Rice, Esquire Goldberg, Goldstein & Buckley, P.A. P.O. Box 2366 Fort Myers, FL 32902-2366 Ben G. Watts, Secretary Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458 =================================================================
The Issue Whether the map of reservation for the proposed Northwest Expressway filed in July, 1988 by the Tampa-Hillsborough County Expressway Authority is unreasonable or arbitrary and denies a substantial portion of the beneficial use of the property including the map of reservation.
Findings Of Fact In 1983, Petitioner acquired a parcel of land abutting Lakeshore Road and Van Dyke Road in Hillsborough County as a site for a proposed new Methodist Church (Van Dyke Church). The area of this site is approximately 9.3 acres. Plans were prepared for the development of this site for the Van Dyke Church with Phase One plans completed in 1986. (Exhibit 3). Petitioner became aware of the hearings involving the location of the Northwest Expressway and Petitioner's representatives attended some of the hearing held by the Expressway Authority. When it became known that the alignment selected for the Northwest Expressway would pass through Petitioner's property, another site in the same general area was acquired. Plans for the Van Dyke Church were modified to fit onto the newly-acquired property, but the same basic plans were utilized. The new church was completed in December, 1987. Petitioner was starting a new church and did not want to erect a church that would have to be relocated in a few years. Furthermore, by leaving the Van Dyke site vacant, there would not be additional costs to the Expressway Authority which would accrue when the authority acquired the developed property. The right-of-way for the proposed Northwest Expressway runs almost through the middle of Petitioner's property and occupies nearly half of the total area of the site. Since the property was of no use to Petitioner as a church site, attempts were made to sell this property. These attempts were unsuccessful due to the now well known alignment proposed for the Northwest Expressway. The filing of the map of reservation in July, 1988 precluded the use of Petitioner's property for its intended purpose as no building permits could thereafter be obtained for this property.
Recommendation It is RECOMMENDED that the Petition of the Tampa District Board of Missions to find the map of reservation for the Northwest Expressway, filed by the Tampa- Hillsborough County Expressway Authority, to be unreasonable or arbitrary and that it deprives Petitioner of 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: Mark P. Buell, Esquire First Union Building, Suite 1400 501 East Kennedy Tampa, Florida 33601 William J. McLean, Esquire Post Office Box 21 Tampa, Florida 33601
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department was the state agency responsible for regulating vehicular access and connections to or from the State Highway System in accordance with Sections 335.18 through 335.188, Florida Statutes, known as the State Highway System Access Management Act. The property which Petitioner filed an application for an access connection to US Highway 17 (SR 35) is located on the southeast corner of the intersection of SR 35 and Sixth Street in Fort Meade, Polk County, Florida. Petitioner's property abuts the east right-of-way of SR 35, with frontage of approximately 235 feet and the south right-of-way of Sixth Street, with frontage of approximately 235 feet. SR 35 has been designated as an intrastate system route. The segment of SR 35 involved in this proceeding has been assigned an Access Management Classification of Four with a design speed of 50 miles per hour and a posted speed of 40 miles per hour . Also, this segment of SR 35 has a "non-restrictive median" as that term is defined in Rule 14-97.002(23), Florida Administrative Code. The distance between all cross streets running east and west which intersect SR 35 within Fort Meade, Florida, including Sixth Street, is approximately 440 feet. (See Petitioner's exhibit 2, Department's aerial photo of the area) Petitioner's application proposes a full movement access connection to be located south of Sixth Street on SR 35 with a connection spacing between Sixth Street and the proposed connection of 190 feet. This distance was determined by measuring from the south edge of the pavement of Sixth Street to the north edge of pavement of proposed access in accordance with Rule 14- 97.002(19), Florida Administrative Code. The centerline of the proposed connection on SR 35 is located approximately 220 feet south of the centerline of Sixth Street. Petitioner's application also proposes an access connection to Sixth Street which would give Petitioner indirect access to SR 35 through Sixth Street. The centerline of the proposed connection on Sixth Street is located approximately 135 feet east of the east curb of SR 35 presently in place. Petitioner's proposed access connection to SR 35 is located immediately north of a crest of a rise over which SR 35 traverses. Both south and north of the crest is a depression through which SR 35 traverses. The point where Sixth Street intersects SR 35 is located approximately at the bottom of the depression north of the crest. A motorist attempting to enter SR 35 from the proposed access connection would have a full view of any vehicle moving north through the depression to the south of the crest or moving south through the depression to the north of the crest. A motorist attempting to enter SR 35 from the east on Sixth Street would have only a partial view of a vehicle moving north through the depression to the south of the crest but a full view of any vehicle moving north through the depression north of the crest. Both Dennis Wood and Michael Tako testified that each had viewed the traffic moving north through the depression south of the crest from a point where Sixth Street intersects SR 35. They also testified that each had, from a point where Sixth Street intersects SR 35, at least a partial view at all times of the vehicles moving north through the depression south of the crest. Based on the above and their assumption that the distance between cross streets along SR 35 was 600 to 700 feet rather than approximately 440 feet as indicated in Petitioner's exhibit 2, Department's aerial photo of the area, Wood believed and Tako concluded that there was minimum clear sight distance that would allow a motorist exiting Sixth Street to cross SR 35 safely, or turn left to enter the southbound lane of SR 35 safely or turn right to enter the northbound land of SR 35 safely. Because of the continuous partial view of the vehicles moving north through the depression south of the crest from a point where Sixth Street intersects SR 35 it may appear that there was minimum clear sight distance in that area. However, there is insufficient evidence to establish facts to show that a minimum clear sight distance was established because the height of the originating clear sight line above the pavement or the height of the clear sight line above the pavement at the vehicle observed, which are required to establish a minimum clear sight distance (See Department's exhibit 10), were not established. Also, the estimate of the distance between the originating point of the clear sight line and the ending point of the clear sight line at the vehicle observed was flawed due to the use of incorrect distances between the cross streets. There is insufficient evidence to show that a motorist looking south from the point where Sixth Street intersects SR 35 would have the required minimum clear sight distance as calculated by Department, as shown in Department's exhibit 10, to allow a motorist to cross SR 35 safely or turn left to enter the southbound lane of SR 35 safely or turn right to enter the northbound lane of SR 35. Presently, there are three access connections of approximately 20 feet in width on SR 35 where Petitioner's property abuts SR 35. These access connections where constructed before Petitioner had ownership of the property. However, since there will be a change in land use, these access connections will be closed if the site is developed whether this access permit is granted or denied. Petitioner plans to close two of these access connections and extend the opening to the third one if the application is approved. SR 35 is a moderate volume road with approximately 17,000 average daily trips (ADT's), increasing approximately 500 ADT's annually over the past five years. Sixth Street has approximately 100 to 150 ADT's at present with the ADT's projected to increase to approximately 300 if the site is developed and Petitioner's application for the access connection to SR 35 is denied. However, the number of vehicles entering SR 35 which constitutes traffic utilizing Petitioner's establishment will be the same no matter where this traffic enters SR 35. Without the direct access connection to SR 35 there will be problems with internal customer traffic flow and with the movement of semi-tractor trailers that Petitioner uses to make deliveries to its store. Although the present site plan design may be modified so as to utilize the indirect access to SR 35 through Sixth Street, the modification of the site plan design would create problems that would most likely result in the City of Fort Meade not approving the modified site plan design. Although using Sixth Street as an indirect access to SR 35 from the site may provide a safe ingress and egress to and from SR 35, the lack of a minimum clear sight distance notwithstanding, the Petitioner's proposed access connection would provide a much safer ingress and egress to and from SR 35 because of a better clear sightdistance. Although the indirect access to SR 35 through Sixth Street may provide safe ingress and egress to and from SR 35, the indirect access does not provide reasonable access to the site as the term "reasonable access" is defined in Rule 14-96.002(22), Florida Administrative Code. The primary purpose of limiting access to SR 35 is to provide safer conditions for vehicles utilizing SR 35.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order granting Petitioner's Connection Application Number C-16-010-90 and issuing Petitioner a nonconforming permit for the construction of the access connection to SR 35 as designed and shown in the site plan attached to the application with conditions deemed appropriate by the Department and provided for under Rule 14.96.009, Florida Administrative Code. RECOMMENDED this day 30th of October, 1995, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2794 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner in this case. Petitioner's Proposed Findings of Fact. Proposed findings of fact 1 through 16 are adopted in substance as modified in Findings of Fact 1 through 21. The Respondent elected not file any proposed findings of fact. COPIES FURNISHED: Ben G. Watts, Secretary ATTN: Diedre Grubbs Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thornton J. Williams, Esquire General Counsel Department of Transportation 562 Haydon Burns Building 695 Suwannee Street Tallahassee, Florida 32399-0450 Douglas E. Polk, Jr., Esquire BROWN CLARK & WALTERS, P.A. 1819 Main Street, Suite 1100 Sarasota, Florida 34236 Francine M. Ffolkes, Esquire Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact The Petitioner owned property including structures used for his dwelling and for his business which was located within the right-of-way of an interstate highway being constructed by the Respondent, Department of Transportation. The Petitioner and the Department negotiated with respect to the amount of compensation that Petitioner was entitled to receive. The Department located a residential dwelling which it contended was comparable to Petitioner's. Petitioner accepted the dwelling located by the Department as comparable for the purpose of determining the amount of compensation that Petitioner was entitled to receive. Petitioner elected, however, to construct a new dwelling on other property that he owned. Petitioner was compensated as if he had purchased the comparable dwelling and was compensated an additional $829 for "incidental expenses" beyond the replacement value as established by the comparable dwelling. Petitioner contends that he is entitled to be compensated for the cost of a "origination fee" which resulted from Petitioner's having to arrange financing. Although improperly labeled, it appears that Petitioner did receive adequate compensation for the loan origination fee. Petitioner received a check from the Department for a "replacement housing payment" which included the origination fee which Petitioner contends he was entitled to receive. While the replacement housing payment was not broken up so as to reflect these fees, it was calculated to include them. Petitioner contends that he is entitled to receive incidental expenses beyond those that he has already received in the amount of $2,068.23. Petitioner has received a payment for incidental expenses in the amount of $829, which includes expenses for a survey, sketch and description, loan application fee, title insurance, attorney's fees, and recording fees. Petitioner actually incurred incidental expenses beyond those for which he was compensated. These additional fees resulted, however, from the fact that Petitioner elected to construct a new residence rather than to accept the comparable residence located by the Department. Because Petitioner was constructing a new residence, it was necessary for him to incur some expenses which would not have been incurred had he accepted the comparable dwelling located by the Department. These expenses included costs of obtaining a rezoning of his property, costs of various construction permits, the cost of obtaining a construction loan, and the cost of a builder's risk insurance policy. While the Petitioner actually incurred these costs, they were costs that he would not have incurred if he had elected to accept the comparable dwelling located by the Department. Petitioner did accept the comparable dwelling for the purpose of setting the amount of benefits that he was entitled to receive.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Department of Transportation denying the application of the Petitioner, John D. Lawrence, for additional relocation assistance benefits. RECOMMENDED this 2nd day of August, 1982, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 2nd day of August, 1982. COPIES FURNISHED: Mr. John D. Lawrence c/o Manatee Tropical Foliage Post Office Box 206 Parrish, Florida 33564 Charles G. Gardner Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Mr. Paul N. Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether the Department arbitrarily evaluated the bids submitted for State Job No. 10120-3522, or reviewed the bids in any manner that was fraudulent, illegal or dishonest. Whether the Department should set aside its notice of intent to award and rebid the contract. Whether Petitioner Kelly Brothers or Intervenor Tom Quinn was the lowest responsive bidder instead of Intervenor Hubbard, the prime contractor named in the notice of intent to award.
Findings Of Fact State Job No. 10120-3522 is a road construction project on State Road 674 that begins east of US 301 and ends at Pierce Bridge in Hillsborough County. The Department solicited for bids on the work and established June 19, 1991, as the date project bids were due. As part of the bidding documentation, prime contractors who submitted bids were required to use the bid blank issued by the Department for that purpose. In addition, prime contractors had to certify that they understood the Disadvantaged Business Enterprise (DBE) goal for the project was 11 percent of the total dollar amount bid for the project. All of the parties to this bid protest certified that they understood the DBE goal for this project. The 11 percent DBE goal was a bid specification that was not timely challenged through the bid solicitation protest process within 72 hours of receipt of project plans and specifications. Bidders who were unable to fully comply with the contract DBE goal were required to demonstrate good faith efforts had been made to meet the DBE goal. The means used by the Department to evaluate the good faith efforts were set forth in Rule 14-78.003, Florida Administrative Code, and the bid specifications. Kelly Brothers submitted the low bid on this project with the total project bid of $2,311,322.78. The dollar amount for the DBE goal listed on the DBE Utilization Form completed by Kelly Brothers was $205,989.12. The multiplication of this sublet amount into the project bid shows that Kelly Brothers achieved only 8.91 percent of the 11 percent DBE goal. To support its good faith efforts to meet the DBE goal, Kelly Brothers noted on the DBE Utilization Form that bid quotes were solicited from eleven certified DBEs on the project. It was further represented that seven of those contacted responded to Kelly Brothers' request, and two were actually used in the project bid submitted to the Department. Documentation of these good faith efforts as set forth in Rule 14- 78.003, Florida Administrative Code, and the bid specifications were not submitted with the bid. Instead, the DBE Utilization Form filed by Kelly Brothers simply stated, "Telephone log will be submitted if necessary." During the bid protest proceeding, Kelly Brothers supplied evidence of price quotes received from one DBE. This subcontractor was not listed on bid documents and the quotes were not included in the bid. Tom Quinn submitted the next lowest total project bid of $2,406,167.54. The dollar amount listed for DBE participation on the DBE Utilization Form submitted by Tom Quinn was $262,327.80. The multiplication of this sublet amount into the project bid shows that Tom Quinn achieved 10.9 percent of the 11 percent DBE goal. The person who completed the bid documents for Tom Quinn rounded the DBE utilization calculation to 11 percent, contrary to the mathematical procedure for the rounding of numbers set forth on the form. The goal was improperly rounded to the nearest tenth as opposed to the nearest tenth percent. Tom Quinn did not submit documentation of its good faith efforts to comply with the project's DBE goal. A reasonable inference exists that Tom Quinn did not submit the documentation because its mathematical error mistakenly shows that the DBE goal was met in its bid submission. Hubbard submitted the third lowest project bid of $2,748,991.70. The total dollar amount for DBE goal listed was $302,794.32. Nine DBE's were utilized by Hubbard. The calculations to determine the DBE percentage of the total project show an 11.01 percent DBE goal was achieved. The four remaining bids reached a DBE percentage of the total project that met or exceeded the DBE goal.
Recommendation Based upon the foregoing, it is recommended: The Department's evaluation of the bids submitted for State Job No. 10120-3522 should be upheld as a proper evaluation. The bids received from Kelly Brothers and Tom Quinn on State Job No. 10120-3522 should be deemed nonresponsive for failure to achieve the DBE participation goal and for failure to submit sufficient documentation of good faith efforts. The bid protests in this proceeding should be denied and the bid awarded to Hubbard, the apparent responsive low bidder. RECOMMENDED this 25th day of October, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 25th day of October, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5337BID Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #12. Accepted. Accepted. Rejected. Contrary to fact. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #2. Accepted. See HO #2 and #5. Accepted. See HO #4. Accepted. See HO #7. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #6. Accepted. Accepted. Accepted. See HO #12 and #13. Accepted. See HO #9 and #12. Rejected. Contrary to fact. Intervenor Tom Quinn's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. Accepted. Accepted. Rejected. Contrary to fact. COPIES FURNISHED: Michael F. Kayusa, Esquire TITUS & KAYUSA 1922 Victoria Avenue, Suite A Fort Myers, Florida 33911 Susan P. Stevens, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Department of Transportation 605 Suwannee Street, Rm 562 Tallahassee, Florida 32399 0458 Bruce Leinback, Esquire Cummings, Lawrence & Vezina, P.A. 1004 DeSoto Park Drive Tallahassee, Florida 32301 Thomas P. Parks, Qualified Representative Tom Quinn Company, Inc. 1321 77th Street East Palmetto, Florida 34221
Findings Of Fact On January 8, 1988, the DOT published a Notice To Contractors that stated in pertinent part: The Florida Department of Transportation plans to receive bid proposals for the following design/build projects. This advertisement is issued to give advance notice of our design/build intentions; to allow interested parties to form design/build affiliations; and to submit letters of interest for specific project(s). For the advertised design/build projects, the contracting firm shall be prequalified with the Department in accordance with Rule 14-22 in construction class Hot Plant-Mix Bituminous Base & Surface Courses. Consultants affiliating with the contracting firm must be prequalified with the Department prior to final selection in the following types of work: Type B (Standard Roadway Design) Type K (Standard Contract Administration and Inspection) Firms shall submit a separate letter of interest for each of the following projects for which they wish to be considered: * * * State Project No. 01050-1519 CHARLOTTE COUNTY: Level, widen, and resurfacing of S.R. 776. The limits of the project will be from approximately 750 feet west of Sunnybrook Boulevard to 650 feet east of C.R. 771. Approximate length 3.3 miles. D.B.E. Goal 10.0 percent. Bonding Requirement $1,000,000. * * * Construction work may consist of resurfacing, construction of paved shoulders, extension of existing cross- drains, installation of mitered end sections on side drains, shoulder work, signing and pavement marking, sodding and grassing. Consultant services will include, but not be limited to, Construction Engineering Inspection and the preparation of construction plans in accordance with the FDOT Plans Preparation Manual (1985) and other applicable criteria, to include as appropriate: Utility Adjustment Plans, summary of pay items, signing and pavement marking plans, maintenance of traffic details, drainage design, pavement design, and Special Provisions. Any firm who has not been qualified by the Department and would like to be considered for these projects should request a Letter of Interest Submittal Package from the Bureau of Contractual Services in Tallahassee, 904/487-3487. The Department shall determine the relative ability of each firm to perform the services required for each project. Determination of ability shall be based upon staff training and experience, firm experience, location, past experience with the Departent, financial capacity, past performance and current and projected work load. The Department shall select (shortlist) not less than three firms deemed to be the most highly qualified to perform the required services to proceed with preparation of bid & technical proposals. Scope of services desired, schedules, blank contracts and special instructions will be provided at pre-bid/scope of services meeting, which will be held within 2 weeks following shortlisting. * * * SUBMITTAL REQUIREMENTS: Firms desiring consideration for this project must submit two (2) copies of their qualifications to the requesting unit listed below for each project that they are interested in. Information that must be included are the name of the project(s) to which the letter of interest applies, the names of the firms involved in the affiliation, firm's experience, location, past experience with the Department, and current and projected work load. RESPONSE EVALUATION: All respondents will be evaluated and must be determined by the Department to be qualified to do business in Florida and must be prequalified to perform the advertised work requirements prior to final selection. 2/ * * * Pursuant to DOT Rule 14-25.024(1), any person adversely affected by not being selected to provide aid proposals must file with the Clerk of Agency Proceedings, Mail Station 58, Room 562, Haydon Burns Building, 605 Suwannee Street, Tallahassee, Florida 32399-0458, a written Notice of Protest within 72 hours of the posting of the firms selected to prepare proposals. The firms selected to prepare bid proposals will be posted with the Clerk of Agency Proceedings on the 19th day of February, 1988. After filing a written Notice of Protest (within 72 hours of posting), a formal written protest setting forth a short and plain statement of the matters asserted by the Protestor shall be filed with the Clerk of Agency Proceedings within ten days after filing of the Notice of Protest. A failure to file a timely protest constitutes a waiver of Chapter 120 proceedings. At the time of the Notice To Contractors, and until March 13, 1988, there was no DOT rule establishing design-build procedures under Section 337.11(5), Florida Statutes (1987). Six design-build teams submitted letters of interest in response to the Notice To Contractors. Two teams later were eliminated, leaving four: (1) Ajax (the contractor)/Hole, Montes (the design consultant/construction engineering inspector (CEI)); (2) APAC/Harris; (3) Harper Bros./Aim Engineering; and (4) Wendel Kent-Gator Asphalt/Kunde, Sprecher, Yaskin. Before February 18, 1988, both DOT's central office in Tallahassee and its district office, District I, in Bartow, compiled rankings for the firms that had submitted letters of interest. Although both offices attempted to do the same thing--compile evaluations based on certain criteria--they set about their tasks differently. In Tallahassee, Mr. William Laufman and his staff developed evaluation forms complete with instructions. The forms outlined the weight to be assigned each criterion when evaluating the contractor, the design consultant, and the CEI (Construction Engineering Inspection) ability of the consultant firm. The instructions set forth the method by which the evaluations were to be done. The idea behind the evaluation forms was to promote uniformity among the evaluators. The forms were developed during the two weeks before February 16, 1988, and were completed on that date. The weight to be assigned each criterion was determined by a consensus of people within the construction, design, and CEI departments. These decisions were made when the forms were developed. The forms and the backup data used in Tallahassee to do the evaluations were "faxed" to the district office to be used when doing its evaluations. The letter of interest packets were also provided. According to the evaluation forms used in Tallahassee to evaluate contractors, the firms' overall experience, past DOT performance grades, and current and projected workload were most heavily weighted. These items were twice as important as financial capacity and location. For consultant firms and CEI ability, past performance grades on DOT jobs was most important while location was least important. The firm's experience, staff training, and current and projected workload were weighted equally. The information the central office considered necessary to do the evaluations included information contained in the letter of interest packets, the prequalification file of the contractors and consultants, and DOT documents regarding DOT experience. Some information related to certain criteria could only be gleaned from a review of the prequalification file. For example, overall firm experience and staff training and experience would be detailed in that file. All of this information was available to DOT to do the evaluations. The central office staff ranked APAC/Harris highest with a combined 82 score (contractor-62, design consultant-11, CEI consultant-9). The central office staff ranked Wendel Kent-Gator/Kunde, Sprecher & Yaskin second highest with a 78 score (contractors-56, design consultant-11, CEI consultant-11). The central office staff ranked Harper Brothers/Aim Engineering third highest with a 66 (contractor-48, design consultant-7, CEI consultant-11). The central office staff ranked Ajax/Holes, Montes fourth with a 63 (contractor-50, design consultant-7, CEI consultant-6). In contrast, the district office performed its evaluation and ranking on the morning of February 18, 1988, the date established for a teleconference meeting at which the "shortlist" would be determined. That morning, Mr. John Dewinkler, District I Director of Production, assigned Marshal Dougherty, District I Professional Services Engineer, the task of ranking the design-build teams. Dougherty had only a list identifying the teams from which to work. Dougherty ranked the design-CEI components of the teams and enlisted Donald Prescott, District I Assistant to District Construction Engineer, to rank the construction contractor component of the teams. Due to time constraints and problems experienced by the central office computer system that morning, neither was able to resort to information normally available in the central office. Dougherty relied on his own knowledge of team members and information available at the district office in Bartow. Prescott telephoned the four resident offices in District I for input on the relative abilities of the construction contractors. Prescott and Dougherty took 1 1/2 - 2 hours to do their work. Dougherty then prepared team rankings that combined his ranking with Prescott's, giving equal weight to each. Their evaluations did not strictly follow the weighted criteria set out in the central office evaluation forms. Of the four, Mr. Prescott ranked Harper Brothers first, Wendel Kent- Gator second, Gator third, APAC fourth, and Ajax fifth. The letter of interest using Gator Asphalt as the independent contractor was eliminated as a result of the competition conflict. Of the four, the district's overall rankings were Wendel Kent- Gator/Kunde first, Harper/Aim second, APAC/Harris third and Ajax/Hole, Montes last. On the afternoon of February 18, 1988, the Technical Committee convened by conference call to determine the shortlist for the projects listed on the Notice To Contractors. The members of the committee included Wally Giddens, Director of Division of Preconstruction and Design; Murray Yates, Director of Construction; John Dewinkler, Director of Production; and Donald Prescott, Assistant to District Construction Engineer in District I, Bartow. Messrs. Dewinkler and Prescott participated by telephone from their offices in Bartow; the others were in Tallahassee. Several other people were present in Tallahassee for the meeting. They included: William Laufman, Project Manager; Jack Trickey, Chief of the Bureau of Adjunct Value Engineering; Ken Morefield, Bill Dayo, and Chuck Robshaw. The central office staff (Tallahassee) recommended that Ajax be among the firms to be shortlisted. However, the district people, Messrs. Dewinkler and Prescott, expressed concerns over Ajax and requested Ajax not be placed on the shortlist. The district's "concerns" included lack of familiarity with Ajax's design team, present problems on current jobs with respect to performance and schedules, and the potential for claims on existing contracts. The concerns expressed by the district were not apparent in the information available to the central office, and some discussion was held. Since the project was going to be performed in the district, the committee deferred to the district's request and did not shortlist Ajax. The firms placed on the shortlist by the committee included: APAC/Harris; Wendell Kent-Gator/Kunde; and Harper/Aim. APAC is a top rated contractor with a lot of DOT experience. It was prequalified to do the type of work required for this project when it submitted its letter of interest. Its average grade on reports on past performance as a contractor or subcontractor for the DOT is 89.81. APAC's consultant, Harris, was also rated highly and has substantial DOT experience. Harper Brothers is a contractor prequalified for the work required for this project. While Harper Brothers has not done work for FDOT in the past three years, it still rates higher than any other contractor working in the Ft. Myers area based on past DOT work. Harper remains prequalified and has received an ability factor rating of 14, equating to a 93-98 ability score. Its design consultant, Aim Engineering, has DOT experience. Wendell Kent is a contractor that was not prequalified for the type of work required for this project--hot bituminous asphalt mix work--when it submitted its letter of interest. Wendell Kent has DOT experience, although not in this type of work, and that experience consists of only one job within the past eight years in the district where this job will be performed. Wendel Kent's average grade on reports of past performance as a contractor or subcontractor for the DOT is 93.86. Wendel Kent affiliated with Gator Asphalt, which was prequalified for this project. Gator Asphalt's average grade on reports of past performance as a contractor or subcontractor for the DOT is 89.84. Wendell Kent is to be the prime contractor on this project. It would be responsible for the overall administration of the project and construction of all items except the asphalt paving, which would be done by Gator. Wendel, Kent-Gator Asphalt's design consultant, Kunde, Sprecher, Yaskin has done design work for the DOT in the past and performed well. Ajax is prequalified and has DOT experience, including recent experience. In the last three years, Ajax has done eight or nine DOT jobs amounting to approximately $11.4 million of work. The DOT concedes that Ajax is a capable contractor. But Ajax's average grade on past performance as a contractor or subcontractor for the DOT is 86, lowest of the four. In addition, comments relating to Ajax are somewhat more negative than those of other contractors. Only Ajax received negative comments on its ability to schedule construction work, a factor to be specifically considered in the selection of a design/build contractor. For example, the comment for FDOT Project #01050-3514 in Charlotte County was: "They don't provide day-to-day supervision on the- project. They generally leave that up to whatever sub is working on the project. From a project engineer's standpoint, Ajax makes a good subcontractor but a poor prime contractor." For Project #12070-3513 in Lee County, the comment was: "This contractor could have taken more interest in controlling construction operations to achieve a better quality of construction." Ajax's more significant scheduling problems arose during the first few years of operations in Florida. After DOT criticism, Ajax has improved in this area. Of the eight or nine DOT jobs Ajax has done in the last three years, there has been a net total of four days overtime on all jobs. (This net total is arrived at by subtracting the number of days "undertime" from the overtime days to arrive at the net number of days over the time allowed by the contracts.) But of the last 13 jobs Ajax has done for the DOT, Ajax was behind schedule on seven. On two jobs started in 1984, Ajax was considerably behind schedule (15 days) on one and extremely behind schedule (51 days) on the other. Ajax knows of no potential claims on its current job. In the last three years, Ajax has had only one claim, for $6,000, that was resolved in favor of Ajax. Ajax does have a pending claim on a 1984 job that is not yet resolved. The claim is on behalf of a subcontractor. Until resolved, the claim is just a difference of opinion or a difference of contract interpretation. Ajax was also involved in a potential claim on a project known as "the embankment job." There was an error in the plans for this job at the time the contract was bid. Ajax brought this to the attention of Carson Carner, the resident engineer, who advised Ajax to bid the project as it was. Ajax did and was awarded the contract. Shortly, thereafter, Ajax requested a change order to allow for extra materials considered necessary due to the error Ajax saw-in the plans. Ajax pursued this because this error equalled approximately 10 percent of the job, which amounted to approximately $200,000. District DOT officials refused to see the error and denied the request for the change order. Ajax ultimately retained an attorney who convinced DOT of the error in the plans, and the change order was approved. Finally, mention should be made of the non-contractor components of the design/build teams. APAC's partner, Frederick R. Harris, has done design work for FDOT in the past. Harper Brothers' partner, Aim Engineering, has construction engineering inspection (CEI) experience with the Department, including a large amount of work in the Lee County area. Wendel Kent-Gator's consultant, Kunde, Sprecher and Yaskin, had considerable design experience with the Department and also had done CEI work for the agency. Ajax selected the design, CEI firm of Hole, Montes as its consultant. This firm was Ajax's second choice and was selected only when Aim Engineering was submitted by Harper Brothers. While prequalified to do so, Holes, Montes had done neither design nor CEI work for the Department.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Respondent, the Department of Transportation, enter a final order excluding the Ajax/Hole, Montes team from the short list for State Project No. 01050-1519 if that is how the DOT chooses A exercise its discretion. RECOMMENDED this 21st day of June, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1988.
The Issue Whether Respondent, Department of Transportation (DOT), properly denied Petitioner's Application for Qualification to perform work on DOT contracts which exceed $250,000.00 pursuant to Chapter 337, Florida Statutes, and Rule Chapter 14-22, Florida Administrative Code.
Findings Of Fact Petitioner, Morse Diesel Civil, LLC ("Morse Diesel"), is a new company created to perform heavy civil construction, in particular large road and bridge projects. Morse Diesel is owned 80 percent by Morse Diesel Civil, Inc., and 20 percent by KPG, Inc. Morse Diesel Civil, Inc., is owned by AMEC Holdings, Inc. KPG, Inc., is owned by Richard Kelly ("Kelly") and Jack Palmer ("Palmer"). Together, Kelly and Palmer have over 50 years' experience in heavy civil construction. On October 8, 1998, Morse Diesel filed an application for qualification with the Florida Department of Transportation ("DOT") to perform all classes of road and bridge work except for bascule bridge rehabilitation. Since the company was new and had not yet performed any work, the letters of recommendation provided in the application related to Morse Diesel International, Inc. ("MDI"). MDI is a large commercial construction management company owned by AMEC Holdings, Inc. Through DOT requests for additional information, Morse Diesel learned that DOT was interested in the experience of its principals and recommendations regarding their work. The work experience of Kelly, Palmer, John Zito, and Grant Ralston was provided to DOT in response to those requests. Under Rule 14-22.003, Florida Administrative Code, DOT thoroughly evaluated Morse Diesel and awarded it an Ability Score of 75 out of 100. DOT found that Morse Diesel had the necessary organization and management, adequate equipment, and a satisfactory work performance record which included an evaluation of the quality of completed work, any history of payment of liquidated damages, untimely completion of projects for which liquidated damages were not paid, cooperative attitude, contract litigations, claims, and defaults. Their score of 75 also included an evaluation of their integrity and responsibility. To date, Morse Diesel's ability score remains unchanged and in effect. On January 11, 1999, Morse Diesel was granted a Certificate of Qualification to perform all classes of work requested except major bridges and provided a maximum capacity rating of $200,000,000; that is, the total aggregate dollar amount of uncompleted work a contractor may have in progress at any time. Thereafter, Morse Diesel applied for a revised Certificate of Qualification to include major bridge classifications. DOT requested and was supplied additional information regarding the work experience of Kelly, Palmer, Zito and Ralston. DOT served a Notice of Intent to Deny the application for additional classes of work and Morse Diesel filed a request for a Section 120.57, administrative hearing. That case was dismissed as moot when Morse Diesel did not renew its Certificate of Qualification. On February 2, 2000, Morse Diesel applied for a Certificate of Qualification for all classes of road and bridge work except for bascule bridge rehabilitation. DOT denied its application on March 3, 2000. The decision to deny an application for Qualification is a very serious matter and each application is thoroughly evaluated by DOT. Less than one percent of all applications are denied. The decision to deny the February 2, 2000, application of Morse Diesel was made by the DOT pre-qualification engineer, Lewis Harper. The Notice of Intent to Deny the Application ("Notice of Intent") was written by Mr. Harper and Brian McGrail of the legal staff and identified the factual bases for the denial of the application and all the statutory and rule criteria utilized in the review of the application. Summary of Allegations The grounds for denial identified by DOT in the written Notice of Intent are: (a) a record of contract litigation, claims, uncooperative attitude, untimely completion of projects without payment of liquidated damages, and defaults by the management of Morse Diesel (Kelly and Palmer) when they worked for S. J. Groves and Sons, Inc., and Balfour Beatty Construction, Inc., on major bridge projects in Alabama, West Virginia, and Florida; (b) S. J. Groves was defaulted on the Cochrane Bridge Project by the State of Alabama; (c) Kelly and Palmer had substantial supervisory and management responsibilities for the Cochrane Bridge project and contributed substantially to the difficulties experienced by the Alabama Road Department; (d) The answer to Question 19-2 of the application regarding Kelly's and Palmer's involvement in the Cochrane Bridge project does not accurately reflect their role and is considered false, deceptive or fraudulent; (e) Kelly and Palmer had responsibility for prosecuting work and making decisions for filing claims on the Wierton-Stubenville Bridge project in the State of West Virginia and there were substantial delays and disputes over settlement of claims; (f) Kelly and Palmer were litigious and claims-oriented when they were associated with Balfour Beatty in Florida; (g) MDI is an affiliate of Morse Diesel because Norm Fornella is an officer is both companies and MDI was not listed in the application as an affiliate; (h) Morse Diesel did not advise DOT of the default of MDI; and (i) KPG is an affiliate of Morse Diesel because Kelly is an officer in both companies and KPG was not listed in the application as an affiliate. The application was not denied due to a lack of adequate experience or equipment. Although Morse Diesel listed the same affiliates in its 1998 application as it did in its 2000 application, the 1998 application was partially granted and the failure to list affiliates was not a ground for denial of the request for additional classes. Allegations (a)-(d): Record of Contract Litigation, Claims, Uncooperative Attitude, Untimely Completion of Projects and Defaults by Management of Morse Diesel The right to submit a claim is a valuable right of the contractor. If a contractor contends he/she is due additional time and money, it is common for him/her to pursue his/her claims rights. If the liability for unforeseen circumstances falls on the owner, the contractor typically pursues claims based upon the increased cost associated with the extra time and expense occasioned by the unforeseen circumstances. Kelly and Palmer have been involved in very difficult, highly technical jobs throughout their careers. It is common for these projects to involve a number of problems and related change items. Industry-wide, complex projects often involve change item costs ranging between 12 percent and 20 percent of the contract price. The Cochrane Bridge Project; Kelly's and Palmer's Involvement; and Application Question 19-2 Construction on the Cochrane Bridge was begun in 1985. Kelly was an executive vice president of S. J. Groves at the time and was also responsible for 30 or 40 other projects. At the same time, Palmer was a vice president of operations for S. J. Groves responsible for 10 to 12 projects. The project manager for the Cochrane Bridge project reported to Palmer and Palmer visited the project every two weeks, mainly to solve problems. The Cochrane Bridge was one of the first cable-stayed bridges built in the United States. It was designed by an Italian design firm and could not be built in accordance with the method of construction proposed by the designer. Moreover, each time there was a design problem, the Italian design firm had to be consulted, which took a great deal of time and caused delays. The Cochrane Bridge was designed to withstand a certain maximum load after construction was completed. The bridge, however, was undergoing greater stress while it was under construction. Consequently, disagreement ensued over the sequence of erection, whose responsibility it was to develop the erection sequencing, whether additional strengthening was needed during construction and, if so, who would pay for it. While these issues were addressed, S. J. Groves stopped work on the project. The State of Alabama requested Groves to work on other areas of the project during the down-time, but Mr. Groves refused for economic reasons. Alabama threatened to default Groves if they did not return to work. Kelly and Palmer attended several high-level company meetings where the issue of whether to continue the project was discussed by Franklin Groves, the owner of S. J. Groves, as well as the company's president and general counsel. Although Kelly and Palmer recommended that S. J. Groves remain on the project, their recommendation was overruled and a default was entered by the State of Alabama. Kelly and Palmer left S. J. Groves within 6 months of the default and formed their own company, RNE, in 1989. There is no reliable evidence that they "contributed substantially to the difficulties experienced by the Alabama Road Department" as charged in the Notice of Intent to Deny. S. J. Groves pursued litigation against the Alabama road department regarding the default and a settlement was reached. The contractor chosen to take over the job after the Groves default, filed claims of approximately $10,000,000 to $12,000,000, and also wound-up in litigation with the State of Alabama. There were thirty to forty vice presidents of S. J. Groves. Neither Kelly nor Palmer understood that they served as a corporate officer of S. J. Groves until after Morse Diesel had filed the 1998 application and were shown corporate forms filed with the Secretary of State. In response to Question 19-2 in the application, Morse Diesel stated: "Richard Kelly and Jack Palmer were denominated vice presidents of S. J. Groves, which defaulted on a job in Alabama in 1989. S. J. Groves had a number of people denominated as Vice Presidents and neither Mr. Kelly nor Mr. Palmer was at the level of management responsible for the decision to abandon the Cochrane Bridge Project. Both Mr. Kelly and Mr. Palmer recommended against abandoning the project and were overruled. They then left the company." There is no evidence which contradicts this finding. Allegation (e): Kelly's and Palmer's Involvement in the Wierton- Stubenville Project DOT presented no evidence to support its charge in the Notice of Intent that Kelly and Palmer were responsible for making the decision to file claims on the Wierton-Stubenville Bridge in the State of West Virginia and that there were substantial delays and disputes over settlement of claims. The only direct evidence is that Kelly was not involved in the preparation of claims or claims settlement on the Wierton- Stubenville project. The record is silent as to Palmer's involvement, if any. Allegation (f): Kelly's and Palmer's Involvement in Litigation and Claims at Balfour Beatty Kelly and Palmer were involved in Balfour Beatty's initial foray into the heavy civil construction business in Florida. In the early 1990's, Kelly met with DOT on Balfour Beatty's application for qualification to bid. At that time, DOT was on notice and inquired about Kelly's and Palmer's involvement in the S. J. Grove's default in Alabama. The Cochrane Bridge project was discussed in detail during a meeting held at DOT headquarters in Tallahassee. After being qualified, Balfour Beatty bid $82,000,000 on a large I-95 project in Broward County and was the successful low bidder by $1,000,000. In the beginning of the project Kelly and Palmer acquired staff and equipment, wrote purchase orders for materials, and supervised the project. On December 31, 1991, Dan White was hired as the project manager and Palmer visited the site every couple of weeks until problems on the project escalated. As the project manager, Dan White was in charge of the job and was responsible for the filing of claims. There were right-of-way problems and contaminated soil which delayed the project from the beginning. An initial design problem resulted from the project having been designed by two different design firms operating from different types of surveys. Consequently, the road was not aligned at the same elevation to match existing structures. These elevation problems shut down the project for months. None of the design, right-of-way, or soil contamination problems was the fault of Balfour Beatty. Nonetheless, DOT rejected all change items and required Balfour Beatty to file claims. A lawyer for DOT eventually became involved in the project in an attempt to settle the disputes which resulted in the preparation of Supplemental Agreement Number 73. SA-73 settled the claims up to that date, set new dates for project completion and paid money for completion by those dates. SA-73 was entered into based upon DOT's assurance that a constructibility review had been completed to make sure that the remainder of the project could be constructed in accordance with the existing plans and there would be no further design problems. However, the constructibility review was not complete and new design problems occurred immediately. The design of the parking lots was changed as they were being built. Core holes, used to determine the depth and density of the pavement had not been drilled. This caused more delays and claims. Balfour Beatty filed a lawsuit against DOT, Morrison Knudsen, the CEI on the project, and DOT personnel on site. The case was settled against DOT and its personnel for $4,750,000 and a jury awarded $4,300,000 against Morrison Knudsen. Balfour Beatty remains qualified to bid on DOT projects and was awarded a contract to build the Fuller Warren Bridge in Jacksonville. Kelly and Palmer, as consultants to Balfour Beatty, participated in preparing the bid for the Fuller Warren Bridge and that project is currently staffed with many of the same personnel who worked on the Broward County I-95 project, including the project manager, Dan White. The Broward County I-95 project was awarded on a bid of $82,000,000. DOT paid Balfour Beatty $97,000,000. The completion of the I-95 project was one to two years late and resulted in over 100 claims being filed. The Fuller Warren Bridge project was awarded on a bid of $81,000,000 and has cost to date approximately $94,000,000 to $96,000,000. None of the problems on the I-95 project were caused by Kelly or Palmer. Neither Kelly nor Palmer was involved in the preparation of the lawsuit or its settlement. ALLEGATION (g): Statements in the Application on Affiliations According to DOT's application, "The term 'affiliate' means a predecessor or successor of a contractor under the same, or substantially the same, control or a group of business entities which are connected or associated so that one entity controls or has the power to control each of the other business entities. The term 'affiliate' includes the officers, directors, executives, shareholders active in management, employees and agents of the affiliate. The ownership by one business entity of a controlling interest in another business or a pooling of equipment or income among business entities shall be prima facie evidence that one business entity is an affiliate of another." In its application for bid qualification, Morse Diesel listed Morse Diesel Civil, Inc. and AMEC Holding, Inc. as its affiliates. Morse Diesel did not identify either MDI or KPG as "affiliated companies" in response to question number 8 in the application. The application was prepared under the direction of Morse Diesel's President, Mitchell Becker who has a master's degree in civil engineering and a law degree. Based upon his interpretation of the definition, he determined in good faith that MDI and KPG were correctly omitted from the response to question 8 because neither met the criteria for "affiliate" as defined in the application. The answer to question 8 is the same in both the 1998 application and the 2000 application and DOT did not request additional information in the 1998 application related to the response nor did it list the failure to name MDI and KPG as affiliates as a ground for denial of the additional classes of work in 1999. There was a notation on page 2 of 19 in the 1998 application referring to MDI as a "sister company." The question requested letters of recommendation. Morse Diesel was a newly formed company, and did not have recommendations for projects it had completed. Instead, it supplied the recommendations of MDI. It became apparent to Morse Diesel through subsequent requests for additional information that DOT was interested in recommendations about the principals and management of Morse Diesel, not MDI. Consequently, when filing its 2000 application, Morse Diesel did not supply MDI letters of recommendation and instead provided recommendations on previous work completed by Morse Diesel personnel while associated with other companies. The only entities that are predecessor entities or have any control over Morse Diesel are Morse Diesel Civil, Inc. and AMEC Holding, Inc. KPG is not a predecessor or successor of Morse Diesel and has no ability to control it with 20 percent ownership. Similarly, MDI is not a predecessor or successor entity and has no controlling interest in Morse Diesel. There was no intent to hide the nature of Morse Diesel's relationship with MDI or KPG. The fact that Mr. Becker and Mr. Fornella are officers of both Morse Diesel and MDI is clearly stated in their résumés in the application. It is DOT's policy to deny application for misrepresentation only when it is intentional. Morse Diesel listed MDI as an affiliate in its Virginia application because the definition of "affiliate" in that application was broader and appeared to encompass MDI. Footnote 3 on page 7 of the audited financial statements refers to a transfer of funds from MDI to Morse Diesel. Mr. Becker, as president of Morse Diesel testified that the footnote in the financial statement attached to the application was a mistake. MDI has never advanced money to Morse Diesel. The advances made to Morse Diesel were made by Morse Diesel Civil, Inc. Mr. Becker as president of Morse Diesel is aware of the financial condition of the company and reviews the financial statements each month. There is no pooling of equipment or income between Morse Diesel and MDI. Allegation (h): Notice of the MDI Default Question 19-2 on page 16 of 23 of the application asks whether "any officer or partner of your organization has ever been an officer, partner or owner of some other organization that has failed to complete a construction contract?" In response to that question, Morse Diesel explained in the application that Kelly and Palmer had been associated with S. J. Groves when it defaulted on the Cochrane Bridge project in Alabama, but otherwise answered the question "no." Although Mr. Becker and Mr. Fornella are officers of both MDI and Morse Diesel, the application did not reveal the default of MDI on a project in St. Louis because the company is contesting the default and has not as yet failed to complete that construction contract; it is in litigation. There is no credible evidence that Morse Diesel or Mr. Becker intentionally omitted any information from the 2000 application. Allegation (i): See Findings for Allegation (g). Morse Diesel has demonstrated that it is competent and has experience to prosecute the work requested in the application. DOT has allowed at least one other applicant to amend its application to identify related companies as affiliates after DOT has denied certification on that basis. The résumés in the application and evidence presented at hearing reflect the work experience of the management of Morse Diesel and indicate extensive experience in heavy civil construction, including highly complex projects. The management of Morse Diesel has experience constructing all the types of road and bridges for which qualification is sought. Morse Diesel has been qualified in New Jersey, North Carolina, South Carolina, Virginia, Delaware, and Pennsylvania. Furthermore, Pennsylvania qualified Morse Diesel on the condition that Mr.Palmer remain associated with Morse Diesel and involved in any project awarded there.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Morse Diesel be permitted to supply DOT with corrections to the unintentional inaccuracies in its application and be pre-qualified in the classifications for which it applied. DONE AND ENTERED this 5th day of July, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 2000. COPIES FURNISHED: Cynthia S. Tunnicliff, Esquire Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. Post Office Box 10095 Tallahassee, Florida 32302-2095 Brian F. McGrail, Esquire Brian A. Crumbaker, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 James C. Myers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
