Findings Of Fact Petitioner submitted Request for Admissions to Respondent Waller on 17 August 1982, and no response thereto was received from Waller (Exhibit 1). Pursuant to Rule 1.370(a), Florida Rules of Civil Procedure, these requests are deemed admitted. Included therein are the following: The sign in question is an outdoor advertising sign visible to vehicular traffic on I-4 and located within 660 feet of the I-4. The sign has never been issued a permit by Petitioner. The sign was located outside the corporate limits of a city or town at the time it was erected. The sign is not located in a commercial or industrial zoned area or in a commercial or industrial unzoned area. The structure is owned by Respondent Waller. Exhibit 2, a computer printout from the office of the Secretary of the State of Florida, shows Country Village Flea Market, Inc., to have been incorporated July 15, 1980, with all directors having the surname of Waller, and Ferris Waller as president and registered agent. The address of the corporation is the same as the address to which the Notice of Alleged Violation was sent. The area in which this sign is located is zoned R-1A, which is single- family residential, and is located inside the city limits of Plant City, Florida.
The Issue The issues in this cause are fashioned by an amended administrative complaint brought by the Petitioner against the Respondent. By the first count to this complaint, Respondent is charged with knowingly employing and otherwise encouraging his wife, Nadia Said Helmy, to practice veterinary medicine in Florida without the benefit of a license. The second count to the amended administrative complaint was dismissed at the commencement of the hearing. By count three, the Respondent is charged with inappropriate advertising in association with his veterinary practice.
Findings Of Fact The State of Florida, Department of Professional Regulation, Board of Veterinary Medicine (Petitioner) is empowered by Chapters 455 and 474, Florida Statutes, to regulate the practice of veterinary medicine in Florida. Samy H. Helmy, D.V.M (Respondent), is and has been a licensed veterinarian in Florida during the pendency of the allegations set forth in the amended administrative complaint. Respondent's wife, Nadia Said Helmy, is not now licensed to practice veterinary medicine in Florida, nor has she been during the time sequence contemplated by the amended administrative complaint. Respondent and his wife owned and operated Wildwood Animal Clinic in Wildwood, Florida, from a period before January 1985 until June 1985. Respondent and his wife were also the owners and operators of Citrus Fair Animal Hospital in Inverness, Florida, from January 1985 through September 19, 1986, the date upon which Respondent gave a deposition in this cause. During the time frame in which both animal clinics were open, Respondent was principally located at the Inverness facility, while his wife was working in the Wildwood facility. Nadia Helmy was working under the supervision of the Respondent in her activities at Wildwood. Sometime in May 1985, a Ms. Goheen took her cat to Dr. Leigh McBride, another veterinarian licensed to practice in Florida. Ms. Goheen claimed that her cat had been treated by a veterinarian at the Wildwood Animal Clinic. She described that veterinarian as being a female. Dr. McBride was unfamiliar with a female veterinarian at the Wildwood Animal Clinic, being of the understanding that Respondent, a man, was the practicing veterinarian in that facility. This circumstance in which it was possible that someone was practicing veterinary medicine without the benefit of a license led to an investigation of that possibility on the part of Petitioner. Eventually, A. L. Smith, an investigator for Petitioner, was assigned to undertake the investigation. Smith borrowed a cat from Dr. McBride. Stogie, the cat, had come into Dr. McBride's veterinary clinic with a broken shoulder which Dr. McBride had repaired. Following this episode, the cat walked with a slight limp. Around May 22 or 23, 1985, in furtherance of his investigation, Mr. Smith took Stogie to the Wildwood Animal Clinic. He had in mind ascertaining whether Nadia Helmy was practicing veterinary medicine without a license by seeing if she would practice on the cat. He deliberately picked an occasion in which Ms. Helmy was alone in the Wildwood Animal Clinic in his effort to determine her willingness to practice veterinary medicine. Once inside the Wildwood Animal Clinic, Mr. Smith confirmed that Nadia Helmy was the only person in attendance. Smith asked to see a veterinarian, remarking to Ms. Helmy that his cat was suffering lethargy and was limping more than usual and that he needed the cat to be examined by a veterinarian. Ms. Helmy directed Smith to take the cat to an examination room and showed him the location of that examination room. At that point, Smith said that Nadia Helmy commenced "the examination." He further described that while the cat was on the examining table ". . . she [Nadia Helmy] was looking at it and looking into its eyes." He indicated that the examination he was observing was what he would expect a veterinarian to give an animal. On the other hand, this is the first instance in which Mr. Smith had ever done undercover investigation of alleged unauthorized practice of veterinary medicine and there is no other information that has been presented which would lead to the conclusion that Mr. Smith knew what techniques would be employed in an examination conducted by a veterinarian. Under the circumstances, there being no further indication of the factual details of the examination, absent the remark concerning Nadia Helmy's looking into the eyes of the cat, it cannot be concluded what details were involved in the alleged examination process and whether in fact the kind of examination conducted by veterinarians was occurring. The telephone rang, and Nadia Helmy left the examination room and answered the phone. She was gone for. three or four minutes. Mr. Smith could hear Nadia Helmy's end of the conversation, in which she spoke in some foreign language. Nadia Helmy testified in the course of the hearing that she spoke with her husband on the telephone regarding the symptoms of Stogie, among other matters. Having examined her demeanor in the course of the hearing and all her answers provided under interrogation, no credence is afforded her version of the telephone conversation. Consequently, no facts are found as to the nature of that conversation. Nonetheless, it is concluded that a conversation was held between Nadia Helmy and Respondent. Following the telephone conversation, Nadia Helmy returned to the examination room and looked at the cat again. Mr. Smith admitted that the cat seemed to be better and Ms. Helmy agreed with him and stated that the cat was just suffering from extended travel. Nadia Helmy said that the cat would be better after returning home. This was in response to Mr. Smith's representation that he was travelling between Tallahassee and Naples, Florida. Mr. Smith described the remarks by Nadia Helmy, concerning the fact that the cat was suffering from extended travel to be some form of diagnosis. Again, it not being identified that the investigator could speak to matters of what constitutes a diagnosis and the nature of those remarks by Nadia Helmy not being clearly a form of diagnosis which might be recognized by a lay person, the remarks are not received as stating a diagnosis. Throughout the exchange between Mr. Smith and Nadia Helmy on the date that the cat was brought to the Wildwood Animal Clinic, Mr. Smith referred to Nadia Helmy as "doctor." Although Ms. Helmy did not correct Mr. Smith in his reference, she did not affirmatively state that she was in fact a veterinarian licensed by Florida to practice veterinary medicine. In the course of the events in the examination room, Nadia Helmy did not take the temperature of the cat, did not take a case history on the cat or provide any form of treatment. Following the conversation in the examination room, Investigator Smith asked Nadia Helmy "how much" for her service. She replied five dollars. Nadia Helmy gave Investigator Smith a receipt for the payment of the five dollars. A copy of the receipt may be found as Petitioner's Exhibit 1 admitted into evidence. It is on a form of the Wildwood Animal Clinic, which has a portion related to the character of service. This portion of the receipt is not filled out. The only thing that is reflected is the amount of charges and Mr. Smith's name and a date, May 22, 1985. Under these circumstances, it cannot be concluded that the five dollar charge was for provision of veterinary services. After leaving Wildwood Animal Clinic, Investigator Smith went to Citrus Fair Animal Hospital at Inverness. While there, he discussed with Respondent the facts of his visit to the Wildwood Animal Clinic and the nature of events related to Respondent's wife and the fact that the investigation was in answer to allegations made about the wife's practice of veterinary medicine. In the course of this conversation, Respondent stated that his wife was a graduate of veterinary medicine and was qualified to examine animals and run the clinic but that he did all of the surgery. He stated that his wife was qualified to give shots and to determine what was wrong with animals. Concerning the wife's actions, Respondent stated that his wife was too busy raising three children to get all the classes and under this circumstance hadn't passed an examination. Nonetheless, according to Respondent, the wife was completely qualified in that she was a graduate of veterinary medicine school. This acknowledgment by Respondent as to the general arrangement between the Respondent and his wife concerning the operation of the Wildwood Animal Clinic does not revitalize the Petitioner's claim that the wife was practicing veterinary medicine on the specific day in question. Evidence was presented in the course of the hearing concerning the fact that Nadia Helmy would not treat an animal of one Ralph Benfield when the animal had been offered for treatment at the Wildwood Animal Clinic. However, this situation occurred at a time when the Wildwood Animal Clinic was being phased out and it is not clear what significance that fact had in the decision by Nadia Helmy not to offer assistance to the animal. In January 1985, Respondent entered into a one-year advertising contract with the Citrus County Chronicle, a local newspaper. This was for the placement of advertisements pertaining to his Citrus Fair Animal Hospital. One of the ads placed in the paper, at the instigation of the Respondent, can be found as Petitioner's Exhibit 4 admitted into evidence. The date of the advertisement is March 31, 1985. It advertised free fecal check and a free office visit, but did not contain the 72-hour disclaimer language contemplated by Section 455.24, Florida Statutes. Having been advised of this problem related to the lack of disclaimer, Respondent, by correspondence of August 26, 1985, acknowledged his violation and modified the format of his advertising. The letter of August 26, 1985, and the new format of advertising may be found as Petitioner's second exhibit admitted into evidence. This letter had been dispatched based upon a complaint which was filed on August 9, 1985, by a Dr. Asaad. This led to action by the Petitioner attempting to have Respondent rectify the problems with his advertising. Following the circumstance in which Respondent had been made aware of the problem with his advertising, he took steps to ensure that the advertising was in compliance with law by contacting the Citrus County Chronicle. Although the employee of the Citrus County Chronicle who testified in the course of the final hearing was uncertain about whether the March 31, 1985, advertising copy was specifically approved by the Respondent, it was the practice of the newspaper to provide Respondent with a proof prior to publication. Circumstantially, it is concluded that Respondent did not oppose or question the acceptability of the March 31, 1985, advertising. Support for this position is found in the fact that Respondent conceded his violation by his August 25, 1985, correspondence.
Findings Of Fact On or about January 27, 1988, a DOT sign inspector observed Respondent's sign along U. S. 19 in the vicinity of S. R. 595. The sign had no permit attached, and DOT records revealed no permit has ever been issued for this sign. The sign is visible from U. S. 19. U. S. 19 is a federal aid primary highway.
The Issue Whether the Respondent violated Chapter 479, Florida Statutes, by failure to obtain a state permit and whether Respondent is in violation of federal and state laws, rules and regulations applicable to outdoor advertising signs concerning setback and spacing restrictions.
Findings Of Fact A notice of alleged violation of Chapter 479 and Section 335.13 and Section 339.301, Florida Statutes, and notice to show cause was furnished Petitioner by certified mail dated the 16th day of December, 1976, and stamped at the Lamont, Florida Post Office December 18, 1976. The following signs are the subject of this hearing: A sign with copy reading "Pecans 3-lbs. $1.50" with an additional sign attached underneath reading "53.9" located at 1 and 6/10 miles west of Madison County line on Highway Interstate 10. A sign with copy reading "Pecans Fresh Shell $1.99) located 1 and 9/10 miles west of Madison County line on Highway Interstate 10. A sign with copy reading "Pecans 3-lbs. $1.50" located 2 miles west of Madison County line on Highway Interstate 10. A sign with copy reading "Exit Now Pecans Fresh Shell $1.99" located 2.05 miles west of Madison County line on Highway Interstate 10. A sign with copy reading "Exit Now Pecans 3-lbs. $1.50" located 2.2 miles west of Madison County line on Highway Interstate 10. No permits were secured for any of the signs which were erected subsequent to December, 1976, and visible from Highway Interstate 10 on the north side thereof. Each sign is outside an urban area. The distance and space between signs numbers 2, 3, 4 and 5 each is less than one thousand feet. Sign number 1 has the number 53.9 underneath the message advertising pecans. This number relates to the price of gasoline sold at Respondent's store wherein he sells gasoline and pecans among other things. Sign number 1 is approximately 15 feet from the fence line at the north boundary of 1-10; sign number 2 is located approximately 15 feet from the fence line on the north boundary of 1-10; sign number 3 is located approximately 15 feet from the fence line on the north boundary of 1-10; sign number 4 is located approximately 15 feet from the right-of-way line, the fence, on the north side of 1-10; sign number 5 is approximately 2 feet from the fence line on the north side of 1-10. Sign number 5 is within the offramp section of the interchange of 1-10 and State Road 257. The subject signs stand fully visible approximately 15 feet from the fence which is the north boundary line of Interstate 10 a federal aid primary highway except sign number 5 which is less than 15 feet from Interstate 10. They are placed in an old grove in which there are less than 20 old pecan trees which do not produce the product advertised for sale. The subject signs advertise pecans that are sold at the business of Respondent which is a distance of at least 3/4 of a mile from the nearest sign.
Recommendation Take such action as the law permits including but not limited to the removal of subject signs. DONE and ORDERED this 30th day of March, 1977, at Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1977. COPIES FURNISHED: Philip S. Bennett, Esquire Ben H. Ervin, Esquire George L. Waas, Esquire 850 South Waukeenah Street Department of Transportation Monticello, Florida 32344 Haydon Burns Building Tallahassee, Florida 32304 Mr. O. E. Black, Administrator Outdoor Advertising Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. J. E. Jordan District Sign Coordinator, DOT Post Office Box 607 Chipley, Florida 32428 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION IN RE: FLORIDA DEPARTMENT OF TRANSPORTATION, Petitioner, vs. CASE NO. 77-001T LYMAN WALKER, III, Respondent. /
The Issue Whether Respondent, L.M.I. East, Incorporated d/b/a L.M.I. Landscapers, Inc. and its surety, Western Surety Company owes Petitioner $4,210.00 for East Palatka Holly Trees.
Findings Of Fact Petitioner A.D. Andrews, Inc. is a producer of agricultural products, pursuant to Section 604.15 (9), Florida Statutes. Respondent L.M.I. East, Incorporated d/b/a L.M.I. Landscapes, Inc. is a dealer in agricultural products pursuant to Section 604.15 (2), Florida Statutes. Respondent’s surety is Western Surety Company Teal Pomeroy, a salesman for Petitioner, and Pat Tronzano, Purchasing Manager for Respondent, have a business history representing their respective principals. All previous dealings have been satisfactory, and they share a mutual respect. While at a trade show in Orlando, Florida, Teal and Tronzano entered into an oral agreement for the sale of 31 East Palatka Holly bushes/trees (30 at the rate of $135.00 each, and one for $160.00) at a total price of $4,210.00, due from Respondent to Petitioner. Neither participant in this arrangement testified to any oral terms covering “point of sale” or a guarantee of any condition of the hollies at a final destination. Neither participant testified that a standard course of business on these issues had arisen between them as a result of their prior transactions. On October 9, 2007, Mr. Tronzano sent a third party freighter (trucker) to pick-up the hollies at Petitioner's nursery in Chiefland, Florida, and transport them, at Respondent’s expense, to Selena, Texas, for planting and landscaping by Respondent. Mr. Tronzano did not accompany the third party freighter to Petitioner's nursery or on the subsequent trip to Texas. He never saw the hollies in question prior to loading or while they were still on the truck after loading. The trucker selected by Respondent was one specially skilled in the transport of landscape plants, and Respondent has successfully used him for prior purchases and transports. The third party freight truck arrived at Petitioner’s Chiefland, Florida, nursery at approximately 11:00 a.m. on October 9, 2007, before all the hollies had been dug up. However, the trees that were ready to load and those that had to be dug up were loaded by Petitioner, and by 2:00 p.m., the truck, fully loaded, left Petitioner’s property. Petitioner’s invoice clearly states: ATTENTION: If these trees are not in satisfactory condition when received, do not accept them. We do not replace trees. Please note any discrepancies or problems with materials. The invoice does not show the trucker noted any problems with the hollies. The trucker also signed the delivery ticket under the statement, “I acknowledge that trees were received in good condition.” Approximately 48 hours later, Mr. Tronzano received a report from Texas that when the freighter delivered the hollies to the Selena, Texas site, some hollies were dead and other were dying. Mr. Tronzano did not personally witness anything at the final destination. Respondent's photographs in evidence, the date of which has not been automatically printed on them, show some trees which had already been unloaded in Texas with dried- out root balls. They show no trees with dried-out root balls still on the truck. All photographs show intact root balls, although they are dusty and some trees are clearly dead or dying. One tree is dead in a pot. Although it had taken Respondent’s trucker approximately 48 hours to get the hollies to their ultimate destination in Texas, the normal driving time is 16-20 hours. Because federal regulations require a period of rest for commercial drivers every eight hours, Respondent put forth the theory that because there had been a delay of three hours at Petitioner’s nursery while some hollies were dug up and loaded, the delaying effect of three hours snowballed to a total delay of as much as 22-28 hours for the truck’s arrival time at the final destination. This theory is speculative and unsubstantiated by the evidence. Despite some earlier attempts, Respondent did not notify Petitioner of the condition of the hollies at the final destination until October 15, 2007. Respondent concedes that 11 of the 131 hollies were accepted in good condition. Whether one of the survivors was the single holly tree sold for $160.00, is not in evidence. Respondent has not paid Petitioner for any of the hollies. Mr. Tronzano has not had a dry-out problem like this one in ten years. Respondent's second theory of why the hollies arrived at the Texas destination in poor shape is an assertion that the way Petitioner processed and handled the harvesting of the hollies adversely affected their health. Respondent speculates that Petitioner’s digging and immediately loading the just-dug hollies onto the truck sent by Respondent resulted in shock to the hollies’ root systems so that the root systems dried out. Mr. Teal and Mr. Tronzano agree that previous trees (not necessarily East Palatka hollies) sold by Petitioner to Respondent had been "pre-dug" and "staged" by Petitioner in anticipation of the arrival of the freighter. “Staging” means that Petitioner dug up the trees, put them on a trailer, and took them to a centralized loading area at the nursery for Respondent’s pick-up. According to Mr. Teal, the foregoing “pre-dig and stage” method prevents "double-handling" of trees, but many trees are dug up only when a truck arrives at the nursery to take them away. Mr. Teal was not present at the nursery on October 9, 2007, but opined that if the hollies on this occasion had been pre-watered, they would be unlikely to die of shock, despite being dug up and loaded right away. Moreover, the particular trees sold to Respondent came out of a field that Petitioner irrigates, so "dry out" should not have been a problem. Mary Andrews works in Petitioner's business office. She did not know about Respondent's order until the truck arrived on October 9, 2007, but she managed the "dig and load" within three hours of the truck’s arrival. She testified that Petitioner digs trees throughout the year so that when a truck arrives, the trees have not been sitting dry in a field for lengthy periods of time. Petitioner sold 3500 similar trees in the previous year without any dry-out problems. Petitioner had admitted in evidence, without objection, Florida Division of Forestry rainfall records for three locations near Petitioner's nursery. All three official records show six inches of rainfall for the week immediately preceding October 9, 2007. Petitioner maintains that the trucker should have watered the hollies en route. Respondent believes the trucker did water them, but the trucker did not testify, so there is no direct evidence that the trucker watered the hollies en route. The parties have tried to work this situation out, but their respective offers of compromise are not admissible herein, pursuant to Section 90.408, Florida Statutes.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered that Respondent L.M.I. East, Incorporated d/b/a L.M.I. Landscapers, Inc., shall pay Petitioner, A.D. Andrews Nursery, Inc., the sum of $4,210.00, and that if L.M.I. East, Incorporated d/b/a L.M.I. Landscapers, Inc., fails to pay Petitioner, A.D. Andrews Nursery, Inc., within 30 days of the final order, then Respondent, Western Surety Company, shall pay the Department as required by Section 604.21, Florida Statutes, and that the Department reimburse Petitioner in accordance with Section 604.21, Florida Statutes. DONE AND ENTERED this 3rd day of June, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 3rd day of June, 2008. COPIES FURNISHED: Teal Pomeroy Qualified Representative A.D. Andrews Nursery, Inc. Post Office Box 1126 Chiefland, Florida 32644-1126 Pat Tronzano Qualified Representative L.M.I. East, Incorporated d/b/a L.M.I. Landscapers, Inc. 1437 Halsey Way Carrollton, Texas 75007-4410 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Western Surety Company Post Office Box 5077 Sioux Falls, South Dakota 57117-5077
Findings Of Fact Two signs are located 0.8 mile west of State Road, 79 on Interstate 10, and 0.8 mile east of State Road 79 on Interstate 10. Both signs do not have permits attached to them. Both signs bear messages which are visible from the traveled way of Interstate 10. Neither sign is located within an incorporated municipality or town. Both signs advertise in part Simbo's Restaurant. Mr. Jim Williams, Outdoor Advertising Inspector for the Department of Transportation, testified that he had spoken with Mr. Simms on June 28, 1978. Williams stated that he asked Simms if Simms would remove the signs; however, Williams did not identify the signs to which he was referring. According to Williams, when Simms was asked if he would take the signs down, Simms stated he would leave them up and go to court. There was no substantial and competent evidence introduced that Simms was referring to the signs in question in this case. Both signs were measured by Charles Averitt, a surveyor with the Department of Transportation, and the sign 0.8 mile west of State Road 79 on Interstate 10 was determined to be 16 feet from the edge of the right-of-way of Interstate 10. The sign 0.8 mile east of State Road 79 on Interstate 10 was determined to be 16.5 feet from the edge of the right-of-way of Interstate 10. Gene Simms testified that he was the owner and operator of Simbo's Truck Stop and Restaurant. Simms testified the signs in question were the property of Simms' Enterprises, Inc., and had been at all times pertaining to this complaint. Simms stated that he owned 50 percent of the stock in Simms Enterprises, Inc., and the remainder was owned by his brother, Jimmy Simms. The notice of violation in this cause names Gene Simms as the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation take no action regarding the subject DONE and ORDERED this 22nd day of March, 1979, in Tallahassee, Leon County, Florida STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1979. COPIES FURNISHED: Phillip S. Bennet, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Richard C. Hurst, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. Gene Simms Simbo's Auto-Truck Stop and Restaurant Route 1, Box 186 Bonifay, Florida 32425
The Issue Whether Respondent, Chase Landscaping and Nursery, Inc. (Chase Landscaping), and its surety, Fidelity & Deposit Company of Maryland (Fidelity), are liable for funds due to Petitioners from the sale of agricultural products.
Findings Of Fact Petitioners Dr. R.H. Biggs and Dr. Susan V. Kossuth own and do business as BK Cedars. BK Cedars is a producer of agricultural products as defined by Section 604.15(5), Florida Statutes. Respondent Chase Landscaping is a licensed and bonded dealer in agricultural products as defined by Section 604.15(1), Florida Statutes. During the time period covered by the transaction in question Chase Landscaping was covered by bond number 7507757 issued by Fidelity. On May 24, 2005, Petitioners received a phone message from Chase Nurseries, Inc. (Chase Nurseries) inquiring about the possible purchase of 157 five to six feet Leyland cypress trees. Chase Nurseries is a separate entity from Chase Landscaping, although both are owned by the same person, Jan Chase. Chase Nurseries is also located at the same address as Chase Landscaping, but apparently is not licensed and has no bond. Jan Chase's customer wanted Leyland cypress trees that were six feet tall. BK Cedars sold Leyland cypress five- to-six feet tall for $23.00 each. Trees six-to-seven feet tall were offered for sale priced at $27.00 each. Chase opted to purchase the trees five-to-six feet tall at the lower price. On June 1, 2005, Mike Bruns and another employee from Chase Nurseries came out to pick up the trees. Bruns declined the offer to choose, measure and flag the trees himself, and instead watched Susan Kossuth do so. Mike Bruns loaded the trees into the truck, paid for the trees with a Chase Nurseries check that he asked Petitioners to hold for a day, and left. The cypress trees were billed for $3,611.00. Although a check was tendered for that amount, it was returned to Petitioners marked "insufficient funds." Shortly thereafter, Jan Chase stopped payment on the check. Mr. Chase claimed that he was refusing to pay for the trees because his customer indicated that they were far from six feet tall and refused them. It is irrelevant how tall the trees actually were. Chase Nurseries had the opportunity to measure them and chose not to do so before accepting them. If they were significantly shorter than six feet, as claimed, Mike Bruns should have been able to tell that they were not tall enough when he loaded them into the truck. Further, Petitioners did not represent the trees as being six feet or over. They represented them as being five- to-six feet tall, which would not have met the specifications of Chase Nurseries' client in any event. Petitioners made several efforts to collect the funds due them for purchase of the trees. Dr. Biggs made numerous telephone calls to Mike Bruns in an effort to receive payment. After Chase Nurseries stopped payment on the check, Petitioners filed a complaint with the State Attorney's office in addition to filing a claim through the Department of Agriculture and Consumer Services. All responses by Jan Chase were through Chase Nurseries. When Petitioners filed their original complaint with the Department of Agriculture, they listed the respondent as "Chase Landscaping and Nursery, Inc.," and listed "Chase Nurseries" as a trade or d/b/a name for Chase Landscaping. The Department directed Petitioners to remove this designation from the complaint filed by Petitioners, because Department staff advised that Chase Landscaping did not have a "d/b/a" name. When Jan Chase filled out the Answer for Respondent, he listed the Respondent as "Jan Chase d/b/a Chase Nurseries, Inc." He did not indicate that Petitioners had named the wrong party. He also indicated on the form Answer that the trees were purchased by Jan Chase. Chase testified that his current bond for Chase Landscaping is being held up by Fidelity because of this case, but that Chase Landscaping had nothing to do with this case. He claimed Chase Nurseries did not meet the threshold amount required to hold a bond. This transaction alone exceeds the threshold required by the Department of Agriculture for an agricultural dealer to be licensed and bonded. Petitioners came to hearing believing that the entity with which they dealt was covered by the Fidelity bond. They did not realize that Chase Landscaping was a separate entity from Chase Nurseries.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That Petitioners' Amended Complaint against Respondents Chase Landscaping and Fidelity be dismissed. DONE AND ENTERED this 28th day of July, 2006, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 28th day of July, 2005. COPIES FURNISHED: Dr. Robert H. Biggs Dr. S. V. Kossuth 20874 Northwest 91st Street Alachua, Florida 32615 Jan Chase Chase Landscaping and Nursery, Inc. 10675 Southwest 100th Avenue Ocala, Florida 34481-7321 Robert L. Lawrence Fidelity & Deposit Company of Maryland 3910 Keswick Road Baltimore, Maryland 21211 Kathy Alves Fidelity & Deposit Company of Maryland Post Office Box 87 Baltimore, Maryland 21203 Chris Green, Chief Bureau of License and Bond Department of Agriculture and Consumer Services 407 South Calhoun Street, MS 38 Tallahassee, Florida 32399-0800 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800
The Issue The issues in this case are whether the specifications included in the Request for Proposals for Lease of Right-of-Way, S.R. 528 (Bee Line Expressway)("the RFP") are contrary to governing statutes and rules, clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact The Bee Line Expressway The Bee Line Expressway, which carries the number designation of State Road 528, extends from its western terminus at Interstate 4 in Orange County, easterly across the St. Johns River into Brevard County; it then extends slightly southerly across Interstate 95, the Banana River, Indian River, and Merritt Island; it ends at its eastern terminus at Port Canaveral in Brevard County. The portion of the Bee Line Expressway from Interstate 4 to approximately the Florida Turnpike is owned by the Respondent, the Florida Department of Transportation ("the Department" or "DOT"). The portion from approximately the Turnpike to the vicinity of State Road 520, is owned by the Orlando-Orange County Expressway Authority (the "Expressway Authority") and is subject to a lease/purchase agreement between DOT and the Expressway Authority. The portion from the vicinity of State Road 520 to the center of the Intracoastal Waterway is owned by DOT. The portion from the center of the Intracoastal Waterway to Port Canaveral is owned by the Canaveral Port Authority (the "Port Authority.") Since the late 1980s there has been consideration of a fixed guideway transportation system linking Orlando and the Space Coast along the Bee Line Expressway. There were at least two proposals prior to June 1997 to co-locate transportation facilities along the Bee Line right-of-way. Such a system would be in accordance with and advance Department policies and responsibilities to develop new transportation systems to keep pace with Florida's growth. Bee Line Rail Unsolicited Proposal In June 1997, the Department received an unsolicited proposal titled "Proposal of Bee Line Rail System, Inc., for the Development of a Monorail System along the Bee Line Expressway." Since that time, the name of Bee Line Rail System, Inc. has been changed to Bee Line Monorail System, Inc. ("BLMS"). BLMS proposed the lease of certain Department properties along the Bee Line Expressway (S.R. 528) for the construction and operation of a rail system connecting a terminal at Cape Canaveral on the eastern coast of Florida, a terminal at the Orlando International Airport, and a terminal to be located near International Drive adjacent to Interstate 4. The BLMS unsolicited proposal became the impetus for the Department's Request for Proposals ("RFP"), which is the subject of this proceeding. Knowing that a rail line connecting the Orlando area with the Space Coast had merit and would further Department policies and responsibilities, the Department formed a team of experts to write the RFP including the evaluation criteria to be used in reviewing proposals submitted in response to the RFP. The team worked together to develop the evaluation criteria and to formulate the RFP in accordance with the governing statute and rules. In the process of formulating the RFP, the Department had discussions with the Expressway Authority, the Canaveral Port Authority, and Florida Overland eXpress (FOX), the Petitioner in this case. Each of these entities' concerns were considered in the formulation of the RFP. Specifically, DOT held several discussions with FOX and made modifications to the RFP as a result. The RFP is substantially different from the BLMS unsolicited proposal. The Bee Line Expressway RFP On April 17, 1998, DOT issued the RFP pursuant to Section 337.251, Florida Statutes (1997). It consists of the Request for Proposal Cover Page, the Evaluation Criteria for Lease of S.R. 528 (Bee Line Expressway) Right of Way (the "Evaluation Criteria"), and the Bee Line Lease Agreement. Each part of the RFP contains specifications that describe the information a proposer must provide in order to be responsive, as well as the criteria by which the submitted information will be evaluated. Responses to the RFP are due October 19, 1998. The RFP solicited proposals for lease of the right-of- way within the Bee Line Expressway (State Road 528) for the purpose of establishing a transportation system (excluding pipelines) connecting terminals and stations in Orange and Brevard Counties, with an option to also lease right-of-way owned by DOT along portions of State Road 407. Among other things, proposals responsive to the RFP would have to clearly identify the route for the proposed transportation system on aerial photographs. (Evaluation Criteria, Part III, page 7) Proposals would have to specify the services to be provided, whether they would be for passengers, for freight, or for both, and the locations of stations would have to be identified. (Evaluation Criteria, Part V, page 9.) Proposers would have the option to describe the specific technology to be deployed or to identify the performance specifications to be achieved for a technology to be specified at a later time. (Evaluation Criteria, Part VI, pages 10-11.) Safety of proposed systems would have to be fully explained including the identification of applicable federal and state safety regulations. (Evaluation Criteria, Part VII, page 11; Bee Line Lease Agreement, Paragraph 5.) Proposed systems would have to be in compliance with all applicable environmental and land use requirements. (Evaluation Criteria, Part IX, page 13 and Part XII, page 15; Bee Line Lease Agreement, Paragraph 2.) Constructability and maintenance of the proposed facilities would have to be described. (Evaluation Criteria, Part X, page 13 and Part XI, page 14.) The RFP requires that proposals include the information designated in the Department's Florida Administrative Code Rule 14-109.0011(4)(c). Among other things, the RFP requires that proposals include: The proposed design for the use of the space, including facilities to be constructed, as well as maps, plans and/or sketches as are necessary to set out pertinent features in relation to the transportation facility are required by the RFP. (Evaluation Criteria, Part III, page 7.) A three-dimensional drawing and legal description of the space to be leased is required by the RFP. (Evaluation Criteria, Part III, page 7.) An explanation of all planned uses of the property to be leased as well as all activities to be conducted on the property is required by the RFP. (Evaluation Criteria, III, page 7 and V, page 9.) Clarification Of The RFP The RFP provides two methods of obtaining a clarification about its requirements. A potential proposer is required to attend a "Mandatory Pre-proposal Conference." (RFP Cover page, 2.) (This conference had been scheduled for May 5, 1998, but was canceled due to the filing of the protests.) At this meeting the attendees would be given the opportunity to ask questions, and the Department would answer the questions, either orally at the meeting, or in writing. In addition, any person can submit a written request for clarification by a specified date, which was to be July 6, 1998; within 21 days, the Department would provide a written response. The request for clarification and the Department's response would be provided to all persons who attended the pre-proposal conference. (RFP Cover page.) Florida High Speed Rail Project FOX's witnesses did not testify that the specifications in the RFP were invalid. Indeed, David S. Gedney, chief project executive for the FOX project, testified that FOX was not opposed to the RFP, just the timing of its issuance. FOX focused on the timing of the RFP and the way in which it might complicate FOX's planning efforts in establishing and locating the Florida High Speed Rail Project. On February 28, 1995, the Department issued the High Speed Rail Transportation System Request for Proposals that solicited applications for a franchise for a high speed rail transportation system to provide service to four designated service areas--Tampa Bay (Hillsborough and Pinellas Counties), Lakeland (Polk County), the Orlando area (Seminole, Orange, and Osceola Counties), and Southeast Florida (Dade, Broward, and Palm Beach Counties). In April 1996, the Department awarded FOX the franchise for a high-speed rail system to connect the four service areas identified in the High Speed Rail Transportation System Request for Proposals. Brevard County is not in one of the service areas identified. The award of the franchise was conditioned upon FOX and the Department entering into certain post-franchise agreements that would establish a solid foundation for the development of the high-speed rail project. These agreements included a Finance Post-Franchise Agreement (FPFA) to establish successful financing for the endeavor and the Pre-Certification Post-Franchise Agreement (PCPFA) to ensure the ultimate development and certification of the project. The Department's Final Order Awarding Franchise To Overland eXpress, L.P. - Franchise and Terms and Conditions and the post-franchise agreements collectively are referenced as the "Franchise." In accordance with Section 341.3338, Florida Statutes (1997), and the Final Order that awarded the Franchise, FOX has the exclusive right to establish, and upon issuance of certification, to locate, construct, operate, and maintain a high speed rail transportation system that serves the geographical areas identified. These exclusive rights only apply to high speed rail transportation systems. The Franchise does not grant to FOX an exclusive right to provide high speed rail service to Brevard County, since that county is not listed as a service area in the Franchise. In addition to the exclusive rights granted by the Final Order, the Department agreed to seek legislatively additional provisions to secure the exclusivity of the FOX Franchise and to protect the state's financial investment in the project. These are contained in the Finance Post-Franchise Agreement (FPFA). Specifically, the FPFA, provides, starting on page 3: §2.2 Exclusivity. Pursuant to § 341.3338, Florida Statutes, and Article III, Section A of the Franchise Document, FOX has the exclusive right to plan, establish, construct, operate and maintain the System serving the service areas identified in the Franchise Document. Subject to the enactment of any necessary State legislation, as set forth in Section 12.21, the Department agrees as set forth in Sections 2.2(a) through (e) below: No Competing System. The Department shall not permit any new or substantially renovated fixed-guideway, inter-city passenger transportation system (including any high-speed rail transportation system) which competes with the System and any extensions thereof, it being understood that such legislation should not limit the development of feeder distribution systems. * * * (e) New Fixed-Guideway Inter-City Systems In Florida. FOX (or, at the election of FOX, any of the Sponsors or one or more Affiliates of FOX or any of the Sponsors) shall have a right of first refusal with respect to the design, engineering, procurement, construction, testing, commissioning, operation and maintenance of any high-speed rail transportation system in the State of Florida other than the System in accordance with terms and conditions to be agreed in the Fixed-Guideway Development Post-Franchise Agreement to be entered into by the Department and FOX. To ensure that the Department fully complied with the Franchise, including the above agreement, the RFP included specific protections for the FOX project in Part IV of the Evaluation Criteria, titled "High Speed Rail Project." (Evaluation Criteria, pages 8-9.) To safeguard the Department's agreements with FOX, and in particular Subsection 2.2(a) of the FPFA, relating to the protection from competing systems, the RFP included information requirements designed to protect the FOX Franchise and specifically stated: . . . The Department must ensure that this proposed lease of the Bee Line expressway right of way does not compete with or otherwise adversely impact the FOX franchise. (Evaluation Criteria, page 8.) No proposal responsive to the RFP could compete with the FOX project. While any reliable existing technology or performance specifications that can be met by existing technology are allowed to be proposed, the system proposed must not be capable of operating in excess of 120 miles per hour. (Evaluation Criteria, Part VI, pages 10-11.) The Department also is in compliance with the terms of Subsection 2.2(e) of the FPFA, relating to FOX's right of first refusal. Subsection 2.2(e) only applies to a new high-speed rail transportation system, and by definition a high-speed rail transportation system must be capable of operating in excess of 120 miles per hour. Section 341.322(16), Florida Statutes (1997). The RFP solicits a system that will not be capable of operating in excess of 120 miles per hour. In any event, Subsection 2.2(e) is not, as yet, effective because FOX and the Department have not entered into the Fixed-Guideway Development Post-Franchise Agreement. A rail system proposed in response to the RFP would complement the FOX system by providing passenger transportation to specific destinations along the Bee Line Expressway, for example to the Port of Canaveral, a destination not within a service area to be served by FOX, or to the Orange County Convention Center. Such feeder distributor functions of a Bee Line rail system are specifically allowed by the FOX Franchise to be developed by entities other than FOX. At present, the physical alignment of the FOX project is not known. FOX is currently in the preliminary phase of developing the high-speed rail project. DOT has retained consultants who are presently engaged in the early stages of evaluating the potential environmental and socioeconomic effects of the FOX project. Under the National Environmental Policy Act (NEPA), 42 U.S.C. Sections 4321, et seq., the Florida High Speed Rail Project must undergo an extensive review of all aspects of the proposed system. This review produces the Environmental Impact Statement (EIS). NEPA mandates analyses of the need for the project, a comparison of all reasonable alternatives and routes, including the alternative of not doing anything, as well as the impacts on the human environment for each alternative. The review is anticipated to take more than two years. The alternative routings undergoing NEPA review include alignments co-locating with portions of the Bee Line Expressway. Simultaneously with the NEPA review, the project will be undergoing environmental review pursuant to a certification process established by the Florida High Speed Rail Transportation Act. This process, which is expected to take two to three years, will result in the denial or approval of certification for the project. The certification, which approves the final location of the project, and which becomes the sole license and authority for the project, is required prior to the construction and operation of the system. The alignments for the high-speed rail transportation system do not become final until the NEPA review is completed and certification granted. On December 12, 1997, the United States Department of Transportation, Federal Railroad Administration (FRA), published notice of a proposed rule setting safety standards for the FOX High Speed Rail Project. These proposed safety standards, which are premised on accident and collision avoidance, contain various requirements to ensure that high-speed rail tracks remain free of any intrusion that could cause a wreck, including the requirements that the right-of-way be fenced, that physical barriers be built where the line is adjacent to other transportation systems, and that a detection and alarm system be installed to alert and stop the train should any intrusion occur. The proposed FRA rule would require FOX to develop a system safety plan, which would describe FOX's system safety program. FOX cannot finalize the design of its system until it has developed its safety plan and completed the analysis required by that plan. Since the system safety program established by the plan will be a determining factor in deciding the exact right-of- way for the FOX project, the exact right-of-way cannot be determined until the at least the design portion of the system safety plan is approved. Alternatives for collision avoidance can be costly. A berm, including the cost of additional land needed for such a structure, could cost $300,000 per linear foot. A concrete barrier would cost $1.8 million per mile. Elevation of the FOX guideway would add $10 million per mile to the cost of constructing the guideway. If increased distance between FOX and another system required FOX to diverge from the Bee Line right-of-way, resulting in the need to purchase additional land, increased costs to the project would be significant. Required eminent domain proceedings also would be time-consuming. Increased environmental permitting and mitigation also might result, at additional costs in money and time. It was estimated that a year of delay in the project would reduce FOX's bottom line by $200 million. While the final alignment of the FOX Project may not be known for years, there was no evidence that a rail system constructed along the Bee Line Expressway in response to the RFP would make it impossible for FOX to comply with FRA safety standards. A separate transportation system using part of the Bee Line right-of-way can be planned simultaneously with the FOX system with proper coordination. It is not necessary to delay the Bee Line Expressway RFP until after FOX has its alignment fixed. Planning the FOX Project and the Bee Line Expressway RFP simultaneously may, but would not necessarily, increase the construction cost of the FOX Project. Meanwhile, it might not be possible to plan and implement a rail system along the Bee Line Expressway after final alignment of the FOX project; if still possible, logically, the costs of a rail system along the Bee Line Expressway could increase if it had to be planned and implemented after the final alignment of the FOX Project is determined. Finally, delaying the Bee Line Expressway RFP until after the FOX final alignment may only postpone, without totally eliminating, additional costs to the FOX project. Whether nearby transportation systems are in place initially or come after the FOX project, the FRA will require FOX to take the measures necessary to avoid collisions. Delay in the issuance of the RFP delays the opportunity for the establishment of a complementary system along the Bee Line Expressway. It is in the public interest for both systems to go forward in a coordinated matter. The sooner the systems are implemented, the sooner the needs of Florida's traveling public will be served. It also is noted that the RFP does not set a date of decision on proposals (except that the proposed Bee Line Lease Agreement form is designed to accommodate a date before the turn of the century.) In addition, the RFP Cover Sheet provides that the Department can reject all proposals if they are not satisfactory. Property Not Owned By The Department The RFP allows proposers to include in the proposal the use of right-of-way owned by the Port Authority and Expressway Authority. (Evaluation Criteria, Part I, page 1.) This is allowed to give a proposer the opportunity to develop a rail system along the Bee Line Expressway that has meaningful station locations, and such locations may well be on, or require the use of, a portion of the Bee Line Expressway owned by another agency. There is merit for the system to connect the Port of Canaveral with the Orlando International Airport, and the RFP gives the proposer the opportunity to propose these as stations. It will be up to the proposer to suggest the property ownership relationship for those portions of the alignment not owned by the Department and to obtain approval of the land owners for such relationship. (Evaluation Criteria, Part I, page 1.) These other agencies agreed to issuance of the RFP and are willing to work with the Department to effectuate a rail system that both the Department and the agencies can approve. The RFP clearly requires that the land owners approve any proposal affecting their ownership rights. (Evaluation Criteria, Part I, page 1.) Compliance With Zoning and Land Use Plans Part XII of the RFP's Evaluation Criteria requires proposers to "demonstrate consistency to the maximum extent feasible" with the applicable land use plans and "indicate the extent of compatibility with existing and proposed land uses and transportation systems." (Evaluation Criteria, Part IX, page 13 and Part XII, page 15.) The proposed lease agreement which is part of the RFP specifies that the lessee is required to "conform to and obey any present and future ordinances and/or rules, regulations, requirements and orders of governmental authorities or agencies respecting the use and occupation of said premises." (Bee Line Lease Agreement, Paragraph 2.) As drafted, the RFP simply recognizes that certain aspects of local comprehensive plans may need to be modified, since a proposed transportation facility may not have been considered during plan development. A proposal may require a comprehensive plan amendment to be in compliance; alternatively, it is possible that a necessary variance could be obtained. Milestones The RFP allows for what it terms "milestones," which are events and critical decisions that need to occur in accordance with a schedule, because the Department recognizes: Many requirements for system implementation such as the total financing package, station location selection, technology selection, permitting, etc., probably will not be finalized upon execution of a lease agreement. (Evaluation Criteria, Part I, pages 1-2.) This milestone concept is necessary to ensure the orderly development of the facilities on the leased premises. The "milestones" are conditions precedent and conditions subsequent that will become part of the business arrangement for the lease. The RFP gives proposers wide latitude to propose a schedule for implementation of a proposal. The schedule will include specific milestones for various activities. The activities for which milestones are expected are identified in the RFP. (Evaluation Criteria, Part I, pages 1-2; Part III, page 7; Part V, page 9; Part VI, page 11; Part VII, page 11; Part VIII, page 12; Part IX, page 13; Part X, page 13, Part XI, page 14; Part XII, page 15; Part XIII, page 22; Part XIII, Subpart H, page 23.) Proposers are to include in the proposal a schedule to comply with the milestones. The Department would use this information in evaluating the proposals. For the proposal selected, the Department would also use this information to establish a reasonable schedule for implementing the proposal. The Department would use the "team approach" to ensure the reasonableness of schedule, i.e. an expert in each milestone subject area would be consulted. Part I. A. of the Evaluation Criteria refers to "technology selection" among items of milestone information required for system implementation that "probably will not be finalized upon execution of a lease agreement." FOX suggests that this reference makes the RFP confusing as to whether the technology proposed should be in the RFP response and subject to evaluation in the proposal selection process. Part I.B. of the Evaluation Criteria provides that: [i]n determining whether to select or reject a proposal the Department will consider and balance all information required to be submitted by the Request for Proposal and to this extent each item of information solicited is to be considered an evaluation criterion. In its assessment of submitted application, the Department will analyze the information submitted in relation to the information requirements of this RFP, the provisions of Section 337.251, Florida Statutes (1997), and Florida Administrative Code Chapter 14-109, and will compare each proposal to the other proposals submitted. Under this provision, all information--including proposed milestone schedules--will be subject to evaluation in the proposal selection process. The evidence was reasonably clear that the RFP was not intended to defer the technology proposal to milestone information. Part VI of the Evaluation Criteria is reasonably clear that the technology proposed should be included in the RFP response and not deferred to milestone information. See Finding 7, supra. In addition, it is implied throughout Part VIII of the Evaluation Criteria, on "Operating Certification," that responses to the RFP would include the actual technology proposed. Also, while the RFP gives proposers flexibility in the selection of the technology to be used, it specifies that "new" and "untried" technologies are not to be proposed. (Evaluation Criteria, Part VI, pages 10-11) The RFP is reasonably clear that it does not defer the technology proposal to milestone information; rather, it should be construed at most to afford the option of proposing a milestone schedule for the "finalization" of the technology selection. FOX also suggests that the requirement of a milestone schedule for ridership and revenue estimates in Part XIII.H. of the Evaluation Criteria makes the RFP confusing as to whether the ridership analysis should be included in the RFP response and not deferred to milestone information. But Part IV of the Evaluation Criteria clearly requires proposers to provide an "[a]nalysis of the ridership of the proposed system by year and origin/destination pair to identify potential diversion of ridership and associated revenue from FOX." Part XIII.H requires, in addition, milestone information for "ridership and revenue estimates that are current (no more than six months old) and certified by a nationally recognized consulting firm." Part I.B. of the Evaluation Criteria should not cause confusion as to whether information should be submitted at the time of a response to the RFP in the form of milestones. Rather, it simply makes clear that all information, including proposed milestone schedules, will be considered as part of a proposal. Logic and Fair Competition The Department RFP and its specifications, which were developed by a team of experts, are designed to further the Department's transportation policies and are based upon sound transportation concepts. Within the framework of the governing statute and rules, the specifications are logical in that they provide for the selection of a lessee who will use the leased premises for a much-needed transportation system. The specifications of the RFP apply to any entity wishing to lease the Bee Line Expressway to develop a transportation system that has a maximum speed capability of less than 120 miles per hour. The specifications do not favor any particular vendor of equipment or otherwise contain any requirement that would be adverse to open competition by all potential proposers desiring to respond to the RFP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order denying FOX's protest and upholding the RFP's specifications. DONE AND ENTERED this 6th day of August, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1998. COPIES FURNISHED: Martha Harrell Chumbler, Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 Betty J. Steffens, Esquire 210 South Monroe Street Tallahassee, Florida 32301 John C. Bottcher Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Peter Antonacci, Esquire George N. Meros, Jr., Esquire Rumberger, Kirk & Caldwell, P.A. Post Office Box 10507 Tallahassee, Florida 32392-2507 Thomas F. Barry, Secretary Attention: Diedre Grubbs Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450
Findings Of Fact The Respondent, Apostolic Lighthouse Mission, Inc., owns property immediately adjacent to and south of State Road 5, U.S. Highway #1, at approximately Mile Marker 30.5 with said property being recorded at Book 864, Page 183 of the Official Records of Monroe County, Florida. Ingress and egress to Respondent's property as well as to the vending area for the Big Pine Key Flea Market is effected through the use of an existing connection to State Road 5. The Big Pine Key Flea Market is open on a seasonal basis between the months of October and May on weekends, and normally operates between 8:00 a.m. and 2:00 p.m. on Saturdays and Sundays. The Big Pine Key Flea Market has been in existence for a period of more than one year prior to July 1, 1988. For a period of more than one year prior to July 1, 1988, the existing connection has been used (and continues to the present to be used) primarily to gain access to the Big Pine Key Flea Market. FACTS BASED ON EVIDENCE ADDUCED AT HEARING During periods when the Flea Market is not operating, the subject connection has been used on a regular basis for church members to get to their activities, to get to a nursery, and for ingress and egress for those owning or visiting other properties to the south of the Respondent's property. The connection between the Respondent's property and State Road 5, U.S. Highway #1, has been in continuous use since 1982. The Big Pine Key Flea Market has been utilizing the subject connection through Respondent's property since it began operating in 1982. The operation of the Big Pine Key Flea Market significantly impacts the traffic on State Road 5, U.S. Highway #1. For reasons that are not explained in the record of this case, the traffic impact is much greater on Saturdays than on Sundays. State Road 5, U.S. Highway #1, is the sole primary highway for the entire Keys. It is the only route from Key to Key. There are center left-turn lanes at the intersection of Chapman Street and State Road 5. In the Big Pine Key area State Road 5 is a two-lane road and it has no auxiliary lanes in the vicinity of the Flea Market. Southbound traffic on State Road 5 seeking to turn into the Big Pine Key Flea Market must turn left, and in doing so obstructs cars attempting to travel further south when there is a delay in making the left turn. Northbound traffic seeking to turn into the Flea Market must turn right and in doing so obstructs cars attempting to travel further north by slowing down to enter the unpaved entrance to the Flea Market. Cars attempting to travel further north are also obstructed when northbound cars stop to allow southbound drivers to make left turns into the Flea Market. During the periods of the worst traffic congestion in the vicinity of the Big Pine Key Flea Market law enforcement vehicles and other emergency response vehicles are impeded in their ability to move quickly through the congested area. 2/ This potential for delay of a law enforcement or other emergency response has been a concern since the Big Pine Key Flea Market first opened in 1982. During the periods of the worst traffic congestion in the vicinity of the Big Pine Key Flea Market there are long lines of stop-and-go traffic, sometimes stretching a mile or more from the Flea Market. Episodes of stop-and- go traffic increase the likelihood of low-speed rear-end collisions between motor vehicles. The largest number of visitors to the Big Pine Key Flea Market and the greatest amount of traffic generated to Flea Market property occurred in the years of 1987 and 1988. The traffic conditions on State Road 5, U.S. Highway #1, in the vicinity of the Respondent's property were either at their worst in the mid to late 1980s or have remained the same during the existence of the Flea Market at its present location. There have been no changes of use in the Respondent's property, including land, structures, or facilities, nor has there been any expansion of the size of structures or facilities. There has been no evidence presented which would establish an increase in trip generation of the Respondent's property exceeding 25 percent more trip generation and exceeding 100 vehicles per day.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Transportation issue a Final Order in this case concluding that the Respondent is entitled to continued access to State Road 5, U.S. Highway #1, and that the Respondent is not required to obtain a permit. DONE AND ENTERED this 29th day of August 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August 1994.
