Findings Of Fact Stipulated Facts Facts set forth in paragraphs 1.-13., below, are agreed to by the parties. The Petitioner in this matter, Racetrac Petroleum, Inc., owns a parcel of land in Hernando County, on the southwest corner of State Road 50 and Windmere Extension. The parcel is located east of the Interstate 75/State Road 50 interchange. Petitioner has constructed a service station and convenience store at that location. State Road 50 has been classified as a Class 3 Road east of Interstate 75, with a posted speed limit of 45MPH. Interstate 75 is a limited access facility and the Interstate 75/State Road 50 interchange is a limited access interchange. To the west of Petitioner's parcel, and closer to the Interstate 75 interchange, is a Texaco service station which abuts State Road 50 and has two driveways to State Road 50. The Texaco service station does not abut any other road or connection to State Road 50. Abutting the east property line of Petitioner's parcel is a parcel that also abuts State Road 50 and on which a McDonald's restaurant is located. Along the common property line between the two parcels is a joint ingress and egress easement. This joint ingress and egress easement remains in effect as of this date. At this time, there is a four-lane paved facility on the easement which is east of Petitioner's parcel and on McDonald's parcel. That facility currently provides the only vehicular route to and from State Road 50 for Petitioner's parcel, the McDonald's parcel and the parcel to the south. The four-lane facility between Petitioner and McDonalds was originally constructed by McDonalds as a three-lane facility to serve its parcel, Petitioner's parcel and the parcel to the south. On December 16, 1992, during the construction of its service station and convenience store, Petitioner applied to Respondent DOT for a permit to modify the existing facility. The December 16, 1992, permit application proposed to "modify existing driveway per the request of Hernando County (Increase existing radius from 25' + to 50)." DOT approved Permit No. A-08-92-0023 on February 19, 1993. Petitioner completed construction of a service station and convenience store on the parcel and modified the facility in accordance with DOT's Permit. On June 15, 1993, Petitioner filed an application with DOT for an access connection permit to construct and operate a 28-foot wide right-in/right- out access connection to State Road 50, 185 feet west of the original driveway. The application was assigned Application No. A-08-93-0034P by DOT. On July 12, 1993, DOT issued a Notice of Intent to Deny the application. The Notice of Intent to Deny stated that the application was being denied for the following four reasons: Proposal fails to provide 440' Minimum Clearance Spacing per 14-97.003 Proposal falls to provide 440' minimum clearance from end of the acceleration lane taper from a Limited Access facility (Inter- state 75) per Rule Chapter l4-97.003(l)(j)l. Reasonable access to the State Highway System is provided to the site via an existing "joint use" access located 185' east of the proposed access connection. Proposed access connection may create safety and operational problems within the operational sphere of the Limited Access Interchange. The Notice of Intent to Deny also stated that Petitioner could appeal the intent to deny or submit a revised application within 30 days of receipt of the Notice. On September 13, 1993, Petitioner submitted plans for a right-in only connection to State Road 50. Accompanying the plans was a supporting traffic study and a transmittal letter. On October 7, 1993, DOT issued a letter which acknowledged receipt of the September 13, 1993, submittal and presented the following reasons why DOT's Notice of Intent to Deny would remain in effect: Proposal fails to provide 440' Minimum Clearance Spacing per 14-97.003 Proposal fails to provide 440' minimum clearance from end of the acceleration lane taper from a Limited Access facility (Inter- state 75) per Rule Chapter l4-97.003(l)(j)l. Reasonable access to the State Highway System is provided to the site via an existing easement located 185' east of the proposed access connection. None of the original reasons for denial were addressed. The Highway Capacity Software weave analysis in the Supplemental Traffic Report shows no benefit to the State Highway System. The traffic count and turning movement data indicate that the 4 lane facility is operating within capacity, thus showing that existing access is adequate. There is a significant difference in the rate of deceleration for vehicle entering the proposed driveway (5.81 mph/s) and the existing driveway from the ramp end (4.36 mph/s). The deceleration rate for vehicles entering the proposed driveway exceeds 5.5 mph/s. This rate is described in the ITE Transportation and Traffic Engineering Handbook as reasonably comfortable for car passengers. The proposed "Right In" geometry cannot reasonably accommodate WB-50 or WB-40 Vehicles. The Radius of Return at the Windmere Road entrance is 50'. The radius was improved from 40' and can now accommodate WB-50 vehicles. 1O. The site entrance is located some 200' from SR 50. There is ample space for truck movements given the existing access. The October 7, 1993, letter stated that DOT's Notice of Intent to Deny would remain in effect and that DOT would accept a response within eleven days of the receipt of the letter. The letter further stated that, if there was no response within eleven days, any future requests for connection would require a new application along with the applicable fee. On October 21, 1993, Petitioner filed the first petition for a formal hearing, which was assigned DOAH Case No. 93-6932. On December 15, 1994, Petitioner filed the second petition for a formal hearing, which was assigned DOAH Case No. 95-0248. Other Facts Petitioner's first interaction with DOT regarding access to State Road 50 resulted from meetings in late 1991 with DOT District 7 representatives. Access at the front of Petitioner's property, via a right-in/right-out driveway, was discussed during two or three meetings between representatives of the two parties. Petitioner was advised at that time of DOT's position that the proposed connection with State Road 50 could not be approved due to safety concerns about the impact of the connection on the operation of the interchange ramp coming off the interstate and the auxiliary lane on State Road 50. Petitioner was advised that the only access would be that afforded by the Windmere Extension, the four-lane facility located on the property easement between Petitioner's parcel and McDonalds. Windmere Extension is properly classified as a joint access connection to State Road 50. The pavement on the joint access easement terminates at the property lines of Petitioner and McDonalds with a barrier erected at the end of the drive. On December 5, 1992, DOT issued a Notice of Conceptual Review Findings, stating the following reasons for the denial: The proposed connection on State Road 50 encroaches into the merge lane from Inter- state 75; The proposed connection does not meet the requirements to be located a minimum of 1320 feet from the terminus point of the taper from the interstate; The frontage road immediately adjacent to the parcel on the east is designed to provide access to the site. Following receipt of the Notice of Conceptual Review Findings, Petitioner's representative applied again for a conceptual review in order to obtain direct affirmation that access would be afforded only via the Windmere Extension. DOT responded with a second denial specifically stating that access must be accomplished via Windmere Extension, the frontage road east of the property. Thereafter, Petitioner closed on the purchase of the property, apparently satisfied that Windmere Extension afforded adequate vehicular access for a convenience store and gasoline station. Petitioner normally attempts to ascertain property access prior to purchase. Petitioner's property is not properly classified as an isolated corner property under DOT's rules. Rather, Windmere Extension functions as a common access drive, as opposed to a road. It is the existence of Windmere Extension as an established access point for Petitioner that prevents the catagorization of Petitioner's property as an isolated corner property. In 1992, during the development of Petitioner's parcel, Petitioner applied for and received a permit from DOT to perform modifications on the Windmere Extension. Petitioner's representative confirmed his understanding with DOT's District 7 representative that this permit would be the only driveway requested by Petitioner. At the time of Petitioner's request for a permit to accomplish modifications to the Windmere Extension, McDonalds held an access permit for the Windmere Extension but was not made a party to the modification permit and has remained silent regarding the matter. In spite of the previous confirmation of Petitioner's representative of access via Windmere Extension, Petitioner applied in June, 1993, following completion of construction of their facility, for direct access to State Road 50 via a right-in, right-out connection. After denial of the requested right-in, right-out connection and prior to any request for formal administrative proceedings pursuant to Chapter 120, Florida Statutes, Petitioner requested the right-in connection on September 13, 1993. The request was filed subsequent to a conference between representatives of Petitioner and DOT which had been held to determine whether any basis existed upon which to mitigate denial of the requested right-in, right-out connection. Immediately upon exiting from Interstate 75 on to State Road 50, the first business entity on the right hand side is a Texaco service station. The Texaco station is an older facility and continues to utilize its only access to State Road 50, both right-in and right-out exits. Petitioner's proposed right-in only connection is less than 440 feet from Texaco's nearest driveway and is less than 440 feet from Windmere Extension. The proposed right-in only connection is less than 440 feet from the end of the taper of the eastbound exit ramp from Interstate 75 on the south side of State Road 50. The ramp extends into an auxiliary lane that continues eastward on State Road 50 and ends just past Windmere Extension. The purpose of the rule-required interval of 440 feet from the end of the taper of the exit ramp to the provision of an access point reflects a concern for safety. The spacing interval provides drivers exiting, in this case Interstate 75, with an opportunity to look rearward and pick a gap in through traffic and merge into the through lanes without the complication of also having to look forward to identify upcoming connections. The end of the taper of the exit ramp must be ascertained in order to determine where the 440 feet interval begins. An appropriate way to make this determination is to observe vehicles using the auxiliary lane to merge into the through lanes of State Road 50. The majority of the traffic exiting Interstate 75 via the eastbound State Road 50 ramp merges to the through lanes in front of the Texaco station and establishes the "functional end of the taper" as just east of Texaco's easternmost driveway. At this point, most vehicles exiting Interstate 75 have completed their merging movements to the through lanes of State Road 50. This location is consistent with the standard taper rate used by DOT to design ramps. The presence of a stoplight and a yield sign at the ramp for Interstate 75 and State Road 50 does not limit the influence of the interchange to the area west of the Texaco station. As established by observations made of vehicles entering the auxiliary lane from Interstate 75, most vehicles did not come to a stop at the yield sign before turning to the right and heading to the east. The area of influence of the interchange extends a considerable distance to the east. The Texaco station is closer to the Interstate than Petitioner's property, but it has little observed traffic. No evidence was presented probative of any significant safety or operational problem for the interchange ramp or State Road 50 which is occasioned by the placement of the Texaco Station. Constructed in the early 1970's, the station predates DOT access management spacing standards. Connections constructed prior to the adoption of those access management standards are "grandfathered." The Windmere Extension provides reasonably safe and efficient access to Petitioner's property on State Road 50. Observations support findings that petroleum product laden tankers are able to enter and exit the property, that passenger vehicles enter and exit without problems with their movements, and larger vehicles also enter and exit the property without backing traffic up onto the state highway. The joint access connection at Windmere Extension provides sufficient access to reasonably serve needs of Petitioner's property. Traffic flows effectively between Petitioner's property and State Road 50 via the joint access connection. The Petitioner's gasoline station appears to be reasonably busy. As documented by video tapes admitted in evidence, traffic is observed to be regularly entering and leaving the property. The station has been observed with all fueling stations occupied. Those occasional problems encountered with large vehicles on Petitioner's property appear to be susceptible to alleviation by on- site changes. The layout for the State Road 50 location is pretty much a standard site plan for Petitioner's properties. Petitioner's store and gasoline pumps are generally located toward the front of the parcel, facing State Road 50. At this time, the only function of the access connection at Windmere Extension is to provide vehicular access to the Petitioner and McDonald's parcels. As previously noted, a barrier marks the conclusion of Windmere Extension at the southern property boundary of the Petitioner and McDonalds parcels. No evidence was presented that development of the parcel to the south of these two businesses was impending. Absent development to the south, there is no reason to expect growth in traffic on Windmere Extension except due to growth of business for the Petitioner and McDonald's properties. Until development occurs, Windmere Extension will continue to provide reasonably safe and efficient access to Petitioner's property. The right-in only access connection proposed by Petitioner would create an unsafe condition on State Road 50. Petitioner proposes to locate the connection in an auxiliary lane extending from an Interstate 75 exit ramp. Most motorists exiting the Interstate and heading east use that portion of the auxiliary lane to merge with eastbound traffic lanes while other motorists merge into the auxiliary lane in anticipation of turning right at Windmere Extension. Most of the traffic merging into through lanes complete that maneuver in front of the Texaco station, while motorists merging to turn right at Windmere Extension complete that maneuver at the proposed connection location. The addition of the proposed right-in connection would cause some portion of the traffic currently turning right at Windmere to turn at the proposed connection, increasing conflicts between vehicles exiting Interstate 75 and accelerating into through lanes with those automobiles decelerating from State Road 50 in preparation for a right turn at Windmere Extension or the new proposed connection. Drivers from State Road 50, intending to enter the new connection, would merge into the ramp/auxiliary lane in front of the Texaco station, right where the majority of drivers currently accelerate and merge out into State Road 50. The simultaneous acceleration and deceleration of vehicles merging into and out of the auxiliary lane in front of the Texaco station would create a substantial safety problem for State Road 50. Distance would be shortened within which drivers must observe other traffic, pick their gap and merge into the other lane. Eastbound drivers exiting Interstate 75 to State Road 50 will be looking to the rear to pick their gaps as opposed to looking to those vehicles ahead in the auxiliary lane. In addition, the proposed connection would create a safety problem for the substantial number of eastbound drivers that would not enter the new connection but would continue down the auxiliary lane to turn right at Windmere Extension to patronize McDonalds. Drivers exiting Interstate 75 that turn right at Windmere tend to remain in the auxiliary lane the entire time. These drivers will be behind slowing vehicles that are turning into the new connection. To escape the slowing vehicles, eastbound auxiliary lane drivers will tend to encroach into the through lane as they pass around the turning vehicles. Similarly, eastbound State Road 50 drivers who normally merge into the auxiliary lane in front of the proposed connection will remain in the through lanes longer and either begin decelerating in the through lane, creating a speed differential in that lane, or will have to decelerate at an uncomfortable rate over a shorter distance in the auxiliary lane. The short length or "throat" of the proposed connection, coupled with the need of turning vehicles to avoid other vehicles on the Petitioner site, pose additional safety problems. Larger vehicles, such as semi-trailers with a 50-foot wheelbase, recreational vehicles, and trucks towing trailers will have difficulty entering the site if other vehicles are moving in front of the pump islands or larger vehicles are parked at the pumps. Some semi-trailers entering the proposed driveway would have to pass under the edge of the canopy that overhangs the gasoline pumps in order to make a turn. Similar difficulties can be expected when vehicles are maneuvering in the area between the pumps and State Road 50. Larger vehicles entering the proposed connection will have to slow or stop to avoid moving vehicles already on the property, creating an operational and safety hazard on State Road 50 as traffic queues in the connection. There is a greater likelihood that vehicles caught in a queue will back out onto State Road 50 at the proposed location than if they enter at Windmere. Alternatively, the diversion of right-turning vehicles into the new connection would not significantly improve the safety of the intersection of State Road 50 and Windmere Extension. There are presently no significant conflicts between westbound vehicles turning left into Windmere Extension and right-turning vehicles. The westbound left-turning vehicles that are delayed by traffic are normally blocked by eastbound through traffic, rather than right- turning vehicles. As set forth in an attachment to Petitioner's Exhibit 16 entitled Guidelines for Driveway Location and Design placement of connections within the functional area of an intersection is not advised. The location of the proposed connection is at about the end of the functional area of the Interstate 75 interchange, but the functional area of the State Road 50/Windmere intersection can be said to extend west of the proposed connection. The current access arrangement is safer than the situation that arises after construction of the proposed connection. Petitioner's September 13, 1993, submittal to DOT of a proposed right- in only connection was not a revised application under Rule l4-96.007(2)(b) but rather an informal proposal submitted as a result of a meeting between DOT and Petitioner's representatives. Subsequent to DOT's denial of Petitioner's request for a right-in, right-out connection, Richard Peoples, Petitioner's vice-president in charge of site design, authorized the submission of the September 13, 1993 right-in only proposal and intended that both the original right-in/right-out proposal and the revised right-in proposal be "on the table." People's testimony at the final hearing to the effect that the second submission was meant to be a revised application is in conflict with his earlier deposition testimony that all offers were on the table. His final hearing testimony on this point is, accordingly, not credited. People's deposition testimony substantiates DOT's position that the second submission by Petitioner did not constitute the submission of a revised or amended application. DOT's October 7, 1993, letter conveyed rejection of both the originally proposed right-in/right-out connection and the right-in only proposal. The letter acknowledges receipt of the drawings and the supporting traffic study associated with the second submittal. Several of the enumerated comments in the letter expressly reject or comment negatively on the contents of the September 13, 1993, submittal. Subsequent to the issuance of the October 7, 1993, letter, Richard Baier, an employee of DOT charged with consideration of the connection application, had a telephone conversation with Petitioner's representative Lawrence Hagen and verbally advised him that DOT had rejected Petitioner's proposed right-in only connection. Hagen understood that the proposed right-in only connection had been rejected. Petitioner's October 21, 1993, petition for formal hearing was filed 38 days after DOT received the September 13, 1993, submittal from Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying Petitioner's applications. DONE and ENTERED this 27th day of October, 1995, in Tallahassee, Florida. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-3. Accepted. 4.-7. Rejected, subordinate to HO findings. Accepted. Rejected, hearsay. Rejected, not supported by weight of the evidence. Accepted. Rejected, absence of direct evidence. 13.-17. Rejected, not dispositive of material issues presented. Accepted, not verbatim. Rejected, subordinate to HO findings. 20.-21. Rejected, not materially dispositive. 22. Accepted. 23.-25. Rejected, not dispositive of material issues. 26. Rejected, not supported by the weight of the evidence. 27.-28. Rejected, relevance. 29.-30. Rejected, subordinate to HO findings. 31. Accepted. 32.-33. Rejected, subordinate, relevance. 34. Rejected, not supported by weight of the evidence. 35.-36. Rejected, subordinate to HO findings. Accepted, but not verbatim. Rejected, not supported by weight of the evidence. Accepted, not verbatim. Rejected, subordinate to HO findings. Rejected, legal argument. Rejected, subordinate to HO findings. Rejected, not supported by weight of the evidence. Rejected, subordinate to HO findings. 45.-48. Rejected, not supported by weight of the evidence. 49. Accepted. 50.-51. Rejected, subordinate to HO findings. 52.-56. Rejected, not supported by weight of the evidence. 57.-59. Rejected, subordinate to HO findings. 60. Rejected, weight of the evidence. Respondent's Proposed Findings 1.-14. Accepted. Rejected, redundant. Accepted. 17.-20. Rejected, unnecessary. 21.-57. Accepted in substance, but not verbatim. COPIES FURNISHED: Paul Sexton Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 John H. Beck J. Victor Barrios Ellen Chadwell Attorneys at Law Beck Spalla et al. 1026 East Park Avenue Tallahassee, FL 32301 Ben G. Watts, Secretary Attn: Diedre Grubbs Department of Transportation Haydon Burns Building, M.S. #58 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams, Esquire Department of Transportation 605 Suwannee Street 562 Haydon Burns Building Tallahassee, FL 32399-0450
The Issue The issues in this case are: (1) whether Petitioner has standing to bring this action; and if so, (2) whether Respondent properly denied his application for a driveway/connection permit.
Findings Of Fact On February 24, 1998, Petitioner submitted a Driveway/Connection Application, Number 98A3940018 to Respondent. Petitioner's application sought a permit to construct a driveway/connection to a proposed retail sales office project for Lot 13, Block 396, Avolon Beach Subdivision, in Santa Rosa County, Florida. The site of the proposed project is located at 2996 Avolon Boulevard (State Road 281), between the I-10 exit ramp and San Pablo Street. STANDING Petitioner entered his name on the application as owner of the subject property. Petitioner signed the application as owner with title to the property. He signed the application certifying that he was familiar with the information contained in the application and that to the best of the applicant's knowledge and belief, the information contained therein was true and correct. Petitioner did not fill out a section of the application entitled, "Are You An Authorized Representative?" Respondent relied on Petitioner's certification that he was the owner of the property and processed his application. During the hearing, Petitioner initially testified that he bought the subject property in February of 1998. There was no driveway connection from Lot 13 to Avolon Boulevard in February of 1998. Petitioner did not have a copy of the deed to the subject property with him at the hearing. He admitted on the record that a deed indicating his ownership interest was not filed with the public records in Santa Rosa County. He also admitted that no such deed existed. Petitioner claims that the land was under contract but "had not gone to closing yet." Petitioner did not have a copy of the contract to offer as an exhibit at the hearing. Respondent produced copies of two deeds for the subject property at the hearing. The most recent of these deeds was recorded on July 14, 1997. It indicates that the property is owned by the George H. Moss Trust, George H. Moss, Trustee. Petitioner's post-hearing exhibit consisted of two documents. The first is a Memorandum Agreement dated February 2, 1998. The memorandum indicates that Tim Oden, Agent for 3/0 Partners, LLC, paid $500 in earnest money as a deposit for the purchase of the subject property belonging to George Moss, with the closing to take place on or before April 15, 1998, contingent on specified terms of purchase. One of the terms of purchase requires proof of legal access to San Mateo Avenue which is the subject of this proceeding and has not been fulfilled. Additionally, Petitioner did not present evidence that any of the other conditions of the contract have been fulfilled. The Memorandum Agreement is signed by Tim Oden, Agent for 3/0 Partners, LLC, as buyer and George H. Moss as seller. The second document included in Petitioner's post- hearing exhibit is a copy of a cancelled check in the amount of $500 payable to George Moss for the subject property and signed by Tim Oden. Mr. Moss endorsed the check for deposit. Petitioner's name does not appear anywhere on the Memorandum Agreement. There is no direct evidence showing Petitioner's relationship to Tim Oden or 3/0 Partners, LLC. He has not demonstrated that he has an ownership interest in the property. PERMIT APPLICATION In a Notice to Deny Permit dated March 23, 1998, Respondent advised Petitioner that his application was denied. Respondent's notice gave the following reasons for denying the application: The Limited Access Right of Way and fence were not shown on the plans. A field review found this proposed connection within the Limited Access Right of Way. This section of State Road 281 is a Limited Access Facility, in conjunction with I-10. Access to the property can not be permitted through the Limited Access Fence or across the Limited Access Right of Way. Access rights were acquired for the construction of I-10 and the interchanges. Access can not be permitted to the ramps or ramp tapers. On or about April 7, 1998, Petitioner provided Respondent with a revised Driveway Permit Drawing showing the Limited Access Right-of-Way and fence. Petitioner admitted in a telephone conversation with Respondent's permit engineer that a previous owner had been compensated for the loss of access to Avolon Boulevard when the I-10 interchange was constructed. The subject property did not have an existing driveway connection when the I-10 interchange was constructed. The Shell service station and the used car lot, which are located at the Avolon Boulevard interchange, had existing driveway connections before the interchange was constructed. Similarly, driveway sites near the intersection of Davis Highway, in Escambia County, and I-10, were in existence at the time the I-10 interchange ramps were constructed. These existing driveways were allowed to remain after construction of the ramps. New driveway connections would not be permitted at these locations. Permits will not be granted if these properties undergo a substantial change in use which requires a change in permitting. Petitioner's description of the location of the off ramp, ramp taper, and limited access area of Avolon Boulevard are erroneous. The proposed driveway for the subject property is located in the off ramp lane. Federal highway regulations require control of connections beyond the ramp terminal of an interchange for at least 100 feet in urban areas and 300 feet in rural areas. This control for connections to crossroads must be effected by purchase of access rights, providing frontage roads, controlling added corner right-of-way areas, or denying driveway permits. Petitioner's proposed driveway would be located within 300 feet from the end of the taper of the off ramp. Federal regulations prohibit the issuance of a new connection permit for a site within that area. Additionally, Petitioner's proposed driveway connection would cause a safety and operational problem on the state highway system due to its location in the off ramp of the I-10 interchange. There is no persuasive evidence that Santa Rosa County has abandoned the street which is adjacent to Lot 13 and the Shell station, 32nd Avenue. Petitioner did not establish that there is no legal access from Lot 13 to Avolon Boulevard other than by issuance of the subject permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order dismissing Petitioner's appeal for lack of standing and/or dismissing Petitioner's appeal on its merits. DONE AND ENTERED this 14th day of December, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1998. COPIES FURNISHED: Brian F. McGrail, Esquire Department of Transportation Mail Station 58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Hugh Allen Oden 8612 Westview Lane Pensacola, Florida 32514 James C. Myers, Agency Clerk Department of Transportation Mail Station 58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Mail Station 58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The issue in this case is whether Respondent may revoke the Petitioner's qualification to bid on Florida Department of Transportation contracts for which pre-qualification is required for one year because of events and correspondence described in a Notice of Intent from Respondent dated October 6, 1999.
Findings Of Fact The Parties. Petitioner, Precision Traffic Counting Inc., d/b/a Buckholz Traffic (hereinafter referred to as "Buckholz Traffic"), is a Florida Corporation with its office located in Jacksonville, Duval County, Florida. Buckholz Traffic is engaged in the business of, among other things, installing traffic signals and signs, and related construction work. Burita Allen is the President and sole stockholder of Buckholz Traffic. Ms. Allen runs the day-to-day operations of Buckholz Traffic. Buckholz Traffic is certified by the Department of Transportation to bid and perform on construction contracts in excess of $250,000.00. Buckholz Traffic has been working with the Department of Transportation since 1966. Respondent, Department of Transportation (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with the authority to, among other things, award construction contracts and issued certificates of qualification to bid on Department contracts pursuant to Section 337.14, Florida Statutes. Jeffrey Buckholz. Jeffrey Buckholz holds a Florida Professional Engineering license. Mr. Buckholz is also licensed as an electrician in Florida. Mr. Buckholz is an employee and principal of J.W. Buckholz Traffic Engineering (hereinafter referred to as "Buckholz Traffic Engineering"). Buckholz Traffic Engineering is located in Jacksonville. In his capacity with Buckholz Traffic Engineering, Mr. Buckholz has performed engineering services for the Department and has provided training to Department employees. Mr. Buckholz is not technically an employee, officer, or stockholder of Buckholz Traffic. Nor has Mr. Buckholz received any compensation directly from Buckholz Traffic. Despite the lack of formal relations with Buckholz Traffic, Mr. Buckholz has performed services for Buckholz Traffic and has held himself as representing Buckholz Traffic. These actions have been taken with full knowledge and approval of Buckholz Traffic. For example, Mr. Buckholz has used his electrician's license to pull electrical permits required by Buckholz Traffic to perform work Buckholz Traffic was responsible for. Mr. Buckholz also served as project manager on projects for Buckholz Traffic, including the projects described, infra. Finally, Mr. Buckholz has allowed Buckholz Traffic to utilize his name in an effort to utilize trade recognition of his name. Based upon Mr. Buckholz' actions, as described, infra, and Mr. Buckholz' testimony at hearing, Mr. Buckholz has evidenced an inability to control anger and to act in a non- aggressive, non-threatening manner. Mr. Buckholz, due to his arrogance, has a difficult time following the directions of others and does not react responsibly to anyone who he believes is questioning his decisions. The Haines Street Project. The Department awarded a contract for work on the Haines Street Expressway (hereinafter referred to as the "Haines Street Project"). The Haines Street Expressway is located in Jacksonville, Duval County, Florida. Duval County is located in the Department's District 2. The Standard Specifications for Road and Bridge Construction, 1996 Edition (hereinafter referred to as the "Standard Specifications"), applied to all work on the Haines Street Project. Standard Specification 8-5 provides the following: 8-5 Qualifications of Contractor's Personnel. . . . . Whenever the Engineer shall determine that any person employed by the Contractor is incompetent, unfaithful, intemperate, disorderly or insubordinate, such person shall, upon notice, be discharged from work and shall not again be employed on it except with the written consent of the Engineer. Should the Contractor fail to remove such person or persons the Engineer may withhold all estimates which are or may become due, or may suspend the work until such orders are complied with. . . . This provision of the Standard Specifications provides absolute authority in the Department to require that contractors discharge persons employed by the contractor under the circumstances specified. The prime contractor on the Haines Street Project was Hubbard Construction Company (hereinafter referred to as "Hubbard"). Kevin Oswendel acted as the Project Manager for Hubbard on the Haines Street Project. Buckholz Traffic was one of the subcontractors on the Haines Street Project. Buckholz Traffic's obligations as subcontractor included the sale and installation of large signs to be suspended over the Haines Street Expressway. Mr. Buckholz acted as Project Manager for Buckholz Traffic on the Haines Street Project. The Department's Resident Engineer for the Haines Street Project was David Sadler. The Department's Project Manager for the Haines Street Project was Carrie Stanbridge, a Florida licensed Professional Engineer. Ms. Stanbridge was responsible for project implementation, project oversight, project construction in accordance with the contract specifications, Special Conditions, and the Standard Specifications. Ed Lavant was an Inspector for the Department on the Haines Street Project. On or about November 4, 1998, work scheduled for the Haines Street Project included the inspection of signs. The unloading of beams and trusses for the signs had been scheduled for November 3, 1998, but the manufacturer of the beams and trusses was not able to meet the scheduled delivery time. Any activity on the Haines Street Project which may disrupt traffic was required to be performed consistent with a Maintenance of Traffic Plan (hereinafter referred to as the "MOT"). The MOT for the Haines Street Project originally prepared by Hubbard had been modified prior to November 4, 1998, by Mr. Buckholz. In particular, Mr. Buckholz had revised the times in the MOT when traffic could be disrupted. The revised MOT was in effect on November 4, 1998. The MOT provided that there would be no disruption of traffic between 3:15 p.m. and 6:30 p.m. There were no anticipated lane closures at the project site after November 3, 1998, until midnight on November 5, 1998. The scheduled unloading of beams and trusses on November 3, 1998, was, however, delayed and the first delivery truck arrived on November 4, 1998. The truck arrived prior to 3:15 p.m. with heavy steel support beams and trusses to be used for signs on the Haines Street Project by Buckholz Traffic. Mr. Buckholz was present during the delivery. The subcontractor responsible for traffic control on the Haines Street Project was Acme Barricades. Although Acme Barricades did not know that MOT would be required on November 4, 1998, Acme Barricades was able to perform the required MOT for the lane closure required for the truck to be offloaded. Because of inadequate notice of the arrival of the truck, however, special arrangements had to be made to provide the MOT devices used. Buckholz Traffic also expected a second delivery truck later on November 4, 1998. Therefore, Mr. Buckholz stayed at the site to await the second truck so that he could supervise its unloading. All of the MOT devices that had been used for the first truck, however, had been removed from the site. Mr. Buckholz had informed Mr. Oswendel that there was no need for Acme Barricades to return later in the day for the second truck. Mr. Lavant was aware that there were no MOT devices available at the site and that it was approaching 3:15 p.m., the cutoff time for lane closures provided in the MOT that Mr. Buckholz had prepared for Hubbard. Therefore, Mr. Lavant approached Mr. Buckholz and informed him that he would not be allowed to offload the second truck after 3:15 p.m. because of the disruption to traffic the offloading would cause by the lane closure that would be required by the MOT. Mr. Buckholz informed Mr. Lavant that he intended to offload the second truck by parking the eighteen-wheel delivery truck and an eighteen-wheel boom truck to be used to lift the beams and trusses side-by-side on an on ramp which leads from the Haines Street Expressway to the Hart Bridge. Mr. Buckholz told Mr. Lavant that he intended to divert traffic entering the on ramp around the trucks on a paved area between the ramp and the through-traffic lanes that continued beyond the on ramp. This area is referred to as a "gore area." The gore area is marked by "chevrons" and there is an attenuator at the end of the gore area. The gore area Mr. Buckholz intended to use was not normally used for traffic but was intended as a buffer between the on ramp and the through-traffic lanes on the Haines Street Highway. While it might have been possible to offload the second truck without directly blocking the through-traffic lanes that continued past the on ramp, there still would have been disruption to the traffic using those lanes and Mr. Lavant had the authority to insist on proper MOT compliance. There would also have been disruption of traffic using the on ramp, which was only 14 feet wide. The potential disruption of traffic during the peak traffic rush hour caused a reasonable concern about the safety of the unloading of the truck as proposed by Mr. Buckholz. Mr. Lavant decided that Mr. Buckholz' plan for unloading the truck, which was anticipated to occur during the peak traffic rush hour, would disrupt traffic flow and would not be safe. This was a determination which the Department, and not Mr. Buckholz, had the authority to make. Mr. Buckholz' plan was also inconsistent with the MOT, which he had prepared for approval by the Department, because it would effectively close lanes during the prohibited period between 3:15 p.m. and 6:30 p.m. and the safety devices contemplated by the MOT were not available at the time that Mr. Buckholz indicated he intended to offload the truck. The MOT devices required included an arrow board closing the on ramp lane, an off-duty law enforcement officer, and traffic cones. When Mr. Lavant informed Mr. Buckholz that he could not offload the truck when it arrived because his offload plan was inconsistent with the MOT, Mr. Buckholz informed Mr. Lavant that he was not going to close any traffic lane and, therefore, the offloading of the truck would not be inconsistent with the MOT. Mr. Buckholz insisted that he intended to offload the truck despite Mr. Lavant's directive to the contrary. Mr. Buckholz became more and more confrontational and belligerent with Mr. Lavant and insisted that Mr. Lavant could not stop him from offloading the second truck. It became apparent to Mr. Lavant that Mr. Buckholz did not intend to follow his direction. Mr. Lavant realized that Mr. Buckholz intended to offload the truck when it arrived regardless of his instructions. Therefore, Mr. Lavant telephoned Ms. Stanbridge, the Project Engineer, and requested that she come to the site. Ms. Stanbridge discussed the matter with Mr. Buckholz and informed him that he would not be allowed to offload the truck in the manner he indicated he planned to follow. Mr. Buckholz was no more cooperative with Ms. Stanbridge than he had been with Mr. Lavant. Mr. Buckholz continued to insist that he was not going to block any traffic lane and, therefore, he intended to offload the truck when it arrived. Mr. Buckholz was belligerent and uncooperative with Ms. Stanbridge. Ms. Stanbridge felt physically threatened by Mr. Buckholz. Due to Mr. Buckholz' behavior and his refusal to comply with Ms. Stanbridge's instructions, Ms. Stanbridge telephoned Mr. Sadler, the Resident Engineer, and requested that he come to the site. He agreed. Mr. Sadler spoke with Ms. Stanbridge and Mr. Lavant when he arrived at the site. He then discussed the matter with Mr. Buckholz. Mr. Buckholz told Mr. Sadler that he planned to place the two trucks on the on ramp and offload the beams and trusses when they arrived. Mr. Sadler informed Mr. Buckholz that he would not be allowed to offload the truck because of the disruption to traffic Mr. Buckholz' planned activity would cause. Mr. Buckholz continued to be uncooperative and belligerent toward Mr. Sadler. Due to Mr. Buckholz' continued insubordination, Mr. Sadler told Mr. Buckholz that he intended to telephone law enforcement. Mr. Buckholz became enraged, "got into Mr. Sadler's face," and began yelling at him. Mr. Sadler telephoned law enforcement and also telephoned Mr. Oswendel, Hubbard's Project Manager. Two law enforcement officers arrived first. After Mr. Sadler informed the law enforcement officers of the situation, they informed Mr. Buckholz that the Department was in charge of the roads and, therefore, they would support the Department's decision not to allow Mr. Buckholz to place trucks on the on ramp. Mr. Oswendel arrived between 4:00 p.m. and 4:30 p.m. Mr. Oswendel attempted to discuss the matter with Mr. Buckholz and explained to Mr. Buckholz that he was required to follow the directions of the Department's employees. The discussion quickly turned into a loud confrontation. After having unsuccessfully argued his position with three Department employees, law enforcement, and Mr. Oswendel, Mr. Buckholz became enraged at Mr. Oswendel. Mr. Buckholz threatened Mr. Oswendel with physical violence and suggested that they go behind a building and resolve the matter by fighting. Although Mr. Oswendel was also angry, Mr. Oswendel refused Mr. Buckholz' unprofessional and uncivilized offer. Mr. Oswendel instructed Mr. Buckholz that he was not to offload the truck in the manner that he had informed the Department he intended to use. He then informed Mr. Sadler that he had instructed Mr. Buckholz not to perform any more work at the site that day. Mr. Oswendel then left the site. Mr. Buckholz remained at the site after Mr. Oswendel had left. Mr. Buckholz did not take any action to indicate that he intended to leave the site or that he would follow Mr. Oswendel's direction not to perform any more work at the site that day. The second delivery truck finally arrived approximately 7:00 p.m. Mr. Buckholz again requested that he be allowed to unload the truck from the on ramp. When again told that he could not use the on ramp, Mr. Buckholz requested and was given permission to offload the truck from a side street which ran next to the on ramp. While it was reasonable for Mr. Buckholz to initially contend that he should be allowed to offload the second truck from the on ramp, it was apparent that the Department had properly rejected his plan. Even having been told by three Department employees, Hubbard's Project Manager, and law enforcement that he could not use the on ramp to offload the second truck, Mr. Buckholz continued to insist that he be allowed to do so. Mr. Buckholz has insisted that he reasonably believed that he could offload the second truck safely and consistently with the MOT and, therefore, had followed Department directives. This assertion is rejected because it is not supported by the evidence in this case. The evidence proved that it was Mr. Buckholz' ego which was the real cause of Mr. Buckholz' refusal to comply. Even if Mr. Buckholz had proved that he reasonably believed that he could offload the second truck safely and consistently with the MOT, his continued failure to accept the directive of Department employees with authority to refuse to allow offloading from the on ramp was not reasonable. By letter dated November 10, 1998, Henry Haggerty, the Department's District Construction Engineer, advised Hubbard that Mr. Buckholz would not be allowed back on the project site in any capacity. This directive was consistent with the Department's authority under Standard Specification 8-5. The letter indicated that Buckholz Traffic's failure to comply with the Department's direction would "result in further contractual action." By letter dated November 10, 1998, Hubbard forwarded a copy of Mr. Haggerty's letter to Mr. Buckholz and ordered Mr. Buckholz to "conduct [himself] accordingly." Mr. Oswendel also sent a letter to Buckholz Traffic addressing Mr. Buckholz' unprofessional and uncivil behavior of November 4, 1998. Mr. Oswendel explained his understanding of the MOT requirements for the Haines Street Project and why Mr. Buckholz' actions had been inconsistent with those requirements. Mr. Oswendel informed Mr. Buckholz of the following: "I must insist that you develop a professional approach and civil demeanor toward Hubbard Construction, the FDOT, and anyone associated with the contract. Your actions yesterday were completely unacceptable." No action was taken by Buckholz Traffic to correct Mr. Buckholz' problem controlling his temper following the November 4, 1998, incident on the Haines Street Project. Nor was Mr. Buckholz disciplined in any manner by Buckholz Traffic for his actions on November 4, 1998. Mr. Buckholz did not, however, return to the project site. The Baymeadows/Hampton Glen Project. The Department awarded a contract for the installation of mast-arm signals and curb cut ramps for wheelchair access in a project referred to as the Baymeadows/Hampton Glen project (hereinafter referred to as the "Baymeadows Project"). Baymeadows and Hampton Glen are located in Jacksonville. The Standard Specifications governed all work on the Baymeadows Project, including Standard Specification 8-5. The prime contractor on the Baymeadows Project was Buckholz Traffic. Mr. Buckholz was designated and acted as Project Manager for Buckholz Traffic on the Baymeadows Project, although Ms. Allen also communicated with the Department concerning the project. A subcontractor was engaged by Buckholz Traffic to perform the curb cut work on the project. The Department's Resident Engineer for the Baymeadows Project was David Sadler. The Department's Project Manager for the Baymeadows Project was Stephanie Maxwell, a Florida licensed Professional Engineer. Ms. Maxwell was responsible for project implementation, project oversight, project construction in accordance with the contract specifications, Special Conditions, and the Standard Specifications. Mr. Lavant and David Schweppe were Inspectors for the Department on the Baymeadows Project. Mr. Schweppe had been employed by the Department only since August 1998. During the Spring of 1999 Mr. Lavant informed Ms. Maxwell that curb cuts on the project were not in compliance with contract specifications. Ms. Maxwell informed Buckholz Traffic in a letter dated April 20, 1999, that the construction of the curb cuts was not in compliance with the Roadway and Traffic Design Standards. Ms. Maxwell informed Buckholz Traffic that the curb cuts would have to be replaced. Ms. Allen responded to Ms. Maxwell's letter by letter dated May 1, 1999. Ms. Allen informed the Department that "[Buckholz Traffic had] no intention of removing and reinstalling the curb cuts without appropriate compensation and additional contract time." Such demands are required to be made after a contract is completed, not as a condition for contract fulfillment. Following receipt of Ms. Allen's letter, Ms. Maxwell arranged a meeting with Mr. Buckholz to discuss the curb cuts. The meeting was scheduled for May 28, 1999. Ms. Maxwell and Mr. Schweppe went to the project site on May 28, 1999, for the scheduled meeting. Mr. Buckholz was already there waiting for them. Ms. Maxwell, Mr. Schweppe, and Mr. Buckholz went to two of the defective curb cuts and Ms. Maxwell explained to Mr. Buckholz why the curb cuts were insufficient. At some point, Mr. Buckholz stated that the inspection of the curb cuts was the worst inspection job he had ever seen. Mr. Schweppe responded by saying that the construction job was the worst that he had ever seen. Mr. Buckholz, who does not take any criticism lightly, especially from anyone that he considers "inferior" to himself, became very upset about Mr. Schweppe's comment about the construction of the curb cuts. Mr. Buckholz got very close to Mr. Schweppe and began yelling and cursing at him. Mr. Buckholz was physically threatening and attempted to provide a physical altercation with Mr. Schweppe. Neither Mr. Schweppe nor Ms. Maxwell responded in kind to Mr. Buckholz. While the comments by Mr. Buckholz concerning the Department's inspection and the comments by Mr. Schweppe concerning the construction by the subcontractor that performed the curb cut work were unnecessary, Mr. Buckholz' response was in no way justified or professional. Ms. Maxwell attempted to get the discussion back on track by moving to a third curb cut. She crossed the street to the sidewalk to the location of the third curb cut. Mr. Schweppe followed. Mr. Buckholz followed Mr. Schweppe continuing to yell, curse, threaten, and attempting to provoke Mr. Schweppe. When Mr. Buckholz reached the sidewalk, he continued to walk away from the curb cut and the road down into a swale or ditch next to the sidewalk. Mr. Buckholz told Mr. Schweppe to come down into the ditch so he could "whip his ass." Mr. Buckholz continued to challenge Mr. Schweppe. At some point Mr. Schweppe did respond to Mr. Buckholz by telling him that "there is plenty of room right here," in reference to where Mr. Schweppe was standing. After it became apparent to Mr. Buckholz that Mr. Schweppe was not going to come to him, he returned to where Ms. Maxwell and Mr. Schweppe were standing waiting for him. As soon as he got to Mr. Schweppe, Mr. Buckholz struck Mr. Schweppe two times in the face with his fist without warning, provocation, or any justification. Nothing that Mr. Schweppe had done gave Mr. Buckholz even the slightest cause to strike Mr. Schweppe. Mr. Buckholz simply struck Mr. Schweppe because he had lost total control of himself and believed that resolving a confrontation by resorting to physical violence was acceptable conduct. Even at the formal hearing of this case, Mr. Buckholz continued to express his belief that such conduct is an acceptable way to resolve differences. After being "sucker" punched by Mr. Buckholz, Mr. Schweppe grabbed Mr. Buckholz in an effort to prevent him from any further attack. Mr. Schweppe was able to wrestle Mr. Buckholz to the ground, where he held him until he thought Mr. Buckholz was calming down. At no time did Mr. Schweppe strike Mr. Buckholz. After Mr. Schweppe received assurances from Mr. Buckholz that he had calmed down, Mr. Schweppe let Mr. Buckholz up. Mr. Schweppe had Mr. Buckholz pinned face down by his neck. When Mr. Schweppe released Mr. Buckholz, he did not push his face into the dirt. Mr. Schweppe and Ms. Maxwell immediately crossed the street to return to Ms. Maxwell's automobile so that she could telephone the police. Mr. Buckholz followed them and attempted to attack Mr. Schweppe again, but Ms. Maxwell attempted to stand in his way. When she did, Mr. Buckholz grabbed Ms. Maxwell by her arms and shoved her aside. Mr. Buckholz continued to yell, curse, and threaten Mr. Schweppe, who had turned to face him. Ms. Maxwell, who was reasonably concerned about her safety and that of Mr. Schweppe, telephoned law enforcement. Mr. Schweppe filed a complaint against Mr. Buckholz and he was eventually arrested. Mr. Schweppe suffered serious injuries to his face which required medical attention as a result of Mr. Buckholz' attack. Following the May 28, 1999, assault on Mr. Schweppe, the Department sent a letter dated June 1, 1999, to Ms. Allen informing her that "Mr. Jeffery Buckholz was no longer allowed to be present at the job site in any capacity. Failure on the part of Buckholz Traffic to comply with this directive will result in additional actions under the contract." This letter was from Greg Xanders, the State Construction Engineer for the Department. Mr. Xanders' letter of June 1, 1999, and the directive therein, was authorized by, and consistent with, Standard Specification 8-5. Buckholz Traffic was also directed to provide proof that Mr. Buckholz would no longer be a threat to Department employees before Mr. Buckholz was allowed to return to any Department project job site. In light of Mr. Buckholz' actions, this request was reasonable. Buckholz Traffic's Response to the Department's June 1, 1999, Directive. Ms. Allen responded to the Department's June 1, 1999, letter on behalf of Buckholz Traffic by letter dated June 6, 1999. Ms. Allen's response was as arrogant and unreasonable as the conduct of Mr. Buckholz that precipitated the June 1, 1999, letter. Based upon a reading of Ms. Allen's June 6, 1999, letter as a whole, Buckholz Traffic essentially told the Department it intended to take no action with regard to correcting Mr. Buckholz' conduct. Instead of indicating any concern over Mr. Buckholz' inappropriate conduct, Ms. Allen stated, in part, the following: We fully intend on completing this and other FDOT assignments using the same staff that was initially assigned to the projects. Consequently, we directly challenge your self-serving interpretation of Section 8-5 of the Standard Specification and will not cooperate with directives that are issued without due process and that fly in the face of basic freedoms guaranteed in the US Constitution. Ms. Allen went on to state the following, which summaries the attitude of Buckholz Traffic concerning its unwillingness to give the Department any assurances that Mr. Buckholz would not be a threat to the safety of other Department employees: So what do I need to clear Mr. Buckholz' good name, a "letter of normalcy" from a shrink or a "certificate of contriteness" from the local Baptist Church?" Ms. Allen and Buckholz Traffic responded to the legitimate fears of the Department about Mr. Buckholz' conduct with sarcasm rather than in a meaningful way. Ms. Allen and Buckholz Traffic made no effort to cooperate with the Department or attempt to correct a problem with a person that had consistently held himself out as an important part of Buckholz Traffic. Buckholz Traffic told the Department it would not comply with the directive the Department was authorized to issue pursuant to Standard Specification 8-5. By letter dated June 17, 1999, Mr. Xanders responded to Ms. Allen's June 6, 1999, letter. Mr. Xanders informed Ms. Allen that the Department welcomed any explanation of the incident she wished to give. Mr. Xanders also suggested that legal counsel for Buckholz Traffic, if any, could contact Department legal counsel to provide an explanation. Mr. Xanders restated the Department's directive, clarifying that the directive only pertained to construction work by Mr. Buckholz and not his engineering work. Ms. Allen made no effort to respond to Mr. Xanders' offers. Mr. Buckholz' Return to Baymeadows. A meeting was scheduled for August 11, 1999, between Ms. Maxwell and representatives of the City of Jacksonville (hereinafter referred to as the "City"). The meeting had been scheduled to turn on the newly installed traffic signals. In direct contravention to the Department's directive to Buckholz Traffic that Mr. Buckholz not return to the Baymeadows Project site, Mr. Buckholz returned to the site on August 11, 1999, to attend the meeting Ms. Maxwell had scheduled with the City. At no time did Ms. Allen, Mr. Buckholz, or anyone else on behalf of Buckholz Traffic request permission of the Department for Mr. Buckholz to return to the project site. Mr. Buckholz and Ms. Allen fully understood that Mr. Buckholz was not to return to the Baymeadows Project site. Despite their understanding of the Department's reasonable directive, Mr. Buckholz claimed to have returned to the site at the invitation of representatives of the City. He also claimed to have returned to the site to assist the City with the installation of traffic light timing software he had prepared and not in any capacity with Buckholz Traffic. Testimony in support of Mr. Buckholz' claims was not convincing. Nor was the evidence concerning the necessity that Mr. Buckholz be on the site during a meeting with Department employees convincing. Mr. Buckholz simply chose to ignore the Department's directive not to return to the site. Mr. Buckholz continued to believe that his actions on May 28, 1999, were justified and failed to consider the harm his conduct had caused to Department employees. Mr. Buckholz arrogantly volunteered his services to the City so that he could flaunt the Department's directive not to appear at the site. Had Mr. Buckholz given the Department's directive any consideration, he could have waited for the City and Department to complete their meeting and then meet with City representatives to perform any work required of him. The Department's Reaction to the Failure of Buckholz Traffic to Comply with the Directive of June 1, 1999. Mr. Xanders has been responsible for providing policy and procedure guidelines for the Department's Districts, carrying out construction programs, and providing training and quality assurance initiatives. In his capacity as State Construction Engineer, Mr. Xanders reviewed Mr. Buckholz' conduct described supra, and the reactions of Buckholz Traffic to Department directives concerning Mr. Buckholz' conduct. Mr. Xanders reviewed and relied upon correspondence from Ms. Allen dated May 1, 1999, May 16, 1999, and June 6, 1999. Based upon the foregoing, the Department informed Buckholz Traffic by letter dated October 6, 1999, that the Department was revoking Buckholz Traffic's qualification to bid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department revoking the qualification to bid of Precision Traffic Counting, d/b/a Buckholz Traffic, for a period of one year from the date of the final order and that Precision Traffic Counting, d/b/a Buckholz Traffic be considered non-responsible to bid on any construction or maintenance contract and to act as a material supplier, subcontractor, or consultant on any Department contract or project during the period of the revocation. DONE AND ENTERED this 3rd day of May, 2000, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 May, 2000. COPIES FURNISHED: M. Lee Fagan, Esquire 3030 Hartley Road, Suite 105 Jacksonville, Florida 32257 Robert Aguilar, Esquire Smith, Metcalf, Aguilar & Sieron, P.A. Post Office Box 855 Orange Park, Florida 32067-0855 Brian F. McGrail, Esquire Brian A. Crumbaker, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Attn: James C. Myers, Clerk 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
Findings Of Fact Respondent employed at least 15 persons for each working day in each of at least 20 calendar weeks during the years in question. Petitioner, whose country of origin is Iran, holds a Bachelor of Science degree in civil engineering from the University of Central Florida. In early 1987. Petitioner submitted to Orange County an application for employment. The application was accidentally lost, resulting in the passage of several months during which Petitioner was not considered for employment. After expressing his frustration with the personnel department, Petitioner submitted another application in the fall of 1987. Relations between Petitioner and the personnel department were strained as Petitioner repeatedly followed up on his application and demanded an internal investigation into the matter. Although warning him that he was over-qualified for the position, the personnel department arranged for Petitioner to interview for an opening as an Engineering Technician III with the Orange County Highway Construction and Maintenance Department. On February 11, 1968, William Baxter, manager of the Orange County Highway Construction and Maintenance Department, interviewed Petitioner for the above-described position. During the course of the interview, Mr. Baxter decided that Petitioner was over-qualified for the Engineering Technician III position. However, aware that a person serving as an Engineer I had quit a few days earlier, Mr. Baxter summoned William E. Whyte, assistant manager of the same department, to join in the interview. At the conclusion of the interview, Mr. Baxter and Mr. Whyte told Petitioner that he would not have to submit to another interview for the Engineer I position. They did not, however, promise the position to Petitioner, although the interview had generally gone well for him. Mr. Baxter and Mr. Whyte mentioned that the position first had to be made available for then- existing qualified employees, but they were unaware of any who had applied. The job opening had been advertised publicly at about the same time that it had been posted internally. Pursuant to the requirements of the Orange County Commission Personnel Policy Manual, Section 2.11, the Highway Construction and Maintenance Department posted the Engineer I vacancy notice for existing employees on February 12, 1988. The notice stated that the position was delinquent in minorities: black. On February 17, 1989, Mr. Rolando L. Raymundo, a Filipino then employed by the department as an Engineer Technician IV, applied for the Engineer I position for which Petitioner was being considered. Mr. Raymundo also held a college degree in civil engineering and was more experienced than Petitioner in the work involved. Due to other responsibilities, neither Mr. Baxter or Mr. Whyte pursued the Engineer I opening for a couple of months. On April 27, 1988, Mr. Whyte interviewed Mr. Raymundo, whom he recommended on that date for promotion to Engineer I, effective May 15, 1988. In the meantime, no one with Orange County informed Petitioner of the status of his application or the fact that Mr. Raymundo eventually had been hired to fill the position. This treatment was not unique to Petitioner, however. Due to the number of applications received and personnel available to process applications, the personnel department does not routinely inform unsuccessful applicants that they have not been chosen for a particular position.
Findings Of Fact On June 27, 1984, TCD and WOM, among others, submitted bids on State jobs numbers 75000-3532 and 75000-3538 for the installation of a computerized traffic signal system in Orlando, Florida. TCD's bid was ultimately determined to be $2,367,859.75 and WOM's bid was ultimately determined to be $2,300,467.49. The project requires inter alia, the modification of a central computer room and the installation of computerized traffic signals, controlled from this computer room, at various locations in the Orlando area. The scope of the job was outlined in DOT Advertisement No. 3, dated May 31, 1984. This advertisement, sent automatically to all prospective bidders who had pre-qualified for projects of this nature, did not require the bidder to be a certified or registered electrical or general contractor. Other projects included in the same advertisement contained specific language requiring that bidders be certified or registered contractors in the stated appropriate discipline for that project. WOM is neither a certified or registered general or electrical contractor. TCD is licensed as both a certified general and electrical contractor in Florida. Both WOM and TCD were pre-qualified for projects such as here in issue. On August 6, 1984, DOT notified all bidders that WOM was the successful bidder. Thereafter, that same date, TCD filed its notice of protest and on August 13, 1984, filed its formal written protest with DOT. The work in question here is, as was stated above, broken down into two separate parts. The first is the modification of the computer room and the second is the installation of the signal lights. Without the first, the second would be ineffective and, therefore, the work on the computer room is considered to be incidental to the main portion of the project; the installation of the traffic signal system. This project has been properly considered by DOT to be work on bridges, roads, streets, highways and, therefore, exempt from, the requirement for accomplishment by a registered or certified contractor. Portions of the project involve the installation of electrical conduits and some equipment which uses electricity. However, the project is not primarily an electrical contract. Such portions of the project as involve electrical work will be subcontracted by WOM to a licensed electrical contractor who will be authorized to and who will secure All permits required by Orange County. The City of Orlando does not require any permits for this project. The bid specifications for this project specifically recognize that some parts of the project may be subcontracted. In that regard, DOT's Standard Specifications for Road and Bridge Construction, taken together with the plans and specifications tailored for this particular project require only 50 percent of the project be completed by the in-house capability of the prime contractor. At least that much will be done by WOM.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that: the DEPARTMENT OF TRANSPORTATION issue to Intervenor, WINKO-MATIC SIGNAL COMPANY, the contract for accomplishment of State Project No. 75000-3532 and 75000-3538. RECOMMENDED this 9th day of January, 1985, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1985. COPIES FURNISHED: Donald E. Karraker, Esquire 4000 North Federal Highway Suite 210 Boca Raton, Flroida 33431 Robert Scanlon, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301 Martha Harrell Hall, Esquire Post Office Drawer 190 Tallahassee, Florida 32301 Paul Pappas, Secretary Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32301
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Dismissing Case and Relinquishing Jurisdiction and Petitioner’s Notice of Voluntary Dismissal, a copy of which is attached and incorporated by reference in this order. Accordingly, it is hereby ORDERED that this case is CLOSED. DONE AND ORDERED this ay day of August, 2013, in Tallahassee, Leon County, Florida. Julie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services Filed August 29, 2013 2:07 PM Division of Administrative Hearings this “ve of —_ 2013 Yea _ f fekses- ee ‘ficens NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. Copies furnished: Jimmie Murphy, Manager Jimmie Shane Murphy, LLC 4601 Saufley Field Road Pensacola, Florida 32523 Damaris E. Reynolds Assistant General Counsel Department of Highway Safety And Motor Vehicles 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 Diane Cleavinger Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 i)
Findings Of Fact 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.
Findings Of Fact On July 31, 1987, a sign owned by Hodessa Corporation for whom Gia Associates is the agent was located on the right-of-way of U.S. 19 in Pasco County, .3 mile north of Floramar. When erected by the sign company some months earlier the sign was located in a legal location and not on the right-of-way of U.S. 19. Considerable construction work was being done on the property owned by Hodessa. Upon completion of the parking lot the sign was moved by the construction workers onto the right-of-way of U.S. 19. As soon as this error was discovered by Respondent the sign was relocated to its proper position.
Findings Of Fact The railroad crossing which is the subject of this proceeding is crossing number 272859-B, in the City of Florida City, Florida. Its location at N.W. 14th Street is approximately 700 feet north of an existing crossing located at Lucy Street, and roughly 1900 feet south of a present crossing located at Arthur Vining Davis Parkway. The Railway's rationale for closing the N.W. 14th Street crossing is that these other two nearby crossings offer practical alternate routes to the N.W. 14th Street crossing, and can provide public access and emergency services to the area. The City's opposition is based on its contention that closure of the N.W. 14th Street crossing would affect emergency access to the area. The principal justification for the closure of the N.W. 14th Street crossing is its proximity to the other crossings located at Arthur Vining Davis Parkway and Lucy Street, and the resulting improvement in safety for vehicular traffic and railroad equipment. Removal of the subject crossing would eliminate vehicular accidents on the tracks, and eliminate upkeep and maintenance expenses caused by frequent vandalism at the N.W 14th Street crossing location. In addition, closure would eliminate the need to sound the train whistle at the N.W. 14th Street crossing which is located near a residential housing area. The Railway receives an average of two calls per week to report incidents of vandalism in the area of the N.W. 14th street crossing. This number of calls is above average compared to other crossings in the area. Moreover, closure of the subject crossing would permit the relocation of the signal devices now in use there to one of forty-four other crossings in or near Florida City. The traffic count taken in the vicinity of N.W. 14th Street, which is a local service road providing access to a single neighborhood, showed that about 600 vehicles per day use the crossing. Traffic counts taken at Lucy Street, a through street which provides service beyond any specific residential area, resulted in approximately 5,000 to 6,000 vehicles per day. The Lucy Street and Arthur Vining Davis Parkway crossings have sufficient capability to handle all traffic diverted to them if the 14th Street crossing should be closed. The N.W. 14th Street crossing also allows outside traffic to enter the residential area, contrary to good urban planning. By removal of the crossing, such through traffic would be eliminated. The alternate crossings at Lucy Street and Arthur Vining Davis parkway provide reasonable alternate routes, and removal of the subject crossing will not unduly inhibit access by emergency vehicles into the affected area. Although 75 percent of the calls the Florida City police receive originate from Cuban village, a heavily populated area surrounding N.W. 14th Street, if the subject crossing were closed, Lucy Street and Arthur Vining Davis Parkway could be used to respond to emergency police calls in the Cuban Village. Therefore, alternate routes are available for emergency access to the affected area. In addition, from a pedestrian safety standpoint, there is sufficient space along Lucy Street to allow pedestrians to walk there without being affected by vehicular traffic.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Florida East Coast Railway Company to close the at-grade railroad crossing at N.W. 14th Street in Florida City, Florida, be granted. THIS RECOMMENDED ORDER entered on this 15 day of February, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15 day of February, 1982. COPIES FURNISHED: Charles B. Evans, Esquire One Malaga Street St. Augustine, Florida 32084 Thomas Tomassi, Esquire 137 N.W. 10th Street Homestead, Florida 33030 Charles G. Gardner, Esquire Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact On March 26, 1979, the Department filed an application for the closing of two railroad grade crossings known as Orange Street at Milepost A-825.48 and Murphy Street at Milepost A-830.30. Both crossings are located within the corporate limits of Davenport, Florida. The track which intersects the crossings services four passenger and ten freight-trains each day. The speed limit over the crossings is restricted by city ordinance to fifty miles per hour. Neither of the crossings is equipped with active grade crossing traffic control devices. Prior to recommending the closing of a crossing, a Railroad Committee within the Department meets and reviews petitions for closure. The committees primary concern in deciding whether to close a crossing is public safety and a secondary concern is public necessity. Additionally, convenience of the local population Is considered. The Orange Street crossing is utilized primarily by passenger cars and small trucks. In the twenty-four hour period in which traffic was counted, 696 vehicles used this crossing. The profile of the Orange Street crossing is very poor because the road is approximately seven feet higher than the railroad tracks, thus requiring a motorist to stop on a steep downhill grade when approaching the crossing. Cross-bucks are the only signalization at the crossing. The Department has proposed two alternate routes, Magnolia and Bay Streets, for the traffic presently utilizing the Orange Street crossing. Magnolia Street has recently been renovated and is scheduled for installation of flashing lights and gates in October, 1980. Because of the renovation and installation of lights, Magnolia can accommodate the expected added traffic. Bay Street currently has flashing lights and can accommodate the anticipated added traffic since it had a traffic count of 547 vehicles in a twenty-four hour period. There would be no substantive difference in adverse travel time for a motorist using either Magnolia or Bay Streets as opposed to Orange. Both crossings are safer than Orange Street. The Department does not propose to close sidewalks which cross the tracks at Orange Street and are utilized primarily by residents of a nearby retirement home. In regard to the other crossing which the Department seeks to close, Murphy Street, two alternate crossings are suggested, Magnolia Street and Bargain Barn Road. During a twenty-four hour period in which traffic was counted, 256 vehicles used the Murphy Street crossing. This crossing is inherently dangerous for long trucks or tractor-trailer vehicles due to its abrupt vertical profile or "hump." The Murphy Street crossing ends in a "T" intersection and its closing would not hinder police or emergency services. The Magnolia Street crossing can accommodate the increased traffic which will result from the closing of Murphy Street. This crossing is almost level and is approximately 1,600 feet from Murphy Street crossing. Bargain Barn Road or State Road 547, is another alternate crossing. This crossing is safer than Murphy Street in that lights and gates were installed in March, 1980. It is 1,200-1,300 feet or a quarter of a mile away from the proposed closed crossing and would not cause adverse travel for local motorists presently using Murphy Street. The current traffic count at Bargain Barn is approximately 732 cars per day which would increase to approximately 860 if Murphy Street were closed.
