Findings Of Fact On December 8, 1986, Respondent owned a sign that had been erected along the east side of U.S. 19 in Pasco County, Florida, approximately 51 feet from the nearest edge of the nearest through lane. U.S. 19 at this location is a part of the State Highway System. The DOT right-of-way at this location extends approximately 82 feet east of the eastern edge of the nearest northbound through lane of U.S. 19. Upon seeing the DOT violation notice posted, someone notified Respondent. Respondent had the sign removed from the DOT right-of-way within ten days of the notice of violation.
Recommendation It is RECOMMENDED that a final order be entered assessing a $75 fine against All American commercial Properties, Inc., for owning a sign on the DOT right-of-way along the east side of U.S. 19 in Pasco County on December 8, 1986. ENTERED this 22 day of July, 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1987. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0450 All American Commercial Properties, Inc. Attn: Shelley A. Balduf 6847 County Road 54 New Port Richey, Florida 33552 Kaye N. Henderson, P.E. Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Attn: Eleanor Turner, M.S. 58 Thomas H. Bateman, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by R. Bruce McKibben, Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing File was predicated upon Respondent’s Notice of Voluntary Dismissal With Prejudice, filed May 14, 2010. Accordingly, it is hereby ORDERED that the Dealership Franchise A greement between Volkswagon Group of America and KMH Automotive, Inc. d/b/a Kelly Volkswagon is terminated. Filed May 26, 2010 9:20 AM Division of Administrative Hearings. DONE AND ORDERED this z Stay of May, 2010, in Tallahassee, Leon County, Florida. / Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this day of May, 2010. ahi Ulan as 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. CAF:vlg Copies furnished: Donald K. Hughes Volkswagon Group of America, Inc. 12725 Morris Road, Suite 270A Alpharetta, Georgia 30004 Jay B. Verona, Esquire Verona Law Group, P.A. 7235 First Avenue South St. Petersburg, Florida 33707 R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 Nalini Vinayak Dealer License Section
Findings Of Fact The sign here in issue was erected in 1992 and remained in the same location until December 1986. The sign is located along the west side of U.S. 19 in Pasco County, Florida, 41 feet from the western edge of the pavement. The DOT right-of-way at this location is 57 feet. U.S. 19 is part of the state highway system. Respondent stipulated that the sign was located in the DOT right-of-way and was in violation. Upon receipt of the violation notice, the association relocated the sign off of the DOT right-of-way within ten days of the notice of violation (December 11, 1986).
The Issue Whether the Department of Transportation (hereinafter referred to as the "Department") should close the median opening on Northwest 79th Street, immediately west of Northwest 27th Avenue, near Respondent's business located at 2770 Northwest 79th Street, Miami, Florida?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent owns and operates a business, J'S Trading Post, which is located on the south side of Northwest 79th Street, just west of Northwest 27th Avenue, in Miami, Florida. Northwest 79th Street is an east-west roadway that is part of the State Highway System, having been designated State Road 934. Although Northwest 79th Street is part of the State Highway System, that segment of the roadway at issue in the instant case has not yet been given an access classification by the Department. The roadway segment has a posted speed limit of 40 miles per hour. Northwest 27th Avenue is a north-south roadway that is also part of the State Highway System, having been designated State Road 9. Northwest 79th Street and Northwest 27th Avenue form a "four legged" intersection. Northwest 27th Avenue is the major approach to the intersection. It has three through lanes (including a combined through/right turn lane), as well as an exclusive left turn lane, in each direction. Northwest 79th Street is the minor approach to the intersection. It also has three lanes (including a combined through/right turn lane) in each direction. Left turns from Northwest 79th Street onto Northwest 27th Avenue, however, are not presently permitted. Both Northwest 79th Street and Northwest 27th Avenue have restrictive medians at the intersection approaches. The Department conducted a traffic study and analysis of the intersection of Northwest 79th Street and Northwest 27th Avenue in 1993, which revealed, among other things, the following: the average speeds of eastbound and westbound traffic in the intersection were 35 and 38 miles per hour, respectively; the intersection's morning and afternoon peak hour volumes were 4,588 and 5,250 vehicles, respectively; the levels of service (LOS) for the intersection's morning and afternoon peak hours were D (with a 39.3 second delay) and F (with an undetermined amount of delay), respectively; and the intersection had been the site of a significant number of accidents.1 Following the completion of the study and analysis of the intersection, the Department reasonably determined that, in the interest of operational efficiency and safety, exclusive left turn lanes should be added to Northwest 79th Street at the intersection. There is presently an opening in the restrictive median that separates the eastbound and westbound lanes of Northwest 79th Street to the west of the intersection. The distance from the centerline of the median opening to the centerline of the intersection is 260 feet. The median opening is near, but not directly across from, the driveway that connects Respondent's property with the eastbound lanes of Northwest 79th Street. Westbound motorists on Northwest 79th Street use the median opening to access Respondent's property and other nearby driveways, even though such a maneuver is dangerous inasmuch as it involves the motorist travelling westbound for a short distance in the eastbound lanes of the roadway. The planned addition of an exclusive left turn lane on eastbound Northwest 79th Street will result in the closure of the median opening and the elimination of this safety hazard. Notwithstanding that it will be more inconvenient for westbound motorists on Northwest 79th Street to get to and from Respondent's business, it is prudent, from a traffic engineering and safety perspective, to close the median opening. Although Respondent's and his customers' direct access to and from Northwest 79th Street will be restricted if the median opening is closed, such access will not be eliminated entirely as a result of the closure. They will still have direct access to and from the eastbound lanes of the roadway.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order rejecting Respondent's challenge to the Department's proposed closure of the median opening on Northwest 79th Street, immediately west of Northwest 27th Avenue, near Respondent s business. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of September, 1994. STUART M. LERNER 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 19th day of September, 1994.
Conclusions This matter came before the Department for entry of a Final Order upon submission of a Joint Motion to Relinquish Jurisdiction and an Order Closing File and Relinquishing Jurisdiction by June C. McKinney an Administrative Law Judge of the Division of Administrative Hearings, copies of which are attached and incorporated by reference. On January 16, 2014, the parties entered into a settlement agreement which is attached hereto and incorporated by reference. Accordingly, it is hereby ORDERED that the attached Settlement Agreement is hereby adopted and this case is DISMISSED. DONE AND ORDERED this 3\ day of January, 2014, in Tallahassee, Leon County, Florida. Qype Crbur 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 February 7, 2014 3:56 PM Division of Administrative Hearings Filed with the Clerk of the Division of Motorist Services this a, | day of January,.2014. 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: Albert J. Stopka, Esquire Albert J. Stopka, III, P.A. 108 Mosley Drive Lynn Haven, Florida 32444 stopkalawefile@bellsouth.net;stopkalawefile@hpeprint.com Damaris E. Reynolds, Esquire Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway, Room A-430, MS 61 Tallahassee, Florida 32399 damarisreynolds@flhsmv.gov June C. McKinney Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing Files and Relinquishing Jurisdiction by Linzie F. Bogan an Administrative Law Judge of the Division of Administrative Hearings, and the parties’ Agreement, copies of which are attached and incorporated by reference in this order. Accordingly, it is hereby ORDERED that this case is DISMISSED. DONE AND ORDERED this Ma day of June, 2014, in Tallahassee, Leon County, : © Florida. Caberr Filed in the official records of the Division of Julie Baker, Chief Motorist Services this day of June, Bureau of Issuance Oversight 2014. Division of Motorist Services Department of Highway Safety and Mobs Ds: le Motor Vehicles DMlabn Viragh Neil Kirkman Building, Room A338 Nalini Vinayak, Dealer License Administrator Tallahassee, Florida 32399 Filed June 19, 2014 7:40 AM Division of Administrative Hearings Copies furnished to: Ronald Larkin Larkin Motorworks, LLC 3029 Dr. Martin Luther King, Jr. St. North St. Petersburg, Florida 33704 Nalini Vinayak Dealer License Section Brett Moorer Parallel Intelligent Transportation, Inc. 6950 Central Highway Pennsauken, New Jersey 08109 Michele R. Stanley Tropical Scooters, LLC 11610 Seminole Boulevard Largo, Florida 33778 Linzie F. Bogan Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 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.
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
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Thomas P. Crapps, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice Of Dismissal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. Filed May 29, 2013 9:27 AM Division of Administrative Hearings DONE AND ORDERED this Ay day of May, 2013, in Tallahassee, Leon County, Florida. 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 this QQ day of May, 2013. tes Vorecvcte Nalini Vinayak, Dealer Ficense AE 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. JB/jdc Copies furnished: A. Edward Quinton, III, Esquire Adams, Quinton and Paretti, P.A. Brickell Bayview Center 80 Southwest 8" Street, Suite 2150 Miami, Florida 33130 equinton@adamsquinton.com John C. deMoulpied, Esquire Barack, Ferrazzano, Kirschbau, Perlman & Nagelberg LLP 200 West Madison Street Chicago, Illinois 60606 john.demoulpied@pbfkn.com James R. Vogler, Esquire Barack, Ferrazzano, Kirschbau, Perlman & Nagelberg LLP 200 West Madison Street Chicago, Illinois 60606 Jim.vogler@bfkn.com Thomas P. Crapps Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS LOKEY OLDSMOBILE, INC. d/b/a LOKEY VOLKSWAGEN, Petitioner, Case No.: 13-0007 vs. VOLKSWAGEN OF AMERICA, INC., Respondent. / NOTICE OF VOLUNTARY DISMISSAL WITH PREJUDICE COMES NOW Petitioner, LOKEY OLDSMOBILE, INC. d/b/a LOKEY VOLKSWAGEN, by and through its undersigned counsel and hereby files this Notice of Voluntary Dismissal with Prejudice regarding its pending Petition Protesting Charge-back of Incentive Payments, pursuant to settlement of this matter. I HEREBY CERTIFY that a true and correct copy of the foregoing was served on the parties as reflected on the attached Service List, this 13" day of May, 2013. s/ A, Edward Quinton, III (Florida Bar No. 464074) ADAMS, QUINTON & PARETTI, P.A. Attorneys for Petitioner 80 SW 8™ Street, Suite 2150 Miami, Florida 33130 PH: (305) 358-2727 Email: equinton@adamsquinton.com Filed May 13, 2013 3:24 PM Division of Administrative Hearings SERVICE LIST Jennifer Clark Office of the Hearing Officer Florida Highway Safety & Motor Vehicles Neil Kirkman Bldg. - Room A-308 Tallahassee, Florida 32399-0635 jenniferclark@flhsmv.gov James R. Vogler, Esquire John C. deMoulpied, Esquire Barack Ferrazzano Kirschbaum & Nagelberg LLP 200 West Madison Street, Suite 3900 Chicago, IL 60606 jim.vogler@bfkn.com john.demoulpied@bfkn.com STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS LOKEY OLDSMOBILE, INC., d/b/a LOKEY VOLKSWAGEN, Petitioner, vs. Case No. 13-0007 VOLKSWAGEN OF AMERICA, INC., Respondent. ~~~ rere rere re rere rr ORDER CLOSING FILE AND RELINQUISHING JURISDICTION This cause having come before the undersigned on Petitioner’s Notice of Voluntary Dismissal with Prejudice, filed May 13, 2013, and the undersigned being fully advised, it is, therefore, ORDERED that: 1. The final hearing scheduled for June 18 through 21, 2013, is canceled. 2. The file of the Division of Administrative Hearings is closed. Jurisdiction is relinquished to the Department of Highway Safety and Motor Vehicles. DONE AND ORDERED this 21st day of May, 2013, in Tallahassee, Leon County, Florida. va bay THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 2013. COPIES FURNISHED: Jennifer Clark, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-430 2900 Apalachee Parkway, Mail Stop 61 Tallahassee, Florida 32399 A. Edward Quinton, III, Esquire Adams, Quinton and Paretti, P.A. Brickell Bayview Center 80 Southwest 8th Street, Suite 2150 Miami, Florida 33130 equinton@adamsquinton.com John C. deMoulpied, Esquire Barack, Ferrazzano, Kirschbaum, and Nagelberg LLP 200 West Madison Street Chicago, Illinois 60606 john.demoulpied@bfkn.com James R. Vogler, Esquire Barack, Ferrazzano, Kirschbaum, Perlman & Nagelberg, LLP Suite 3900 200 West Madison Street Chicago, Illinois 60606 jim.vogler@bfkn.com
The Issue The issues to be decided in this case are those associated with the question of whether the Respondent is required to have a permit for the connection of his business property to State Road 206 or is exempt from that requirement. See Section 335.187, Florida Statutes. If he is required to have a permit the issue becomes the acceptability of his current drive, i.e., does it comply with the commercial use design criteria contemplated by Chapter 335, Florida Statutes, and further described in the Florida Department of Transportation "Policy and Guidelines for Vehicular Connections to Roads on the State Highway System," February, 1985, which was recognized and incorporated by reference through Rule 14- 15.013, Florida Administrative Code. These issues are raised through an alleged violation of the Florida Statutes and Florida Administrative Code set out in the Notice to Show Cause which was forwarded to Respondent from Petitioner leading to the formal hearing. The date of that Notice to Show Cause was July 18, 1989. Within the statement of violations there were also allegations concerning irregular signs as alleged under Section 479.11(8), Florida Statutes, associated with the commercial activities by Respondent and the unauthorized parking on the right-of-way at State Road 206 in violation of Section 337.406, Florida Statutes. These latter allegations were conceded by the Respondent at hearing and are resolved through those concessions.
Findings Of Fact At the time of the hearing Respondent operated a roadside fruit and vegetable stand at property adjacent to State Road 206 in St. Johns County, Florida. In addition to fruits and vegetables, by local ordinance of St. Johns County, Florida, he is allowed to sell poultry and fish. There is no indication that he has taken advantage of that opportunity other than to sell fresh shrimp from a cooler during 1989. In addition to these products he sells honeys, jellies, and jams. He also sells soft drinks from a dispensing machine. A mainstay in his business is peanuts which he sells fresh. Another product sold is pork skins. The drink machine that is described was added in March, 1989. Before that time he sold fountain drinks and cold drinks that were dispensed from a cooler. He has always had soft drinks available from the inception of his operation of the roadside stand. That began in March, 1985. At the time the Respondent purchased the property there was an operation ongoing whereby fruit was being sold on two tables. Respondent replaced those structures with a portable trailer which was anchored to the lot, and display and sell of fruit on a 16-foot table and use of an 8-foot table upon which tomatoes were displayed and sold. The trailer was used to store his products over night. The trailer described was a pop-up camper trailer. The principal products being dispensed at that time were peanuts, vegetables, and tomatoes. Through Ordinance No. 86-68, passed by St. Johns County, a copy of which may be seen as Respondent's exhibit No. 1, the property was recognized as C1, commercial intensive, with the conditions that the property would be limited to outdoor sale of produce, vegetables, fruit, poultry, and fish. It was also stated that there would be no access/egress to United States Highway 1, which is also known as State Road 5. This property is located at the intersection of State Road 5 and State Road 206. Present access/egress to the property is from State Road 206 and that has been the situation since Respondent purchased the property. The ordinance described dates from August 12, 1986. Over time Respondent has taken a number of steps to improve his business. In March, 1988, Respondent obtained permission from St. Johns County to place a storage shed on his property. In August of that year he obtained permission to install a metal awning or carport of dimension 18 feet by 45 feet which is anchored to the ground. At that same time he placed the body from an old milk truck on the property for purposes of cold storage. In March, 1988, he had received an electrical permit from St. Johns County. Prior to that time he did not have electricity. In the spring of 1989, a well was drilled to provide running water. Prior to that time Respondent used bottled water. Respondent's composite exhibit No. 2 admitted into evidence describes various permits obtained from St. Johns County. If Respondent was required to remove the structures on his property it could be done in three days. This goes to identify the nature of the structures and to demonstrate that they are not permanent fixtures to the realty. According to Respondent, whose testimony is accepted, the business that he is experiencing at present has remained fairly constant in dollar amounts. He does not sell as many peanuts as he did before. Concerning traffic, Respondent indicates, and his testimony is accepted, that the number of cars that are located at his business would be a maximum of 12 on a busy Sunday afternoon and that at most times there are one or two cars. The hours of the business are from 8:00 a.m. until 6:00 p.m. in the winter time and somewhat longer in the summer time. The business is open seven days a week. A rough description of the nature of the property by design may be found in the documents contained in Respondent's exhibit No. 2 admitted into evidence. The property is approximately 280 front feet and 280 feet at the rear with 41 feet on each side. The frontage runs approximately east-west on State Road 206 and one of the sides abuts State Road 5. The basic design of the driveway entrance from State Road 206 is also set out in those drawings. As Marshall W. Sander, engineer in the permit department for Petitioner in its St. Augustine, Florida, maintenance office, explains the driveway is an unimproved dirt shell connection. This is the same driveway that was there at the time that Respondent purchased the property and has remained in that state since that time. Notwithstanding Mr. Sanders' concern that the driveway is not up to current commercial business criteria for access/egress, there have been no accidents as a result of access/egress from the business. There are two turnouts or turn- ins into the property. Mr. Sander believes that at least one paved driveway is needed leading into the property. The dimensions of that drive would be 24-foot wide which allows a 12-foot wide lane in and a 12-foot wide lane out. This impression of Mr. Sander is drawn in the face of the Respondent's presenting himself at the office of Petitioner in St. Augustine, Florida, with an application and plan showing the intention to improve the property to include restrooms, a beer and wine cooler with parking on site. Under those circumstances Mr. Sander felt it necessary to improve the drive connection. At hearing there was no suggestion that restrooms are available on the premises or will be in the near future, nor was there any indication that a beer and wine cooler would be installed. Therefore it cannot be said that the basic nature of the business has changed from its inception to the present. Mr. Sander concedes that within the records of the Petitioner there are no indications that the business has increased by way of records concerning traffic flow or otherwise. His remarks about increased traffic at Dupont Center is not specific enough to gain a useful impression of that circumstance. Mr. Sander relies upon the observations of the State of Florida, Department of Health and Rehabilitative Services and the St. Johns County Public Health Unit as were testified to by George L. Sigman, Environmental Health Director II for that organization. He also spoke to certain records of the health unit which may be found as Petitioner's composite exhibit 1 admitted into evidence. Nothing about his testimony or that exhibit identifies a noteworthy change in the basic nature of the business from Respondent's establishment of the roadside stand in March, 1985 until the present. Throughout the existence of his business Respondent has operated without the benefit of a driveway permit issued by Petitioner.
Recommendation Based upon the consideration of the facts found and in view of the conclusions of law reached, it is, RECOMMENDED: By way of disposition of the Notice to Show Cause, that a Final Order be entered which recognizes the concessions made by the Respondent concerning the sign in question, calling for its removal if still in existence and his acknowledgment of the problem of parking on the right-of-way and which absolves the Respondent of any necessity to obtain a driveway permit. DONE and ENTERED this 9th day of March, 1990, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1990. APPENDIX The following discussion is given concerning proposed facts. Petitioner' s Facts Paragraphs 1 and 2 are subordinate to facts found. The first sentence in Paragraph 3 is subordinate to facts found. The second sentence is contrary to facts found. The third sentence is subordinate to facts found. Sentences 4 and 5 depict testimony as opposed to suggesting fact finding. However, the last sentence in that paragraph is one upon which facts were found in the Recommended Order. Respondent' s Facts Paragraphs one and two pertain to withdrawal of the request for hearing concerning signs and parking and are not part of fact finding. The first sentence in paragraph 3 is subordinate to facts found. The remaining sentence is legal argument, as are paragraphs 4 and 5. Paragraphs 6-11 are subordinate to facts found. Paragraph 12 is not relevant. Paragraphs 13 and 14 are subordinate to facts found. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, FL 32399-0458 Leo O. Myers, Esquire Post Office Box 1621 Jacksonville, FL 32201 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue Whether Respondent's sign is in violation of the applicable Florida Statutes?
Findings Of Fact Respondent is the owner of a sign located 3.138 miles south of State Road 5A on the southbound side of Highway U.S. 1. The sign is visible form the U.S. 1, and is attached to another sign. The other sign is owned by Lamar Advertising, was erected in 1964, and was issued permit no. 746-08 by Petitioner. The annual renewal fees for the permit have been paid. Respondent's sign has never been issued a permit by Petitioner. U.S. 1 is a federal-aid primary highway. Respondent's sign advertises his telephone number and business, which is at a different location than the sign. Respondent's sign is located within 1,000 feet of Lamar Advertising's sign.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner issue a final order requiring that Respondent's sign be removed. DONE and ENTERED this 20th day of May 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May 1988. COPIES FURNISHED: Vernon L. Whittier, Jr., Attorney Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Jim Davenport 1005 North Dixie Highway New Smyrna Beach, Florida 32069 Kaye N. Henderson, P.E., Secretary Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Attn: Eleanor F. Turner, Mail Station 58 Thomas H. Bateman, III General Counsel 562 Haydon Burns Building Tallahassee, Florida 32399-0450
