The Issue Has Respondent's connection permit number C-16-095-93 (permit) expired under Section 335.185, Florida Statutes? Has Respondent timely complied with the requirements and conditions of the permit? If not, does Respondent's noncompliance cause safety or operational problems on State Road 555 (SR 555) which would require closing Respondent's connection to SR 555?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department was the state agency responsible for regulating vehicular access and connections to or from the State Highway System in accordance with Sections 335.18-335.188, Florida Statutes, known as the State Highway System Access Management Act. Respondent owns the property in issue which is located on the southwest corner of the intersection of SR 555 and SR 655 in Polk County, Florida. As a cure for the problem created by the eminent domain proceeding in FDOT v. Shaffer concerning the preexisting connections to SR 555 and SR 655, the Department agreed to provide connections to SR 555 and SR 655 for the property involved in the instant case. By letter dated September 27, 1993, the Department agreed to honor this agreement even though it was not included in the final order in FDOT v. Shaffer. In its letter, the Department agrees to issue a permit and construct the connections "on the condition that the remaining lands are reconstructed as shown in the attachment." The letter informs Respondent that the attachment was prepared by Reggie Mesimer for the Department and that "it appears that the settlement was based on that cure." The letter also informs Respondent that the "permit will contain limiting language to make clear that the permit has not been reviewed for compliance with DOT standards and that it is issued for replacement of preexisting access." Attached to the letter was a site plan showing: (a) the parking layout for the site which included two parallel parking spaces in front of the building, six perpendicular south to north parking spaces on the south end of the building and eight perpendicular north to south parking spaces on the south side of the south parking area; (b) a connection to SR 655 on the north side of the building; (c) a connection to SR 555 at the front of the building; and (d) a connection to First Avenue, a side street, on the south side of the building. The site plan shows a driveway commencing at the connection to SR 655 and continuing on in front of the building to First Avenue on the south side of the building. The site plan does not show any signings or pavement markings to indicate traffic flow in and out of the site. Sometime around June 1993, the agreement in FDOT v. Shaffer notwithstanding, the Department attempted to close the preexisting connections to SR 555 and SR 655. As a result, Respondent requested a formal administrative hearing and Department of Transportation vs First Mortgage Corporation, DOAH Case No. 93-9037 was filed with the Division. This case was later rendered moot by the issuance of the permit for the connections to SR 555 and SR 655 and the Department's agreement to construct the connections to SR 555 and SR 655. By letter dated December 15, 1993, with an addendum dated December 16, 1993, the Respondent agreed "to designating two parallel parking spaces in front of the building and have the striping done immediately." In return, the Department would "agree to have the driveway installed as shown on the drawing originally submitted." In the addendum, Respondent states that the two designated parallel parking spaces in front of the building were being striped on December 16, 1993, and that the Respondent was removing the chain link fence on the south side of the building to provide additional parking. The addendum also states that the Respondent will resurface the entire area of the drive and parking areas after the Department finishes the road construction. Additionally, the Respondent agreed to substantially comply with the driveway and parking area as shown on an attachment. The attachment was a copy of site plan referred to above in Finding of Fact 3. Respondent's Connection Application, number C-16-095-93, was approved by the Department on December 20, 1993, and the permit was issued. The application "requests permission for the construction of a connection(s) on Department of Transportation right-of-way. . . " The connections are described as: "REPLACEMENT OF EXISTING CONNECTION: ONE 24 FT INGRESS ON SR 655, ONE 30 FT INGRESS & EGRESS ON US 17 (SR 555) FOR A CONVENIENCE STORE AND RESTAURANT." Although the permit provides blank spaces where the mandatory beginning and completion of construction dates are to be filled in, these spaces were left blank on the permit. Likewise, there is no expiration date shown on the permit. A site plan was attached to the permit. The site plan is a copy of the site plan attached to the Department's September 27, 1993, letter referred to above with signings and pavement markings added to indicate the traffic flow in and out of the site. General Provision one of the permit provides: The permittee agrees and obligates himself to perform at his own expense the relocations, closure, alteration of the permitted connection, should the Department determine that the traffic patterns, points of connection, roadway geometrics or traffic control devices are causing an undue disruption of traffic or creating safety hazards at the exiting connections. Special Provisions one through five provide: This permit application has not been reviewed for compliance with DOT standards and is issued for replacement of preexisting access by the Florida Department of Transportation. The permit is subject to the limitations in Chapter 335, Florida Statutes, to the same extent as the preexisting access. The permittee shall place signing and pavement marking, as indicated on the attached site plan, so that the connection on SR 655 is operated as ingress only. Parking layout and traffic flow will be constructed and maintained in substantially the same manner as indicated in the attached site plan. The permittee acknowledges that the attached site plan was the cure in the settle- ment in DOT vs. EDWARD M. SHAFFER, case number GC-G-91-786, Parcel 105. The permittee acknowledges that with the issuance of this permit and the Florida Depart- ment of Transportation's agreement to construct the two connections referenced in this permit, DEPARTMENT OF TRANSPORTATION, Petitioner, vs. FIRST MORTGAGE CORPORATION, Defendant, case number 93-3037 has been rendered moot. Further- more, the permittee agrees to make the appropriate filing with the State of Florida Division of Administrative Hearings. (Emphasis supplied). The permit application was signed by Dennis G. Davis as president of First Mortgage Corporation. Dennis G. Davis also signed accepting the Special Provisions attached to the permit. As to signings and pavement markings the site plan shows: a designated driveway beginning at the SR 655 connection (north end of property) and proceeding around the front of the building (east side) to the south end of the building and commencing on to the First Avenue connection; large arrows within the designated driveway indicating ingress only from SR 655 and one-way traffic around the front of the building to a point on the south end of the building where stop signs are to be located; stop signs on each side of the one-way driveway where the one-way driveway intersects a designated two-way driveway; to the south of the stop signs, arrows indicating that the one-way traffic is to move into the south side parking lot or move into the south-bound lane of the two-way driveway that exits onto First Avenue; arrows indicating that incoming traffic from First Avenue is to move into the south side parking lot only; a No Right Turn sign on the east side of the one-way driveway just south of the stop signs where the one-way driveway intersects the two-way driveway; a No Left Turn sign on the southwest side of the south side parking lot where the south side parking lot intersects the outgoing lane of the two-way driveway that exits onto First Avenue; a stop sign just south of the southeast corner of the south side parking lot to the west of the outgoing lane of the two-way driveway just before First Avenue; and a No Exit sign on each side of the one-way driveway facing the opposite direction of the traffic flow in the one-way driveway at the northeast corner of the building. As to the parking layout, the site plan shows: two parallel parking spaces running north to south in front of the building along the west side of the one-way driveway; six perpendicular parking spaces running south to north abutting the south side of the building, and eight perpendicular parking spaces running north to south abutting the south side of the property west of the two-way driveway. The Department constructed the connection on SR 655 for ingress to the property from SR 655 and the connection on SR 555 for ingress to the property from SR 555 and egress to SR 555 from the property sometime in June 1993, which was before the expiration of one year after the date of issuance of the permit. Respondent started to comply with the signings and pavement markings of the site plan attached to the permit as early as December 16, 1993. Respondent has complied with the signings and pavement markings for traffic flow and parallel parking as shown on the site plan attached to the permit beginning at the connection to SR 655 and up to and including the two stop signs at the south end of the one-way driveway where it intersects the two-way driveway. The Respondent has maintained these signs and pavement markings during the construction on SR 555 by restriping the pavement and replacing signs that were torn down. However, due to the wear on the striping caused by construction traffic the pavement markings for the parallel spaces and traffic flow are dim and need painting. Due to a misunderstanding as to the Department's jurisdiction over First Avenue, Respondent has not completed the signings and pavement markings from the stop signs where the one-way driveway intersects the two-way driveway over to First Avenue or over to the parking lot. The Respondent has not completed the striping for the south to north perpendicular parking spaces abutting the south end of the building where there is pavement which would allow such striping. A segment of a chain link fence abuts the south end of the building preventing any further perpendicular parking abutting the south end of the building without going inside to the grassed area (green area) enclosed by the chain link fence. However, instead of parking perpendicular to the south end of the building, customers are parking east to west, perpendicular to the existing chain link fence. At the time the permit was issued, a chain link fence surrounded the green area on the south end of the property. Respondent removed the middle section of the chain link fence on the east side of the green area to provide additional parking inside the green area. Respondent has not placed signs or pavement markings around or at the entrance to the green area so that customers are made aware that the green area is available for parking. However, some customers are using the green area for parking. Although the parking layout of the site plan includes delineated parking spaces in the green area, nothing in the permit, including the site plan, specifically requires the green area to be paved. Although Respondent has indicated a willingness to stripe the designated parking spaces in the green area as shown on the site plan, striping the green area is neither feasible nor is it required under the permit. While all of the parking spaces have not been delineated by striping, there was no evidence that there were insufficient parking spaces on the site or that the lack of designated parking spaces was creating any safety or operational problem on SR 555. Although the site plan does not indicate by signings or pavement markings that the connection to SR 555 is an ingress and egress connection, the permit specifically provides for ingress and egress at the SR 555 connection and nothing on the site plan prohibits such access. On occasions customers park perpendicular to the front of the building ignoring the delineated parallel parking spaces in front of the building. Respondent has agreed to place a solid concrete curb along the building side (west side) of the parallel parking spaces and remove the yellow concrete stop blocks now in place that may be unintentionally inviting customers to park perpendicular to the building. The Department's expert, Michael Tako, testified that perpendicular parking in front of the building could result in vehicles on SR 555 having to slow down for vehicles that are backing out of those perpendicular parking spaces onto SR 555, creating a hazard on SR 555 known as stacking. However, there was insufficient evidence to establish facts to show that stacking actually occurred or that there was any safety or operational problem being created on SR 555 by customers parking perpendicular to front of the building rather than parking in the two parallel parking spaces in front of the building. There was no engineering study presented that had been conducted subsequent to the issuance of the permit substantiating any safety or operational problem on SR 555 resulting from the failure of the Respondent to comply with signings and pavement markings of the site plan or any of the special provisions of the permit or from customers parking perpendicular to the building rather than in the parallel parking spaces. Construction on SR 555 had not been completed as of the date of the hearing. However, Respondent agreed that construction was at the stage where the driveway and parking area could now be resurfaced and restriped without substantial damage to the striping, pavement markings and signings due to construction activity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order requiring the Respondent to: comply with the placement of signs as shown on the site plan attached to the permit including those signs required for the First Avenue connection; (b) comply with the pavement markings for traffic flow as shown on the site plan attached to the permit, including those necessary for the First Avenue connection and direction for entrance to the green area; (c) pave any surface necessary to comply with the pavement markings provided for in (b) above, including that necessary for the First Avenue connection and to allow necessary pavement markings for traffic flow into the green area but not to include the green area; (d) restripe the parallel parking spaces in front of the building and place a solid curb on the immediate west side of the parallel parking to replace the curb stops now in place; (e) stripe the perpendicular parking spaces that abut the south end of the building where pavement presently exists; (f) place the necessary signs at the entrance to the green area so that customers will be aware of the additional parking inside the fenced green area and; (g) remove whatever portion of the chain link fence is necessary to allow reasonable entrance to and exit from the green area. It is further recommended that Respondent be allowed sufficient time to complete the above, not to exceed 60 days unless the Respondent wishes to resurface the entire driveway area including the First Avenue connection and any parking area that is presently paved. In that event, it is recommended that Respondent be allowed 90 days. It is further recommended that Respondent not be required to pave any area that is to be used for parking including the green area and that adjacent to the green area that does not already have existing pavement. RECOMMENDED this day 12th of October, 1995, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0673 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. Proposed findings of fact 1-7, 10-13, 16-18, 20, and 21 are adopted in substance as modified in Findings of Fact 1 through 21 of the Recommended Order. Proposed findings of fact 8 and 9 are covered in the Preliminary Statement. Proposed findings of fact 14, 22 and 24 are rejected as not being supported by competent substantial evidence in the record. Proposed findings of fact 19 and 23 are rejected as being argument rather than findings of fact. Proposed finding of fact 15 goes to the weight to be given to Tako's testimony and is not a finding of fact per se. The Respondent Proposed Findings of Fact. The first two sentences of Respondent's introductory paragraph under "Findings Of Fact" are covered in the Preliminary Statement. The balance of the introductory paragraph and unnumbered paragraphs 2 - 6 are presented as restatements of Tako's and Davis' testimony and not as findings of fact. However, this testimony has been adopted in substance as modified in Findings of Fact 1 - 21 of the Recommended Order and where it has not been so adopted it is rejected as not being supported by competent substantial evidence in the record. COPIES FURNISHED: Ben Watts, Secretary Department of Transportation ATTN: Diedre Grubbs Haydon Burns Building Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Francine M. Fflokes, Esquire Department of Transportation Haydon Burns Building Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Stephen W. Moran, Esquire Moran & Tileston 1738 East Edgewood Drive Lakeland, Florida 33803
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department was the state agency responsible for regulating vehicular access and connections to or from the State Highway System in accordance with Sections 335.18 through 335.188, Florida Statutes, known as the State Highway System Access Management Act. The property which Petitioner filed an application for an access connection to US Highway 17 (SR 35) is located on the southeast corner of the intersection of SR 35 and Sixth Street in Fort Meade, Polk County, Florida. Petitioner's property abuts the east right-of-way of SR 35, with frontage of approximately 235 feet and the south right-of-way of Sixth Street, with frontage of approximately 235 feet. SR 35 has been designated as an intrastate system route. The segment of SR 35 involved in this proceeding has been assigned an Access Management Classification of Four with a design speed of 50 miles per hour and a posted speed of 40 miles per hour . Also, this segment of SR 35 has a "non-restrictive median" as that term is defined in Rule 14-97.002(23), Florida Administrative Code. The distance between all cross streets running east and west which intersect SR 35 within Fort Meade, Florida, including Sixth Street, is approximately 440 feet. (See Petitioner's exhibit 2, Department's aerial photo of the area) Petitioner's application proposes a full movement access connection to be located south of Sixth Street on SR 35 with a connection spacing between Sixth Street and the proposed connection of 190 feet. This distance was determined by measuring from the south edge of the pavement of Sixth Street to the north edge of pavement of proposed access in accordance with Rule 14- 97.002(19), Florida Administrative Code. The centerline of the proposed connection on SR 35 is located approximately 220 feet south of the centerline of Sixth Street. Petitioner's application also proposes an access connection to Sixth Street which would give Petitioner indirect access to SR 35 through Sixth Street. The centerline of the proposed connection on Sixth Street is located approximately 135 feet east of the east curb of SR 35 presently in place. Petitioner's proposed access connection to SR 35 is located immediately north of a crest of a rise over which SR 35 traverses. Both south and north of the crest is a depression through which SR 35 traverses. The point where Sixth Street intersects SR 35 is located approximately at the bottom of the depression north of the crest. A motorist attempting to enter SR 35 from the proposed access connection would have a full view of any vehicle moving north through the depression to the south of the crest or moving south through the depression to the north of the crest. A motorist attempting to enter SR 35 from the east on Sixth Street would have only a partial view of a vehicle moving north through the depression to the south of the crest but a full view of any vehicle moving north through the depression north of the crest. Both Dennis Wood and Michael Tako testified that each had viewed the traffic moving north through the depression south of the crest from a point where Sixth Street intersects SR 35. They also testified that each had, from a point where Sixth Street intersects SR 35, at least a partial view at all times of the vehicles moving north through the depression south of the crest. Based on the above and their assumption that the distance between cross streets along SR 35 was 600 to 700 feet rather than approximately 440 feet as indicated in Petitioner's exhibit 2, Department's aerial photo of the area, Wood believed and Tako concluded that there was minimum clear sight distance that would allow a motorist exiting Sixth Street to cross SR 35 safely, or turn left to enter the southbound lane of SR 35 safely or turn right to enter the northbound land of SR 35 safely. Because of the continuous partial view of the vehicles moving north through the depression south of the crest from a point where Sixth Street intersects SR 35 it may appear that there was minimum clear sight distance in that area. However, there is insufficient evidence to establish facts to show that a minimum clear sight distance was established because the height of the originating clear sight line above the pavement or the height of the clear sight line above the pavement at the vehicle observed, which are required to establish a minimum clear sight distance (See Department's exhibit 10), were not established. Also, the estimate of the distance between the originating point of the clear sight line and the ending point of the clear sight line at the vehicle observed was flawed due to the use of incorrect distances between the cross streets. There is insufficient evidence to show that a motorist looking south from the point where Sixth Street intersects SR 35 would have the required minimum clear sight distance as calculated by Department, as shown in Department's exhibit 10, to allow a motorist to cross SR 35 safely or turn left to enter the southbound lane of SR 35 safely or turn right to enter the northbound lane of SR 35. Presently, there are three access connections of approximately 20 feet in width on SR 35 where Petitioner's property abuts SR 35. These access connections where constructed before Petitioner had ownership of the property. However, since there will be a change in land use, these access connections will be closed if the site is developed whether this access permit is granted or denied. Petitioner plans to close two of these access connections and extend the opening to the third one if the application is approved. SR 35 is a moderate volume road with approximately 17,000 average daily trips (ADT's), increasing approximately 500 ADT's annually over the past five years. Sixth Street has approximately 100 to 150 ADT's at present with the ADT's projected to increase to approximately 300 if the site is developed and Petitioner's application for the access connection to SR 35 is denied. However, the number of vehicles entering SR 35 which constitutes traffic utilizing Petitioner's establishment will be the same no matter where this traffic enters SR 35. Without the direct access connection to SR 35 there will be problems with internal customer traffic flow and with the movement of semi-tractor trailers that Petitioner uses to make deliveries to its store. Although the present site plan design may be modified so as to utilize the indirect access to SR 35 through Sixth Street, the modification of the site plan design would create problems that would most likely result in the City of Fort Meade not approving the modified site plan design. Although using Sixth Street as an indirect access to SR 35 from the site may provide a safe ingress and egress to and from SR 35, the lack of a minimum clear sight distance notwithstanding, the Petitioner's proposed access connection would provide a much safer ingress and egress to and from SR 35 because of a better clear sightdistance. Although the indirect access to SR 35 through Sixth Street may provide safe ingress and egress to and from SR 35, the indirect access does not provide reasonable access to the site as the term "reasonable access" is defined in Rule 14-96.002(22), Florida Administrative Code. The primary purpose of limiting access to SR 35 is to provide safer conditions for vehicles utilizing SR 35.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order granting Petitioner's Connection Application Number C-16-010-90 and issuing Petitioner a nonconforming permit for the construction of the access connection to SR 35 as designed and shown in the site plan attached to the application with conditions deemed appropriate by the Department and provided for under Rule 14.96.009, Florida Administrative Code. RECOMMENDED this day 30th of October, 1995, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2794 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner in this case. Petitioner's Proposed Findings of Fact. Proposed findings of fact 1 through 16 are adopted in substance as modified in Findings of Fact 1 through 21. The Respondent elected not file any proposed findings of fact. COPIES FURNISHED: Ben G. Watts, Secretary ATTN: Diedre Grubbs Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thornton J. Williams, Esquire General Counsel Department of Transportation 562 Haydon Burns Building 695 Suwannee Street Tallahassee, Florida 32399-0450 Douglas E. Polk, Jr., Esquire BROWN CLARK & WALTERS, P.A. 1819 Main Street, Suite 1100 Sarasota, Florida 34236 Francine M. Ffolkes, Esquire Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Whether Respondent violated Sections 112.313(7)(a) and 112.3143(3), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this proceeding, the Respondent, T. Butler Walker, served as a member of the Jefferson County Commission and was subject to the Florida Code of Ethics for Public Officers and Employees, Part III of Chapter 112, Florida Statutes. The Respondent was charged by sworn Complaint with violations of Sections 112.313(6), 112.313(7)(a), and 112.3143(3), Florida Statutes. The Florida Commission on Ethics, after preliminary investigation, found there was probable cause to believe that the Respondent violated Section 112.3143(3), Florida Statutes, by voting to pave the road which runs in front of his home, and Section 112.313(7)(a), Florida Statutes, by having a contractual relationship with a company, (White Construction Company) doing business with his agency. The Respondent has served on the Jefferson County Commission since 1953. His home is located on Peter Brown Lane and he owns approximately 653.5 acres of land along and contiguous to the road, either individually or jointly with his wife. The property outlined in yellow on Exhibit 1 to the Respondent's deposition is the property along or contiguous to Peter Brown Lane. Both of his sons own homes located on Peter Brown Lane, and they own approximately 184 acres of land in the same vicinity. Most of the land which the Respondent and his relatives own along the road is used for farming and raising cattle. In addition, 9 of the 13 residences on the road belong to the Respondent's relatives. In 1987, Peter Brown Lane was a County-maintained dirt road about 4.5 miles long. Peter Brown Lane connects County Road 259 with the Thomas City/Walker Springs Road. The road is used by logging trucks from the St. Joe Paper Company. The St. Joe Paper company owns more land along Peter Brown Lane than the Respondent or his relatives. The Respondent pays taxes on a portion of Peter Brown Lane that crosses his property. He has never deeded a right of way to the county for that portion of land which is crossed by the road. Nevertheless, the Respondent does not claim ownership of any portion of Peter Brown Lane. It is his understanding that once a county maintains a road for four years or more, then the county is deemed to own it even though the landowner may still be responsible for paying taxes on it. The late Joe Sullivan, former Jefferson County Road Superintendent, suggested to the Respondent that Peter Brown Lane be paved. Mr. Sullivan believed that the County could save money on the cost of road maintenance by paving Peter Brown Lane. At the Board of Commissioners meeting in August of 1987, the Respondent moved that Peter Brown Lane be paved for a distance of only 3.4 miles from County Road 259 toward the Thomas City/Walker Springs Road. The paving runs in front of all 13 residences on the road. The paving ends in front of the last residence on Peter Brown Lane which belongs to the Respondent's nephew, Kevin. The Respondent did not recommend paving the remaining 1.1 miles because maintenance of it had historically been very minimal due to the nature of the terrain of this section of the road. The Respondent voted for the measure, and the motion passed. The Respondent did not disclose his land ownership along Peter Brown Lane or that the road ran in front of his home. Nor did he disclose the fact that 9 of the 13 residences along the road belong to his relatives. The Respondent did not abstain from voting, and he did not file a memorandum of voting conflict after the vote. Various persons and businesses benefited from the paving of the road because Peter Brown Lane connected two other roads. The Respondent and his relatives also benefited because they lived along the road and regularly used it. After submission of bids, the County hired White Construction Company to pave Peter Brown Lane. On September 16, 1987, the Respondent voted to approve the award of the contract for paving to White Construction Company. The Respondent independently hired White Construction Company to pave his driveway and his sons' driveways. White Construction Company agreed to pave the Respondent's driveway at the same cost it was charging the county to pave Peter Brown Lane. The Respondent paid White Construction Company $15,744.73 for materials that it sold him. The Respondent spent a total of $20,338.43 to have the private paving work done. Since the paving of Peter Brown Lane, the Respondent has paid higher property taxes on his residence. Companies performing paving work are often hired by persons who live along rural roads to pave their driveways. In many cases, it would not be cost effective for a company to take its equipment out to pave a driveway if it did not already have paving work in the same vicinity. The Respondent believes that he was able to save money by using White Construction Company to pave his driveway, because White's equipment and workers were already on site. Prior to being paved Peter Brown Lane would become slick and wash out when it rained, resulting in vehicles becoming stuck in the mud and the ditches. Sometimes the road would become so washed out that the traffic was limited to one lane. Mr. Walker benefited from the paving of Peter Brown Lane. The paving provided easier access to his property, including his residence and reduced the wear and tear on his vehicles.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, T. Butler Walker violated Sections 112.313(7)(a) and 112.3143(3), Florida Statutes (1987) and that Mr. Walker be required to pay a civil penalty of $2,000. DONE AND ENTERED this 19th day of January, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4270EC To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the Advocate's proposed findings of fact: Advocate's Proposed Findings of Fact. Paragraphs 1-12: Accepted. Paragraphs 12-15: Rejected as constituting conclusions of law. Paragraphs 16-17: Rejected as unnecessary. Paragraph 18: The first, third and fourth sentences are accepted in substance. The second, fifth, and sixth sentences are rejected as not supported by the greater weight of the evidence. COPIES FURNISHED: Mark S. Levine, Attorney 245 East Virginia Street Tallahassee, Florida 32301 Stuart F. Wilson-Patton Assistant Attorney General Department of Legal Affairs The Capitol, PL-01 Tallahassee, Florida 32399-1050 Bonnie Williams Executive Director Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool General Counsel Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact Background State Road 80 is part of the State Highway System. The road runs in an east-west direction from Interstate I-75 at Fort Myers in Lee County to U.S. Highway 27 in Hendry County. The road improvement project currently under construction on State Road 80 involves the expansion of the road from two lanes to six lanes. A raised median separates the eastbound lanes from the westbound lanes. To provide access from either direction to homes and businesses that are adjacent to the road, turn lanes and median openings have been designed into the project. This is not a "limited access facility" as defined by Section 334.03(11), Florida Statutes. Rather, it is a "controlled access facility" as defined by Section 334.03(6), Florida Statutes. Service roads restore access to properties that were accessed from both directions prior to the improvements. Pursuant to routine agency practices, the median openings were set at the "60% phase" of the project design in June or July of 1986. Petitioner Stevens & Layton, Inc. is a Florida corporation in which Petitioners Robert Wilenius and Harvey W. Stevens are officers and directors. In September 1987, Petitioner Stevens and Layton had drawings of a site plan completed for the development of a commercial building complex. The plans for the buildings involved real property located behind an existing business that fronts State Road 80. The existing business had a driveway that accessed State Road 80. The owner of the entire parcel of land (which included the existing business and the site of the proposed building complex) agreed that the existing driveway could be used as an access drive to the complex. The site plans were reviewed by the Lee County Department of Community Development Review. On October 15, 1987, Lee County rejected the proposed site plan. Right and left turn lanes onto the property had to be provided by the developer, Stevens & Layton, Inc., before the project would be considered. On November 10, 1987, a meeting was held that included the project engineer, John Bosserman, Robert Wilenius of Stevens & Layton, Inc., Patrick Hunt of Lee County Department of Community Development Review, and D. M. Heflin of the Florida Department of Transportation. During the meeting, Mr. Heflin confirmed that the proposed expansion of State Road 80 was of high priority in the area and should be let for bid in June 1988. Based upon this representation, the county decided to waive the requirement that the developer provide turn lanes into the property during Phase I of the project. This construction phase involved the completion of an office building and a mini-storage warehouse. During his revisions of the site plan after October 15, 1987, the professional engineer hired for the commercial building project obtained a copy of the Department's plans for the improvement of State Road 80. Evidence submitted at hearing shows that these plans were reviewed by the engineer on or before November 17, 1987. The plans reviewed show where the raised medians and the median openings were to be located in the future on the state road. It is clear on these road improvement plans that the parcel of land on which the commercial building complex was to be located, was not going to receive direct access to the expanded state road from both directions. A median opening was not planned by the Department in the immediate area of the driveway into the complex. In addition, the closest median opening east of the driveway was not designed to accommodate long industrial vehicles that might approach the commercial building complex from the eastbound lanes. This median opening allows access to the Wilson property which is adjacent to the property in question. In addition, a service road from the former Wilson driveway which is now public right-of-way, restores access to the dominant estate in front of Petitioner's property from the eastbound lanes. The Petitioners knew or should have known prior to their purchase of the real property involved in the commercial building complex that a median opening was not being provided by the Department for direct access into their property, which is behind the dominant estate which fronts the state road, both eastbound and westbound lanes of the improved State Road 80. The Petitioners Robert Wilenius and Sarah Wilenius, with Harvey W. Stevens and Mary Lou Stevens, purchased the real property on which the commercial building complex developed by Petitioner Stevens and Layton, Inc. was to be located on January 8, 1988. This area of land was severed from the dominant estate that continues to include the business and the driveway that abuts State Road 80. In order for the Petitioners to have access to the property from the state road, the owner of the dominant estate granted the new owners of the back portion of the parcel a non-exclusive easement for roadway purposes, through the driveway and across the front of the parcel. The property, including easement, was purchased for less than $100,000.00 according to the documentary tax stamps on the deed. After various revisions were made to the site plan, the development plans were approved for a Final Development Order from Lee County on January 12, 1988, with the following stipulation: Frontage road agreement including sidewalk, to be submitted with phase one prior to C.O. Right turn lanes to be constructed with phase two prior to C.O. Based upon the site plan in evidence, it was anticipated in January 1988 that the future frontage road easement across the dominant parcel would connect with the paved access drive onto the Petitioners' property. Apparently, this frontage road easement would allow traffic from the eastbound lanes of State Road 80 to enter Petitioners' access drive from one of the median openings east of Petitioners' property. In August of 1988, Phase One the commercial building complex was under construction. During this time period, Walter D. Stephens, P.E., the Acting Director of the Lee County Department of Transportation and Engineering, Division of Transportation Planning and Permitting, examined the proposed median crossover locations on State Road 80. Mr. Stephens opined on August 10, 1988, that if the Petitioners' commercial building complex were to have heavy construction vehicle (low-boy trailer truck) activity, these large vehicles would not be able to safely move from the first median opening east of the property onto the proposed frontage road under the following conditions: If a low-boy trailer truck made a left turn movement from the Wilson drive onto the frontage road to move west towards Petitioners' access drive, the back of the truck would still be on State Road 80 if there were other vehicles in the Wilson drive waiting in front of the truck to make the same turn. Patrick Hunt, the Development Review Supervisor for Lee County Department of Community Development, was promptly advised of Mr. Stephens' opinion. A revised print of the site plan for the commercial building complex received the professional seal of the engineer on the project on November 14, 1988. Lee County Department of Development Review approved the revised site plan on November 15, 1988. It is unknown to the Hearing Officer exactly when the certificate of occupancy for Phase One of the development was issued. However, based upon the verified complaint filed by Petitioners in circuit court, the certificate was issued before the complaint was filed because Stevens & Layton was operating its contracting business from this location. If Stevens & Layton proposed to go forward with Phase Two of their development on the property, they were obligated to construct right turn lanes prior to receiving a certificate of occupancy for the second stage of development. The circuit court judge denied the temporary preliminary injunction, but encouraged the Department and the Petitioner to negotiate for a median relocation. The judge will hear the merits of the pending suit after the Petitioners have exhausted administrative remedies for a median opening providing direct access from eastbound and westbound lanes on State Road 80 to their property. The Problem The Petitioners are seeking to have the Department provide them with a median opening in front of the road access easement to their property in order to allow the 70' low-boy tractor trailer used in Stevens & Layton Inc.'s pipeline business to enter from the eastbound lane of State Road 80 without having to make a U-turn from the median opening east of the property. The Petitioners maintain that a serious safety hazard could result to the tractor trailer or other traffic, if the current road design is allowed to remain in the area due to the tractor trailer's use of the median opening just east of Petitioner's drive. Alternative Requests for Median Opening One request for a median opening submitted to the Department by Petitioners requested a median opening that gives them a turn lane into their property from both the eastbound and westbound lanes of traffic from State Road 80. The second alternative suggested by Petitioners is to place the median opening planned for the entry onto the Wilson property between the two existing driveways, still allowing those drives to remain in place. The proposed additional center driveway could carry two-way traffic and would have a sufficient turning radius for large trucks planning to turn left onto Petitioners' access easement from the dominant estate. First Alternative The first alternative suggested by the Petitioners would be approximately 240' west of the planned median opening that allows traffic to enter the drive in front of the Wilson property. In other locales with similar development and a similar roadway design, the Department does not allow median openings within 660' of other median openings. Speed is one of the prime considerations. Longer acceleration and deceleration lanes are needed on roads with higher speeds such as this one, to allow drivers reaction time to use the openings. A short lane, such as the one proposed, would create a safety hazard and would not solve the problem the Petitioners are seeking to solve: the difficulty a driver would have with the turn of the long low-boy trailer from the eastbound lane into their access easement back to their property. There is a conforming road connection which allows Petitioners a reasonable means of connection to the public roads system. Second Alternative The second alternative failed to detail information for all properties using the proposed median opening. In addition, there was no concurrence by all affected property owners on the joint driveway usage. The plan greatly enhances the value of Petitioners' property, which does not even front the existing road. The plan also significantly decreases the value of the adjoining Wilson property, the dominant estate to Petitioners' property, and the right-of-way previously purchased by the Department. The right-of-way was purchased to provide the dominant estate a reasonable means of connection to the public roads system from the driveway also used by Petitioner. Additional Findings Why the Requested for Median Openings Should Not Be Granted The Petitioners' purchase and use of this back portion of the parcel was not contemplated by the road designers at the time the road improvement design with median placements went into effect. Right-of-way was purchased by the Department to create a frontage road to provide reasonable access from the drive now used by Petitioners to the dominant estate that used the drive to connect to the public road system. The problem the Petitioners are seeking to cure with the proposed median opening is curable without obligating the State to create an additional median opening or improving the access to Petitioners' property while decreasing access to other property owners whose property abuts State Road 80. For example, the Petitioners could advance the construction of the westbound right turn lane relating to their Phase Two construction. This would provide additional pavement width to aid in the negotiation of a turn. It would also be at Petitioners' expense, as previously stipulated to with Lee County in its approval of the Development Order for the property. A driver could also select a more appropriate turning area further east of the property on State Road 80 to reverse the direction of the low boy. A circumferential route of I-75, SR 78, SR 31 and then west of SR 80, could be used by the low-boy driver to eliminate the left turn across opposing traffic. The low boy driver could use the present median opening as designed. The tractor trailer could cross at the present opening, enter the right-of-way in front of the Wilson drive, and turn left on the one way frontage road which accesses the easement to Petitioners' property. Drivers should be cautioned to use an alternative route if other vehicles are stored in the right-of-way in front of the Wilson drive, waiting to turn left. This could prevent the safety problem previously raised by Walter D. Stephens, P.E. If the Department permitted either of the proposed alternative median openings, federal funding on the entire project could be in jeopardy. This could require the state to pay $34.6 million for the improvement out of its own funds.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioners' application to relocate the median opening or for a joint use median opening be denied. DONE and ENTERED this 7th day of August, 1990, in Tallahassee, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE No. 89-4196 Petitioners' proposed findings of fact are addressed as follows: Rejected. See HO #4. Accepted. Accepted. See HO #10-#11. Accepted. See HO #6. Rejected. Irrelevant. See HO #7-#9. Rejected. Irrelevant. See HO #4, #7-#9, and HO #12. Rejected. Contrary to fact. The Petitioners were either acting under self- imposed blindness (see Conclusions of Law) or were trying to increase the value of their back parcel at public expense. Rejected. The letter was not even from Petitioners. In addition, the county could have made an application to change the roadway traffic patterns under Section 335.20, Florida Statutes. Alternative routes for low boy trailers could have then been explained to the county by the Department. Accepted except for the improper conclusion that an "impasse" has been reached. This is a mischaracterization of fact. See HO #17. Accepted. See HO #18. Accepted. See preliminary matters. Rejected. Contrary to fact. The Petitioners could resolve any safety issues. See HO #28-#33. Rejected. Contrary to fact. See HO #28-#33. Rejected. Improper Conclusion of Law. See Section 335.187, Florida Statutes. The Petitioners are on notice that a permit must be obtained due to the significant change in the use, design or traffic flow of the connection and the state highway. Rejected. Irrelevant. Rejected. Irrelevant. There was no showing that Mr. Hunt could render an expert opinion that should be given greater weight than that of the professional engineer presented by the Department. Rejected. Contrary to fact. See HO #34. Respondent's proposed findings of fact are addressed as follows: Rejected. These definitions are defined by law and rule as they relate to this case. Accepted. See HO #17-#18. Accepted. See preliminary matters. Rejected. Irrelevant. Petitioners could have borne expense. 5. Rejected. Irrelevant. Accepted. Accepted. See HO #1. Accepted. Accepted. Accepted. Accepted. See HO #3. Accepted. See HO #3. Accepted. Accepted. Accepted. Rejected. See pleadings as to Petitioners in this case. Rejected. See HO #4 and HO #10. There was no showing of the parties interests in all businesses. It is not a significant material fact in these proceedings. Accepted. Rejected. Irrelevant. Accepted. See HO #10-#11. Accepted. Accepted. See HO #6. Rejected. Irrelevant. See HO #7-#9. Rejected. Irrelevant. Stevens & Layton, Inc. had its own consulting engineer. See HO #7. Rejected. Irrelevant. See HO #7. Accepted. See HO #7. Accepted. See HO #30-#33. Rejected. Speculative. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #24. Accepted. See HO #26. Rejected. This was not sufficiently proved at hearing. There was no evidence the Committee reviewed the proposals. Rejected. There was no evidence the Federal Highway Administration has been approached regarding the change in the median opening. Accepted. Accepted. Accepted. See HO #24. Accepted. Rejected. See #37 above. Rejected. See #38 above. Accepted. Accepted. Accepted. See HO #26. Rejected. See #37 above Rejected. See #38 above. Accepted. Rejected. Contrary to law. See Section 335.187(1), Florida Statutes. Rejected. Contrary to evidence presented and law previously cited in #51 above. Rejected. Irrelevant. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #24. COPIES FURNISHED: Edward M. Chew, Esquire Department of Transportation P.O. Box 1249 Bartow, FL 33830 J. Jeffrey Rice, Esquire Goldberg, Goldstein & Buckley, P.A. P.O. Box 2366 Fort Myers, FL 32902-2366 Ben G. Watts, Secretary Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458 =================================================================
The Issue Whether the application for an at grade vehicle railroad crossing permit should be issued to the City of Holly Hill by the Department of Transportation.
Findings Of Fact The City of Holly Hill, Florida, filed an application with DOT for an at grade railroad crossing permit on Tenth Street at Milepost 107+1513', in the city of Holly Hill. The DOT denied the City's application by letter dated November 27, 1991, which enclosed the Department's intent to deny the permit. The City petitioned and received a hearing to consider its application. The City of Holly Hill is located due north of the City of Daytona Beach on the east coast of the state of Florida. It stretches west approximately a mile from the Halifax River, and runs north for approximately two miles from the northern boundaries of the City of Daytona Beach. Tenth Street, where the proposed railroad crossing would be located, is a local street running east and west in the City of Holly Hill, Florida. West of the Florida East Coast Railroad tracks, Tenth Street connects with Center Avenue and continues further west to connect with Nova Road, both of which are major north/south connectors. To the east of the Florida East Coast Railroad tracks, Tenth Street runs less than one block and terminates at its intersection with US 1, the major north/south arterial road in Holly Hill. Immediately east of the Florida East Coast Railroad tracks in the vicinity of Tenth Street, the City of Holly Hill maintains Holly Land Park, a major recreational area in downtown Holly Hill. Immediately to the west of the Florida East Coast Railroad tracks, the City of Holly Hill maintains a nature trail and facilities related to its public works department. The City seeks the permit for an at grade crossing alleging that (1) a large number of pedestrians are illegally crossing the track and have persisted in doing so notwithstanding warnings and citations; and (2) the City feels that opening a crossing at Tenth Street would relieve bad traffic congestion existing on Eleventh Street just north of Tenth at Eleventh's intersection with US 1. Video tapes and the observations of police officers of the City of Holly Hill establish a significant level of pedestrian traffic by adults and children over the railroad tracks between the western and eastern ends of Tenth Street. This practice is very dangerous. Some of the pedestrians walk their bicycles over the railroad tracks at this location. The majority of the young people crossing the tracks in this vicinity are moving east to utilize the facilities in Holly Land Park or moving west to go to the middle school and grammar school located respectively at the intersections of Center Avenue and Walker Street and Center Avenue and Fifteenth Street. This is a popular route because of the heavy vehicle traffic on Eleventh Street and Eighth Street. Warnings, citations, and patrols have not halted the illegal crossing of the tracks. Eleventh Street is located 1300 feet to the north of Tenth Street and also runs east and west from the Halifax River westward to beyond Interstate 95. Plans call for the development of an interchange at the intersection of Interstate 95 and Eleventh Street. Eleventh Street appears to be the only street in downtown Holly Hill which moves directly west in this manner. From Nova Road east to US 1, Eleventh Street runs parallel to and north of a large drainage canal. Two shopping centers are located at the intersection of Eleventh Street and Nova Road. Eleventh Street is so close to this drainage feature that pedestrian walks on the southern side of Eleventh Street were removed. Because of this drainage structure, Eleventh Street cannot be inexpensively widened. To the south of Tenth Street 1320 feet, Eighth Street runs east and west from the Halifax River to Nova Road. Both Eleventh and Eighth Streets are two-way streets along their entire length. The City bases it petition to open the crossing upon traffic congestion caused by east bound traffic on Eleventh Street seeking to turn left on US 1, and by north bound traffic on US 1 seeking to turn left onto Eleventh Street when Eleventh Street is blocked by rail traffic. The I-95/Eleventh Street interchange will increase traffic congestion on Eleventh Street. The City asserts that opening the proposed crossing would alleviate this congestion because traffic using Eleventh Street would then use Tenth Street. The traffic count on Eleventh, Tenth, and Eighth Streets was measured by the county. The traffic on Eleventh Street was 10,744; on Tenth Street was 1,019; and on Sixth Street was 6,153. According to a traffic projection run by the county traffic operations supervisor, 1,000 vehicles would be diverted from Eleventh Street to Tenth Street if a vehicle at grade crossing were opened at Tenth Street. Although this projection is suspect because it was made without any origin and destination surveys being done, the shift of 1,000 vehicles from Eleventh Street to Tenth Street is negligible in terms of its present and projected impact on Eleventh Street. It was uncontraverted that a ground level pedestrian crossing with adequate gates and signals would permit pedestrians to cross the railroad tracks quickly and therefore reduce their exposure to train/bicycle accidents. (T- 81,135.) Opening an at grade crossing on Tenth Street would create a greater potential for car/train accidents by increasing the exposure of vehicle traffic to railroad traffic. This was also uncontraverted. The fire station is currently located in the back of City Hall which is located immediately across US 1 from Holly Land Park. Plans exist to move the fire station from its present current location to a location in the vicinity of the Public Works Department along Tenth Avenue. The public library which is currently located at Holly Land Park affronting on US 1 may be relocated to the old school building located south of the city hall. Movement from the fire- station at its proposed location would be no better or worse than it is now because Tenth Street does not extend east across US 1. Emergency equipment will have to use Eighth Street or Eleventh Street to go east, and these streets are also the best routes west. The proposed crossing is not necessary based upon the traffic studies prepared by the City. Assuming the shift of 1,000 cars from Eleventh Street to Tenth Street, this would not warrant the expense and the potential hazard generated by permitting the proposed railroad crossing. It was uncontraverted that the best way to solve the congestion problem on Eleventh Street would be to widen it. However, it was universally acknowledged that this would be very expensive. While evidence is contradictory, the most credible testimony supports using one-way pairs on Eleventh and Eighth Streets as a low cost interim measure to improve traffic flow along the arterial routes. (T-112,145 et seq., and 173.) In addition to the crossings located at Eleventh and Eighth Streets, there are also crossing located at next to through streets south of Eighth, and at Fromich Street north of Eleventh. There would be more than five public crossings located within one mile of railroad track if a crossing were opened at Tenth Street.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That a Final Order be entered approving a pedestrian at grade crossing at Tenth Street in the City of Holly Hill, Volusia County, Florida; and That the Petition for a public at grade vehicular railroad crossing at Tenth Street in the City of Holly Hill, Volusia County, Florida be DENIED. DONE and ENTERED this 5th day of August, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1992. APPENDIX CASE NO. 92-0942 PETITIONER'S PROPOSED FINDINGS Petitioner's Recommended Order Paragraphs 1, 2, 8 Recommended order paragraph no. 4 Paragraph 3, 5, 7, 10 Recommended order paragraph no. 7 Paragraph 4 Recommended order paragraph no. 8 Paragraph 6 Rejected, Data in Paragraph is more credible Paragraph 9 Paragraph 6 Paragraph 11 Immaterial Paragraph 12 Cumulative Paragraphs 13, 14 Immaterial Paragraph 15 Contrary to the fact that Tenth Street ends at US 1 Paragraphs 16, 17, 18 Contrary to more credible evidence Paragraph 19 .027 represents one train/car collision every four years. If you are in the car, that is significant. Paragraphs 21, 22, 23, 24, 25 All these improvements do not establish the necessity for the proposed crossing and appear to be counter to good land use and traffic planning. Paragraph 26 No credible evidence to support this. Paragraph 27 Paragraph 6 Paragraph 28 Paragraph 7 Paragraph 29 Immaterial Paragraph 30 "de facto" crossings don't exist Paragraph 31 Immaterial Paragraph 32, 33, 34, 35 Paragraph 6 Paragraph 36 Paragraph 4 Paragraph 37 Speculative Paragraph 38 Paragraph 7 Paragraph 39 Paragraph 9 Respondent's Recommended Order Paragraph 1 Paragraph 1, 2 Paragraph 2 Paragraph 4 Paragraph 3 Paragraph 6, 10, 11 Paragraph 4 Paragraph 12 Paragraph 5 Paragraph 7 Paragraph 6 Paragraph 13, 14 COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Edward F. Simpson, Jr., Esquire Randal A. Hayes, Esquire Moore, Wood, Simpson, Correy, McKinnon and Vulkeja Post Office Box 305 Ormond Beach, FL 32175 Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue Should the Department of Transportation (Department) grant Petitioner Ronnie Forrest's connection application number C-13-021-93 for a permit to construct a driveway and acceleration/deceleration lanes, to provide access to U S 19 (S R 45 and 55) for Petitioner's proposed development of parcel identified in plans as Site B? Should the Department grant Petitioner's connection application number C-13.022-93 for a permit to construct two driveways to provide separate ingress and egress to U S 19 (S R 45 and 55) and U S 41 (S R 55) for Petitioner's proposed development of parcel identified in the plans as Site A?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department was the state agency responsible for regulating vehicular access and connections to or from the State Highway System in accordance with Sections 335.18 through 335.188, Florida Statutes, known as the State Highway System Access Management Act. Petitioner proposes to develop two parcels of land located in the functional area of the interchange of S R 45 and 55 (U S 19/41/301) in Manatee County, Florida. The parcels of land are designated on the site plans as Site A and Site B. The functional area of the interchange is the area within which a driver is expected to react to and make decisions concerning traffic. Site A comprises approximately seven acres. Petitioner proposes to construct a four thousand square foot convenience store, restaurant with gas pumps, truck diesel pumps, a car wash and accompanying parking for cars and trucks. Petitioner's Connection Application for permit number C-13-022-93 seeks authorization from the Department to construct two driveways for Site A which are to serve as separate ingress and egress points for vehicles entering and leaving Petitioner's proposed development. The ingress to Site A is proposed to be located on the east side of the parcel where northbound U S 19 diverges from northbound U S 41. The egress from Site A is proposed to be located on the west side of the parcel where southbound U S 19 and U S 41 merge. Site B comprises approximately four acres. Petitioner proposes to construct a six thousand square foot convenience store, restaurant, gas station, truck fuel pumps, car wash and accompanying parking for cars and trucks. Petitioner's Connection Application for permit number C-13-021-93 seeks authorization from the Department to construct one driveway and acceleration/deceleration lanes for ingress/egress for Site B. The proposed driveway location is at southbound U S 19 approximately across from 43rd Street Boulevard, West. There is at least one motel within close proximity of the proposed developments for Site A and B which presently offers room accommodations and parking for truckers. The proposed developments for Site A and B are neither as large as, nor offer as many amenities as, the traditional truck stop. However, the proposed developments for Sites A and B provide amenities such as restaurants, truck diesel fueling and truck parking areas. Therefore, due to the available amenities, the traffic composition - which includes large truck traffic - on U S 19, 41 and 301 and the motel accommodations, large trucks will be attracted to, and will use, the facilities proposed for Sites A and B. The proposed location of Site A's ingress or entrance driveway is limited by: (a) the existence of a limited access right of way line south of the existing driveway; (b) the existence of separate property to the north; and (c) grade separation of approximately 20 feet which occurs to the north at the departure of U S 41 into U S 19 overpass. The proposed location of Site A's egress or exiting driveway is limited by: (a) the existence of limited access right of way line approximately 30 feet to the south; (b) wetlands encroachment to the north; and (c) less available sight distance further north of the proposed egress location. The reason for less available sight distance at this location is due to: (a) the curvature of Site A; (a) the speed limit; and (c) the merger of U S 41 and U S 19 southbound traffic. Given the current configuration and traffic geometry, the proposed ingress and egress to parcel A are located in the most desirable positions possible from a traffic operational standpoint. The proposed location of Site B's ingress/egress is a driveway approximately across from 43rd Street Boulevard, West, on southbound U S 19 before it merges with southbound U S 41. A left in, left out driveway is proposed at this location. The operation of the two sites as proposed, individually or combined, will result in the generation of increased automobile traffic and large heavy truck traffic. The increased automobile and large heavy truck traffic entering and exiting the sites will create traffic hazards within the functional area of the interchange. Through traffic in the travel lanes within the functional area of the interchange travels at speeds of 55 to 60 miles per hour. Automobile and truck traffic accelerating and decelerating to enter or exit the sites will create significant speed differentials within the functional area of the interchange. For example, large heavy trucks will not have sufficient acceleration lane distance as they exit Site A or Site B to achieve the same speed as the through traffic which will create high speed differentials within the functional area of the interchange. The speed differentials in the functional area of the interchange will increase the accident rate within the functional area of the interchange, particularly truck/through traffic accidents. Traffic will be required to enter and exit the sites at points along the roadways within the functional area of the interchange where traffic is already required to execute a significant amount of weaving. As proposed, the sites will increase the area and number of conflicts within the functional area of the interchange. This in turn, will increase traffic weaving. Increase in the conflict points within the functional area of the interchange degrade the safe operation of the interchange. The sites as proposed, will increase U-turn volume at the median opening south of Site A. Large heavy trucks attempting this U-turn maneuver will encroach into the northbound travel lanes of U S 41. Additionally, since this U-turn maneuver requires a significant gap in through traffic, trucks will delay btheir U-turn maneuver causing queuing in the southbound left turn lane south of Site A. This U-turn maneuver will significantly reduce the available weave/merge/acceleration/deceleration distance between Site A and the U-turn location increasing the potential for truck/through traffic accidents. Operation of Site B as proposed has the potential to increase U-turns at the first median opening north of Site B on northbound US 19. Since the median width at this location is insufficient to accommodate large trucks, queuing will occur in the left turn lane at this location and present a potential safety and operational problem on the roadway. Sight distance at the Site A proposed egress is insufficient. Without sufficient sight distance, a driver's expectancy on the roadway is adversely affected in that there is insufficient time for the driver to react to another driver's intentions. The existing geometry of the interchange, the existing traffic flow, traffic volume and vehicle classifications on the roadways comprising the interchange, require certain levels of driver expectancy regarding operation of the functional area of the interchange. Since the safety hazards and operational problems described above occur within the functional area of the interchange, driver expectancy will be violated in the interchange by operation of the sites as proposed, adversely impacting the safety and operational characteristics of the roadways that comprise the interchange. The access connections for the sites as proposed would jeopardize the safety of the public, and would have a negative impact upon the operational characteristics of the highways comprising this interchange. There was insufficient evidence to show that there were other reasonable access connections available for the sites as proposed that would not jeopardize the safety of the public or would not have a negative impact upon the operational characteristics of the highways comprising this interchange.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order denying Petitioner's Connection Application for permit numbers C-13-021-93 and C-13-022- 93. RECOMMENDED this 16th day of August, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4356 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. 1. Proposed findings of fact 1 through 1 are adopted in substance as modified in Findings of Fact 1 through 25. Department's Proposed Findings of Fact. 1. Proposed finding of fact 1 through 21 are adopted in substance as modified in Findings of Fact 1 through 25. COPIES FURNISHED: Charles F. Johnson, Esquire Blalock, Landers, Walters, and Vogler, P.A. Post Office Box 469 Bradenton, Florida 34206 Francine M. Ffolkes, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Thornton J. Williams General Counsel Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Department of Transportation, (Department), was the state agency regulating the utilization of the state highway system by commercial vehicles. The Petitioner, Consolidated Freightways, (Consolidated), is a long haul interstate carrier operating in forty-eight states, including Florida. It has a freight terminal in Brooksville, Florida, a city approximately 11 miles west of I-75 which it has used since December 1, 1986. On October 24, 1990, Andrew J. Gay, Jr., Petitioner's Southern Area Safety Supervisor, requested tandem trailer access to its terminal facilities in Brooksville, via a route over State Road 50 from its intersection with I-75 to the old Dade City highway, then over that road to the terminal. The application indicated the proposed route would be used for on the average of 10 round trips per 7 day week, during the approximate hours of from 2:00 AM to Noon. Upon receipt at the Department, the file was forwarded to the District Operating Engineer in the Department's District VII office in Tampa, that office responsible for supervision of operations in the pertinent area, where it was given to Kevin Dunn, an assistant civil engineer, for evaluation. This was the first evaluation such as this that Mr. Dunn had made. In accomplishing the evaluation, he relied upon a department directive, TOPIC NO. 750-010-050-C; effective November 21, 1990, good to May 21, 1991, entitled, EVALUATION OF PROPOSED TANDEM TRAILER TRUCK ROUTES, in which, at PROCEDURE; (4)(B) 1 & 2, rejection criteria, including vehicular safety and highway safety considerations, are listed. Section (4) of the Directive deals with Terminal Access Route Evaluation Standards, and provides that when an operator of a terminal facility located more than 5 miles from the tandem trailer truck highway network submits a request for access routing, it shall be for the shortest route available, and shall be evaluated utilizing the rejection criteria outlined which indicate that a request may be rejected when one of the criteria for rejection are met, but shall be rejected when two or more are met. Mr. Dunn considered that one of the vehicular safety considerations was met as was one of the highway safety considerations. The former, he felt, authorizes rejection when: The total combined length of high accident locations exceeds 15% of the total length of the proposed route. In analyzing the stretch of highway involved, Mr. Dunn compared it with similar highway sections throughout the state for its accident frequency record. He found that each year there was a segment along the proposed route which appeared as a high accident segment area. He added these up to get the total length of high accident highway and got a figure that was 13% of the total route. Though the directive considered a minimum of 15% as disqualifying, Mr. Dunn concluded that 13% was close enough to qualify. The figure arrived at was not the required 15%, however. Mr. Dunn also considered that Highway safety consideration which read: d. The route does not provide a minimum passing sight distance of one-half mile at a maximum of three mile intervals. To qualify as a safe segment, there must be passing areas with a 1/2 mile sight distance, within 3 miles of each other. This road does not comply with that criterion. Mr. Dunn made field measurements of the route in question and found that heading westbound, the first passing zone started at mile 1.3 and ended at mile 1.8; the second started at mile 2.4 and ended at mile 2.5; and the third started at mile 4.1 and ended at mile 4.8. After that, westbound, there were no more 1/2 mile passing zones within the 3 mile maximum separation. Evaluating that stretch, while the 1.3 - 1.8 segment is 1/2 mile in length, it is not within 3 miles of the next qualifying passing segment. The same can be said for zone 4.1 - 4.8. Passing segment 2.4 - 2.5 is no good because it is not 1/2 mile in length. Looking at the eastbound route, there is one qualifying passing zone, between mile .4 and mile 1.0 and one between mile 3.8 and mile 4.3, but there are no more 1/2 mile passing zones within 3 miles of each other, so, in his opinion, the eastbound route does not qualify, either. Sometime later, Mr. Dunn measured the highway again based on information presented to him that the route had been re-striped. His second evaluation indicated the situation is now worse that it was before since fewer areas are now striped for passing. A 1989 report of the Transportation Research Board of the National Research Council, supports the method of evaluation Mr. Dunn used here. It increases the minimum passing distance to 3040 feet, a distance much greater than the 2640 feet, (1/2 mile) utilized in the Department's criteria. In addition, the Manual on Uniform Traffic Control Devices, published by the Federal Highway Administration, supports a 900 foot passing distance for passenger cars passing passenger cars. That's a much shorter distance than is needed for cars passing large trucks. Mr. Dunn concluded that taken alone, the passing distance rejection criteria would have been enough to disqualify the Petitioner's application, and when it was considered along with the close issue of the high accident percentage, he was satisfied that rejection was clearly appropriate. However, he did not make any recommendation to his supervisor as to what should be done with this application. He merely reported his findings to his supervisor, Mr. Buser, who made the decision to deny approval. Mr. Buser has serious doubts was to whether the intersection of State Road 50 and I-75 is a trouble spot. The high number of accidents utilized by Mr. Dunn in his analysis all took place at or near the intersection, a point argued by Mr. Gay. Mr. Buser is of the opinion that even if that intersection is not a trouble spot, the Department could prohibit tandem trailer trucks from exiting the interstate there in any case. This has not been done, however. According to Petitioner's representative, Mr. Gay, the requirement to break down the tandem rigs and tow them individually over the route to the terminal creates additional traffic and a resultant increased risk of accident. It also requires increased fuel usage, utilizes increased mileage, and results in increased environmental pollutions. Costs increase, wear to the equipment increases and the result is a loss in productivity. Allowing tandems to traverse the route to the terminal intact would, he claims, reduce traffic and avoid the other undesirable consequences he cited. No doubt it would. On May 13, 1991, Mr. Gay covered the route from I-75 to the terminal. He got behind a truck at I-75 and by the time they got to the first passing zone, the truck was doing 55 mph in a 55 mph zone. After that, there was no reason to pass, since 55 mph is the maximum speed permitted. This presupposes that all drivers observe the speed limit. Travel on the highways of this state show this to be an unjustified presumption. On May 20, 1991, he repeated the experiment and followed a truck to the first passing zone, by which time he was going 49 mph. These two experiments do not have major evidentiary value. Mr. Gay also noted some other pertinent facts regarding permitted activities on State Road 50, which went uncontradicted by the Department. Mobile homes up to 85 feet in length may be towed by a tractor; trailers up to 57.6 feet in length with a 12 month permit, (when the tractor is added, the total length is 68.6 feet); large boat haulers are allowed; and tandem trailers for household movers are allowed anywhere. Only tandem long haulers are not allowed on highway 50. These tandems trailers are 28 feet long each, with a 4 foot dolly between them. When a tractor is added, the total length is 71 feet, which is 2 1/2 feet longer than a large tractor and trailer. In light of the above, Mr. Gay contends that since all these other units are allowed, his should be allowed as well. He admits, however, that mobile homes and other oversize loads generally have escort vehicles preceding and following. He also recognizes that the handling characteristics of the tandem rig are different than those of the single unit trailer. Nonetheless, based on his research, he contends there are sufficient passing zones all along the route to make it safe. State guidelines, however, indicate to the contrary. Nothing above is intended to indicate that Petitioner is operating other than in a satisfactory manner. In its most recent rating by the United States Department of Transportation, the company was awarded a satisfactory evaluation. In addition, there is no doubt that numerous commercial enterprises served by the Petitioner would consider the opportunity to carry more cargo beneficial to their operations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that if such action is consistent with then existing legislation, the Petition by Consolidated Freightways, for a tandem trailer route over State Road 50 from I-75 to its terminal near Brooksville, Florida be denied. RECOMMENDED this 11th day of July, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1991. Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, MS - 58 Tallahassee, Florida 32399-0450 Andrew J. Gay, Jr. Safety Supervisor Consolidated Freightways 5625 Carden Road Orlando, Florida 32810 Ben G. Watts Secretary Department of Transportation Hayden Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel D.O.T. 605 Suwannee Street Tallahassee, Florida 32399-458
The Issue The issues to be decided in this case are those associated with the question of whether the Respondent is required to have a permit for the connection of his business property to State Road 206 or is exempt from that requirement. See Section 335.187, Florida Statutes. If he is required to have a permit the issue becomes the acceptability of his current drive, i.e., does it comply with the commercial use design criteria contemplated by Chapter 335, Florida Statutes, and further described in the Florida Department of Transportation "Policy and Guidelines for Vehicular Connections to Roads on the State Highway System," February, 1985, which was recognized and incorporated by reference through Rule 14- 15.013, Florida Administrative Code. These issues are raised through an alleged violation of the Florida Statutes and Florida Administrative Code set out in the Notice to Show Cause which was forwarded to Respondent from Petitioner leading to the formal hearing. The date of that Notice to Show Cause was July 18, 1989. Within the statement of violations there were also allegations concerning irregular signs as alleged under Section 479.11(8), Florida Statutes, associated with the commercial activities by Respondent and the unauthorized parking on the right-of-way at State Road 206 in violation of Section 337.406, Florida Statutes. These latter allegations were conceded by the Respondent at hearing and are resolved through those concessions.
Findings Of Fact At the time of the hearing Respondent operated a roadside fruit and vegetable stand at property adjacent to State Road 206 in St. Johns County, Florida. In addition to fruits and vegetables, by local ordinance of St. Johns County, Florida, he is allowed to sell poultry and fish. There is no indication that he has taken advantage of that opportunity other than to sell fresh shrimp from a cooler during 1989. In addition to these products he sells honeys, jellies, and jams. He also sells soft drinks from a dispensing machine. A mainstay in his business is peanuts which he sells fresh. Another product sold is pork skins. The drink machine that is described was added in March, 1989. Before that time he sold fountain drinks and cold drinks that were dispensed from a cooler. He has always had soft drinks available from the inception of his operation of the roadside stand. That began in March, 1985. At the time the Respondent purchased the property there was an operation ongoing whereby fruit was being sold on two tables. Respondent replaced those structures with a portable trailer which was anchored to the lot, and display and sell of fruit on a 16-foot table and use of an 8-foot table upon which tomatoes were displayed and sold. The trailer was used to store his products over night. The trailer described was a pop-up camper trailer. The principal products being dispensed at that time were peanuts, vegetables, and tomatoes. Through Ordinance No. 86-68, passed by St. Johns County, a copy of which may be seen as Respondent's exhibit No. 1, the property was recognized as C1, commercial intensive, with the conditions that the property would be limited to outdoor sale of produce, vegetables, fruit, poultry, and fish. It was also stated that there would be no access/egress to United States Highway 1, which is also known as State Road 5. This property is located at the intersection of State Road 5 and State Road 206. Present access/egress to the property is from State Road 206 and that has been the situation since Respondent purchased the property. The ordinance described dates from August 12, 1986. Over time Respondent has taken a number of steps to improve his business. In March, 1988, Respondent obtained permission from St. Johns County to place a storage shed on his property. In August of that year he obtained permission to install a metal awning or carport of dimension 18 feet by 45 feet which is anchored to the ground. At that same time he placed the body from an old milk truck on the property for purposes of cold storage. In March, 1988, he had received an electrical permit from St. Johns County. Prior to that time he did not have electricity. In the spring of 1989, a well was drilled to provide running water. Prior to that time Respondent used bottled water. Respondent's composite exhibit No. 2 admitted into evidence describes various permits obtained from St. Johns County. If Respondent was required to remove the structures on his property it could be done in three days. This goes to identify the nature of the structures and to demonstrate that they are not permanent fixtures to the realty. According to Respondent, whose testimony is accepted, the business that he is experiencing at present has remained fairly constant in dollar amounts. He does not sell as many peanuts as he did before. Concerning traffic, Respondent indicates, and his testimony is accepted, that the number of cars that are located at his business would be a maximum of 12 on a busy Sunday afternoon and that at most times there are one or two cars. The hours of the business are from 8:00 a.m. until 6:00 p.m. in the winter time and somewhat longer in the summer time. The business is open seven days a week. A rough description of the nature of the property by design may be found in the documents contained in Respondent's exhibit No. 2 admitted into evidence. The property is approximately 280 front feet and 280 feet at the rear with 41 feet on each side. The frontage runs approximately east-west on State Road 206 and one of the sides abuts State Road 5. The basic design of the driveway entrance from State Road 206 is also set out in those drawings. As Marshall W. Sander, engineer in the permit department for Petitioner in its St. Augustine, Florida, maintenance office, explains the driveway is an unimproved dirt shell connection. This is the same driveway that was there at the time that Respondent purchased the property and has remained in that state since that time. Notwithstanding Mr. Sanders' concern that the driveway is not up to current commercial business criteria for access/egress, there have been no accidents as a result of access/egress from the business. There are two turnouts or turn- ins into the property. Mr. Sander believes that at least one paved driveway is needed leading into the property. The dimensions of that drive would be 24-foot wide which allows a 12-foot wide lane in and a 12-foot wide lane out. This impression of Mr. Sander is drawn in the face of the Respondent's presenting himself at the office of Petitioner in St. Augustine, Florida, with an application and plan showing the intention to improve the property to include restrooms, a beer and wine cooler with parking on site. Under those circumstances Mr. Sander felt it necessary to improve the drive connection. At hearing there was no suggestion that restrooms are available on the premises or will be in the near future, nor was there any indication that a beer and wine cooler would be installed. Therefore it cannot be said that the basic nature of the business has changed from its inception to the present. Mr. Sander concedes that within the records of the Petitioner there are no indications that the business has increased by way of records concerning traffic flow or otherwise. His remarks about increased traffic at Dupont Center is not specific enough to gain a useful impression of that circumstance. Mr. Sander relies upon the observations of the State of Florida, Department of Health and Rehabilitative Services and the St. Johns County Public Health Unit as were testified to by George L. Sigman, Environmental Health Director II for that organization. He also spoke to certain records of the health unit which may be found as Petitioner's composite exhibit 1 admitted into evidence. Nothing about his testimony or that exhibit identifies a noteworthy change in the basic nature of the business from Respondent's establishment of the roadside stand in March, 1985 until the present. Throughout the existence of his business Respondent has operated without the benefit of a driveway permit issued by Petitioner.
Recommendation Based upon the consideration of the facts found and in view of the conclusions of law reached, it is, RECOMMENDED: By way of disposition of the Notice to Show Cause, that a Final Order be entered which recognizes the concessions made by the Respondent concerning the sign in question, calling for its removal if still in existence and his acknowledgment of the problem of parking on the right-of-way and which absolves the Respondent of any necessity to obtain a driveway permit. DONE and ENTERED this 9th day of March, 1990, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1990. APPENDIX The following discussion is given concerning proposed facts. Petitioner' s Facts Paragraphs 1 and 2 are subordinate to facts found. The first sentence in Paragraph 3 is subordinate to facts found. The second sentence is contrary to facts found. The third sentence is subordinate to facts found. Sentences 4 and 5 depict testimony as opposed to suggesting fact finding. However, the last sentence in that paragraph is one upon which facts were found in the Recommended Order. Respondent' s Facts Paragraphs one and two pertain to withdrawal of the request for hearing concerning signs and parking and are not part of fact finding. The first sentence in paragraph 3 is subordinate to facts found. The remaining sentence is legal argument, as are paragraphs 4 and 5. Paragraphs 6-11 are subordinate to facts found. Paragraph 12 is not relevant. Paragraphs 13 and 14 are subordinate to facts found. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, FL 32399-0458 Leo O. Myers, Esquire Post Office Box 1621 Jacksonville, FL 32201 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, FL 32399-0458
Findings Of Fact The Department presented evidence that its inspector discovered a sign located on State Road 71, 0.3 miles south of Interstate 10. Inspection revealed that the sign did not have a permit affixed as described in Section 479.07, Florida Statutes. The sign's informative content was visible from the traveled way of the place known as State Road 71. The distance from the sign to the pavement was measured and, to within inches, was determined to be 64 feet. The sign was inspected in July of 1978, and again on May 2, 1979. It was in essentially the same condition on both occasions. The Department of Transportation presented no substantial and competent evidence regarding the ownership of the sign. The message on the sign advertised Stephen's Chevron; however, no evidence was presented that Henry Stephens, the Respondent, had any real relationship with Stephen's Chevron. NO substantial and competent evidence was presented that the place known as State Road 71 was a highway within the definition of federal aid primary highway. No substantial and competent evidence was presented that the place known as State Road 71 was a highway as defined for the purposes of Chapter 479.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that no action be taken against the subject sign. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of June 1979. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Frank H. King, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Charles M. Wynn, Esquire Post Office Box 793 Marianna, Florida 32446
