Findings Of Fact The Legislature created Respondent in 1963 by enacting Chapter 63-573, Laws of Florida, codified as Chapter 348, Part V, Florida Statutes. Section 348.754(1)(a) authorizes Respondent to construct, maintain, and operate the Orlando-Orange County Expressway System. Petitioner constructs highways. In 1991, Respondent awarded Petitioner with two highway construction contracts. The two construction contracts incorporate by reference the 1991 edition of the Florida Department of Transportation Standard Specifications for Road and Bridge Construction ("Gray Book"). Commonly used in Florida highway construction, especially on state projects, the Gray Book is a code of standards for road and bridge construction projects. In 1993 and 1994, Petitioner requested $5 million from Respondent in extra compensation for the two construction contracts. In reviewing the requests, Respondent asked Petitioner for various documents, claiming that Article 3-8 of the Gray Book entitled Petitioner to receive these documents for audit. Article 3-8 of the Gray Book states: Upon execution of the Contract, [Respondent] reserves the right to conduct any necessary audit of the Contractor's records pertaining to the project. Such an audit, or audits, may be conducted by [Respondent] or its representatives at any time prior to final payment, or thereafter pursuant to 5/13. [Respondent] may also require submittal of the records from either the Prime Contractor, the Subcontractor or both. For the purpose of this Article, records shall include all books of account, supporting documents and papers deemed necessary by [Respondent] to assure compliance with the contract provisions. Failure of the Contractor or Subcontractor to comply with these requirements may result in disqualification or suspension from bidding for future contracts or disapproval as a Subcontractor at the option of [Respondent]. The Contractor shall assure that his Subcon- tractor will provide access to his records pertaining to the project upon request by [Respondent]. Petitioner declined to give Respondent audit access to all the requested records, taking the position that the records were not necessary and that Article 3-8 did not give Respondent the access to records claimed by Respondent. By letter dated July 11, 1995, Respondent notified Petitioner that it intended to consider whether to suspend or disqualify Petitioner from participating in future public bidding on Respondent's construction contracts. The letter advised that Respondent would hold a public hearing to consider the facts and circumstances of [Petitioner's] failure to provide contract documents requested by [Respondent]. At the hearing the Board will decide whether to suspend or disqualify [Petitioner] for its failure to comply with the Contract." The July 11 letter informed Respondent that it had the right to be represented by counsel, to present oral and written evidence, to cross-examine witnesses, and to present rebuttal evidence. The letter prohibited ex parte communications with members of Respondent's board because they would be acting in a quasi-judicial capacity. The Orlando-Orange County Expressway System consists of about 81 miles of multi-lane limited access highway in Orange County. Respondent's offices are in Orange County, which is where its employees work. Respondent establishes its own annual budget and sets tolls without review by the Legislature or Department of Transportation. Respondent compensates its employees without regard to State of Florida personnel policies or guidelines. Respondent's employees do not receive State of Florida health insurance benefits. They receive health insurance through the Orange County group health policy that covers all otherwise- covered Orange County employees. Transportation issues involve frequent contact between Respondent's employees and employees of the Public Works Department of Orange County and the City of Orlando. Contact between Respondent and the governments in and of surrounding counties is largely limited to participation in the Greater Orlando Metropolitan Planning Organization. In general, Respondent engages in transportation planning for, and studies the transportation needs of, Orange County, but not other counties. In 1994 the Legislature enacted Chapter 94-237, Laws of Florida. Section 11 of Chapter 94-237 created 348.7545, Florida Statutes (1994 Supp.), which authorized Respondent to construct, finance, operate and maintain that portion of the Western Beltway known as the Western Beltway Part C, extending from Florida's Turnpike near Ocoee in Orange County southerly through Orange and Osceola Counties to an interchange with I-4 near the Osceola-Polk County line . . .. Chapter 94-237, Laws of Florida, did not expressly authorize Respondent to exercise powers of eminent domain in Osceola County. In 1995 the Legislature enacted Chapter 95-257, Laws of Florida. Section 61 of Chapter 95- 257 amended 348.7545 to allow expressly Respondent to use its eminent domain power in connection with the Western Beltway Part C. Not considering itself an agency subject to Chapter 120, Florida Statutes, Respondent has not complied with any requirements of Chapter 120 except for the adoption of rules governing bid protests, as provided by 120.53(5). Respondent has not adopted as rules pre-qualification procedures and requirements, disqualification and suspension procedures and provisions, or procedures for formal hearings. Respondent has adopted various rules and policies, but not in accordance with Chapter 120. As far as it is aware, Respondent has not previously considered whether to suspend or disqualify a contractor, and therefore Respondent issued the July 11 letter on an ad hoc basis.
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
The Issue Whether Respondent, Department of Transportation ("Respondent"), has demonstrated that Petitioner, Frank C. Kunnen, Jr., d/b/a U.S. 19 Commerce Center's ("Petitioner"), right-out driveway to U.S. Highway 19 will present a safety and operational problem following Respondent's reconstruction of Highway 19. Whether Petitioner's access to the state highway system will be reasonable if Petitioner's existing right-out driveway is closed. Whether Respondent is legally entitled to administratively close Petitioner's driveway, pursuant to Rule 14-96.011, Florida Administrative Code, and applicable Florida Statutes.
Findings Of Fact Petitioner is the owner of real property located within the city limits of Clearwater, in Pinellas County, Florida, which property abuts U.S. Highway 19 (State Road 55). It has a right-in and right-out driveway connection to U.S. Highway 19. Petitioner's current right-in, right-out driveway does not create a safety or operational problem with the existing configuration of U.S. Highway 19. Respondent is an agency of the State of Florida created pursuant to Chapter 20, Florida Statutes. Respondent regulates access to the state highway system. Respondent initially cited Rule 14-96.011, Florida Administrative Code, in the Notice as authority for the intended agency action. This Rule pertains to closure or modification of permitted driveways. At hearing on March 20, it was discovered that Respondent had intended to cite Rule 14-96.012, Florida Administrative Code, which pertains to closure or modification of unpermitted driveways that had been in existence since before July 1, 1988, the effective date of the State Highway System Access Management Act. The Rule refers to these driveways as "grandfathered." As of March 20, Respondent was not aware that Petitioner's driveway might have been permitted. In order to provide Petitioner all due process to which he was entitled, Respondent requested that the hearing be continued. After reviewing its files, Respondent indicated to Petitioner on June 28, 2001, that Respondent would be requesting an additional continuance to conduct an engineering study pursuant to Rule 14- 96.011, Florida Administrative Code.¹ Petitioner agreed to both continuances. The study was dated August 20, 2001, and was delivered to Petitioner's counsel just after that date. This study was presented as Respondent's Exhibit 5 at the resumption of the hearing on September 20, 2001. The Study sets out the essential safety and operational bases for Respondent's agency action in this case and was signed and sealed by a professional engineer registered in the State of Florida. Prior to the reconvened hearing, Petitioner did not seek to depose the author of the engineering study nor did he request documents utilized in creating the study. Petitioner decided to wait until the hearing and make a series of objections to the study's admissibility. Prior to and after the study was admitted into evidence, Petitioner's counsel conducted extensive cross-examination of the engineer who signed and sealed the study, Vibert Griffith, P.E., and his assistant in the creation of the study, Julian Parsons. Petitioner did not present any evidence of prejudice resulting from the timing of the creation of the study. Any prejudice which may be presumed was cured by Respondent's requesting a continuance specifically to search its records for evidence of a permit; Respondent's requesting another continuance to create that study; Petitioner's agreeing to both continuances; and Respondent's producing the study approximately one month prior to hearing. This gave Petitioner time to conduct discovery regarding the study, not to mention sufficient time to prepare for the hearing itself. The Notice did not state whether mediation was available in this case. However, the lack of mention of mediation in the Notice was of no prejudice to Petitioner in light of the fact that that Petitioner proposed several alternative driveway designs to Respondent, and that these alternatives had been closely studied and considered. Petitioner did not present any evidence that he had asked whether mediation was available or was denied an opportunity to mediate this case. Accordingly, any error in the lack of information regarding mediation in the Notice was harmless, and any prejudice was cured. Petitioner elicited testimony with respect to a third procedural point in this case. Rule 14-96.011(1)(e), Florida Administrative Code, states that if Respondent seeks to close a driveway, Respondent will offer to meet with the property owner or his representative on-site. As Petitioner's counsel stated during his opening remarks, however, there is a long history of litigation between Petitioner and Respondent, including two pervious mediations. Again, the unrebutted testimony at hearing was that over the last several years Respondent evaluated three alternative designs submitted by Petitioner for access to U.S. Highway 19. Petitioner did not present any evidence of prejudice in not being able to meet on-site with Respondent in this case. Any error in relation to this issue was harmless. U.S. Highway 19 runs north-south through Pinellas County, Florida and is a part of the Florida Intrastate Highway System. In the vicinity of Petitioner's property, U.S. Highway 19 has three lanes of traffic each for northbound and southbound traffic (total of six lanes). As part of the reconstruction of U.S. Highway 19, Respondent has plans to create "grade separated intersections" or "urban interchanges" at the cross street to the south and north of Petitioner's property. The cross street to the south is Drew Street, and the cross street to the north is Coachman Road. Also, just to the north of Petitioner's property, U.S. Highway 19 is elevated over railroad tracks, and will continue to be so elevated after reconstruction. In its reconstructed state, vehicles will reach mainline U.S. Highway 19 by a series of frontage roads and on and off ramps. Vehicles that stay on mainline U.S. Highway 19 will not have to stop for signals at intersections with cross streets because the mainline will travel over the cross streets. The effect of U.S. Highway reconstruction will be to create a more efficient transportation facility by improving safety and capacity. The overall improvements to U.S. Highway 19 are necessary. Although Respondent is closing Petitioner's right-out driveway to mainline U.S. Highway 19, Respondent is not acquiring any property from Petitioner. Accordingly, Respondent provided Petitioner with notice of the intended agency action and right to an administrative hearing (the "Notice"). Respondent's Proposal Respondent proposes, as part of its planned improvements to U.S. Highway 19, to provide Petitioner a right- in only entrance from a frontage road running adjacent to and parallel to U.S. Highway 19. Respondent also proposes to build a new two-way road, referred to as Access Road A, which runs north-south, parallel to U.S. Highway 19, intersects Drew Street, and from that point provides vehicles the option of traveling either north or south on mainline U.S. Highway 19, or east or west on Drew Street. Petitioner's northerly neighbor, a maintenance yard owned by Pinellas County, would also send all of its traffic, including large trucks and emergency vehicles, out Access Road A to Drew Street. Other properties, including several car dealerships, to the south of Petitioner's property would also have access to Access Road A. No other property owner, including Pinellas County, objected to Respondent's proposed access system. It is undisputed that Respondent has all of the right-of-way necessary to construct Access Road A to Petitioner's property line. During construction, the City of Clearwater will install a temporary traffic signal at the intersection of Access Road A and Drew Street. Based on a traffic study conducted by the Pinellas County MPO and endorsed by the City of Clearwater and Pinellas County, the traffic light will become permanent when construction is completed. Even if the temporary light is removed after construction, Access Road A will function properly for right turns onto Drew Street which will provide access to the northbound and southbound mainline lanes of U.S. Highway 19. This is true, even assuming that all of Petitioner's neighbors send all of their traffic out Access Road A. In addition, Petitioner's neighbors to the south have several alternate means of access to travel west on Drew Street and either north or south on U.S. Highway 19. Respondent is closing Petitioner's right-out driveway to U.S. Highway 19 because, post-construction, the driveway would be located on an on-ramp. The frontage road and on-ramp, as currently designed by Respondent, would prevent placement of a right-out driveway in such a location. It is Petitioner's position that Respondent could have designed the frontage road and on-ramp in front of Petitioner's property in such a way as to allow the safe operation of a right-out driveway in the approximate location of Petitioner's current right-out driveway. Petitioner's Proposal In support of his contention that Respondent could have designed a right-out driveway, Petitioner offered an aerial map and overlay (Petitioner's Exhibit 3), which purported to show that Respondent could have designed an on-ramp from Drew Street and an off-ramp to Coachman Road to the north in such a way as to allow Petitioner a right-out driveway. Petitioner's Exhibit 3 was a concept based upon what was referred to as the "Lochner Study" at hearing. The "Lochner Study" was a study performed by the engineering firm H. W. Lochner, and showed a right-in, right-out driveway from Petitioner's property onto a frontage road/on-ramp in approximately the same location as Petitioner's current driveway. In the past Petitioner had proposed other alternatives for access to U.S. Highway 19. Petitioner withdrew from consideration at this hearing all other alternative designs for a right-out driveway for Petitioner. The Lochner Study was undertaken with the specific purpose of determining whether needed improvements to U.S. Highway 19 could be safely constructed within right-of-way already owned by Respondent. The Lochner Study concluded that placing a driveway for Petitioner in the location shown in the study would provide "substandard operation and is very undesirable from a safety stand point." The primary reason for this conclusion was that the physical separation of northbound mainline U.S. Highway 19 and the frontage road ended south of the driveway's location. This lack of physical separation would allow vehicles on northbound mainline U.S. Highway 19 to cross over the frontage road and enter Petitioner's property, creating unsafe traffic movements. Petitioner's witnesses agreed that this lack of separation would be a safety problem. Petitioner's Exhibit 3, prepared and testified about by Reginald Mesimer, attempted to alleviate this admittedly unsafe aspect of the Lochner plan by extending the physical separator between northbound mainline U.S. Highway 19 and the frontage road/on-ramp to a point just beyond the location of where Petitioner's driveway would be. The area of physical separation is the "gore" area. In effect, this extension also would shift the beginning of the on-ramp to the point of Petitioner's driveway. Thus, the issue raised was whether the location of the on-ramp could be safely designed to co-exist with the location of the off-ramp for the next interchange at Coachman Road. The standards for determining whether this design is safe are set by the American Association for State Highway and Transportation Officials ("AASHTO"), who publish these standards in the "Green Book," known as the "Bible" of transportation engineers. In examining Petitioner's Exhibit 3, as well as the requirements of AASHTO submitted in this case, it is clear that the requirements for an on-ramp followed by an off-ramp are: (1) an acceleration area for the on-ramp; (2) a weaving area for vehicles going from the on-ramp to mainline, and for vehicles going from mainline to the off-ramp; (3) a deceleration area for the off-ramp, and (4) a queue area for vehicles at the terminus of the off-ramp. Petitioner's Exhibit 3 shows the start of the acceleration area for the on-ramp at the location of Petitioner's right-out driveway, which indicates that the on- ramp for vehicles leaving Petitioner's property would begin at his driveway. Petitioner's Exhibit 3 shows a 2,000-foot weave area, also beginning at the location of Petitioner's right-out driveway. Placing the start of the acceleration area and the weave area at the same point on an on-ramp is contrary to AASHTO design standards. The beginning of the weave area should be near the end of the acceleration area, which, on Petitioner's Exhibit 3, is supposed to be where vehicles on the on-ramp are traveling at the design speed of the highway they are attempting to enter. AASHTO places the beginning of the weaving area where the outside lane of the mainline and the inside lane of the on- ramp are separated by two feet. The weave area extends to a point where there is a twelve-foot separation of the mainline and off-ramp lanes at the next interchange. The design speed of U.S. Highway 19 is 55 miles per hour. It is uncontested that vehicles leaving Petitioner's property will be in a stopped condition prior to entering the on-ramp. Thus, looking at Petitioner's Exhibit 3, the beginning of the weave area should be placed approximately 965 feet to the north of the current location shown on Petitioner's Exhibit 3. In turn, this forces the deceleration area for the off-ramp to Coachman Road shown on Petitioner's Exhibit 3 to be shifted 965 feet to the north. Petitioner's expert testified that the off- ramp deceleration area at Coachman Road could be shifted between 300 and 400 feet to the north. Assuming this to be correct, this places the start of the off-ramp deceleration area approximately 965 feet to the north of its current location, which is 565 to 665 feet beyond the farthest point Petitioner's expert testified it could be moved. Respondent's experts also examined Petitioner's Exhibit 3 under the dictates of AASHTO. Unlike Petitioner, Respondent assumed a design speed of 50 miles per hour, and assumed that shorter distances for acceleration, weaving, and deceleration could be applied in this situation under AASHTO. Respondent's findings demonstrate that under the "Petitioner's best case scenario" the off-ramp at Coachman Road would still have to be moved approximately 600 feet to the north, which is at least 200 feet past the farthest possible shift testified to by Petitioner's expert. Moving the off-ramp would obviously require redesign and delay of the Coachman Road project to the north, already designed and funded for construction. Further, Petitioner's Exhibit 3 also did not take into account any need for increased acceleration distance on the on- ramp due to the grade of the road. For certain portions of the acceleration area of the on-ramp in Petitioner's Exhibit 3 the grade is steeper that 3 percent, and averages over 2 percent. AASHTO does not require an increase in acceleration distance where the grade is "less that two percent." AASHTO requires an increase when the grade is more than 3 percent. This is, according to Petitioner's witness, a "gray area" in AASHTO. In this situation, while AASHTO may not require a multiplier be applied to the entire acceleration distance, it would be safer for the traveling public to apply the multiplier at least to the portions above 3 percent and perhaps to the entire acceleration distance, and to acknowledge that the grade of the road militates against application of strict minimum AASHTO standard distances. Adjusting at all for grade would result in a longer on-ramp and require pushing the off-ramp at Coachman even further north, which makes Petitioner's Exhibit 3 alternative even less viable. Another factor that Petitioner's Exhibit 3 did not take into account was that a significant amount of traffic leaving the proposed right-out driveway would be fully-loaded heavy trucks both from Petitioner's property and the Pinellas County maintenance yard. The AASHTO acceleration distance of 965 feet shown in that Exhibit is for automobiles. Knowing that heavy, fully loaded trucks would be utilizing this driveway on a regular basis, the acceleration distance for such trucks reaching 55 or even 50 miles per hour would be longer than for a normal passenger vehicle. Petitioner's alternative proposal was fatally flawed in its misplacement of the weave area, and was defective in other respects such as not considering the slower heavy truck traffic or the grade of the road. Thus, it is apparent that under any interpretation of the AASHTO standards, Respondent could not safely design an on-ramp from the Drew Street area and an off-ramp to the Coachman Road interchange and provide Petitioner a right-out driveway in the approximate location of his existing right-out driveway. Based upon all the evidence presented at hearing, Respondent demonstrated that AASHTO standards preclude moving the on-ramp to the location proposed by Petitioner. Therefore, closing Petitioner's right-out driveway to reconstructed U.S. Highway 19 is mandated for safety and operational reasons. Access-Reasonableness Issues Following the reconstruction of U.S. Highway 19, the access proposed by Respondent for Petitioner's property is reasonable. An objective comparison of the alternative proposed by Petitioner and Respondent's proposal reveals that Respondent's design results in safer and more efficient access to the state highway system for Petitioner and direct access to east and west travel on Drew Street. One measurable point of comparison is the relative distance a vehicle would have to travel to reach the state highway system under Respondent's proposal versus Petitioner's. Prior to Petitioner's withdrawing from consideration all alternatives other than what was represented in Petitioner's Exhibit 3, Respondent presented testimony regarding two of Petitioner's earlier alternative concepts. These previous alternatives were referred to as Proposal One and Proposal Two. Proposal One was basically a right-out driveway in the form of an on-ramp that would have tied in to mainline U.S. Highway 19 prior to the railroad tracks. Proposal Two was a right-out driveway/on-ramp that tied into the off-ramp for Coachman Road. As far as comparing relative travel distances, both Proposals One and Two are similar to the alternative in Petitioner's Exhibit 3. For vehicles to travel north from Petitioner's property on U.S. Highway 19 in Respondent's design, vehicles travel south on Access Road A, west on Drew Street, and then south on the frontage road/on-ramp. This is a distance of .44 miles. To reach the same point using the access provided in Proposal One, Proposal Two, or Petitioner's Exhibit 3, a vehicle must travel north to the Coachman interchange, and double back south, a distance of approximately 1.45 miles. Thus, when added together, the distances for vehicles to travel north and south on U.S. Highway 19 in Respondent's design total 1.12 miles, or .33 miles less than the 1.45 miles to reach the same points using any of Petitioner's alternative driveway proposals. In addition, for vehicles that wish to travel east or west on Drew Street from Petitioner's property, Respondent's alternative is much shorter. It is .32 miles to reach Drew Street along Access Road A, and 1.6 miles to reach Drew Street from Proposal One, Proposal Two, or Petitioner's Exhibit 3. Another measurable point of comparison are conflict points, places such as intersections and merge areas where vehicles can be expected to change lanes. In Respondent's design, there are four or five conflict points to travel north on U.S. Highway 19, three or four to travel south on U.S. Highway 19, and one to travel east or west on Drew Street. Petitioner's Exhibit 3 shows two conflict points to travel north (right-out turn to on-ramp and merge to mainline), six or seven to travel south on U.S. Highway 19, and seven or eight to travel east or west on Drew Street (same as south on U.S. Highway 19 plus turn from off-ramp). For vehicles traveling north and south on U.S. Highway 19 from Petitioner's property, the number of conflict points in either Respondent's design or Petitioner's alternative are essentially even, but when travel on Drew Street is included in the comparison Respondent's design is clearly safer. A third point of comparison is that Petitioner's alternative provides one way in and one way out. Respondent's design provides two ways in and one way out. Respondent's design provides reasonable access to Petitioner's property. In comparison to Petitioner's alternative, Respondent's design provides for shorter combined travel distances. In regard to conflict points, Respondent's design is as safe as Petitioner's alternative, and safer if travel on Drew Street is included in the comparison. Finally, Respondent's design provides an additional point of ingress. Both witnesses called by Petitioner opined that the access proposed by Respondent was not reasonable, primarily because the access is not "direct." The basis of that opinion was limited to their belief that a "better" access plan, the alternative shown in Petitioner's Exhibit 3, was viable. Neither of Petitioner's witnesses knew the relative travel distances, nor did either witness testify about actual conflict points or any other possible objective points of comparison. Petitioner's witnesses' view are flawed because the alternative shown in Petitioner's Exhibit 3 is not viable. Assuming, arguendo, that Petitioner's Exhibit 3 reflected a safe design, and assuming that this access is reasonable, it would be contrary to logic to conclude that Respondent's design results in unreasonable access. The only "advantage" in Petitioner's Exhibit 3 versus Respondent's proposal is a right-out "direct" connection to U.S. Highway 19 via the on-ramp. However, comparing travel distances, conflict points, and points of ingress, Respondent's design is comparable if not superior, and thus, reasonable. Petitioner stressed that all other property owners along the U.S. Highway 19 corridor have right-in and right-out driveways on frontage roads, and that Petitioner is the only property owner required to use a facility like Access Road A for egress. Even if true, this circumstance does not in and of itself change Respondent's designed access for Petitioner's property into unreasonable access. Based upon objective criteria, Respondent's design is comparable or superior to Petitioner's alternative, and Respondent's design is comparable or superior to the access enjoyed by all other property owners in this vicinity. Engineering Study Pursuant to Rule 14-96.011, Florida Administrative Code, Respondent conducted an engineering study to examine the closure of Petitioner's right-out driveway. Normally, an engineering study is prepared prior to Respondent serving its Notice of Intent to close or alter a permitted driveway connection. The engineering study documents that there is a safety or operational problem with a particular driveway connection, and ensures that Respondent has an engineering basis to seek closure or alteration of the driveway. However, at the time this case came to hearing on March 20, 2001, Respondent was not aware that Petitioner's driveway may have been permitted. That is the reason the study was conducted during a continuance of this case and delivered to Petitioner on or around August 17, 2001. Petitioner agreed to the continuance for Respondent to conduct the study, and Petitioner had adequate time to conduct any further discovery in this case after receipt of the study. Thus, any procedural error in the timing of the study was waived by Petitioner and/or cured by Respondent. The Study does provide safety and operational bases for Respondent's agency action in this case. The study summarizes the history of the U.S. Highway 19 improvement project, discusses the current conditions, explains the proposed improvements, and reviews the safety and operational issues specific to Petitioner's right-out driveway in the post construction condition. The study also explains why two alternative right-out driveway configurations were not acceptable to Respondent. The study contains exhibits showing traffic patterns in the existing and possible future post construction conditions. The study was signed and sealed by a professional engineer registered in the State of Florida. The study did not discuss the Petitioner's alternative advocated at hearing. The reason the study did not address this concept was that at the time of its creation, Respondent did not have Petitioner's Exhibit 3. One other item not addressed was traffic accident data. Since the improvements of U.S. Highway 19 have not been constructed, there is no accident data for the right-out driveway in the post construction condition. Respondent stipulated that Petitioner's existing right-out driveway is safe, so any accident data relating to current conditions is not relevant.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Transportation enter a final order approving the closure of Petitioner's right- out driveway as part of the future constructed improvements to Highway 19 and the construction of Access Road A. DONE AND ENTERED this 14th day of December, 2001, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2001.
Findings Of Fact On December 8, 1986, Respondent owned a sign that had been erected along the east side of U.S. 19 in Pasco County, Florida, approximately 51 feet from the nearest edge of the nearest through lane. U.S. 19 at this location is a part of the State Highway System. The DOT right-of-way at this location extends approximately 82 feet east of the eastern edge of the nearest northbound through lane of U.S. 19. Upon seeing the DOT violation notice posted, someone notified Respondent. Respondent had the sign removed from the DOT right-of-way within ten days of the notice of violation.
Recommendation It is RECOMMENDED that a final order be entered assessing a $75 fine against All American commercial Properties, Inc., for owning a sign on the DOT right-of-way along the east side of U.S. 19 in Pasco County on December 8, 1986. ENTERED this 22 day of July, 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1987. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0450 All American Commercial Properties, Inc. Attn: Shelley A. Balduf 6847 County Road 54 New Port Richey, Florida 33552 Kaye N. Henderson, P.E. Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Attn: Eleanor Turner, M.S. 58 Thomas H. Bateman, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
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 Stipulated Facts Facts set forth in paragraphs 1.-13., below, are agreed to by the parties. The Petitioner in this matter, Racetrac Petroleum, Inc., owns a parcel of land in Hernando County, on the southwest corner of State Road 50 and Windmere Extension. The parcel is located east of the Interstate 75/State Road 50 interchange. Petitioner has constructed a service station and convenience store at that location. State Road 50 has been classified as a Class 3 Road east of Interstate 75, with a posted speed limit of 45MPH. Interstate 75 is a limited access facility and the Interstate 75/State Road 50 interchange is a limited access interchange. To the west of Petitioner's parcel, and closer to the Interstate 75 interchange, is a Texaco service station which abuts State Road 50 and has two driveways to State Road 50. The Texaco service station does not abut any other road or connection to State Road 50. Abutting the east property line of Petitioner's parcel is a parcel that also abuts State Road 50 and on which a McDonald's restaurant is located. Along the common property line between the two parcels is a joint ingress and egress easement. This joint ingress and egress easement remains in effect as of this date. At this time, there is a four-lane paved facility on the easement which is east of Petitioner's parcel and on McDonald's parcel. That facility currently provides the only vehicular route to and from State Road 50 for Petitioner's parcel, the McDonald's parcel and the parcel to the south. The four-lane facility between Petitioner and McDonalds was originally constructed by McDonalds as a three-lane facility to serve its parcel, Petitioner's parcel and the parcel to the south. On December 16, 1992, during the construction of its service station and convenience store, Petitioner applied to Respondent DOT for a permit to modify the existing facility. The December 16, 1992, permit application proposed to "modify existing driveway per the request of Hernando County (Increase existing radius from 25' + to 50)." DOT approved Permit No. A-08-92-0023 on February 19, 1993. Petitioner completed construction of a service station and convenience store on the parcel and modified the facility in accordance with DOT's Permit. On June 15, 1993, Petitioner filed an application with DOT for an access connection permit to construct and operate a 28-foot wide right-in/right- out access connection to State Road 50, 185 feet west of the original driveway. The application was assigned Application No. A-08-93-0034P by DOT. On July 12, 1993, DOT issued a Notice of Intent to Deny the application. The Notice of Intent to Deny stated that the application was being denied for the following four reasons: Proposal fails to provide 440' Minimum Clearance Spacing per 14-97.003 Proposal falls to provide 440' minimum clearance from end of the acceleration lane taper from a Limited Access facility (Inter- state 75) per Rule Chapter l4-97.003(l)(j)l. Reasonable access to the State Highway System is provided to the site via an existing "joint use" access located 185' east of the proposed access connection. Proposed access connection may create safety and operational problems within the operational sphere of the Limited Access Interchange. The Notice of Intent to Deny also stated that Petitioner could appeal the intent to deny or submit a revised application within 30 days of receipt of the Notice. On September 13, 1993, Petitioner submitted plans for a right-in only connection to State Road 50. Accompanying the plans was a supporting traffic study and a transmittal letter. On October 7, 1993, DOT issued a letter which acknowledged receipt of the September 13, 1993, submittal and presented the following reasons why DOT's Notice of Intent to Deny would remain in effect: Proposal fails to provide 440' Minimum Clearance Spacing per 14-97.003 Proposal fails to provide 440' minimum clearance from end of the acceleration lane taper from a Limited Access facility (Inter- state 75) per Rule Chapter l4-97.003(l)(j)l. Reasonable access to the State Highway System is provided to the site via an existing easement located 185' east of the proposed access connection. None of the original reasons for denial were addressed. The Highway Capacity Software weave analysis in the Supplemental Traffic Report shows no benefit to the State Highway System. The traffic count and turning movement data indicate that the 4 lane facility is operating within capacity, thus showing that existing access is adequate. There is a significant difference in the rate of deceleration for vehicle entering the proposed driveway (5.81 mph/s) and the existing driveway from the ramp end (4.36 mph/s). The deceleration rate for vehicles entering the proposed driveway exceeds 5.5 mph/s. This rate is described in the ITE Transportation and Traffic Engineering Handbook as reasonably comfortable for car passengers. The proposed "Right In" geometry cannot reasonably accommodate WB-50 or WB-40 Vehicles. The Radius of Return at the Windmere Road entrance is 50'. The radius was improved from 40' and can now accommodate WB-50 vehicles. 1O. The site entrance is located some 200' from SR 50. There is ample space for truck movements given the existing access. The October 7, 1993, letter stated that DOT's Notice of Intent to Deny would remain in effect and that DOT would accept a response within eleven days of the receipt of the letter. The letter further stated that, if there was no response within eleven days, any future requests for connection would require a new application along with the applicable fee. On October 21, 1993, Petitioner filed the first petition for a formal hearing, which was assigned DOAH Case No. 93-6932. On December 15, 1994, Petitioner filed the second petition for a formal hearing, which was assigned DOAH Case No. 95-0248. Other Facts Petitioner's first interaction with DOT regarding access to State Road 50 resulted from meetings in late 1991 with DOT District 7 representatives. Access at the front of Petitioner's property, via a right-in/right-out driveway, was discussed during two or three meetings between representatives of the two parties. Petitioner was advised at that time of DOT's position that the proposed connection with State Road 50 could not be approved due to safety concerns about the impact of the connection on the operation of the interchange ramp coming off the interstate and the auxiliary lane on State Road 50. Petitioner was advised that the only access would be that afforded by the Windmere Extension, the four-lane facility located on the property easement between Petitioner's parcel and McDonalds. Windmere Extension is properly classified as a joint access connection to State Road 50. The pavement on the joint access easement terminates at the property lines of Petitioner and McDonalds with a barrier erected at the end of the drive. On December 5, 1992, DOT issued a Notice of Conceptual Review Findings, stating the following reasons for the denial: The proposed connection on State Road 50 encroaches into the merge lane from Inter- state 75; The proposed connection does not meet the requirements to be located a minimum of 1320 feet from the terminus point of the taper from the interstate; The frontage road immediately adjacent to the parcel on the east is designed to provide access to the site. Following receipt of the Notice of Conceptual Review Findings, Petitioner's representative applied again for a conceptual review in order to obtain direct affirmation that access would be afforded only via the Windmere Extension. DOT responded with a second denial specifically stating that access must be accomplished via Windmere Extension, the frontage road east of the property. Thereafter, Petitioner closed on the purchase of the property, apparently satisfied that Windmere Extension afforded adequate vehicular access for a convenience store and gasoline station. Petitioner normally attempts to ascertain property access prior to purchase. Petitioner's property is not properly classified as an isolated corner property under DOT's rules. Rather, Windmere Extension functions as a common access drive, as opposed to a road. It is the existence of Windmere Extension as an established access point for Petitioner that prevents the catagorization of Petitioner's property as an isolated corner property. In 1992, during the development of Petitioner's parcel, Petitioner applied for and received a permit from DOT to perform modifications on the Windmere Extension. Petitioner's representative confirmed his understanding with DOT's District 7 representative that this permit would be the only driveway requested by Petitioner. At the time of Petitioner's request for a permit to accomplish modifications to the Windmere Extension, McDonalds held an access permit for the Windmere Extension but was not made a party to the modification permit and has remained silent regarding the matter. In spite of the previous confirmation of Petitioner's representative of access via Windmere Extension, Petitioner applied in June, 1993, following completion of construction of their facility, for direct access to State Road 50 via a right-in, right-out connection. After denial of the requested right-in, right-out connection and prior to any request for formal administrative proceedings pursuant to Chapter 120, Florida Statutes, Petitioner requested the right-in connection on September 13, 1993. The request was filed subsequent to a conference between representatives of Petitioner and DOT which had been held to determine whether any basis existed upon which to mitigate denial of the requested right-in, right-out connection. Immediately upon exiting from Interstate 75 on to State Road 50, the first business entity on the right hand side is a Texaco service station. The Texaco station is an older facility and continues to utilize its only access to State Road 50, both right-in and right-out exits. Petitioner's proposed right-in only connection is less than 440 feet from Texaco's nearest driveway and is less than 440 feet from Windmere Extension. The proposed right-in only connection is less than 440 feet from the end of the taper of the eastbound exit ramp from Interstate 75 on the south side of State Road 50. The ramp extends into an auxiliary lane that continues eastward on State Road 50 and ends just past Windmere Extension. The purpose of the rule-required interval of 440 feet from the end of the taper of the exit ramp to the provision of an access point reflects a concern for safety. The spacing interval provides drivers exiting, in this case Interstate 75, with an opportunity to look rearward and pick a gap in through traffic and merge into the through lanes without the complication of also having to look forward to identify upcoming connections. The end of the taper of the exit ramp must be ascertained in order to determine where the 440 feet interval begins. An appropriate way to make this determination is to observe vehicles using the auxiliary lane to merge into the through lanes of State Road 50. The majority of the traffic exiting Interstate 75 via the eastbound State Road 50 ramp merges to the through lanes in front of the Texaco station and establishes the "functional end of the taper" as just east of Texaco's easternmost driveway. At this point, most vehicles exiting Interstate 75 have completed their merging movements to the through lanes of State Road 50. This location is consistent with the standard taper rate used by DOT to design ramps. The presence of a stoplight and a yield sign at the ramp for Interstate 75 and State Road 50 does not limit the influence of the interchange to the area west of the Texaco station. As established by observations made of vehicles entering the auxiliary lane from Interstate 75, most vehicles did not come to a stop at the yield sign before turning to the right and heading to the east. The area of influence of the interchange extends a considerable distance to the east. The Texaco station is closer to the Interstate than Petitioner's property, but it has little observed traffic. No evidence was presented probative of any significant safety or operational problem for the interchange ramp or State Road 50 which is occasioned by the placement of the Texaco Station. Constructed in the early 1970's, the station predates DOT access management spacing standards. Connections constructed prior to the adoption of those access management standards are "grandfathered." The Windmere Extension provides reasonably safe and efficient access to Petitioner's property on State Road 50. Observations support findings that petroleum product laden tankers are able to enter and exit the property, that passenger vehicles enter and exit without problems with their movements, and larger vehicles also enter and exit the property without backing traffic up onto the state highway. The joint access connection at Windmere Extension provides sufficient access to reasonably serve needs of Petitioner's property. Traffic flows effectively between Petitioner's property and State Road 50 via the joint access connection. The Petitioner's gasoline station appears to be reasonably busy. As documented by video tapes admitted in evidence, traffic is observed to be regularly entering and leaving the property. The station has been observed with all fueling stations occupied. Those occasional problems encountered with large vehicles on Petitioner's property appear to be susceptible to alleviation by on- site changes. The layout for the State Road 50 location is pretty much a standard site plan for Petitioner's properties. Petitioner's store and gasoline pumps are generally located toward the front of the parcel, facing State Road 50. At this time, the only function of the access connection at Windmere Extension is to provide vehicular access to the Petitioner and McDonald's parcels. As previously noted, a barrier marks the conclusion of Windmere Extension at the southern property boundary of the Petitioner and McDonalds parcels. No evidence was presented that development of the parcel to the south of these two businesses was impending. Absent development to the south, there is no reason to expect growth in traffic on Windmere Extension except due to growth of business for the Petitioner and McDonald's properties. Until development occurs, Windmere Extension will continue to provide reasonably safe and efficient access to Petitioner's property. The right-in only access connection proposed by Petitioner would create an unsafe condition on State Road 50. Petitioner proposes to locate the connection in an auxiliary lane extending from an Interstate 75 exit ramp. Most motorists exiting the Interstate and heading east use that portion of the auxiliary lane to merge with eastbound traffic lanes while other motorists merge into the auxiliary lane in anticipation of turning right at Windmere Extension. Most of the traffic merging into through lanes complete that maneuver in front of the Texaco station, while motorists merging to turn right at Windmere Extension complete that maneuver at the proposed connection location. The addition of the proposed right-in connection would cause some portion of the traffic currently turning right at Windmere to turn at the proposed connection, increasing conflicts between vehicles exiting Interstate 75 and accelerating into through lanes with those automobiles decelerating from State Road 50 in preparation for a right turn at Windmere Extension or the new proposed connection. Drivers from State Road 50, intending to enter the new connection, would merge into the ramp/auxiliary lane in front of the Texaco station, right where the majority of drivers currently accelerate and merge out into State Road 50. The simultaneous acceleration and deceleration of vehicles merging into and out of the auxiliary lane in front of the Texaco station would create a substantial safety problem for State Road 50. Distance would be shortened within which drivers must observe other traffic, pick their gap and merge into the other lane. Eastbound drivers exiting Interstate 75 to State Road 50 will be looking to the rear to pick their gaps as opposed to looking to those vehicles ahead in the auxiliary lane. In addition, the proposed connection would create a safety problem for the substantial number of eastbound drivers that would not enter the new connection but would continue down the auxiliary lane to turn right at Windmere Extension to patronize McDonalds. Drivers exiting Interstate 75 that turn right at Windmere tend to remain in the auxiliary lane the entire time. These drivers will be behind slowing vehicles that are turning into the new connection. To escape the slowing vehicles, eastbound auxiliary lane drivers will tend to encroach into the through lane as they pass around the turning vehicles. Similarly, eastbound State Road 50 drivers who normally merge into the auxiliary lane in front of the proposed connection will remain in the through lanes longer and either begin decelerating in the through lane, creating a speed differential in that lane, or will have to decelerate at an uncomfortable rate over a shorter distance in the auxiliary lane. The short length or "throat" of the proposed connection, coupled with the need of turning vehicles to avoid other vehicles on the Petitioner site, pose additional safety problems. Larger vehicles, such as semi-trailers with a 50-foot wheelbase, recreational vehicles, and trucks towing trailers will have difficulty entering the site if other vehicles are moving in front of the pump islands or larger vehicles are parked at the pumps. Some semi-trailers entering the proposed driveway would have to pass under the edge of the canopy that overhangs the gasoline pumps in order to make a turn. Similar difficulties can be expected when vehicles are maneuvering in the area between the pumps and State Road 50. Larger vehicles entering the proposed connection will have to slow or stop to avoid moving vehicles already on the property, creating an operational and safety hazard on State Road 50 as traffic queues in the connection. There is a greater likelihood that vehicles caught in a queue will back out onto State Road 50 at the proposed location than if they enter at Windmere. Alternatively, the diversion of right-turning vehicles into the new connection would not significantly improve the safety of the intersection of State Road 50 and Windmere Extension. There are presently no significant conflicts between westbound vehicles turning left into Windmere Extension and right-turning vehicles. The westbound left-turning vehicles that are delayed by traffic are normally blocked by eastbound through traffic, rather than right- turning vehicles. As set forth in an attachment to Petitioner's Exhibit 16 entitled Guidelines for Driveway Location and Design placement of connections within the functional area of an intersection is not advised. The location of the proposed connection is at about the end of the functional area of the Interstate 75 interchange, but the functional area of the State Road 50/Windmere intersection can be said to extend west of the proposed connection. The current access arrangement is safer than the situation that arises after construction of the proposed connection. Petitioner's September 13, 1993, submittal to DOT of a proposed right- in only connection was not a revised application under Rule l4-96.007(2)(b) but rather an informal proposal submitted as a result of a meeting between DOT and Petitioner's representatives. Subsequent to DOT's denial of Petitioner's request for a right-in, right-out connection, Richard Peoples, Petitioner's vice-president in charge of site design, authorized the submission of the September 13, 1993 right-in only proposal and intended that both the original right-in/right-out proposal and the revised right-in proposal be "on the table." People's testimony at the final hearing to the effect that the second submission was meant to be a revised application is in conflict with his earlier deposition testimony that all offers were on the table. His final hearing testimony on this point is, accordingly, not credited. People's deposition testimony substantiates DOT's position that the second submission by Petitioner did not constitute the submission of a revised or amended application. DOT's October 7, 1993, letter conveyed rejection of both the originally proposed right-in/right-out connection and the right-in only proposal. The letter acknowledges receipt of the drawings and the supporting traffic study associated with the second submittal. Several of the enumerated comments in the letter expressly reject or comment negatively on the contents of the September 13, 1993, submittal. Subsequent to the issuance of the October 7, 1993, letter, Richard Baier, an employee of DOT charged with consideration of the connection application, had a telephone conversation with Petitioner's representative Lawrence Hagen and verbally advised him that DOT had rejected Petitioner's proposed right-in only connection. Hagen understood that the proposed right-in only connection had been rejected. Petitioner's October 21, 1993, petition for formal hearing was filed 38 days after DOT received the September 13, 1993, submittal from Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying Petitioner's applications. DONE and ENTERED this 27th day of October, 1995, in Tallahassee, Florida. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-3. Accepted. 4.-7. Rejected, subordinate to HO findings. Accepted. Rejected, hearsay. Rejected, not supported by weight of the evidence. Accepted. Rejected, absence of direct evidence. 13.-17. Rejected, not dispositive of material issues presented. Accepted, not verbatim. Rejected, subordinate to HO findings. 20.-21. Rejected, not materially dispositive. 22. Accepted. 23.-25. Rejected, not dispositive of material issues. 26. Rejected, not supported by the weight of the evidence. 27.-28. Rejected, relevance. 29.-30. Rejected, subordinate to HO findings. 31. Accepted. 32.-33. Rejected, subordinate, relevance. 34. Rejected, not supported by weight of the evidence. 35.-36. Rejected, subordinate to HO findings. Accepted, but not verbatim. Rejected, not supported by weight of the evidence. Accepted, not verbatim. Rejected, subordinate to HO findings. Rejected, legal argument. Rejected, subordinate to HO findings. Rejected, not supported by weight of the evidence. Rejected, subordinate to HO findings. 45.-48. Rejected, not supported by weight of the evidence. 49. Accepted. 50.-51. Rejected, subordinate to HO findings. 52.-56. Rejected, not supported by weight of the evidence. 57.-59. Rejected, subordinate to HO findings. 60. Rejected, weight of the evidence. Respondent's Proposed Findings 1.-14. Accepted. Rejected, redundant. Accepted. 17.-20. Rejected, unnecessary. 21.-57. Accepted in substance, but not verbatim. COPIES FURNISHED: Paul Sexton Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 John H. Beck J. Victor Barrios Ellen Chadwell Attorneys at Law Beck Spalla et al. 1026 East Park Avenue Tallahassee, FL 32301 Ben G. Watts, Secretary Attn: Diedre Grubbs Department of Transportation Haydon Burns Building, M.S. #58 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams, Esquire Department of Transportation 605 Suwannee Street 562 Haydon Burns Building Tallahassee, FL 32399-0450
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Thomas P. Crapps, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice Of Dismissal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. Filed May 29, 2013 9:27 AM Division of Administrative Hearings DONE AND ORDERED this Ay day of May, 2013, in Tallahassee, Leon County, Florida. Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this QQ day of May, 2013. tes Vorecvcte Nalini Vinayak, Dealer Ficense AE NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jdc Copies furnished: A. Edward Quinton, III, Esquire Adams, Quinton and Paretti, P.A. Brickell Bayview Center 80 Southwest 8" Street, Suite 2150 Miami, Florida 33130 equinton@adamsquinton.com John C. deMoulpied, Esquire Barack, Ferrazzano, Kirschbau, Perlman & Nagelberg LLP 200 West Madison Street Chicago, Illinois 60606 john.demoulpied@pbfkn.com James R. Vogler, Esquire Barack, Ferrazzano, Kirschbau, Perlman & Nagelberg LLP 200 West Madison Street Chicago, Illinois 60606 Jim.vogler@bfkn.com Thomas P. Crapps Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS LOKEY OLDSMOBILE, INC. d/b/a LOKEY VOLKSWAGEN, Petitioner, Case No.: 13-0007 vs. VOLKSWAGEN OF AMERICA, INC., Respondent. / NOTICE OF VOLUNTARY DISMISSAL WITH PREJUDICE COMES NOW Petitioner, LOKEY OLDSMOBILE, INC. d/b/a LOKEY VOLKSWAGEN, by and through its undersigned counsel and hereby files this Notice of Voluntary Dismissal with Prejudice regarding its pending Petition Protesting Charge-back of Incentive Payments, pursuant to settlement of this matter. I HEREBY CERTIFY that a true and correct copy of the foregoing was served on the parties as reflected on the attached Service List, this 13" day of May, 2013. s/ A, Edward Quinton, III (Florida Bar No. 464074) ADAMS, QUINTON & PARETTI, P.A. Attorneys for Petitioner 80 SW 8™ Street, Suite 2150 Miami, Florida 33130 PH: (305) 358-2727 Email: equinton@adamsquinton.com Filed May 13, 2013 3:24 PM Division of Administrative Hearings SERVICE LIST Jennifer Clark Office of the Hearing Officer Florida Highway Safety & Motor Vehicles Neil Kirkman Bldg. - Room A-308 Tallahassee, Florida 32399-0635 jenniferclark@flhsmv.gov James R. Vogler, Esquire John C. deMoulpied, Esquire Barack Ferrazzano Kirschbaum & Nagelberg LLP 200 West Madison Street, Suite 3900 Chicago, IL 60606 jim.vogler@bfkn.com john.demoulpied@bfkn.com STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS LOKEY OLDSMOBILE, INC., d/b/a LOKEY VOLKSWAGEN, Petitioner, vs. Case No. 13-0007 VOLKSWAGEN OF AMERICA, INC., Respondent. ~~~ rere rere re rere rr ORDER CLOSING FILE AND RELINQUISHING JURISDICTION This cause having come before the undersigned on Petitioner’s Notice of Voluntary Dismissal with Prejudice, filed May 13, 2013, and the undersigned being fully advised, it is, therefore, ORDERED that: 1. The final hearing scheduled for June 18 through 21, 2013, is canceled. 2. The file of the Division of Administrative Hearings is closed. Jurisdiction is relinquished to the Department of Highway Safety and Motor Vehicles. DONE AND ORDERED this 21st day of May, 2013, in Tallahassee, Leon County, Florida. va bay THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 2013. COPIES FURNISHED: Jennifer Clark, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-430 2900 Apalachee Parkway, Mail Stop 61 Tallahassee, Florida 32399 A. Edward Quinton, III, Esquire Adams, Quinton and Paretti, P.A. Brickell Bayview Center 80 Southwest 8th Street, Suite 2150 Miami, Florida 33130 equinton@adamsquinton.com John C. deMoulpied, Esquire Barack, Ferrazzano, Kirschbaum, and Nagelberg LLP 200 West Madison Street Chicago, Illinois 60606 john.demoulpied@bfkn.com James R. Vogler, Esquire Barack, Ferrazzano, Kirschbaum, Perlman & Nagelberg, LLP Suite 3900 200 West Madison Street Chicago, Illinois 60606 jim.vogler@bfkn.com
