The Issue The issues in this permit enforcement proceeding are whether Respondent violated the conditions of a general use permit, authorizing use of a designated portion of the Department of Transportation's right-of-way property, and, if so, what remedy is appropriate and authorized?
Findings Of Fact Ronald Puleo owns property that fronts on U.S. Highway 41, South Tamiami Trail, in Sarasota, Florida. He purchased the property in 1989 and has used the property to operate a business called Sarasota Auto Rentals. A commercial building on Mr. Puleo's property faces east, toward Tamiami Trail. The building houses not only Mr. Puleo's auto rental business, but also several other commercial tenants who operate businesses that serve the public. According to signs in front of the building, these tenants have included a window-tinting business and Scoot, Inc., apparently involving the sale and/or rental of motor scooters. Pictures in evidence of Mr. Puleo's property and the vicinity, taken during the relevant time of this controversy,3/ portray a fairly busy, established commercial area, as witnesses confirmed. The property to the south of Mr. Puleo's property is occupied by Enterprise, another rental car business. Further south, there is a solid line of establishment after establishment, a mixture of buildings, signs, and parking areas as far as the eye can see. To the north of Mr. Puleo's property, there is a large car dealership with visible logos for Volkswagen and Audi. Tamiami Trail is a major north-south roadway through Sarasota. In front of Mr. Puleo's property, the road is six-laned, with three lanes in each direction separated by a median. Outside of the solid white lines marking the road's outer edge, the area adjacent to the roadway is finished with concrete gutters with intermittent drainage grills, raised curbs, and then a sidewalk flanked on either side by grass. At the interspersed access connections that allow ingress and egress to and from the various business properties, the curb and sidewalk flatten to street level, and there is pavement instead of grass. Standing on the grassy strip on the interior side (i.e., the side farther from the street), there is a row of intermittent tall poles with street lights. After the interior grassy strip (moving away from the street), there appears to be mostly asphalt paving in front of the businesses. On Mr. Puleo's property, in particular, there is one access connection near the north end of the property. To the north of the access connection, a single street light pole stands on the interior grassy patch to the west of the sidewalk. On the south side of the access connection, there is a small grassy strip to the right of the sidewalk. The rest of the space in front of Mr. Puleo's property is paved with asphalt. Directly in front of Mr. Puleo's building, the asphalt is painted with white stripes, designating parking spots perpendicular to the building. The parking spots have concrete parking bumpers at the front edges, which are very close to the front of the building itself; perhaps there is enough room for a person to walk in front of a parked vehicle to go into the building, but no more than that. In addition to the designated parking spots, other parts of the asphalt pavement in front of Mr. Puleo's building are used, and historically have been used, for parking vehicles. Running east to west along the north property line, from the edge of the interior grassy patch, Mr. Puleo uses the pavement to park a row of rental cars. These cars are backed in either due south- to-north, or diagonally southeast-to-northwest, so that the car fronts face south (towards the asphalt in front of Mr. Puleo's property) or southeast (angled towards Tamiami Trail). These parked cars along the north property edge often have small "Rent Me" signs in the front windows. In addition, historically, Mr. Puleo, his customers, his tenants, his tenants' customers, and sometimes customers or visitors of nearby businesses have parked vehicles along the east edge of the asphalt pavement in front of Mr. Puleo's building and along the south edge of the paved area in front of the building. Historically, Mr. Puleo and others also have parked vehicles on an area to the south of Mr. Puleo's southern property line, in front of what is now the Enterprise rental car business, where there used to be asphalt pavement to the west of the sidewalk and interior grassy strip. Lance Grace has been the operations engineer for the Department's Sarasota Operations Center since 2003. Mr. Grace first became familiar with Mr. Puleo's property and the property to the south in 2004, when Mr. Puleo's neighbor to the south was an exotic car dealer. According to Mr. Grace, there was competition between the two neighboring businesses to park on the asphalt-paved area that was to the south of Mr. Puleo's property line, and Mr. Grace was asked to get involved. Mr. Grace did not identify by whom he was asked to get involved, but the impression given was that it may have been the exotic car dealer. Mr. Grace testified that the exotic car dealer did not like Mr. Puleo parking on the asphalt to the south of his property line, because it blocked the view to the exotic car dealer's property. At that time, the Department asserted the right to all of the Tamiami Trail frontage as its right-of-way westward from the roadway, past the sidewalk and grassy strips, all the way to a line that runs north-south, very close to Mr. Puleo's building--so close that the line actually bisects the designated parking spaces in front of Mr. Puleo's building so that half of the parking spaces are within the right-of-way. This right-of- way line is 40 feet to the west of the interior grassy strip. Therefore, the asphalt-paved area in front of the exotic car dealer's business was included in the Department's right-of-way. Mr. Grace said that when he was asked to get involved in 2004, he tried to let the property owners work it out among themselves, although he did tell them that "all this parking within the right-of-way is illegal" and that if they continued to have issues, then he would have to get involved to "deal with it from a statutory point of view." At the hearing, Mr. Grace explained: "There is a Section 337 [in the Florida Statutes] that deals with unauthorized use within the right-of-way, and it is specifically written to prevent the parking and display of items within the right-of-way for safety and efficient use of the roadway." Mr. Grace testified that it was, and is, the Department's position based on the statute to which he alluded that parking is not allowed on its right-of-way. Nonetheless, the parking continued on the paved area to the south of Mr. Puleo's property in front of the neighboring business. Mr. Grace testified that at some point, when there continued to be issues with parking there, the decision was made to have the asphalt removed and replaced with grass to discourage parking in that portion of the right-of-way. Mr. Grace's recollection was that a portion of that asphalt "may have" been removed by the Department, but that at least part of the asphalt on the right-of-way was removed by Mr. Puleo's neighbor, who did not like the parked vehicles blocking the view of his business. The pictures in evidence show the rectangular area south of Mr. Puleo's property where grass was placed to discourage parking in response to the dispute between Mr. Puleo and his neighbor to the south. However, in front of Mr. Puleo's property and elsewhere on both sides of Tamiami Trail, areas claimed as Department right-of-way remain paved between the interior grassy strips and the fronts of buildings. Mr. Puleo credibly testified that historically, as long as he has owned the property, persons working at or visiting other establishments in the vicinity on both sides of Tamiami Trail have used the right-of-way similarly by parking vehicles on the area between the interior grassy strips next to the sidewalks and their buildings. Mr. Puleo's testimony was further corroborated by the pictures in evidence. For example, the Department offered in evidence an aerial picture with the legend "Sarasota County Property Look- Up," on which tan lines are superimposed to demonstrate the Department's right-of-way boundary. This aerial picture (Petitioner's Exhibit 2) shows the lineup of cars parked along the northern boundary of Mr. Puleo's property described above. The same aerial view also shows that other businesses in the vicinity use Department right-of-way property for parking. The property in the bottom left corner of the picture, on the other side of Tamiami Trail and a little to the south of Mr. Puleo's property, illustrates this usage. Just inside of the sidewalk and interior grassy strip, two cars are diagonally parked on a paved area facing Tamiami Trail. According to the tan right-of- way line, these two cars and the asphalt paving on which they are parked are wholly on right-of-way property. On the same parcel, the right-of-way line bisects a number of vehicles parked on paved areas that appear to be designated parking spaces, much like the right-of-way line in front of Mr. Puleo's building bisects his parking spaces. The aerial photo also shows that on the property two parcels to the south of Mr. Puleo's property, several vehicles are parked perpendicular to the roadway with the front bumpers very near the sidewalk; one of the cars is so close that the edge of its front bumper might even protrude a bit over the edge of the sidewalk. These cars are wholly within the right-of-way. Other pictures in evidence present similar images, such as the color photos that are part of the 2009 permit, which were taken by Mr. Rosenstein. Mr. Grace acknowledged that Mr. Puleo's historic use of the right-of-way was not unique to his property, but rather, was fairly common in the general area, as shown in the pictures. According to Mr. Grace, "the first real major effort" to try to prevent parking within the right-of-way in this vicinity occurred in 2005. This "major effort" involved him sending "several letters" to Mr. Puleo and several other businesses in the vicinity advising that "selling of items and parking in the right-of-way" was illegal. Mr. Grace noted that Mr. Puleo has not ever stopped parking vehicles in the right-of-way in front of his property, despite the 2005 letter described by Mr. Grace. The pictures in evidence (bearing dates in and after 2009) show that others in the vicinity similarly continued parking vehicles in the right-of-way after 2005. Mr. Grace was asked what enforcement authority he has with regard to the problem he has perceived of parking and advertising items for sale in the right-of-way. He candidly admitted that he does not have law enforcement authority; he said that he can only inform property owners that there is a statute that applies to this situation and it is illegal. Mr. Grace testified that, if necessary, he can request assistance from law enforcement and that when he sent letters to property owners in 2005, he sent copies to the Florida Highway Patrol. Throughout Mr. Grace's involvement in right-of-way matters with Mr. Puleo, dating back to 2004, no citations have been issued by the Florida Highway Patrol or any other law enforcement authority for what Mr. Grace testified was Mr. Puleo's illegal use of the right-of-way. When asked whether he has asked for enforcement assistance in Mr. Puleo's case, Mr. Grace said that he did so once. As Mr. Grace described the occasion, the Department was poised with a crew in place to remove asphalt from the right-of- way in front of Mr. Puleo's business. Apparently, Mr. Grace sought approval from the Florida Highway Patrol to authorize the crew to proceed. From what Mr. Grace recalls, Mr. Puleo may have gotten an attorney involved, because the Florida Highway Patrol "backed down at that point," telling Mr. Grace that they were "not sure about this whole right-of-way issue." Mr. Grace did not say when this incident occurred, except to note that it was before "the lawsuit." In 2007, the Department filed a complaint in circuit court for ejectment against Mr. Puleo and his business, seeking to eject them from the Department's right-of-way. Michael Hope is the Department attorney who prepared the ejectment complaint. Both Mr. Hope and Mr. Grace acknowledged that the purpose of this lawsuit was to stop Mr. Puleo from parking and advertising on Department right-of-way. Mr. Puleo and his business counterclaimed. A twist in the controversy arose when title work revealed that the 90 feet of Tamiami Trail frontage in front of Mr. Puleo's property, from the roadway to a line bisecting the parking spaces in front of Mr. Puleo's building, did not all belong to the Department as right-of-way, as believed. Instead, more than half of the frontage--50 feet--actually was owned entirely by Mr. Puleo in fee simple. This twist changed the dynamics of the dispute between the parties. The Department was put into the position of having to secure permission from Mr. Puleo to use his property for drainage and underground utilities traversing 50 feet of Mr. Puleo's property. And in an ironic twist, it was suddenly the Department having to make amends for its prior unauthorized use of Mr. Puleo's property. Meanwhile, although Mr. Puleo's bargaining position certainly had changed, his objective remained unchanged; he wanted to continue his admitted historic use of the paved portion of the other 40 feet of Tamiami Trail frontage, which was Department right-of-way up to the line bisecting the parking spaces in front of Mr. Puleo's building. In addition, Mr. Puleo wanted an asphalt strip restored on the right-of-way south of Mr. Puleo's property line, where it had been removed and planted with grass to discourage his historic use of that right-of-way. Protracted negotiations ensued, and the parties ultimately reached a settlement agreement in July 2009. The settlement agreement is set forth in a pleading that bears the caption of the circuit court case, entitled "Stipulation for Dismissal of All Claims and Counterclaims," signed by both parties on July 10, 2009. Although the settlement agreement in evidence does not indicate approval by the circuit court, the parties acknowledge that it was, in fact, approved by the court. As suggested by the title, the settlement agreement resulted in the dismissal of all claims and counterclaims (subject to the right reserved in paragraph 12 of the settlement agreement to reopen the case for the purpose of enforcing the agreement). Both parties agree that two paragraphs of the settlement agreement provide background germane to this administrative enforcement action, as follows: [The Florida Department of Transportation, FDOT] acknowledges that the 40 foot portion of Parcel 106 that is proximate to the PULEO frontage is PULEO's historic driveway, for driveway usage for the PULEO property and that such driveway shall not be changed, except as provided herein, or in accordance with FDOT Access Management standards and procedures, with PULEO retaining rights to procedural redress under Chapter 120 of the Florida Statutes. FDOT has issued a permit (permit #2009- K-194-36), Exhibit C, and thus agrees that PULEO may construct a 15 foot deep asphalt "turn out" for driveway usage for PULEO's property; such driveway "turn out" shall not be changed except in accordance with FDOT Access Management standards and procedures, with PULEO retaining rights to procedural redress under Chapter 120 of the Florida Statutes. Paragraph 7 of the settlement agreement addresses Mr. Puleo's use of the Department's right-of-way on the 40-foot portion of the Tamiami Trail frontage that is not owned outright by Mr. Puleo. As confirmed by both parties' witnesses, this right-of-way area is shown on Respondent's Exhibit 1 as the square outlined in pink. On Petitioner's Exhibit 2 (the aerial picture), it is the square area immediately north of the green-yellow- highlighted rectangle designated right-of-way parcel 196, east of the tan line bisecting five parking spots in front of Mr. Puleo's building and south of the tan line protrusion that extends eastward to the roadway, then north to Mr. Puleo's northern property boundary. The tan line protrusion marks the 50-foot frontage owned by Mr. Puleo; this area is shown on Respondent's Exhibit 2 as the larger blue rectangle next to the pink square. Paragraph 8 of the settlement agreement addresses Mr. Puleo's use of the right-of-way to the south of Mr. Puleo's property, which previously had been paved and used by Mr. Puleo. The Department issued the 2009 permit identified in paragraph 8 on July 9, 2009, the day before the settlement agreement was executed. The 2009 permit is part of the settlement agreement, as Exhibit C thereto.4/ Issuance of the 2009 permit allowed Mr. Puleo to repave (at Department expense) and use a designated portion of the right-of-way to the south of Mr. Puleo's property. Department attorney Michael Hope reviewed and signed the settlement agreement, with the 2009 permit attached. Before the settlement agreement was signed, Mr. Hope gave the instructions to Mr. Rosenstein to prepare the permit. Mr. Rosenstein has primary responsibility within the Sarasota Operations Center for issuing permits, although occasionally Mr. Grace, to whom Mr. Rosenstein reports, gets involved in issuing permits. When the matter of preparing a permit for Mr. Puleo arose, Mr. Grace was on vacation. The issuance of the 2009 permit to Mr. Puleo was unusual for several reasons. First, it was issued as part of a settlement agreement, instead of by the normal procedure of an application being filed by someone requesting a permit. Second, Mr. Rosenstein was asked by Mr. Hope to prepare and issue the permit and deliver it to Mr. Puleo, all in a single day, which is highly unusual. Mr. Rosenstein had to drop everything and immediately go to Mr. Puleo's property to take pictures from several angles of the adjacent right-of-way to the south. He marked the pictures to describe and outline the area of right-of- way that Mr. Puleo would be allowed to pave and use. Mr. Rosenstein then had to fill out the permit, cross-referencing the marked pictures. He had to add the appropriate form pages containing the Department's standards for the paving activity adjacent to Tamiami Trail, addressing such matters as requirements for signs alerting traffic to the work and procedures for lane closures, if necessary. Mr. Rosenstein then had the completed permit reviewed and approved by the permits coordinator who signed the permit along with Mr. Rosenstein. He then delivered the completed permit to Mr. Puleo.5/ Mr. Rosenstein testified that the 2009 permit is a "general use permit." According to Mr. Rosenstein, a general use permit is considered a residual category to allow an activity on right-of-way that does not fall within any other permit category. He identified the other permit categories as drainage permits, utility permits, landscape permits, and access connection permits to make a connection to access a state road. The 2009 permit is not an access connection permit, as the asphalt pad authorized by the 2009 permit stops at the inside end of the interior grassy strip and does not extend to the roadway; a vehicle cannot drive directly from the asphalt pad onto Tamiami Trail. The 2009 permit, as completed by Mr. Rosenstein, states that the permittee, Mr. Puleo, requests permission from the Department "to construct, operate and maintain: INSTALL ASPHALT PAD AS SHOW [sic] IN PICTURE." Mr. Rosenstein attached two pages with pictures of the site. The first page has a single picture on which Mr. Rosenstein put the following description: "Extend Parking Area with Asphalt 15 x 40 feet." He marked the outline of the designated rectangle in red. As designated, the area extended the pavement that was in front of Mr. Puleo's property to the south, adding 15 feet of Tamiami Trail frontage to the south. The 40-foot length of the rectangle extended from the edge of the interior grassy strip west of the sidewalk to the end of the Department's right-of-way. This means that the west end of the new asphalt pad would be even with the midpoint of the parking spaces in front of Mr. Puleo's building, where they are bisected by the Department's right-of-way line. Mr. Rosenstein acknowledged that he did not add any special conditions to the permit to specify or restrict the usage of the approved asphalt pad. There was no evidence to suggest that Mr. Rosenstein was given instructions to include special permit conditions to specify or restrict the usage of the asphalt. In the space on the permit form for special conditions, the only condition put on the 2009 permit required Mr. Puleo to "sod all areas of disturbed right-of-way." Mr. Rosenstein gave conflicting testimony regarding his understanding of the 2009 permit that he was instructed to prepare. At first, he testified that he had no information at the time regarding the purpose of the asphalt pad or its intended use. However, he stated later that he understood at the time that the purpose of the asphalt pad was to allow cars to turn around. According to Mr. Hope, he instructed Mr. Rosenstein to prepare a permit "for a turn-out area for driveway purposes over a portion of the right-of-way." Mr. Hope testified that the asphalt pad was intended to be used only as a "turn out," in which cars pulling out of the parking spaces in front of Mr. Puleo's building could back into the newly paved area and then drive forward to exit onto Tamiami Trail at the access connection. Mr. Hope said that the "turn- out" area was needed primarily for cars parking in the two southernmost parking spaces in front of Mr. Puleo's building. Although this turn-out use might explain one of the reasons for the asphalt pad authorized by the 2009 permit, that use alone would not explain authorizing a 40-foot-long asphalt pad that extends parallel to the parking spaces. Cars would not back out of parking spaces and then back up while turning 180 degrees before pulling forward to exit Mr. Puleo's business. Mr. Rosenstein did not recount the instructions he received from Mr. Hope for preparing the permit. Neither Mr. Rosenstein nor Mr. Hope explained why the authorized asphalt pad extend for 40 feet, all the way from the interior grassy strip to the west end of the Department's right-of-way. Mr. Rosenstein did not explain how he knew to mark the pictures to designate the site for the asphalt pad or where the dimensions came from. Mr. Rosenstein claimed that he was focused on giving instructions to the contractor that would be installing the asphalt pad, not on the use of the new paved area after construction. Nonetheless, he admitted that general use permits are intended to address not only construction, but also the subsequent operation or use of what is constructed. Mr. Rosenstein conceded that since the 2009 permit did not address the ultimate usage, then the ultimate usage would be determined by the permittee. Actually, the 2009 permit does address the usage of the new paved area by the description "extend parking area." The 2009 permit, thus, identifies the paved right-of-way on Mr. Puleo's property as a "parking area" and authorizes asphalt paving to "extend" that "parking area" to add another 15 feet of Tamiami Trail frontage for the entire length of the right-of-way. Based on the credible evidence of record, the reasonable meaning of the description "extend parking area," placed by Mr. Rosenstein on the picture that became part of the 2009 permit, is to indicate that the paved area in front of Mr. Puleo's building was, in fact, used as a parking area and that the new asphalt was being authorized as an extension of that area and of that use. Neither Mr. Rosenstein nor any other witness offered a different credible interpretation of the "extend parking area" description in the 2009 permit. Mr. Hope testified that he discussed the subject of parking and the other historic uses with Mr. Puleo in a single face-to-face settlement negotiation meeting with Mr. Puleo and his attorneys. According to Mr. Hope, at that meeting, Mr. Puleo asked Mr. Hope whether he would be allowed to park vehicles or put signs on the new paved area; Mr. Hope said that he told Mr. Puleo no, that the new paved area was a turn-out area to be used for driveway purposes only, by which he meant for moving vehicles from one area to another. Mr. Hope conceded that this single face-to-face settlement meeting occurred many months before the settlement agreement was reached. Mr. Puleo testified that the meeting he attended with Mr. Hope took place nine months before the 2009 permit was prepared and the settlement agreement was finalized. Mr. Puleo testified that he did not ask Mr. Hope at that meeting whether parking would be allowed on the right-of-way and does not recall Mr. Hope addressing that subject, either. However, Mr. Puleo did recall subsequent protracted negotiations in which he understood that the Department did not want to give Mr. Puleo the right to use the new asphalt pad for parking. Mr. Puleo credibly testified that since this was important to him, he refused to agree on those terms. Mr. Puleo testified that the Department ultimately agreed to settle on his terms by issuing the 2009 permit that authorized him to "extend [his] parking area" and by making that permit a part of the settlement agreement. Mr. Hope's recollection of what was said at a settlement conference nine months before the 2009 permit was prepared and incorporated into the settlement agreement is inconsistent with the description expressed in the 2009 permit. Even if a conversation took place that was anything like his recollection, the credible evidence established that the Department's preliminary position changed between then and the issuance of the 2009 permit. Mr. Hope testified that he reviewed the final settlement agreement document, including the exhibits, before he signed it. He acknowledged reviewing the 2009 permit after it was issued and before he signed the settlement agreement, because the 2009 permit was an exhibit to the settlement agreement. Given that the sole purpose of the ejectment lawsuit he prepared was to stop Mr. Puleo from parking and advertising on Department right-of-way, it is not credible that Mr. Hope would not have insisted on express prohibitions in the 2009 permit against parking and advertising, had he believed that those prohibitions would have been permissible as part of the settlement agreement, of which the 2009 permit was a critical part. It is not credible that Mr. Hope would have agreed to the 2009 permit authorizing Mr. Puleo to "extend parking area" as part of the settlement agreement, unless, as Mr. Puleo testified, that is what was bargained for and what Mr. Puleo required to enter into the settlement agreement. Mr. Puleo's testimony in this regard is accepted as more credible than Mr. Hope's testimony. When Mr. Grace came back from vacation, he was made aware of the permit and the settlement agreement. He testified that "despite the original purpose of the lawsuit, there was parking and advertising continuing to occur within the right-of- way." He conducted surveillance and had pictures taken of the property after the asphalt pad was installed. Pictures were taken of Mr. Puleo's property and the extended parking area on July 27 and 30, 2009, to document that the new asphalt pad was being used for parking. Mr. Grace testified that he called Mr. Puleo to report that he observed parking on the new asphalt. Mr. Puleo told Mr. Grace that he was allowed to park on the new asphalt because his permit authorized him to "extend parking area." Mr. Grace claimed that he had not looked at the permit until then. At that point, Mr. Grace "started discussing the matter with Mike Hope," and they decided that it was time to revoke the 2009 permit and issue a new permit "that would clarify and still support the original intent of the settlement agreement, but clarify the intent." Inexplicably, the Department took no action until May 13, 2010, when Mr. Grace sent a letter by certified mail to Mr. Puleo. The entire text of the letter was as follows: Re: Permit Number 2009-K-194-36 Dear Mr. Puleo: As part of the stipulation agreed to between the [Department] and you the above referenced permit was issued on July 9, 2009. The permit was issued to comply with stipulation number 8 which states "PULEO may construct a 15 foot deep asphalt "turn out" for driveway usage for PULEO's property." The stipulation clearly states that the asphalt turn out is for driveway usage. However, it has been observed on numerous occasions that the asphalt area is routinely being used as a parking area which does not comply with the intent of the agreement. When this issue was previously brought to your attention you referenced a picture which was included with the permit depicting the area for asphalt placement. The picture included verbiage that included "Extend Parking Area". This reference was made in error by a staff member who was not completely familiar with the terms of the stipulation. This permit will be voided and replaced with a new permit to comply with the terms of the stipulation which included the use of the right of way as a driveway and not for parking. The permit referenced above will be voided effective May 21, 2010. A replacement permit will be issued concurrently with the voiding of this permit. Please contact me if you have any questions. Thank you for your cooperation in these matters. (emphasis added). Mr. Grace's statement--that the 2009 permit's authorization to "extend parking area" was made in error by the Department representative--is an admission that the 2009 permit does indeed authorize Mr. Puleo to park on the new asphalt. However, contrary to Mr. Grace's characterization, the 2009 permit cannot be said to have been issued in "error" or not in compliance with the terms of the settlement agreement, because the 2009 permit itself was made part of the settlement agreement. Mr. Grace's description implies that the settlement agreement came first, followed by the 2009 permit, which did not match up to the requirements of the settlement agreement; in fact, the reverse is true--the 2009 permit was issued first and the 2009 permit, as prepared and issued (including the "extend parking area" description), was incorporated into the settlement agreement as an exhibit and an express component of paragraph 8. The only explanation given for revoking the 2009 permit was its purported inconsistency with the settlement agreement. For example, there were no allegations of substantial changes in the use of the right-of-way that would trigger new and different safety concerns. Instead, Mr. Grace's May 13, 2010, letter acknowledged that Mr. Puleo had only continued his historic use of the right-of-way in front of his property, extending that use to the new asphalt extension of his parking area. The May 13, 2010, letter did not inform Mr. Puleo that he had a right to an administrative hearing to contest the Department's intended action to revoke his 2009 permit. Instead of offering Mr. Puleo a window of time in which to request an administrative hearing, only eight days after the May 13, 2010, letter was mailed to Mr. Puleo, Mr. Grace sent a second certified letter to Mr. Puleo. The entire text of this May 21, 2010, letter was as follows: Re: Permit Number 2010-K-194-30 Dear Mr. Puleo: As stated in my May 13, 2010, letter to you permit number 2009-K-194-36 is void and no longer valid. A replacement permit number 2010-K-194-30 is enclosed for your use and meets the terms of the stipulation referenced in my previous letter. Please contact me if you have any questions. Thank you for your cooperation in these matters. The 2010 permit is a general use permit, just as the 2009 permit was. Despite the fact that the asphalt pad that was authorized by the 2009 permit to "extend parking area" had already been installed, the 2010 permit authorized Mr. Puleo to "Install Asphalt Pad as shown in attached photo's [sic]." The 2010 permit in evidence is incomplete, in that no photos are attached. Presumably, the missing photos are different from those included with the 2009 permit. Whereas the 2009 permit had a single "special condition" requiring the replacement of all sod disturbed during the installation of the asphalt pad, the 2010 permit added the following as new special conditions: The asphalt placed in the Department's right-of-way is for the limited use of vehicles as a driveway only. This is limited to maneuvering of a vehicle for ingress and egress only. No other permissions are granted herein. The Department's right-of-way shall not be used for parking, storage of equipment, placement of signs, or any other use not expressly stated within the terms of this permit. Mr. Grace testified that he drafted the special conditions in the 2010 permit. He explained why he believed it was necessary to draft these conditions: In the case of Mr. Puleo, it's been a situation that I have been trying to resolve since 2004, and I felt like it was necessary to clearly state that the permit, while it allows the use of the right-of-way for placement of the asphalt, and it's allowed, per the stipulation, for ingress and egress, I said that, in order for this to be clear to Mr. Puleo, I had to state that parking and display of items for sale were not permitted. Mr. Grace's testimony--that it was necessary to specifically prohibit parking and advertising as conditions in the permit itself because of the history with Mr. Puleo--is an admission that the 2009 permit cannot be interpreted to prohibit those historic uses, because it lacks the necessary express conditions. Mr. Grace has driven by Mr. Puleo's property 100 times between 2004 and the day of the hearing, observing the same kind of parking and advertising activity that Mr. Grace has been trying to stop since 2004. The pictures in Petitioner's Composite Exhibit 10 were described as representative of the alleged violations. As these pictures demonstrate, the advertising activity referred to is the placement of small "Rent Me" signs in the windows of vehicles parked on the pavement in front of Mr. Puleo's property on the right-of-way. Therefore, as Mr. Grace clarified, the advertising on the right-of-way is not a separate activity from the parking on the right-of-way; he considers the parking and advertising to be a single violation. Mr. Grace acknowledged that the special conditions in the 2010 permit, which he found necessary to make clear that Mr. Puleo had to stop the parking and advertising that he has been doing on the right-of-way since 2004, could have been put in the 2009 permit. As found above, the credible evidence establishes that the Department would have expressly prohibited parking and advertising on the new asphalt pad authorized by the 2009 permit, if the Department had been in a bargaining position to insist on those terms, but the Department was not. The Department presented no credible evidence that Mr. Puleo's parking and advertising in the right-of-way ever has endangered the health, safety, and general welfare of the public by causing distractions to motorists, unsafe pedestrian movement, dangerous traffic movement, increased vehicular accidents, motorist injuries, or fatalities. There was no evidence of any safety-related problems of any kind actually caused by Mr. Puleo's historic use of the right-of-way in front of his property or to the south of his property line where the asphalt was installed to extend his parking area. No evidence was offered to prove that allowing Mr. Puleo to use the new asphalt pad for the same parking and advertising activity he has conducted historically would interfere with safety, operation, aesthetics, or maintenance of the State Highway System, utilities, or right-of-way. Instead, the evidence established that Mr. Puleo's historic parking and advertising on the right-of-way have not given rise to any traffic-related or pedestrian-related problems. Mr. Puleo's use of the right-of-way is no more intrusive or distracting than the similar uses of right-of-way evident from the pictures in evidence. Moreover, Mr. Puleo's historic use of the right-of-way is no more intrusive or distracting than Mr. Puleo's lineup of rental cars with "Rent Me" signs in the windows along his northern property line, which Mr. Puleo has every right to do, because he owns that property in fee simple. While in a different case, the Department certainly could have legitimate safety concerns with certain parking on its right-of-way, such as if vehicles parked on the grassy strips on either side of the sidewalk, or straddled the sidewalk itself, or if parked vehicles blocked access connections or interfered with motorist visibility. However, not all right-of-way areas present the same safety concerns. Parking on the right-of-way might, but would not necessarily, impede pedestrian traffic on sidewalks or interfere with ingress and egress or motorist visibility at access connections, depending on where the right-of-way is and how far it extends in from the roadway. These sorts of safety concerns are matters to be proven, and there was no such proof offered by the Department in this case.6/ The Department sought to justify the issuance of the 2010 permit, with its new special conditions, on the grounds that the 2010 permit is more consistent with the terms of the settlement agreement. The Department points to the terms "turn out" and "driveway usage" in paragraph 8, which the Department argues should give rise to a permit restricting usage of the new asphalt to moving traffic only. Mr. Puleo contends that "driveway usage" in both paragraphs 7 and 8 refer to the ordinary meaning of that term, which includes parking. As the parties acknowledged at the outset of the hearing and as the undersigned reiterated throughout the hearing, the nature of this proceeding is a permit enforcement proceeding. Interpretation and enforcement of the settlement agreement are matters for the circuit court. Moreover, as noted above, the settlement agreement incorporates the 2009 permit as one of the settlement agreement's terms, not the other way around. Therefore, while one might want to consider what the 2009 permit says, if one were interpreting the settlement agreement (because the 2009 permit is part of the settlement agreement), the reverse is not true. The 2009 permit stands on its own terms, because it was issued before the settlement agreement was executed. The 2009 permit uses the description "extend parking area" and neither incorporates the settlement agreement by reference, nor uses the terms "turn out" or "driveway usage" that appear in the settlement agreement. Even if the 2009 permit provided that the newly installed asphalt was for "driveway usage" as paragraph 8 of the settlement agreement does, absent a specific definition of that phrase, one would resort to the common, ordinary meaning from dictionaries. The word "driveway" alone is commonly defined as "a private way or road for cars, leading from a street or road to a garage, house, or other building." See, e.g., Webster's New World Collegiate Dictionary (2010); American Heritage Dictionary of the English Language, 4th Ed. (2010) (both available online at yourdictionary.com). The same online source provides examples of usage of the word "driveway" in sentences and phrases, as follows: Driveway parking. A paved driveway in the property provides ample parking. The property is approached via a block-paved driveway with parking for approximately four vehicles. These examples illustrate that driveway usage includes parking, based on the common, ordinary meaning of the term. The Department offered a specialized meaning of "turn out" and "driveway" from its design standards for access connections that are permitted on right-of-way property. Those standards provide that access connections are to be designed with driveways of sufficient length to allow all vehicular parking and maneuvering to take place beyond the right-of-way, so that driveways and turn outs within the right-of-way are used only for "moving vehicles entering or leaving the highway." That specialized definition makes sense in the context of designing access connections that are permitted uses of a right-of-way. If vehicles are parked or are maneuvering to turn around within the right-of-way that is being used as an access connection, that use would interfere with the movement of vehicles entering or leaving the highway, as the design standard itself makes clear. Here, however, the asphalt extension of Mr. Puleo's parking area does not connect to the roadway and is not proximate to the access connection point on Mr. Puleo's property. Thus, the design standard's specialized usage of the terms driveway and turn out to restrict use of the right-of-way to "moving vehicles entering or leaving the highway" has no application to the facts here. The Department's witnesses established that neither the 2009 permit, nor the 2010 permit at issue in this case, is an access connection permit. Perhaps the clearest indicator that the 2009 permit means what it says and was intended that way is by reference to Mr. Puleo's historic use of the right-of-way in front of his building. The settlement agreement addresses this right-of-way in paragraph 7, stating that the Department acknowledges that Mr. Puleo has used this right-of-way as "his historic driveway." The Department also acknowledges that there are parking spaces on the right-of-way that is Mr. Puleo's historic driveway; part of every vehicle parked in a designated space in front of Mr. Puleo's building is on the right-of-way that is described in the settlement agreement as Mr. Puleo's "historic driveway." Vehicles historically have also parked on other parts of the pavement in front of Mr. Puleo's building, besides the designated parking spaces, on Department right-of-way, also known as Mr. Puleo's historic driveway. Another apt name for Mr. Puleo's historic driveway was suggested by Mr. Rosenstein's 2009 permit description--parking area. The evidence establishes that the two phrases are one and the same for purposes of describing Mr. Puleo's historic usage of the right-of-way in front of his building; he has used his historic driveway as a parking area. The corollary is that the 2009 permit authorized Mr. Puleo to extend the parking area and, thereby, extend his historic use of his driveway as a parking area to the extended driveway/parking area. Nonetheless, after the Department unilaterally revoked the 2009 permit and replaced it with the 2010 permit, the Department issued its Complaint. The Complaint alleged that by parking vehicles and advertising on the new asphalt pad, Mr. Puleo violated the new special conditions of the 2010 permit. Sections 335.181 and 337.406, Florida Statutes, were cited as the statutes under which Mr. Puleo's alleged violations were charged. This time, the Complaint acknowledged that the Department's charges were only intended action and that Mr. Puleo could contest the charges before they became final by timely requesting an administrative hearing. At the hearing, the Department offered no explanation for its failure to follow the same procedure when it notified Mr. Puleo by letter on May 13, 2010, that his 2009 permit would be revoked, effective eight days hence. The Complaint is predicated only on Mr. Puleo's alleged violation of the 2010 permit, by his use of the new asphalt pad for parking and advertising. The Complaint does not charge Mr. Puleo with any improper use of the right-of-way in front of his building. The parties stipulated that Mr. Puleo has been parking and advertising on Department right-of-way.7/ Mr. Puleo credibly testified that he would not have agreed to a settlement of the circuit court litigation with the Department without the 2009 permit authorizing him to "extend [his] parking area." Mr. Puleo reasonably relied on the Department's representations expressed in the 2009 permit and in the settlement agreement incorporating the 2009 permit. The Department's representations recognized that Mr. Puleo's "historic driveway" was used as a parking area; the Department's representations authorized Mr. Puleo to extend his parking area and continue his historic usage of the parking area, as extended by the new asphalt pad. In reliance on the Department's representations, Mr. Puleo changed his position to his detriment by agreeing to a settlement agreement that resulted in the dismissal of the circuit court litigation. In entering into the settlement agreement, Mr. Puleo acquiesced to terms that were of great value and importance to the Department, because Mr. Puleo understood from the Department's representations that he was receiving, in return, the terms that were of great importance to him. The 2009 permit was issued as an inducement to secure Mr. Puleo's agreement to execute the settlement agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order (1) determining that permit number 2009-K- 194-36 remains in full force and effect; (2) determining that permit number 2010-2010-K-194-30 is void and of no effect; and (3) dismissing the Complaint (as deemed amended), based on the failure to prove violations of the 2009 permit under the statutes charged in the Complaint, and based on the established defense of equitable estoppel. DONE AND ENTERED this 14th day of February, 2013, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 14th day of February, 2013.
The Issue The issues are whether Respondents engaged in unauthorized construction on their property in St. Johns County (County) without a permit; whether they should remove wooden shore-normal retaining walls and concrete sidewalks from an area seaward of the coastal construction control line (CCCL); whether they should restore any disturbed areas; and whether they should pay a $1,000.00 administrative fine.
Findings Of Fact Edith Pepper and Lyle Spencer are the owners of property located at 3100 Coastal Highway (also known as U.S. Highway A1A), St. Augustine, Florida. Although Ms. Pepper is named as the respondent in the enforcement action initiated by the Department, as owners of the property, both she and her husband are responsible for complying with Department rules and governing statutes.1 The Department is the regulatory agency charged with the duty of permitting and enforcing construction activities seaward of the CCCL. There are existing residences on both the north and south sides of Respondents' property. The parcel south of the subject property is owned by Lori T. Nichols and her brother, while the parcel on the north side is owned by Dr. Kenneth Reinhold. A small, one-story coquina house constructed in 1935 sits on the western side of Respondents' property facing the Coastal Highway and was occupied by Respondents for an undisclosed period of time after they purchased the property. In response to a CCCL application filed by Ms. Pepper, on November 20, 2002, the Department issued Permit No. SJ-844 to Ms. Pepper authorizing the construction of a large, 3-story single-family residence and deck, other structural activity, excavation, and placement of approximately 1,900 cubic yards of fill seaward of the CCCL. See Department Exhibit 1. When completed, the new home will be more than 8,000 square feet and sit on the eastern side of the parcel facing the Atlantic Ocean. The large amount of fill placed on the construction site resulted in raising the elevation of Respondents' property to between two and four feet above their neighbors' adjoining lots. Permit No. SJ-844 contains a detailed description of the location, dimensions, and structural activities for the project, including a requirement that it have "[d]rainage swales on the north and south sides of the [new] dwelling." Id. Another authorized activity was the construction of a "concrete driveway 120 feet in the shore-normal direction by 12 feet in the shore-parallel direction [to] be located a maximum of 54 feet seaward of the control line with control joints on 5-foot centers each way." Id. Special Permit Condition 4 further required that "[a]ll rubble and debris resulting from this construction shall be removed to a location landward of the [CCCL]." Id. Photographs received in evidence show that construction on the residence is now substantially completed. However, due to zoning code issues, a stop work notice was placed on the property by the County in 2008, and a Certificate of Occupancy has never been issued. On March 21, 2006, Ms. Pepper submitted a request to the Department to modify Permit No. SJ-844 and authorize the construction of a swimming pool, pool deck, and dune walkover seaward of the CCCL. The Final Order indicates that the application to modify the permit is now complete, but Ms. Pepper has waived the requirement that the Department take action on her request within 90 days after the application is deemed to be complete. Therefore, the modification has never been approved. On February 5, 2008, an Environmental Specialist in the District Office, Trey Hatch, conducted a routine inspection of the site and observed the unauthorized construction of wood retaining walls on the north and south property lines, the demolition and removal of a "derelict" septic tank and drain field seaward of maximum construction limits, and the storage of construction debris seaward of the maximum construction limits. See Department Exhibit 2. These activities were performed without Department approval. Mr. Hatch spoke with Mr. Spencer and advised him that any work beyond the scope of his permit required Department approval, and that the observed activities may be a violation of his permit. On February 20, 2008, the Department issued a Warning Letter to Ms. Pepper advising her that the activities observed by Mr. Hatch appeared to be in violation of her permit and section 161.053(2)(a). See Department Exhibit 3. After receiving a telephone call from "a citizen," on April 28, 2008, Mr. Hatch conducted a follow-up inspection of Respondents' property. He observed the construction of wood retaining walls along the north and south property lines; retaining walls still in place; the demolition and removal of a derelict septic tank and drainfield seaward of maximum construction limits; grading seaward of the new dwelling and creation of a 24' by 30' swale with berm sidewalls (which he believed might be for an above-ground swimming pool); and storage of building materials and debris seaward of maximum construction limits. See Department Exhibit 4. Mr. Hatch's report noted that "debris [observed during the February 5, 2008, inspection] has been removed." Id. During the inspection, Mr. Spencer advised Mr. Hatch that he was doing "perc tests," and not installing a swimming pool. On May 5, 2008, the Department issued a Notice of Violation/Cease and Desist Unauthorized Activities Seaward of the [CCCL] (Notice). See Department Exhibit 5. The Notice stated that the "violation consists of excavation, grading and placement of fill material seaward of the [CCCL] without benefit of a permit from the Department." Id. The Notice required Respondents to cease all unauthorized activities seaward of the CCCL and to respond to the Notice within ten days of receipt. Whether a response was filed is not of record. On May 12, 2008, Mr. Hatch conducted another on-site inspection of Respondents' property and observed that the wood retaining walls were still in place, and that Respondents had extended the retaining wall on the south side of the property to the western end of the existing wall. The violations observed on the April 28, 2008, inspection persisted. He also observed that the County had placed a stop work notice on the property. A Violation Report summarizing these activities was prepared by Mr. Hatch. See Department Exhibit 6. On June 6, 2008, the Department issued a letter advising Ms. Pepper that violations were occurring on her property; that Respondents' request filed on March 18, 2008, to "hold the file in abeyance" for 60 days pending the filing of an after-the-fact permit application that would authorize the retaining walls had expired; and that recently constructed concrete sidewalks on the property were not authorized under her permit. See Department Exhibit 7. The letter allowed Respondents an additional 21 days in which to file an after-the- fact application for both unauthorized activities; otherwise, it warned that an enforcement action would be initiated. After Respondents built the retaining walls, Dr. Reinhold, whose residence adjoins Respondents' property to the north, was forced to place two-by-fours against his fence because Respondents' retaining walls and fill were causing his fence to "bow" out. He also noted that fill is creeping under the fence and flowing onto his yard. Because of concerns that stormwater would now be forced onto his property, in the summer of 2008 he engaged the services of a professional engineer "to evaluate the conditions of [his] property . . . as it relates to problems with ongoing, adjacent construction [on Respondents' property]." Department Exhibit 10. The engineer's report indicated that there were no swales on Respondents' property to direct runoff to the front or rear yards; that the retaining walls were not stabilized; that in the event of a storm surge of ocean water, the fill and unauthorized sidewalks would have the potential of pushing more ocean water onto the adjoining properties; and that Respondents' deviation from permit requirements created a "very serious" situation. Id. These conclusions were not disputed by Respondents. Ms. Nichols, who owns the property to the south, stated that Respondents' retaining walls were leaning onto her property and there were gaps in the wall, which allowed run-off onto her property. Photographs received in evidence confirmed these concerns. See Department Exhibit 11. On June 5, 2009, the Department received an after-the- fact application for a CCCL permit from Ms. Pepper. However, the application was deemed to be incomplete in a number of respects, including a failure to attach a letter from the County indicating that all local zoning and setback requirements had been satisfied. See Department Exhibit 8. On May 10, 2010, the Department issued a Final Order advising Ms. Pepper that Respondents had initiated construction of wooden shore-normal retaining walls on their north and south property lines and concrete sidewalks on the sides of the existing single-family dwelling seaward of the CCCL without a Department permit. At hearing, Mr. Spencer did not dispute the accuracy of these charges. As mitigating circumstances, Mr. Spencer noted that he is currently in litigation with the County seeking to obtain approval of his site plan so that a letter indicating compliance with local zoning requirements can be filed with the Department. Until he secures a letter, the after-the-fact application cannot be completed. See Fla. Admin. Code R. 62B-33.008(3)(d). He indicated that a hearing in the circuit court case was scheduled on February 11, 2011, but the outcome of that matter is not of record. In a letter dated April 15, 2010, the County advised Respondents that their new home "contravenes local zoning regulations," but there are options available that would allow construction to proceed. See Department Exhibit 12. In order to complete construction of their new home, Respondents must agree to one of the following changes: removal of the one-story coquina residence; a reduction in the size of the guest house, private garage, or accessory family unit; or filing an application for a zoning variance to the front yard setback requirements for the one-story coquina residence in conjunction with one of the three reduction options described above. In addition, they must prepare and file a lot grading plan demonstrating that any fill added will not direct water to adjoining properties or block natural water flow from adjacent properties. Id. Until these steps are taken, the County will not provide a letter to Respondents confirming that the proposed activity does not contravene local zoning and setback requirements. Even though Permit No. SJ-844 required that drainage swales be constructed on both sides of the parcel, they were not built because Mr. Spencer concluded they would not work and, if installed, they would result in flooding on his property. After considering several alternatives, such as vertical landscaping and limerock, he decided that a small retaining wall would work best. However, this decision was the result of his own calculations and was not based on advice from a professional engineer. He also stated that he was advised by his engineer that no permit was required for retaining walls. More likely than not, however, the engineer was referring to requirements for a local building permit, and not a Department CCCL permit. Because of the engineer's advice, Mr. Spencer stated that he did not know he needed Department approval for the retaining walls. Mr. Spencer further noted that he was required to follow structural guidelines established by the Federal Emergency Management Agency (FEMA) and to place concrete slabs (sidewalks) on the sides of his house to help stabilize and support the second and third floors of the home in the event of a large storm event. Mr. Spencer stated that he has reduced the amount of fill authorized by the permit by 25 percent, and by installing sidewalks in lieu of a 120-foot driveway, he has used 1,200 cubic yards less concrete than is otherwise authorized. Even if the corrective action is taken, he opined that a large storm event will "wash away" his neighbors' homes, whose construction predates the new FEMA guidelines. Mr. Spencer acknowledged that he can easily remove the retaining walls, but if he does so, there will be nothing to prevent runoff from his higher elevated property onto the adjoining parcels. Finally, he expressed a willingness to comply with the permit conditions, but at the same time says he wants the Department to provide "a solution" to all of the objections to the project. Given the foregoing circumstances, the Department's proposed corrective action is deemed to be reasonable, and Respondents should remove the unauthorized retaining walls and concrete sidewalks and restore all disturbed areas.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order sustaining the charges in its Final Order. Respondents shall remove the unauthorized wooden shore-normal retaining walls and concrete sidewalks from the area seaward of the CCCL and restore any areas disturbed during the removal process within 30 days after a final order is entered in this matter. Further, Respondents shall pay a $1,000.00 administrative fine within the same time period. The check shall be mailed to Administrative Enforcement Section, Ecosystem Management and Restoration Trust Fund, Attention: Jim Martinello, 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000. The check should be payable to the Ecosystem Management and Restoration Trust Fund and include reference to file number VSJ 08-03 and OGC No. 10-1480. DONE AND ENTERED this 4th day of March, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 4th day of March, 2011.
Findings Of Fact State outdoor advertising permits numbered 11332-10 and AC679-10 were issued to Harry Moody Outdoor Advertising in August of 1979. These permits authorized a sign on S.R. 40, 2.5 miles east of U.S. 441/27/301, in Marion County, Florida. A building permit was issued by the City of Ocala in August, 1979, and Moody erected an outdoor advertising sign in 1979 pursuant to these permits. On June 25, 1984, Moody removed this sign when the property owner was bulldozing the property in preparation for the construction of a restaurant on the site. Moody planned to reerect this sign after the restaurant had been constructed. On July 23, 1984, Ray Outdoor Advertising received a building permit from the City of Ocala to erect a sign at 2141 E. Silver Springs Boulevard in Ocala. This location is within 750 feet of the site where Moody held permits. When Ray applied to the Department for state permits for its location, the Department denied the application because Ray's proposed location was too close to the permitted location of Moody to comply with the spacing rule. Ray's proposed site was 276 feet west of the location where Moody held state permits. Moody has a lease for the location where the Department has issued his state permits. This lease has been maintained, and it is renewed from year to year until revoked. There is no evidence that the lease was ever cancelled. In October of 1984, when the property where Moody's sign had been located was cleared and the sign could be reerected, Moody applied to the City of Ocala for a building permit. On October 26, 1984, this permit was denied because a building permit had been issued to Ray, and the site where the Moody sign was to be reerected was too close to the location where Ray's building permit authorized it to build a sign. In summary, the Department will not issue Ray a state permit because of the proximity of the site where Moody holds state permits, and the City of Ocala will not issue Moody a building permit to reerect its sign because of the proximity of the site where Ray has a building permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter its Final Order dismissing its notice of revocation of permits numbered 11332-10 and AC679-10 held by Harry Moody Outdoor Advertising; and denying the application of Ray Outdoor Advertising for a permit on U.S. 40, 1.9 mile east of U.S. 441/301, in Marion County, Florida. THIS RECOMMENDED ORDER entered this 21st day of August, 1986 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 21st day August, 1986. COPIES FURNISHED: C. Ray Green, Esquire 2600 Gulf Life Tower Jacksonville, Florida 32207 Philip S. Bennett, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Timothy C. Laubach, Esquire 511 N. Ferncreek Avenue Orlando, Florida 32803 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301-8064 A. J. Spalla, Esquire General Counsel Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301-8064
Findings Of Fact At all times material hereto, Respondent has been a certified air conditioning contractor, holding License No. CAC009065, and has been the qualifying agent for Residential Air Conditioning Corporation (hereinafter "Residential Air") in Miami, Florida. On October 1, 1985, Residential Air entered into a contract with June Davidson to install air conditioning in her mother's house in the City of Miami on a rush basis because of the health needs of the elderly mother and because Davidson needed to return to New York. Residential Air's salesman was told by Davidson that a medical emergency situation existed for the Davidson job. The following notation appears in the comments section of the contract signed on October 1, 1985: "Please rush this job--woman needs a/c for health ... woman going back to New York--mother needs job." In the contract addendum signed on October 2, 1985, it was noted that Davidson was waiving her 3-day rescission rights because of the medical situation in the family and that the air conditioner needed to be installed immediately. Respondent was out of town on vacation at the time and was not scheduled to return for several days. Respondent has done job drawings and pulled permits for the company over its 16 years of existence. It was Respondent's practice to pull all permits necessary to cover the next several weeks before going on vacation. As a special accommodation to the customer in an emergency situation, Richard Vanni, a part-owner of Residential Air with 30 years of experience in air conditioning installation, assembled a crew to install the system for the Davidson job on October 2, 1985. Mr. Vanni assumed that Respondent would pull the permit on a late basis when he returned from vacation. The ordinance adopting the South Florida Building Code in the City of Miami provides for a late fee in the event an application for job permit is filed after the job begins. It was Mr. Vanni's understanding that in rush or emergency situations legitimate contractors could proceed with work and file late for the permit, that this was acceptable to the various municipal building departments in the south Florida area, and that most building departments are fair in the administration of permit laws and allow appropriate latitude to responsible contractors proceeding in good faith. No evidence was presented that Mr. Vanni or Residential Air had any intent to avoid paying a permit fee, including the appropriate late penalty, or to evade final inspection when the job was completed. Respondent, as qualifying agent for Residential Air, regularly procures permits for all of the company's jobs, and the company is a highly responsible air conditioning contractor. Conner Adams, the Chief Mechanical Inspector for the City of Miami, is aware of no code violations or previous late penalties regarding Respondent or Residential Air and recalls no problems of any kind with Respondent or with the company. Respondent's only previous violation of the state contracting laws involved payment to the Department of Professional Regulation of a small stipulated fine to settle a highly technical charge of using the word "company" instead of the word "corporation" on its contract form prepared by its attorney. The air conditioning unit for the Davidson job was installed with a temporary hook-up which was to be followed by an audit inspection by Florida Power & Light Company and an increase in the electrical service by the electrical subcontractor. The increased service was not done because the customer stopped payment on her check and would not let the company back on the premises. When Respondent returned from vacation a few days later, he immediately became immersed in accumulated office problems and the problem created by the Davidson job. He tried to pacify and accommodate Davidson by visiting the premises and proposing compromises. No one called to Respondent's attention the fact that the Davidson job was not yet permitted. Respondent was not focusing on that issue, and with the other problems engrossing him, it simply slipped his mind to inquire or to check. 12. As Respondent explained, it would be absurd for him to intentionally not procure a permit for a job involving electrical service increase or customer problems. Lack of a permit is readily discovered in such instances and may provide an excuse for the customer to try to avoid payment. Mrs. Sylvia Vanni, wife of co-owner Richard Vanni, is and has been the office manager of Residential Air. Her system has been to place pending job orders and contracts into a "3-day rescission file." After the 3-day rescission time has elapsed and payment arrangements have been made, the job orders or contracts are routinely given to Respondent to pull permits for those jobs. Because Respondent was not present when the Davidson job was undertaken, the contract was not then given to him to pull a permit. When the job was started, Mrs. Vanni mistakenly placed the contract into the "jobs in progress" file, and it was never presented to Respondent to pull a permit after he returned from vacation. The electrical subcontractor also did not notify Respondent of the need for a permit. Since the company was not allowed back on the premises, the electrical subcontractor was not called upon to apply for an electrical permit to increase the electrical service, which would have called Respondent's attention to the need for a mechanical permit. The system and procedures normally relied upon in the office did not function to alert Respondent to apply for a permit on the Davidson job. When the City of Miami Building Department contacted Respondent pursuant to Davidson's inquiry whether a job permit existed, Respondent immediately made application, paid the late fee, and obtained a mechanical permit on November 5, 1985. Respondent's plans and drawings for the job were deemed satisfactory by the City of Miami Building Department. No evidence was presented of any intentional or willful disregard of, or obstinate indifference to, the building permit laws. Respondent's delay in obtaining a late permit after he returned from vacation was caused by simple oversight in the midst of trying to satisfactorily resolve a difficult customer problem in that no one advised him that a permit had not been pulled or that the Davidson job was not one for which he had pulled a permit prior to going on vacation. The initial charging document in this cause is an Amended Administrative Complaint signed on August 24, 1987. The charges in the Amended Administrative Complaint are the same charges that were contained in an Administrative Complaint filed by the Petitioner against Respondent on July 24, 1986. That complaint was voluntarily dismissed by Petitioner on February 10, 1987, just before the final hearing scheduled in that case for February 16, 1987. Petitioner's probable cause panel met on August 12, 1987, and approved the filing of the Administrative Complaint which became the initial charging document in this cause. The probable cause panel was not told that charges related to the same matter had been dismissed by the Department six months earlier. Indeed, no explanation or discussion of the charges occurred at all. There was only an approval of the prosecutor's recommendation, and the entire discussion of the probable cause panel regarding the existence of probable cause to file the Amended Administrative Complaint consists of the following exchange: MR. SHROPSHIRE [agency attorney]: The next case is against Mr. Heisler, No. 65634. Prosecutor recommends a finding of probable cause and the filing of a formal complaint. MR. CARSON: I'd like to make a motion we accept the prosecutor's recommendations. MR. SUTTON: Second. MR. CARSON: All in favor say aye. MR. SUTTON: Aye. MR. CARSON: All opposed? MR. SHROPSHIRE: The next case is ... Whether probable cause was properly determined was reserved in the Prehearing Stipulation as a issue for determination at the final hearing in this case. No evidence bearing on the probable cause determination was offered by the Department. The charges in the Amended Administrative Complaint were brought (signed) on behalf of the Secretary of the Department of Professional Regulation by Douglas A. Shropshire, an attorney and the Tectonics Section Chief. Whether Mr. Shropshire had authority to institute the complaint on behalf of the Department was also reserved as an issue for final hearing. Mr. Shropshire is not the head of the agency. The Department offered no evidence of his designation to act for the Secretary in regard to instituting disciplinary charges.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered dismissing with prejudice the Amended Administrative Complaint filed in this case. DONE and RECOMMENDED this 10th day of March, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 10th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4452 Petitioner's proposed findings of fact numbered 1-10 have been adopted in substance or verbatim in this Recommended Order. Respondent's proposed findings of fact numbered 1-27 have been adopted in substance or verbatim in this Recommended Order. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 M. Stephen Turner, Esquire Post Office Box 11300 Tallahassee, Florida 32301-3300 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact In August of 1995 Champion International Corporation gave Petitioner permission to place a sign advertising The Outpost on property that Champion owned in Walton County. The sign was to be located at the corner of the south side of State Road 20 and Black Creek Boulevard. State Road 20 is a federal-aid primary road. Black Creek Boulevard is a county maintained road. Petitioner subsequently erected a 4' X 8' outdoor advertising sign on Champion's property. The sign was located on the south side of State Road 20, two miles east of U. S. 331 and twenty (20) feet west of the intersection of State Road 20 and Black Creek Boulevard. The sign was double-sided with east and west faces. On September 1, 1995, Petitioner filed an application with Respondent requesting a permit for the 4' X 8' sign already erected on the south side of State Road 20 and twenty (20) feet west of the intersection of State Road 20 and Black Creek Boulevard. On September 22, 1995 Respondent issued a Notice of Denied Application informing Petitioner that it could not have a permit for a sign on the south side of State Road 20 and twenty (20) feet west of the intersection of State Road 20 and Black Creek Boulevard. Respondent denied this permit for two reasons: (a) the location was zoned "agricultural" which was an un-permittable land use designation; and (b) the proposed sign was located on the state's right-of-way. After receiving the Notice of Denied Application, Petitioner removed the 4' X 8' sign. On or about January 29, 1996 Petitioner filed a sign permit application with the Walton County Building Department. The application was for an off- premises sign to be located fifty (50) feet south of State Road 20 along Black Creek Boulevard. The application states that: If the proposed sign is located along a federal aid primary road, a permit from the Florida Department of Transportation (904/638-0250) must be obtained before a Walton County building permit is issued. The applicant must obtain a letter from Walton County to submit to the Department of Transportation to submit with the application. Petitioner did not apply for a permit from Respondent for this proposed sign. The Walton County Building Department issued Petitioner a permit to erect the proposed sign on January 29, 1996. Petitioner subsequently erected a second sign on the south side of State Road 20, one foot off of the right-of-way, and about fifty (50) feet from the intersection of State Road 20 and Black Creek Boulevard. It was 8' X 8', two-sided, mounted in concrete, with red, black and white copy advertising The Outpost on both sides. The sign was placed so that it could be read by east and west bound traffic along State Road 20. Only the east face of the sign could be read from Black Creek Boulevard. The subject sign was located within 660 feet of the right-of-way of State Road 20. It did not qualify as an on-premise sign because the Outpost RV Park was located two miles away. Respondent never received a permit application from Petitioner for the 8' X 8' sign. There was no material difference in the location of Petitioner's previously removed 4' X 8' sign and the new 8' X 8' sign. On May 13, 1996 Respondent issued Notice of Violation No. 10BME1996110 to Petitioner for the west facing of the 8' X 8' sign. Respondent also issued Notice of Violation No. 10BME1996111 to Petitioner for the east facing of the same sign. Each Notice of Violation contained a location description for a sign which was the same as the location description contained in Petitioner's previously denied sign permit application. The basis for both violations was that neither sign had the permit required by Section 479.07(1), Florida Statutes. The notices directed Petitioner to remove the sign structure within thirty (30) days. Respondent subsequently removed the 8' X 8' sign because Petitioner failed to do so within the prescribed time. Respondent's right-of-way on the north and south side of State Road 20 is the area that Respondent maintains which is approximately fifty (50) feet. Respondent's right-of-way map showing the maintained area is available to the public at Respondent's Right-Of-Way Office. In the past, Petitioner erected other signs along U. S. Highway 331 without obtaining a permit. Respondent issued a permit for at least one of these signs after Petitioner filed the appropriate application. Respondent required Petitioner to remove any sign that was not eligible for a permit. Respondent's inspector issued more than ten (10) notices of violation to owners of other outdoor advertising signs in the same general vicinity as Petitioner's 8' X 8' sign on May 13, 1996. These signs have been removed. There is a Reddick Fish Camp sign located on the south side of State Road 20 and west of the intersection of State Road 20 and County Road 3280. That sign is located six miles from the sign at issue here. Another sign has been nailed to a tree three-quarters of a mile west of the subject sign. There is insufficient evidence to determine whether these signs are illegal because they do not have a permit. There is no persuasive evidence that Respondent issues violations to Petitioner when it erects an off-premises sign without a permit but allows illegal signs of other property owners to exist without issuing similar notices of violation. Even if Petitioner had filed a permit application for the sign structure at issue here, it would have been ineligible for issuance of a permit because the location's land use designation was agricultural. If the property had been zoned commercial or industrial, Petitioner would have been required to have a permit because the sign did not qualify for any exceptions to Chapter 479, Florida Statutes.
Recommendation Based upon the findings of fact and the conclusions of law, it is recommended that Respondent enter a Final Order finding that Petitioner erected a sign with two faces in violation of Section 479.07(1), Florida Statutes. DONE and ENTERED this 17th day of December, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1996. COPIES FURNISHED: Paul T. Davis 4576 Highway 3280 Freeport, Florida 32439 Andrea V. Smart, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transporation 605 Suwannee Street Tallahassee, Florida 32399-0450 Thornton J. Williams, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
