Findings Of Fact The parties stipulated to the following facts: Petitioner is an employee of the Boromei-Mirabella Seafood Company, a licensed fish dealer located in Tampa, Florida. The scope of Petitioner's employment included the vehicular transport of fish for sale or purchase. While engaged in his employment, Petitioner was apprehended and arrested by officers of the Commission, and charged with violation of Rules 39-10.02(4) and 39- 10.02(5), Florida Administrative Code. Petitioner's arrest occurred in Highlands County, Florida, on or about December 11, 1980. Petitioner, for purposes of this proceeding, admits to the factual behavior alleged in the arrest citation issued by Respondent's offices. The rules challenged in this proceeding were promulgated by Respondent in accordance with the procedures set forth in Chapter 120, Florida Statutes, also known as the Administrative Procedure Act. The challenged rules became effective on August 11, 1979. Both rules cite Article IV, Section 9, of the Florida Constitution and Section 372.021, Florida Statutes, as "specific authority" for promulgation of the rules. In addition, Section 372.65, Florida Statutes, is listed in the Florida Administrative Code, as the "law implemented" by the two challenged rules.
The Issue Whether Respondent, Xencom Facility Management, LLC (Xencom), terminated the employment of Petitioners solely because the contract under which they were working ended.
Findings Of Fact Xencom provides general maintenance, landscaping, housekeeping, and office cleaning services to retail facilities. In September of 2015, Xencom entered three contracts for services with CREFII Market Street Holdings, LLC (CREFII). The contracts were to provide maintenance, landscaping, and office cleaning services for a mall known as Market Street @ Heathbrook (Market Street) in Ocala, Florida. Michael Ponds, Xencom’s president, executed the contracts on behalf of Xencom. Two individuals executed the contracts on behalf of CREFII. One was Gar Herring, identified as manager for Herring Ocala, LLC. The other was Bernard E. McAuley, identified as manager of Tricom Market Street at Heathbrook, LLC. MG Herring was not a party or signatory to the contracts. MG Herring does not own or operate Market Street. A separate entity, The MG Herring Property Group, LLC (Property Group), operated Market Street. The contracts, in terms stated in an exhibit to them, established a fixed price for the year’s work, stated the scope of services, and detailed payment terms. They also identified labor and labor-related costs in detail that included identifying the Xencom employees involved, their compensation, and their weekly number of hours. The contract exhibits also identified operating costs, including equipment amortization, equipment repairs, fuel expenses, vacation costs, health insurance, and storage costs. The contracts ended December 31, 2016. The contracts specify that Xencom is an independent contractor. Each states: “Contractor is an independent contractor and not an employee or agent of the owner. Accordingly, neither Contractor nor any of Contractor’s Representatives shall hold themselves out as, or claim to be acting in the capacity of, an agent or employee of Owner.” The contracts also specify that the property manager may terminate the contract at any time without reason for its convenience. The contracts permit Xencom to engage subcontractors with advance approval of the property manager. They broadly describe the services that Xencom is to provide. Xencom has over 80 such contracts with different facilities. As the contracts contemplate, only Xencom exerted direct control of the Petitioners working at Market Street. Property Group could identify tasks and repairs to be done. Xencom decided who would do them and how. In 2013, Xencom hired Michael Harrison to work as its Operations Manager at Market Street. He was charged with providing services for which Property Group contracted. His immediate supervisor was Xencom’s Regional Manager. In 2016, that was David Snell. Mr. Snell was not located at Market Street. Property Group also did not have a representative on site. Before Xencom hired him, Mr. Harrison worked at Market Street for Property Group. Xencom hired the remaining Petitioners to work at Market Street under Mr. Harrison’s supervision. Each of the Petitioners completed an Application for Employment with Xencom. The application included a statement, initialed by each Petitioner, stating, “Further, I understand and agree that my employment is for no definite period and I may be terminated at any time without previous notice.” All of the Petitioners also received Xencom’s employee handbook. As Xencom’s Operations Manager and supervisor of the other Petitioners, Mr. Harrison was responsible for day-to-day management of Petitioners. He scheduled their work tasks, controlled shifts, established work hours, and assigned tasks. Mr. Harrison also decided when Petitioners took vacations and time off. His supervisor expected him to consult with Property Group to ensure it knew what support would be available and that he knew of any upcoming events or other considerations that should be taken into account in his decisions. As Operations Manager, Mr. Harrison was also responsible for facilitating payroll, procuring supplies, and managing Xencom’s equipment at the site. Xencom provided Petitioners work uniforms that bore Xencom’s name. Xencom required Petitioners to wear the uniforms at work. Xencom provided the supplies and equipment that Petitioners used at work. Only Xencom had authority to hire or fire the employees providing services to fulfill its contracts with the property manager. Only Xencom had authority to modify Petitioners’ conditions of employment. Neither MG Herring, Property Group, nor Xencom held out Petitioners as employees of MG Herring or Property Group. There is no evidence that MG Herring or Property Group employed 15 or more people. Property Group hired Tina Wilson as Market Street’s on- site General Manager on February 1, 2016. Until then there was no Property Group representative at the site. The absence of a Property Group representative on-site left Mr. Harrison with little oversight or accountability under the Xencom contracts for Market Street. His primary Property Group contact was General Manager Norine Bowen, who was not located at the property. Ms. Wilson’s duties included community relations, public relations, marketing, leasing, litigation, tenant coordination, lease management, construction management, and contract management. She managed approximately 40 contracts at Market Street, including Xencom’s three service agreements. Ms. Wilson was responsible for making sure the contracts were properly executed. Managing the Xencom contracts consumed less than 50 percent of Ms. Wilson’s time. During the last weeks of 2016, Mr. Harrison intended to reduce the hours of Kylie Smithers. Ms. Wilson requested that, since Ms. Smithers was to be paid under the contract for full- time work, Ms. Smithers assist her with office work such as filing and making calls. Mr. Harrison agreed and scheduled Ms. Smithers to do the work. This arrangement was limited and temporary. It does not indicate Property Group control over Xencom employees. Ms. Wilson was Xencom’s point of contact with Property Group. She and Mr. Harrison had to interact frequently. Ms. Wilson had limited contact with the other Xencom employees at Market Street. Friction and disagreements arose quickly between Mr. Harrison and Ms. Wilson. They may have been caused by having a property manager representative on-site after Mr. Harrison’s years as either the manager representative himself or as Xencom supervisor without a property manager on-site. They may have been caused by personality differences between the two. They may have been caused by the alleged sexual and crude comments that underlie the claims of discrimination in employment. They may have been caused by a combination of the three factors. On November 21, 2016, Norine Bowen received an email from the address xencomempoyees@gmail.com with the subject of “Open your eyes about Market Street.” It advised that some employees worked at night for an event. It said that Ms. Wilson gave the Xencom employees alcohol to drink while they were still on the clock. The email said that there was a fight among Xencom employees. The email also said that at another event at a restaurant where Xencom employees were drinking, Ms. Wilson gave Ms. Smithers margaritas to drink and that Ms. Smithers was underage. The email claimed that during a tree-lighting event Ms. Wilson started drinking around 3:30 p.m. It also stated that Ms. Wilson offered a Xencom employee a drink. The email went on to say that children from an elementary school and their parents were present and that Ms. Wilson was “three sheets to the wind.” The email concludes stating that Ms. Wilson had been the subject of three employee lawsuits. On December 14, 2016, Ms. Wilson, Ms. Bowen, and Mr. Snell met at Property Group’s office in Market Street for their regular monthly meeting to discuss operations at Market Street. Their discussion covered a number of management issues including a Xencom employee’s failure to show up before 8:00 to clean as arranged, security cameras, tenants who had not paid rent, lease questions, HVAC questions, and rats on the roof. They also discussed the email’s allegations. The participants also discussed a number of dissatisfactions with Mr. Harrison’s performance. Near the end of a discussion about the anonymous email, this exchange occurred:2/ Bowen: Okay, so I know that David [Snell], I think his next step is to conduct his own investigation with his [Xencom] people, and HR is still following up with John Garrett, and you’re meeting with Danny [intended new Xencom manager for Market Street] tonight? David Snell: Yes. Bowen: To finish up paperwork, and, based on his investigation, it will be up to Xencom to figure out what to do with people that are drinking on property, off the clock or on the clock, you know, whatever, what their policy is. * * * Bowen: So, I don’t know what to make of it. I’m just here to do an investigation like I’m supposed to do and David is here to pick up the pieces and meet with his folks one-on- one, and we’ll see where this takes us. This exchange and the remainder of the recording do not support a finding that Property Group controlled Xencom’s actions or attempted to control them. The participants were responsibly discussing a serious complaint they had received, their plan to investigate it, and pre-existing issues with Mr. Harrison. The exchange also makes clear that all agreed the issues involving Xencom employees were for Xencom to address, and the issues involving Property Group employees were for Property Group to address. At the time of the December 14, 2016, meeting, the participants were not aware of any complaints from Mr. Harrison or Mr. Smithers of sexual harassment or discrimination by Ms. Wilson. On December 15, 2016, Gar Herring and Norine Bowen received an email from Mr. Harrison with an attached letter to Xencom’s Human Resources Manager and others. Affidavits from Petitioners asserting various statements and questions by Ms. Wilson about Mr. Harrison’s and Mr. Smithers’ sex life and men’s genitalia and statements about her sex life and the genitalia of men involved were attached. Xencom President Michael Ponds received a similar email with attachments on the same day. On December 21, 2016, Mr. Ponds received a letter from Herring Ocala, LLC, and Tricom Market Street at Heathbrook, LLC, terminating the service agreements. Their agreements with Xencom were going to expire December 31, 2016. They had been negotiating successor agreements. However, they had not executed any. Xencom terminated Petitioners’ employment on December 21, 2016. Xencom no longer needed Petitioners’ services once MG Herring terminated the contract with Xencom. This was the sole reason it terminated Petitioners.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order denying the petitions of all Petitioners. DONE AND ENTERED this 15th day of May, 2018, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 15th day of May, 2018.
The Issue Whether the Comprehensive Plan Amendment to the Village of Wellington Comprehensive Plan, adopted by Ordinance No. 2001-11, is "in compliance" as defined in and required by the "Local Government Planning and Land Development Regulation Act," Chapter 163, Part II, Florida Statutes, and whether the Plan Amendment is supported by adequate data and analysis as required by Chapter 163, Part II, Florida Statutes, and Rule 9J-5, Florida Administrative Code.
Findings Of Fact The Parties Palm Beach Polo Holdings, Inc. Polo is a Florida corporation and the owner of real property within the Wellington Country Place Planned Unit Development (PUD), which is located within the Equestrian Preserve of the Village of Wellington, Florida. Polo is a developer of the Wellington Country Place PUD, significant portions of which remain undeveloped. Specifically, the Wellington Country Place PUD is about 30 to 35 percent built-out. Among Polo's real estate holdings in the Village of Wellington is a 17.9-acre parcel of undeveloped, commercially designated land, which is located on South Shore Boulevard at or near the intersection with Green Shores Boulevard. Glen F. Straub and Michael H. Nelson appeared at the final hearing as the corporate representatives of Polo. Mr. Nelson lives in Wellington and is employed by Effective Solutions, Inc., which provides a number of services to Polo, including management services, land use services, and lobbying services. In his lobbying capacity, Mr. Nelson has on numerous occasions advocated Polo's position before the Village. Mr. Nelson and Mr. Straub spoke in opposition to the Amendment at the October 23, 2001, meeting of the Wellington Village Council. Mr. Nelson testified at the October 23, 2001, meeting, in support of the four-laning of the two roadway segments which will remain two-lane roads under the Amendment. Mr. Nelson's objections were made in his capacity as a resident of Wellington and "as an effected [sic] resident from Basin A." The minutes of the October 23, 2001, Wellington Village Council meeting, which were introduced into evidence by Polo to establish its standing, state that "Mr. Straub stated that he was concerned with limiting traffic on South Shore Boulevard. He felt that the Council should consider 4- laning that road." Mr. Nelson also stated: ". . . the Council needed to consider ways to help circulate traffic for residents of Basin A. He felt that there would be a need in the future to 4-lane South Shore and Lake Worth Road." Polo's Amended Petition alleges that "[r]ather than improving these road segments by four laning them - the road segments are currently two lane - the Village through the current amendment seeks to lower the LOS to E and add more trips." Mr. Straub testified that a four-lane road might be an alternative. In part, he was concerned that the Village Council did not examine the effect of "build-out" in the area and the impact on traffic and resulting "gridlock" in the area. Mr. Straub views the Amendment (which he says is inconsistent with the Plan) as a "Band-Aid" to fix an ongoing traffic problem. Mr. Straub believes the traffic analysis supplied to the Village Council was performed hastily, incomplete, and inadequate. The Village of Wellington. The Village is a municipality of the State of Florida, with the duty and responsibility under Chapter 163, Part II, Florida Statutes, to adopt a comprehensive plan and comprehensive plan amendments. The Village is located in the western portion of Palm Beach County and became incorporated in 1995 and operational on March 28, 1996, with the seating of the first Village Council. Following incorporation, the Village adopted its first Comprehensive Plan in 1999. Department of Community Affairs. The Department is the state land planning agency and has the authority to administer and enforce the Local Government Planning and Land Development Regulation Act (Act), Chapter 163, Part II, Florida Statutes. Among the responsibilities of the Department under the Act is the duty to review plan amendments and determine if the comprehensive plans and plan amendments are in compliance with the Act. Village Review and Adoption of the Amendment The Village Equestrian Preserve Committee was created to review all decisions affecting the Equestrian Preserve prior to the full review by the Village Council. On April 11 and 26, 2001, the Village Equestrian Preserve Committee considered several options for the designated roadways, including the proposed Amendment. On May 9, 2001, the Village Equestrian Preserve Committee voted to recommend approval of the Amendment. On June 7, 2001, the Village Planning, Zoning, and Adjustment Board, sitting as the Local Planning Agency, recommended approval of the Amendment. The Village planning staff recommended approval of the Amendment. On October 23, 2001, the Village adopted the Amendment by Ordinance No. 2001-11. Department Review of the Amendment The Village submitted the adopted Ordinance No. 2001- 11, the Staff Report, and other supporting documents to the Department for review on October 31, 2001. After a review of the adopted Amendment, on December 13, 2001, the Department sent a letter to the Village, informing the Village that the Amendment was "in compliance" as that term is defined in Subsection 163.3184(1)(b), Florida Statutes. The Department issued its Notice of Intent to find the Amendment "in compliance" pursuant to Sections 163.3184 and 163.3189, Florida Statutes. This notice was published in the Palm Beach Post on December 17, 2001. The Existing Village Comprehensive Plan The Village's Comprehensive Plan was adopted in 1999, by Ordinance No. 99-01. Subsequently, the existing Comprehensive Plan was reviewed by the Department and found to be "in compliance" with the Act. The Transportation Element of the existing Village Plan contains the following Goal, Objective, and Policy: Goal 1.0 Provide a transportation system that meets the needs of the Village of Wellington and the larger community of which the Village is a part while maintaining a high quality of life for Village residents and businesses. Objective 1.1 Motorized and non-motorized transportation system: Achieve a safe, convenient, and efficient motorized and non-motorized transportation system consisting of arterial, collector and local street and roads; pedestrian ways; bicycle ways and equestrian trails which provide: acceptable levels of service; 2) alternative routes of travel for major traffic flows; and 3) minimal vehicular intrusion into residential neighborhoods. This objective shall be made measurable by implementing policies. [9J-5.007(3)(b)(1)] Policy 1.1.1. provides, in part, LOS standards for streets and roads in the Village. All Village arterial and collector streets and all Village local streets and roads have a Level of Service (LOS) D and all Village rural collector streets have a LOS E. By definition in the Plan, "Rural Collector" and "Rural Local Roads and Streets" shall be designed to maximize safety and minimize traffic speeds in the Equestrian Preserve Area. They shall be no more than two lanes, except for turn lanes, in the case of "Rural Collector" roads. The Transportation Element includes the "Future Transportation Map." This map's legend identifies the various types of roadways within the Village, which are graphically depicted on the map. Some of the roadways have different classifications for discrete roadway segments. The Plan includes an optional section entitled "Equestrian Preservation Element," which is designed to preserve the Village's equestrian community. The data and analysis for this Plan Element provides: (1) a history, overview, and assessment of the Village's equestrian industry; (2) an assessment of the potential threats and opportunities affecting that industry; and (3) actions which may be taken to further the preservation and integration of the equestrian industry and rural lifestyle into the fabric of the growing community. The Equestrian Preservation Element supplements other provisions of the Plan which relate to the Equestrian Preserve area. It is not the sole portion of the Plan which applies to that area. The Equestrian Preservation Element was placed in the Plan to protect the unique character of the Equestrian Preserve area. It identifies the equestrian uses that are found there and seeks to preserve the rural lifestyle that is found in the equestrian area. The Equestrian Preservation Element includes data and analysis, Goals, Objectives, and Policies (GOPs), and a Future Equestrian Circulation Map, which includes roads and equestrian trails. Unlike this map and the GOPs, the data and analysis are not adopted portions of the Plan. The Equestrian Preservation Element of the existing Plan contains the following Goal, Objective, and Policies: Goal 1.0 The goal of this element is to ensure the preservation and protection of the neighborhoods which comprise this area, the equestrian industry and the rural lifestyles which exist in the Equestrian Preserve. Objective 1.3 The Village shall control traffic volume, speed and type within the Equestrian Preserve to limit the negative impacts of high volume, high speed and through traffic on the Equestrian Preserve. This objective shall be made measurable by its implementing policies and by limiting vehicular speed on rural roads, installation of signage, road design features, implementation of capital improvement projects and other actions of the Village Council. Policy 1.3.1 Within one year of the effective date of this plan, the Village will develop a traffic-calming plan for all roadways in the Equestrian Preserve. This plan shall: Minimize traffic through the area by considering alternative routes around the area; Provide for safe equestrian crossings at all identified points of vehicular and equestrian conflict. Particular attention shall be paid to the intersection of South Shore and Pierson Road and Lake Worth Road and South Shore Boulevard and generally along Pierson Road; Provide for a reduction in speed through the installation of traffic circles, speed humps, four-way stop signs or other traffic calming measures as deemed appropriate by the Village Engineer. Policy 1.3.3 Roadways within the Equestrian Preserve shall be maintained as two-lane facilities. Adopted levels of service for these roadways shall be Level of Service E. As noted, the Equestrian Preservation Element gives special planning treatment to the Village's equestrian preserve area to protect its equestrian nature and rural lifestyle. The Element protects the Equestrian Preserve by controlling the impacts of traffic. It treats traffic and roadways inside the Equestrian Preserve differently from that outside the Preserve. It seeks to limit through-traffic in the Equestrian Preserve by reducing speeds and level of service, and requiring traffic signage and calming measures in the Preserve. The Element also establishes an Equestrian Committee to review and make recommendations regarding development proposals in the Preserve. The Amendment On October 23, 2001, the Village Council adopted Ordinance No. 2001-11, which approves certain amendments to the Plan. The Ordinance adopted various changes to the Transportation and Capital Improvements Elements related to the creation and implementation of a new roadway classification, "Rural Arterial." The Transportation Element Policy 1.1.1 establishes LOS standards for roadways depicted on the Future Transportation Map, identifies corresponding criteria for each roadway, and defines roadway classifications and qualifying criteria. Prior to the Amendment, "[a]ll Village arterial and collector streets" and "[a]ll Village rural collector streets," had an LOS of D and E, respectively. (The Future Transportation Map shows the types of roadways and the segment classifications for each of the various roadways within the Village.) The Amendment amends the Transportation Element Policy 1.1.1 of the Plan to create the new Village roadway classification of "Rural Arterial" and to adopt an LOS standard of "E" for all Village Rural Arterial roads and describes these roads as follows: These roads shall be designed to maximize safety and minimize traffic speeds in the Equestrian Preserve Area. They shall be no more than two lanes, except for turn lanes. Rural Arterial Roads shall be paved and shall be designed and marked in a manner to limit vehicular speeds. Transportation Element Policy 1.5.2 is amended and adopts right-of-way widths for roadways based on their classification in Policy 1.1.1. Under Policy 1.5.2, all public roads, except local streets, must have right-of-way widths of 120 feet. The Amendment provides a right-of-way width of 120 feet for Rural Arterial roads "to allow comfortable separation between vehicles and horses." The Amendment also amends the Transportation Element to designate two roadway segments within the Village as Rural Arterial on the Future Transportation Map. These re- designated roadway segments are South Shore Boulevard from Pierson Road to Lake Worth Road, and Lake Worth Road from 120th Street West to South Shore Boulevard (the roadway segments). The roadway segments are located in the Wellington Country Place PUD and the Equestrian Preserve. The Capital Improvements Element (CIE) Policy 1.2.1 mirrors Transportation Policy 1.1.1 to a large extent by reiterating the same LOS standards. CIE Policy 1.2.1 identifies criteria for various roadways, as does Transportation Policy 1.1.1. With respect to arterial and collector streets, pre-Amendment CIE Policy 1.2.1 described the qualifying criteria as "[u]ntil such time and at such locations as signalized intersections exceed 2.49 per mile." The Amendment deletes this description. CIE Policy 1.2.1 also was amended to delete the description of Village Rural Arterial roads as having "2.49 or fewer intersections per mile." Under the Amendment, this Policy refers to all Village Rural Arterial roads as having an LOS standard of E with no mention of signalization or intersections or other qualifying criteria. The Amendment also amends the CIE to include funding for the improvement of the two re-designated roadway segments in the five-year capital improvements schedule in the CIE. The two roadway segments are to be reconstructed as two-lane roadways with a median and turn lanes. The term "rural" in the context of the Village's roadway classifications refers to a roadway lying within the Equestrian Preserve. It is not used to describe the nature of the roadway's surroundings. See endnote 2. Polo's Amended Petition Polo alleges that the Amendment is not "in compliance" because it is internally inconsistent with Transportation Element Goal 1.0 and Objective 1.1, and Equestrian Element Objective 1.3 of the Village Comprehensive Plan. Polo also alleges that the Amendment is inconsistent with the Wellington Country Place Planned Unit Development (Wellington PUD), which is, according to Polo, incorporated into the Village Comprehensive Plan and contemplates that the two road segments in question will be four-laned. Further, Polo alleges that the Amendment is not supported by adequate data and analysis as required by Section 163.3177(6),(8), and (10), Florida Statutes, and Rule 9J-5.005(2), Florida Administrative Code. In the Joint Prehearing Stipulation, Polo clarified and stated with particularity that its claim of inadequate date and analysis relates to three deficiencies in the Pinder- Troutman traffic analysis relied upon by the Village. Specifically, Polo contended that the Pinder-Troutman traffic analysis is deficient because it (1) used only a one-day traffic count as opposed to three days; (2) failed to properly account for future growth; and (3) did not include a safety analysis. See Findings of Fact 60-74. The Affected Roadways The two roadway segments directly affected by the Amendment are (1) South Shore Boulevard from Pierson Road to Lake Worth Road; and (2) Lake Worth Road from 120th Street to South Shore Boulevard. The two roadway segments are located in the Equestrian Preserve of the Village. Currently, the two roadway segments are two-lane undivided roads. They are designated on the Future Transportation Map of the existing Village Comprehensive Plan as two-lane collector roads with an LOS D. Internal Consistency Polo contends that the Amendment is inconsistent with the following Plan provisions: (1) Transportation Element Goal 1.0; (2) Transportation Element Objective 1.1; and (3) Equestrian Preserve Element Objective 1.3. The existing Village Comprehensive Plan was adopted in 1999, and subsequently reviewed and determined to be "in compliance" by the Department. The Department’s final determination of compliance included a determination that the provisions of the Village's original Comprehensive Plan were internally consistent and supported by adequate date and analysis. In determining the internal consistency of the Amendment with existing provisions of the Comprehensive Plan, each Comprehensive Plan Goal and its umbrella Objectives and Policies must be read and considered together. It is not appropriate to read and interpret an individual Policy in isolation. Maintaining the high quality of the equestrian lifestyle for the Equestrian Preserve Area is a major goal for the Village. Transportation Policy 1.1.19 recognizes the unique character of the Equestrian Preserve Area, and the need to preserve it, by requiring the Village to "implement its system of streets and roads in coordination with the system of equestrian trials and other equestrian facilities set forth in the Goals, Objectives and Policies of the Equestrian Element." Limiting the speed for through-traffic and discouraging cut-through traffic is consistent with Goal 1.0 and Objective 1.1 of the Transportation Element. The Amendment accomplishes this by limiting the Rural Arterial roads to two lanes, and adding medians and turn lanes to those roadways. Such traffic limitations are required by the Equestrian Preservation Element. In that Element's data and analysis section, it is stated that the Village will adopt an LOS of E for roads within the Equestrian Preserve Area in order to protect that area from increasing speeds by widening the rural collector roads to four lanes. Policy 1.3.3 of the Equestrian Preservation Element addresses this concern and provides that roadways within the Equestrian Preserve shall be maintained as two-lane facilities with adopted LOS E. This Policy was found to be internally consistent with Transportation Goal 1.0 and Objective 1.1 and Equestrian Preservation Element Objective 1.3 when the existing Village Plan was found to be "in compliance." Policy 1.3.1 of the Equestrian Preservation Element does not distinguish between classifications of roadways. The Village interprets Policy 1.3.3 to apply to all classes of roadways within the Equestrian Preserve regardless of classifications. The Village's planning expert, Mr. Schofield, testified that, in his opinion, this interpretation is reasonable. Mr. Basehart, Polo's planning expert, testified that Policy 1.3.3 of the Equestrian Preservation Element was intended to address only local roads and collectors because the original Plan did not provide for rural arterials, and that the Village had always intended that the two roadway segments be four-laned. However, the Transportation Element's Future Transportation Map of the existing Village Plan depicts the two roadway segments as two-lane facilities consistent with Policy 1.3.3 of the Equestrian Element. Adopting an LOS standard of E for the newly created Rural Arterial roads and limiting those roadways to two lanes is consistent with Transportation Element Goal 1.0 and Objective 1.0. By continuing to require Equestrian Policy 1.3.3's two-lane requirement and LOS of E for future roads within the Equestrian Preserve Area, the Amendment is consistent with that Policy. Data and Analysis: The Pinder-Troutman Traffic Analysis As noted herein, Polo raised three issues related to the Amendment's data and analysis. Each of those issues relates to the sufficiency of a report prepared by traffic consultants and relied on by the Village as data and analysis to support the Amendment. The March 2001 report is referred to herein as the "Pinder-Troutman Report." The validity of the data, as collected, is not in dispute. Polo's traffic engineer, Mr. Rennebaum, accepted the accuracy of the count data in reaching his conclusions. Prior to the adoption of the Amendment, the Village was experiencing traffic capacity problems with the two roadway segments. The Village asked Pinder-Troutman whether the traffic volume and growth in the area justified a Plan change. To address the problems, in January 2001, the Village retained Pinder-Troutman Consulting, Inc. (Pinder-Troutman) to do a traffic analysis of the two roadway segments and to make recommendations for solving the problem. Pinder-Troutman performed the analysis and submitted an initial report on February 6, 2001, and a final report on March 1, 2001, i.e., the Pinder-Troutman Report. In the February 6, 2001, report, Ms. Troutman, the author of this report, noted that the roadways for the Equestrian area are limited to two lanes with a LOS of E and that in accordance with the Village's adopted Transportation Element, this roadway cross section and LOS correlate to an adopted peak hour directional service volume of 900. (This service volume was derived from the Florida Department of Transportation (FDOT) 1995 LOS Manual, Table 5-1, for Urbanized Area arterials.) Directional volumes were derived from count data and annual average conditions examined. Because of the limited count data available for the roadway links in question, peak season factors and historic growth rates were developed, based on available count data for area roadways. An historic growth rate of 4.73 percent was applied. One conclusion reached was that the adopted two-lane LOS E service volume of 900 was projected to be exceeded in one year for Lake Worth Road. In the February 6, 2001, report, Pinder-Troutman concluded that "in order to ensure operation at adopted LOS D standards, in the near future the inclusion of a four-lane cross-section in the equestrian area is recommended." The February report discussed one option for creating additional capacity on the roadway segments. Thereafter, the Village requested Pinder-Troutman to consider, in part, whether the Plan’s classification of the road segments was appropriate. The February and later March studies followed the same methodology, examining growth and the traffic along the corridor. (The February study was attached to the March study.) The March 1, 2001, Pinder-Troutman Report considered various alternatives for improving service volumes to the South Shore Boulevard and Lake Worth Road segments. Turn lanes and medians were specifically evaluated, both of which are design features which increase safety. Traffic data was collected along the corridor, and morning and afternoon intersection turning movement counts were conducted at four locations. Twenty-four hour count data collected by the Village and Palm Beach County were also utilized. The FDOT 1998 LOS Handbook was also utilized to examine the potential for creating additional capacity with the construction of auxiliary turn lanes. A two-tier analysis was performed which included consideration of the appropriateness of utilizing "the category" for "unsignalized uninterrupted flow" for the roadway segments. Based upon observations of the roadway segments, Ms. Troutman testified that there was a minimal amount of traffic entering and exiting the driveways on the roadway segments and that the fixed traffic signals only existed at the ends of the roadway segments. In her judgment, this meant that the flow of traffic was uninterrupted, notwithstanding the placement of a flashing signal at the intersection of South Shore Boulevard and Lake Worth Road (which Ms. Troutman treated as "a fully functional signal"), which is a mile from the traffic signal at the intersection of South Shore Boulevard and Pierson Road, and a traffic signal (flashing yellow signal) at the fire station, which flashes only during emergencies, and is not considered "as a fully-operational signal." See Findings of Fact 70-74. Based on its traffic study and analysis, Pinder- Troutman concluded that LOS D could be maintained on the two roadway segments for at least five years without widening to four lanes1 if the new roadway category of "Rural Arterial" and service volumes for these segments are adopted and a median with turn lanes is provided.2 In the Joint Prehearing Stipulation, Polo alleged that there are three specific deficiencies in the Pinder- Troutman Report’s data and analysis. Specifically, Polo alleged that the Report was inadequate because it: (1) utilized one day of data instead of three; (2) did not properly account for future growth; and (3) did not include a safety analysis. Regarding the traffic counts, using a one-day traffic count does not invalidate the traffic analysis. For traffic studies like the Pinder-Troutman Report, a one-day traffic count is the standard procedure approved by Palm Beach County and the FDOT. The FDOT requires three days of counts only when variables or characteristics of a roadway are being changed, and no variables are being changed in the Pinder- Troutman report. Polo's expert, Mr. Rennebaum, stated that the Pinder-Troutman Report did not change any variables. Further, Mr. Rennebaum testified that he also typically uses a one-day traffic count, and that a one-day traffic count is professionally acceptable. Mr. Rennebaum did not collect any new data on or perform an independent analysis of the roadway segments. However, although Mr. Rennebaum accepted the count data as accurate, he was critical of the use of a one-day count versus a three-day count because, according to Mr. Rennebaum, FDOT "typically requires three day counts." Pinder-Troutman took traffic counts in the middle of the week at peak hours. It is professionally accepted standard practice to conduct traffic studies during the middle of the week rather than on weekends. Pinder-Troutman used the best available data in its traffic analysis. In its traffic analysis, Pinder-Troutman used a future annual growth rate of 4.73 percent. This rate was based on the historical growth rate of the areas adjacent to the South Shore Boulevard and Lake Worth Road segments. This rate was conservative because there has actually been negative growth in the area. The growth rate Ms. Troutman used was professionally acceptable. The historic growth rate was based on information provided by Palm Beach County. There was no historic data available for the two roadway segments. Only recently have Palm Beach County and the Village begun to collect data for the two roadway segments in dispute. The growth rate took into consideration future development that had been approved by development orders, including the Village of Wellington Mall and the Mento property. As the growth rate utilized in the study already projected future growth and it did not appear that those developments would add to those anticipated impacts, the Mall and Mento developments were not specifically added to the projected 4.73 percent growth rate. The methodology used in developing the historic growth rate is professionally acceptable. Polo did not offer persuasive evidence that the growth rate used in the Pinder-Troutman Report was inaccurate or inadequate. Polo's traffic expert, Mr. Rennebaum, had not conducted a growth rate analysis to determine if Pinder- Troutman's growth rate was correct, and had not formed an opinion on the growth rate. Regarding safety issues, the Pinder-Troutman Report did not expressly discuss safety because the report was a capacity analysis. Experts for both the Village and Polo testified that safety is primarily a design feature, more appropriately considered and addressed at the design stage of a roadway. However, the Pinder-Troutman Report does include safety as a consideration; it considered and evaluated turn lanes and medians, in conjunction with two-lane roads, which are safety features. Mr. Rennebaum agreed that turn lanes and medians are relevant safety considerations. Although Polo did not identify it as an issue in the Joint Prehearing Stipulation, Mr. Rennebaum opined that the un-signalized uninterrupted flow analysis used by Pinder- Troutman for the two road segments was inappropriate. The issue is at least the subject of fair debate. According to Mr. Rennebaum, Pinder-Troutman inappropriately treated the two road segments as a freeway because the uninterrupted flow analysis only applies to freeways and un-signalized sections of rural highways and because the roadway segments are not un-signalized segments. However, Ms. Troutman testified that the FDOT manual provides that both arterials and freeways may be analyzed under the un- signalized uninterrupted flow category. Pinder-Troutman treated the two roadway segments as an arterial for purposes of the uninterrupted flow analysis which is provided for in the FDOT manual. See Finding of Fact 58. The rural arterial classification of the two roadway segments is appropriate. The term "rural" is used to indicate that the roads are located in the Equestrian Preserve which is the "rural" area of the Village. The arterial classification is appropriate because the two roadways currently function as arterials and will continue to do so after implementation of the Amendment. See endnote 2. The weight of the evidence indicated that the two roadway segments currently function as arterials and will continue to operate as arterials if the Amendment is implemented. As noted by Ms. Troutman: "The change in classification does not change how the roadway operates. It's already operating as an arterial today. It's already operating at an uninterrupted. All we're doing is changing the classification to make it consistent with how it operates. It will not change how the road operates." It is professionally acceptable to use the uninterrupted flow analysis on the two roadway segments. Litigation Costs and Attorney's Fees Should Not Be Assessed Against Polo Polo raised a reasonable dispute regarding the traffic analyses prepared by Pinder-Troutman. For the most part, experts supported Polo's positions, but their testimony and other evidence were not sufficient to overcome the statutory burden. Polo did not prove that the Amendment is not "in compliance." Nevertheless, on this record, it can not be concluded that Polo participated in this proceeding for an improper purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Amendment adopted by the Village of Wellington in Ordinance No. 2001-011 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rules promulgated thereunder, and further, that the Department not award attorney's fees and costs against Polo. DONE AND ENTERED this 29th day of October, 2002, in Tallahassee, Leon County, Florida. ___________________________________ CHARLES A. STAMPELOS 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 29th day of October, 2002.
