The Issue Whether Martin County Comprehensive Plan Amendment 14-6, adopted by Ordinance No. 965 on December 16, 2014, is "in compliance," as that term is defined in section 163.3184(1)(b), Florida Statutes (2014).1/
Findings Of Fact The Parties and Standing Petitioner, Martin County Land Co. (Petitioner), owns real property and operates a business in Martin County. Respondent, Martin County (Respondent or County), is a political subdivision of the State of Florida with the duty and responsibility to adopt and amend a comprehensive growth management plan pursuant to section 163.3167. On December 16, 2014, the County adopted Comprehensive Plan Amendment 14-6 (the Plan Amendment), which proposes to revise Chapters 2, 4, 10, and 11 of the County's Comprehensive Growth Management Plan (Comprehensive Plan). Petitioner submitted written and oral comments to the County concerning the Plan Amendment during the period of time between transmittal and adoption of the Plan Amendment. Background and Existing Conditions The County's original Comprehensive Plan was adopted in 1990 and was challenged by the Department of Community Affairs (DCA) as not "in compliance." Since its inception, the Comprehensive Plan has been the subject of substantial litigation, most of which has little relevance hereto. At least once every seven years, local governments are required to undertake an evaluation and appraisal of their comprehensive plans. See § 163.3191(1), Fla. Stat. During this evaluation, local governments must amend their plans to reflect changes in state requirements. See § 163.3191(2). The statute also encourages local governments to comprehensively evaluate changes in local conditions, and, if necessary, update their plans to reflect said changes. See § 163.3191(3). Local government plan amendments made pursuant to section 163.3191 are commonly referred to as "EAR amendments." The County adopted its most recent EAR amendments in 2009, following an evaluation and appraisal of the Comprehensive Plan and changes in state requirements. The 2009 EAR amendments were challenged by a number of parties as not "in compliance." Administrative challenge to the EAR amendments concluded, and the amendments became effective, in 2011. One of the signature features of the County's Comprehensive Plan is the urban service districts (USDs). The USDs were created as part of the Comprehensive Plan after 1990. The purpose of the USDs is to regulate urban sprawl by directing growth to areas where urban public facilities and services are available, or programmed to be available, at appropriate levels of service. The County refers to this approach as an "urban containment policy." Public urban facilities and services are defined by the Comprehensive Plan as "[r]egional water supply and wastewater treatment/disposal systems, solid waste collection services, acceptable response times for sheriff and emergency services, reasonably accessible community park and related recreational facilities, schools and the transportation network." Notably, neither package wastewater treatment plants (package plants) nor onsite wastewater treatment systems (septic systems) are included within the definition of public urban facilities. Commercial, industrial, and urban-density residential development, as well as future development requiring public urban facilities, are concentrated within the primary USD. With few exceptions, development within the primary USD is required to connect to regional wastewater systems. The existing Comprehensive Plan allows interim development on package plants only if the developer agrees to connect to regional wastewater systems when those systems become available. With very limited exceptions, septic systems are not permitted for new residential development within one-quarter mile of a regional wastewater system. Rural development at one unit per two acres (one/two acres) and estate development not exceeding one unit/acre are concentrated in the secondary USD where a reduced level of public facilities are programmed to be available at appropriate levels of service. A minimum lot size of one-half acre applies to all development. Regional sewer service may be extended to serve residential properties exceeding the one-half acre minimum lot size, and where lot sizes are inappropriate for septic systems. Development outside the USDs is limited to low- intensity uses, including Agricultural (not exceeding one unit/20 acres), Agricultural Ranchette (not exceeding one unit/five acres), and small-scale services necessary to support rural and agricultural uses. Some residential estate development is allowed on the fringe of the USDs at one unit/acre. Regional sewer service may not be extended outside the USDs, and package treatment plants are allowed only to serve a limited category of commercial development titled "Expressway Oriented Commercial Service Centers." The existing Comprehensive Plan does not establish a standard septic system flow rate. The County follows the state standards established in Florida Administrative Code Rule 64E- 6.008, which provide for a residential rate of 10,000 gallons per day (gpd) and a rate of 5,000 gpd for non-residential uses. Expressway-Oriented Transit Commercial Service Centers In 1985, in anticipation of the construction of Interstate 95 (I-95) through the County, the County created an overlay land use category, Expressway-Oriented Transient Commercial Service Centers (Expressway Nodes), "to recognize the immediate and unique needs of the public traveling through the County." The overlay is limited to the I-95 interchanges with County Road 714 (CR 714 or SW Martin Highway), located in the northern central area of the County; CR 76 (CR 76 or Kanner Highway), located in the western urbanized area of the County; and CR 708 (CR 708 or SE Bridge Road), located in the southwestern area of the County. The overlay is not self-implementing. Future Land Use Element (FLUE) Policy 4.13.A8(5), governing Expressway Nodes, includes a number of requirements for a proposed development to qualify for the designation. Notably, an applicant for development at one of the nodes must submit a market feasibility analysis demonstrating need by the traveling public for the proposed services, submit a Planned Unit Development (PUD) zoning application, and fully fund all urban services needed to serve the development. Further, no Expressway Node will be approved outside the primary USD unless the developer provides shared water and wastewater facilities for all subsequent development at the same interchange. To qualify, the development parcel must be a minimum of five gross acres, directly accessible from a major arterial roadway, and located in whole within 1,320 feet of an access ramp and within 1,320 feet of the intersecting arterial roadway. Unless proven safe through an engineered traffic study, the access point may not be closer than 660 feet from an access ramp. Of the three interchanges, only Kanner Highway, and that portion of SW Martin Highway east of the I-95 interchange, are designated major arterial roadways. Southeast Bridge Road and SW Martin Highway west of the interchange, are minor arterial roadways. The County must amend its Comprehensive Plan in order to reclassify a minor arterial to a major arterial. A roadway is typically reclassified from minor to major arterial when some threshold of traffic volume (based on trip counts) is achieved. No evidence was introduced to establish the particular threshold which distinguishes a minor from a major arterial. No evidence was introduced to establish the length of time for which the segment of SW Martin Highway east of the interchange has been classified a major arterial, thus meeting a primary threshold for Expressway Node development of the eastern quadrants of the interchange. Of the three interchanges, commercial services for the traveling public are located only at Kanner Highway. The interchange hosts at least three gas stations, a variety of fast-food and dine-in restaurants, and two hotels. Commercial services for the traveling public are available at the I-95 interchange at Indiantown Road in Palm Beach County, 16 miles to the south of the Kanner Road interchange. Services are also available 18 miles north of Kanner Road at the I-95 interchange at Gatlin Boulevard in St. Lucie County. Services for the traveling public are also available at a rest stop on I-95 in Martin County. Petitioner challenges, on several grounds, the deletion of FLUE Policy 4.13.A8(5), which provides for the Expressway Nodes overlay category. Data and Analysis First, Petitioner argues the deletion of FLUE Policy 4.13.A8(5) is not supported by data and analysis, as required by section 163.3177(1)(f). That section requires plan amendments to "be based upon relevant and appropriate data and an analysis by the local government that may include . . . surveys, studies, community goals and vision, and other data available at the time of adoption" of the plan amendment. Id. The Expressway Nodes designation pre-dates adoption of the USDs in 1990. The I-95 interchanges at SW Martin Highway and Bridge Road are located outside the USDs and the property at those intersections is designated for Agricultural land use. Thus, commercial development at those interchanges is inconsistent with the County's urban containment strategy and is an exception to the prohibition of urban uses outside the USDs. Further, SE Bridge Road functions as a minor arterial roadway, a designation which has not changed in the 30 years since the Expressway Nodes category was created. As such, the interchange does not qualify for commercial development under the restrictions of the policy itself. The same is true of SW Martin Highway west of I-95. While SW Martin Highway is a major arterial east of the I-95 interchange, no developer has come forward with a proposal to develop any service business at that interchange. According to historic traffic counts from the I-95 interchanges at both Kanner Road and SE Bridge Road, traffic has generally increased both northbound and southbound on I-95. Between 1998 and 2013, average annual daily trips (AADT) increased by 30,000 on I-95 southbound from Kanner Highway and 14,500 southbound from SE Bridge Road. In that same period, AADT trips eastbound on Kanner Highway increased by 16,500, and eastbound on SE Bridge Road by 1,700. Similar increases in trip counts occurred at the interchange ramps between 2009 and 2013. At Kanner Highway, AADT counts on the northbound off ramp increased by 2,000, southbound off ramp by 1,000, northbound on ramp by 600, and southbound on ramp by 1,800. According to the Petitioner's expert, this general trend will eventually lead to congestion of the service facilities at Kanner Road, which will cause motorists to either skip the Kanner Road exit altogether, or return to I-95 in search of another exit with the needed services. The data indicate similarly-increased AADTs at the I-95 interchange at Indiantown Road, the next interchange south of Kanner Road where services and facilities are available to the traveling public. Petitioner's expert likewise concluded that services at the Indiantown interchange are "pretty much maxed-out" and would likely also become congested in the future. AADT trip counts are data which were readily available to the County from the Department of Transportation (DOT) when the Plan Amendment was adopted. Petitioner argues that the Plan Amendment ignores this readily-available data by deleting the Expressway Nodes category. Petitioner's argument assumes a couple of factors. First, it assumes the County has an obligation to provide services to the public traveling through the County. Neither the Comprehensive Plan, nor the Community Planning Act, requires the County to provide said services. Second, it assumes that increased traffic counts through the interchanges directly correlate with increased demand on the services located there. Petitioner introduced no evidence to support this assumption. Increased trips through the interchange could be attributed to increased employment in the urbanized area of the County from residents in Palm Beach or St. Lucie Counties, or from rural areas within Martin County. The County's witnesses agreed that I-95 traffic counts would be relevant to the County's determination to delete the Expressway Nodes designation. However, the evidence does not support a finding that retaining the Expressway Nodes overlay is the only appropriate reaction to that data. Assuming Martin County was required to provide services to the traveling public, Petitioner did not establish the capacity of said services needed to serve the public, thus requiring the County to maintain the overlay. With the exception of hotel services, Petitioner introduced no evidence regarding a level of service or the utilization rate of the services provided at either the Kanner Road or Indiantown interchanges. With regard to hotels, Petitioner introduced hotel occupancy rates published by Smith Travel Data, a hospitality- industry source of statistics on occupancy and vacancy rates. In March 2015, excluding the beach hotels, the County hotels had an aggregate occupancy rate of 92 percent. The average annual occupancy rate of County hotels is in excess of 72 percent. Elimination of the Expressway Nodes overlay is supported by the County's urban containment strategy, as well as its history relative to package treatment plants. The SW Martin Highway and SE Bridge Road interchanges are outside the primary USD where regional sewer service is available. As long as they remain outside the primary USD, the option for wastewater treatment at those locations is limited to package treatment plants. The County has a clear policy prohibiting new package treatment plants. Existing FLUE Policy 4.7A.4 prohibits all package treatment plants outside the USDs except to serve development at the Expressway Nodes. Development at the Expressway Nodes is the only exception to the prohibition. The Plan Amendment deletes FLUE Policy 4.7A.4, thus eliminating the exception to the prohibition on package treatment plants, which prohibition is preserved elsewhere. In 1984, when John Polley, now Director of Utilities and Solid Waste, began working for the County, there were 89 private package treatment plants. In 1990, the County began a campaign to eliminate package treatment plants. Fifty-three package treatment plants were eliminated after being identified as threats to the Indian River Lagoon, pursuant to the Indian River Lagoon Act. Another 17 were eliminated because they did not comply with Department of Environmental Protection (DEP) standards, or had become mechanically obsolete and prone to failure. The County has focused on extending sewer service in the primary USD in order to reduce the need for new package treatment plants to serve development. By 2006, the County had eliminated 70 package treatment plants. There are only 19 package treatment plants in the County, and few, if any, have been approved and permitted in the County since 1990. Existing FLUE Policy 4.7C.2 is titled "Evaluation of urban uses near I-95 interchanges," and requires the County to "have completed an evaluation of potential urban uses in the vicinity of the I-95 interchanges with CR 708 and CR 714" by 2012-2013, and requires that "[t]he results of these studies shall be incorporated into the [Comprehensive Plan] via Plan Amendment." The Plan Amendment deletes FLUE Policy 4.7C.2. Martin County Principal Planner, Samantha Lovelady, produced a memorandum on Expressway Nodes in support of the Plan Amendment. The memorandum does not state that it was prepared to implement FLUE Policy 4.7C.2, nor did Ms. Lovelady testify that she prepared it pursuant to that policy. To the extent that the memorandum "evaluates potential urban uses" at the specified intersections, it concludes that the services at Kanner Highway, the rest area on I-95, and services available along I-95 just north in St. Lucie County and just south in Palm Beach County, all of which developed since the policy was adopted in 1985, have rendered the designation unnecessary. The memorandum concludes that the "original goal of this policy [to provide services to the public traveling through the County on I-95] has been achieved." FLUE Section 4.2.A(9)(b) of the Comprehensive Plan finds that based on an evaluation of the Future Land Use Map (FLUM) in 2009, the "raw data appear to show a significant deficit of commercial land necessary to accommodate economic needs." Further, the section provides, "[a]ny attempt to remedy the deficits should be based on geographic area in order to reflect sustainability principles and provide population centers with necessary services in an orderly and timely fashion." Petitioner argues the County deleted the Expressway Nodes overlay despite this data showing a deficit of available commercial property. The lands within the Expressway Nodes overlay have a FLUM designation of Agriculture, not Commercial. Further, there are several preconditions necessary for any of the property at those interchanges to be developed for commercial use, including a market demand study, PUD rezoning approval, and in the case of SE Bridge Road and SW Martin Highway west of the interchange, a required plan amendment to reclassify those roadways as major arterials. The evidence does not support a finding that elimination of the Expressway Nodes overlay would remove property from the County's commercial land use inventory. Furthermore, this section speaks to providing necessary services to "population centers." Neither of the I-95 interchanges at SE Bridge Road or SW Martin Highway is a population center. Internal Consistency Petitioner further challenges elimination of the Expressway Nodes as contrary to section 163.3177(2), which requires all elements of a comprehensive plan to be consistent with each other. Petitioner alleges that the Plan Amendment creates an inconsistency with FLUE Goal 4.2 "[T]o alleviate the negative impacts of inadequate public facilities and services and substandard structures for affected areas in the County." Petitioner's expert testified that removal of the Expressway Nodes designation will result in a lack of facilities to meet the needs of future travelers "as demand begins to evolve." The objectives and policies implementing FLUE Goal 4.2 speak directly to areas in need of redevelopment, including creation of Community Redevelopment Areas. There is no evidence to support a finding that the SW Martin Highway and SE Bridge Road interchanges are areas in need of redevelopment. Next, Petitioner contends the Plan Amendment is inconsistent with FLUE Policy 4.7A.5, which provides, in pertinent part: Policy 4.7A.5. Development options outside urban service districts. Martin County shall provide reasonable and equitable options for development outside the urban service districts, including agriculture and small-scale service establishments necessary to support rural and agricultural uses. A small-scale service establishment shall be defined as a small, compact, low intensity development within a rural area containing uses and activities which are supportive of, and have a functional relationship with the social, economic and institutional needs of the surrounding rural areas. Petitioner's expert provided only conclusory testimony that the removal of the Expressway Nodes designation is inconsistent with this policy. FLUE Policy 4.7A.5 requires the County to allow some opportunity for development outside the USDs. There is no evidence on which to base a finding that the Expressway Nodes designation is the only allowance for development outside the USDs, thus removal of the designation does not conflict with this policy. Further, the Expressway Nodes designation, by its plain language, was created to serve the needs of the public traveling through the County. Deletion thereof does not conflict with a policy requiring some development to serve the needs of rural residents and businesses. FLUE Goal 4.8 requires of the County, as follows: To encourage energy conservation and promote energy-efficient land use and development that implements sustainable development and green building principles. Petitioner contends the Plan Amendment is inconsistent with this goal because travelers faced with congested facilities will travel further into the County along the intersecting roadways to find the desired services, thus increasing traffic and travel times, as well as use of hydrocarbons. The expert's testimony on this issue conflicts with his opinion that travelers faced with congested interchanges will either skip the interchange altogether, or re-enter I-95 to look for services at another interchange. On this issue, the expert's opinion is not accepted as credible. It is unreasonable to assume that a traveler would exit I-95 at an interchange which advertises no services and travel some distance on the crossroad in search of said services. Further, Goal 4.8 is implemented by objectives and policies which provide guidance for the County's land development regulations and which encourage green building standards and renewable energy resources. Petitioner appears to be taking the goal out of context. Finally, Petitioner cites FLUE Goal 4.10 and Policy 4.10B.2 as inconsistent with the Plan Amendment. The provisions read as follows: Goal 4.10. To provide for adequate and appropriate sites for commercial land uses to serve the needs of the County's anticipated residents and visitors. * * * Policy 4.10B.2. Criteria for siting commercial development. Commercial development shall be strategically directed to areas best able to accommodate its specific requirements of land area, site, public facilities and market location. The aim is to promote efficient traffic flow along thoroughfares, achieve orderly development and minimize adverse impacts on residential quality. Members of the public traveling through the County to other destinations are neither anticipated residents of, nor anticipated visitors to, the County. The Expressway Nodes designation was created to serve the "immediate and unique needs of the public traveling through the County." At hearing, Petitioner argued that the Plan Amendment was also inconsistent with provisions of the Economic Development Element of the County's plan. Inasmuch as Petitioner did not plead that issue in its Petition for Formal Administrative Hearing, the undersigned does not make any findings relevant thereto.3/ Balance of Uses Section 163.3177(1) provides, in pertinent part, as follows: The comprehensive plan shall provide the principles, guidelines, standards, and strategies for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the area that reflects community commitments to implement the plan and its elements. This section applies to the County's Comprehensive Plan as a whole. No evidence was introduced to support a finding that the Comprehensive Plan, as a whole, fails to provide principles, guidelines, standards, and strategies for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the County. Section 163.3177(6)(a)4. provides as follows: The amount of land designated for future planned uses shall provide a balance of uses that foster vibrant, viable communities and economic development opportunities and address outdated development patterns, such as antiquated subdivisions. The amount of land designated for future land uses should allow the operation of real estate markets to provide adequate choices for permanent and seasonal residents and business and may not be limited solely by the projected population. The Plan Amendment does not change the amount of land designated for any particular FLUM category. The Plan Amendment makes no change to the FLUM. Assuming, arguendo, that elimination of the Expressway Nodes overlay changes the amount of land designated for commercial use, that single change does not render the Comprehensive Plan out of balance or unable to foster vibrant, viable communities. The public traveling through Martin County to other destinations are neither permanent nor seasonal residents or businesses. Wastewater Treatment Options The Plan Amendment makes a number of changes in the wastewater treatment options available to serve development in the County. Within the primary USD, FLUE Policy 10.1A.2 requires all new subdivisions of less than one acre to be served by regional sewer. Under the existing Comprehensive Plan, only new subdivisions within the primary USD exceeding two units/acre must connect to regional sewer systems. FLUE Policies 4.7B.1 and 10.1A.2 prohibit the extension of regional sewer service into the secondary USD. Thus, new development in the secondary USD is limited to septic service (because package treatment plants are eliminated in another section of the Plan Amendment). FLUE Policy 10.2A.7 increases the threshold size of lots within new subdivisions which may be developed on septic systems. Where the existing Comprehensive Plan allows new subdivisions of half-acre lots to develop on septic, the Plan Amendment requires a minimum one-acre lot. Further, new development qualifies only if it is more than one-quarter mile from regional sewer system collection or transmission lines. Within the primary USD, approximately 100 undeveloped lots are located more than one-quarter mile from a connection point to the County's regional sewer service. FLUE Section 10.2.B prohibits development within the USDs on septic systems where regional sewer systems are available (i.e., within one-quarter mile of a regional service line). The same policy limits development on septic systems outside the USDs to "low density residential as permitted by the underlying future land use designation and small scale service establishments necessary to support rural and agricultural uses." FLUE Policy 10.1C.4 prohibits approval of development orders "where adequate water and sewer facilities cannot be provided." Similarly, FLUE Policy 10.1A.10 provides that development "shall not be approved where adequate regional water and sewage facilities cannot be provided, unless the development can meet the requirements for a [septic] system found in Policy 10.2A.7." Finally, FLUE Policy 10.2A.8 limits the maximum flow of septic systems to 2,000 gpd per lot. Taken together, the changes generally limit the type and density of future development allowed in the County. Within the primary USD, the Plan Amendment requires more dense development to connect to regional sewer systems while limiting use of septic systems to the lowest density development. Overall, the Plan Amendment encourages higher density future development and prioritizes regional service. These changes are consistent with the County's existing "urban containment policy" concentrating urban development within the primary USD. In the secondary USD, the Plan Amendment restricts future development to low density (one-acre lots) where regional service is not available within one-quarter mile, and requires all future development within one-quarter mile to connect. These changes have little practical effect because most of the secondary USD is slated for future development at a rural density of one unit/two acres, with some estate densities at one unit/acre. Outside the USDs, the Plan Amendment limits future development to low density residential, and limited commercial development to serve rural and agricultural needs, on septic systems. Petitioner's challenge focuses primarily on, and the majority of evidence introduced related to, the 2,000 gpd limit on septic tank flow. Petitioner challenges FLUE Policy 10.2A.8 and Section 10.2.B.2 on a number of grounds, each of which is taken in turn. Data and Analysis Section 163.3177 requires plan amendments to "be based upon relevant and appropriate data and an analysis by the local government." The statute provides, "[t]o be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of" the plan amendment at issue. Id. Further, "data must be taken from professionally accepted sources." § 163.3177(1)(f)2. The statute does not require original data collection by local governments. A septic system flow rate is the liquid flow rate of non-solid wastes (effluent) coming out of the residential or non-residential septic system after initial treatment. Septic systems are typically sized based on the flow rate. When the Comprehensive Plan was first adopted in 1982, the County adopted a maximum flow rate of 2,000 gpd. The 2,000 gpd standard was also the standard for the State of Florida at the time it was adopted by Martin County. In 1993, the Legislature amended the state standard to allow maximum flows of 10,000 gpd for all uses. See ch. 93-151 § 1, Fla. Laws. In 1998, the state standard for commercial facilities was reduced to 5,000 gpd, where it remains today. See ch. 98-151, § 7, Fla. Laws. Martin County did not adopt the state standard when it changed in either 1993 or 1998. The County maintained its lower maximum rate based on experience with septic system failures associated with poor maintenance, particularly of larger systems and commercial establishments, such as restaurants. The state standard was adopted by the County in its 2009 EAR amendments, which became effective in January 2011. Thus, the 2,000 gpd standard governed development in Martin County for almost 30 years. Despite the lengthy history of the 2,000 gpd standard in Martin County, the undersigned must find that the 2009 change to the higher state standards were supported by data and analysis since that change was found "in compliance" in 2011. Thus, the 2015 change back to the 2,000 gpd standard must likewise be based on data and analysis. The County identified protection of its ground and surface water bodies from contaminants associated with septic system effluent as the main reason for the change. In response to the Clean Water Act and the Florida Watershed Restoration Act, DEP implemented the Total Maximum Daily Load (TMDL) program. The program identifies water bodies which are "impaired" for a particular pollutant (i.e., exceeds the water body's capacity to absorb the given pollutant and still function for its designated use), and requires development of Basin Management Action Plans (BMAPs) to restore impaired waters. There are 32 impaired water bodies in Martin County. Among them are the St. Lucie Estuary and the Indian River Lagoon, which is part of the estuary. Both the estuary and the lagoon are impaired for nitrogen, among other contaminants. The lagoon is a brackish-water environment in which phosphorus occurs in high levels. The growth of algae and other microorganisms is limited in that environment by the availability of nitrogen in the ecosystem. Nitrogen is a "limiting factor." When too much nitrogen is present, algae and other microorganisms become overgrown. An overgrowth of algae consumes excessive amounts of oxygen and dissolved oxygen in the marine environment, a primary indicator of water quality. DEP adopted the TMDL for total nitrogen demand for the estuary in March 2009. The BMAP developed for the estuary includes both construction of stormwater management projects and conversion of particularly-identified developments from septic systems to regional wastewater service. In March 2013, the County identified first priority stormwater projects at a cost of $15,790,000, and second priority projects at a cost of $17,990,000. The County also identified ten subdivisions to prioritize for conversion from septic to sewer service at a cost of $88,140,000. Together with identified flood control projects, in 2013, Martin County estimated a grand total of $142,445,000 in projects to implement the BMAP. The County has extended sewer service to approximately 1,800 properties, converting approximately eight developments from septic to sewer service. Effluent from septic systems is only one source of nitrogen pollution to surface water bodies. Agriculture (from both fertilizer and animal waste), residential fertilizer, pet waste, and "atmospheric" nitrogen, are other sources of nitrogen pollution. A 2009 study by the Department of Health concluded that management of nitrogen sources, including septic systems, "is of paramount concern for the protection of the environment."4/ Initial treatment of raw wastewater occurs in the septic tank chamber, where solids settle to the bottom and liquids are separated from the solids. In this anaerobic (absent oxygen) state, the wastes are converted mainly to ammonia and ammonium (inorganic nitrogen). Septic tank effluent is then discharged to a drain field where nitrification occurs in an aerobic environment. Nitrification converts ammonium to nitrates in oxygen-rich unsaturated soils. Soils do not absorb nitrates, and much of the nitrates migrate to ground and surface waters causing contamination. If nitrogen remains in the oxygen-rich soil, it can be converted to nitrogen gas and eliminated through the atmosphere through the denitrification process. Carbon and other minerals must be present in the soil for denitrification to occur. Denitrification is also a slow process that occurs only in the vata zone, the oxygen-rich soil between the bottom of the drainfield and the top of the water table. The data and analysis, as well as the testimony presented at the final hearing, conflicted on the issue of how much nitrogen is removed from septic tank effluent through denitrification in Southeast Florida, where soils are well- drained, but the water table fluctuates seasonally. In September 2013, a study prepared for DEP estimated the amount of nitrogen load from removed septic systems to surface water bodies in Martin County, as well as the cities of Stuart and Port St. Lucie. The study "shows that the load estimates are strongly correlated with nitrogen concentrations in surface water quality data, suggesting that septic load is a significant factor for water quality deterioration."5/ In Martin County, where septic system removal was small scale, the study traced a majority of the removed nitrogen to specific water bodies.6/ The study found that the amount of nitrogen load is controlled by three factors: (1) length of flow path; (2) flow velocity; and (3) drainage conditions. The following excerpt is instructive: Figure ES-4 shows that the load estimate decreases with the mean length of flow paths; the two largest loads per septic system are for North River Shores and Seagate Harbor [in Martin County] where the flow paths are the shortest. . . . This is reasonable because longer flow paths result in more denitrification and thus smaller load estimate. In line with this, larger flow velocity corresponds to shorter travel time and thus smaller amount of denitrification and larger amount of load. . . . Figures . . . indicate that the setback distance should be determined not only by the distance between septic systems to surface water bodies but also by groundwater flow conditions (the distance probably plays a more important role here). The groundwater flow conditions are closely related to soil drainage conditions at the modeling sites. An October 2013 paper by Kevin Henderson, P.E., reviewed four studies between 1993 and 2011, and concluded that "[n]one of the studies are specific enough to [Southeast Florida] soils/groundwater aquifer to be definitive as regards nitrate nitrogen's fate once it becomes part of groundwater below a drainfield."7/ Henderson maintains that the Southeast Florida groundwater aquifer is low-flux. Henderson further reported that studies have shown that anticipated nitrogen and total nitrogen groundwater contamination "is consistently absent at distances of more than 40 feet from drainfields."8/ The County's soil and water expert, Catherine Riiska, disagreed, maintaining the Southeast Florida water table is seasonally-dependent, and fluctuates greatly between the wet and dry seasons. During the wet season, Ms. Riiska explained the drainage system is insufficient to keep the water table low during the rainy season. When the water table is high, there is little opportunity for denitrification and nitrates can be pulled directly into the water flow. While the experts disagreed as to how much nitrogen may be removed from septic tank effluent in Southeast Florida, the experts agreed that limiting the amount of potential flow from septic tanks will limit the amount of potential discharge, especially in the event of a failure of the system. Petitioner contends that the 2,000 gpd standard does not react appropriately to the data and analysis because it does not take into account factors other than effluent volume that contribute to total nitrogen loading from septic systems, such as distance to surface water bodies and size of area served by the septic system. The 2,000 gpd standard applies equally throughout the County regardless of location in proximity to surface water bodies. Septic systems can be regulated based on either flow or loading. Loading would be expressed in gallons per measure of property, such as gallons per acre per day. The County's Director of Utilities and Solid Waste, John Polley, agreed that, in terms of environmental impact, loading is a superior measure to flow rate. The County is not required to adopt the superior measure for environmental protection, but to adopt a measure which is supported by data and analysis. Finally, Petitioner contends that the 2,000 gpd standard is not based on data and analysis because it was chosen arbitrarily, without considering some less restrictive flow limit such as 3,000 gpd or 4,000 gpd. The 2011 change from the 2,000 gpd flow limitation to the higher maximum state standard was not supported by the Martin County Health Department. Robert Washam, a retired Environmental Administrator for the Martin County Health Department with more than 30 years' experience permitting and regulating septic systems in Martin County, testified and submitted in writing to the County as to his support for the change to 2,000 gpd. He iterated several reasons for his support, including the serious public health and environmental issues that can result from the failure of large septic systems; the documented failures of large systems inside the primary USD resulting in raw sewage flowing into wetlands, ditches, and eventually rivers; and the unsuitable soils and water table conditions for large septic systems in rural areas of the County.9/ Section 381.0065(4)(e) provides as follows: (e) Onsite sewage treatment and disposal systems must not be placed closer than: Seventy-five feet from a private potable well. Two hundred feet from a public potable well serving a residential or nonresidential establishment having a total sewage flow of greater than 2,000 gallons per day. One hundred feet from a public potable well serving a residential or nonresidential establishment having a total sewage flow of less than or equal to 2,000 gallons per day. Fifty feet from any nonpotable well. Petitioner's wastewater expert, Richard Creech, acknowledged in his testimony that these thresholds reflect that there is an opportunity for contamination of the public water wells by the larger septic systems. Mr. Creech also agreed that, if a septic system is not properly maintained, functioning, designed, and sited, it may present a problem to surface waters. Petitioner did not prove that the 2,000 gpd standard would not protect ground and surface waters from nitrogen loading. That issue is clearly a subject of fair debate. Balance of Uses/Operation of Real Estate Markets Section 163.3177(1), provides, in pertinent part: The comprehensive plan shall provide the principles, guidelines, standards, and strategies for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the area that reflects community commitments to implement the plan and its elements. This section applies to the County's Comprehensive Plan as a whole. No evidence was introduced to support a finding that the Comprehensive Plan, as a whole, fails to provide principles, guidelines, standards, and strategies for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the County. Section 163.3177(6)(a)4. provides that the amount of land designated for future planned uses "shall provide a balance of uses that foster vibrant, viable communities and economic development opportunities and address outdated development patterns." Petitioner contends the County failed to consider the economic impact of reducing the septic system flow rate to 2,000 gpd. Petitioner introduced no evidence regarding the effect of the 2,000 gpd limit on the future economic development of the County, only that the County failed to conduct economic analysis thereof. While the County conducted no formal economic analysis of the change, the County clearly considered the effect of that limit on type and size of future development in the County. The 2,000 gpd flow limitation was not a significant development constraint during the nearly 30 years that it was in effect. Septic system size determinations are governed by Florida Administrative Code Rule 64E-6.008. The rule associates a specific gpd rate for each type of commercial, industrial, and residential establishment, based on factors such as the number of seats or patrons, number of employees, and number of bedrooms. A four-bedroom home up to 3,300 square feet can be developed on a septic system with a 400 gpd flow rate, well within the 2,000 gpd flow established under the Plan Amendment. A 2,000 gpd flow rate will accommodate a 650-seat church without regular meal service (or 580 seats with weekly meal preparation), a 200-room hotel, and a 13,000 square foot office building. The substantial expansion of the County's regional wastewater system inside the primary USD has reduced the prospective amount of future development on septic systems. Approximately 100 acres designated for non-residential use are beyond one-quarter mile from sewer availability from Martin County. All other future non-residential development in the primary USD will be unaffected by the septic system flow limitation. The flow limitation does not prohibit more intensive non-residential development in the primary USD. Rather, it encourages developers to expend funds to connect to the regional system so that increased intensity may be obtained. The flow limitation will have limited, if any, impact on the balance of allowable uses in the secondary USD. The low densities and the lack of any approved commercial uses in that District make higher septic flows unnecessary. The same is true for areas outside the USDs, where future development is limited to agricultural, very low density residential (one unit/20 acres), and some minor commercial land uses. Higher flow septic systems are also unnecessary in that area. Based on concerns expressed by agricultural interests during the adoption process, the Plan Amendment allows agricultural uses to exclude consideration of a septic system associated with a residence on the same site. Thus, the County considered the impact of the flow limitation on the predominant industry in the County. Miscellaneous Issues In its Petition, Petitioner also raised the issue of whether the deletion of FLUE Policy 4.13.A8 is inconsistent with the Future Land Use Map which retains the overlay designation. Petitioner did not present any evidence on this issue. Thus, Petitioner did not prove the allegation beyond fair debate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that Plan Amendment CPA 14-6, adopted by Martin County on December 16, 2014, is "in compliance," as that term is defined by section 163.3184(1)(b). DONE AND ENTERED this 1st day of September, 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 1st day of September, 2015.
The Issue The issue for determination is whether Petitioner satisfies the eligibility requirements in Subsection 121.081(1)(f), Florida Statutes (2005), to purchase past service credit in the Florida Retirement System (FRS).
Findings Of Fact Petitioner was employed as a State Certified Paramedic by Harbor City Volunteer Ambulance Squad, Inc. (HCVAS), in Brevard County, Florida, from sometime in December 1976 through September 30, 1999. From October 1, 1999, through the date of the formal hearing, Petitioner was employed as a county employee in an identical capacity with Brevard County Fire Rescue (BCFR). Petitioner's employment with HCVAS and BCFR was continuous, with no break in service. Petitioner performed identical services with HCVAS and BCFR and had identical duties and responsibilities. At BCFR, Petitioner received credit for 80 percent of the seniority and leave accrued while Petitioner was employed with HCVAS. From sometime in October 1992 through September 30, 1999, HCVAS furnished emergency and non-emergency ambulance service in an area the parties refer to as the central part of Brevard County, Florida, that is legally described in Petitioner's Exhibit A (the service area). HCVAS furnished ambulance service pursuant to a contract with the Brevard County Board of County Commissioners (the County). HCVAS was an independent contractor with the exclusive right to provide ambulance service in the service area. The County, rather than HCVAS, provided emergency ambulance service for that part of the County outside the service area. A company identified in the record as Coastal Health Services provided non-emergency ambulance service outside the service area. HCVAS was an "employing entity which was not an employer under the [FRS]," within the meaning of Subsection 121.081(1)(f), Florida Statutes (2005). HCVAS was a private, non-profit company rather than a government entity. However, employees of HCVAS were not volunteers, but were full-time employees of HCVAS. HCVAS paid its employees, including Petitioner, from funds received from the County. The County retained exclusive control of communication and dispatching of emergency calls for the entire County, including the service area. The County required HCVAS to maintain communication equipment that was compatible with the central communication system. On October 1, 1999, the County effected an "assumption of functions or activities" from HCVAS within the meaning of Subsection 121.081(1)(f), Florida Statutes (2005). The County allowed the contract with HCVAS to expire on September 30, 1999. On April 13, 1999, the County authorized BCFR to provide emergency ambulance service to the service area previously served by HCVAS. The County also authorized the county manager to purchase rescue units and equipment and required the county manager to give first priority to units and equipment of HCVAS. Eligibility for HCVAS employees such as Petitioner to participate in the FRS arose through the assumption of HCVAS functions by the County. The County did not employ HCVAS employees, including Petitioner, as a result of competitive selection. The primary conditions of employment for HCVAS employees such as Petitioner were that each HCVAS employee must apply for employment with the County no later than May 29, 1999; possess a valid Florida driver's license; and pass a criminal background check. The County directed its Public Safety Department (Department) to give special consideration to HCVAS employees, including Petitioner, by hiring as many HCVAS employees as possible. Applications for employment from the general public were to be accepted only if employment positions remained unfilled after placing all qualified HCVAS employees in available positions. Approximately 95 HCVAS employees, including Petitioner, applied for employment with the County. The County employed approximately 90 of the 95 applicants. The five applicants who were not employed were rejected because the applicants either did not possess a valid Florida driver's license or did not pass the criminal background screening. Rejection of an applicant required approval of two supervisors. On October 1, 1999, the County recognized past service with HCVAS by new employees such as Petitioner. The County credited each new employee with seniority, annual leave, and sick leave based on a contractual formula negotiated with the labor union equal to 80 percent of seniority, annual leave, and sick leave earned while employed by HCVAS. On October 1, 1999, former HCVAS employees employed by the County, including Petitioner, became entitled to participate in the FRS system through the "assumption of functions or activities" by the County from HCVAS "which was not an employer under the system" within the meaning of Subsection 121.021(1)(f), Florida Statutes (2005). On the same date, Petitioner became a member of the special risk class of FRS and is "entitled to receive past-service credit . . . for the time" Petitioner "was an employee of [HCVAS] . . . the "other employing entity." On November 6, 2003, Petitioner applied to purchase credit in the FRS for his past service with HCVAS. On December 23, 2003, Respondent denied Petitioner's request on the ground that a "merger, transfer or consolidation" of functions between units of government did not occur. On January 8, 2004, Petitioner provided Respondent with a written reply. The reply explained that the application to purchase credit for past service was based on the County's assumption of functions or services by an employing entity that was not an employer under the FRS and not on a merger, transfer, or consolidation of functions between units of government. By letters dated April 16 and May 25, 2004, Respondent issued written statements of proposed Final Agency Action. On April 16, 2004, Respondent based its proposed agency action on the express ground that a "merger, transfer or consolidation" had not occurred when the County undertook emergency ambulance service in the service area. On May 25, 2004, Respondent added the additional ground that an assumption of functions did not occur between governmental units because HCVAS was a "not-for- profit corporation" and not a "unit of government."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's application to purchase credit in the FRS for past service with HCVAS. DONE AND ENTERED this 31st day of January, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 31st day of January, 2006. COPIES FURNISHED: Robert B. Button, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Adrienne E. Trent, Esquire Allen & Trent, P.A. 700 North Wickham Road, Suite 107 Melbourne, Florida 32935 Alberto Dominguez, General Counsel Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-9000 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-9000
The Issue The issue is whether Respondent, Todd Voigt, should be terminated from employment with the City of Clearwater (City) for violating City policies as alleged in the City's Termination and Dismissal Notice (Notice) dated August 3, 2016.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board make a determination that the charges in the Notice are sustained, and that Mr. Voigt be terminated as a City employee. DONE AND ENTERED this 7th day of December, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 7th day of December, 2016.
The Issue The issue is whether Petitioner was reemployed as a substitute or hourly teacher on a noncontractual basis after he was retired for one month.
Findings Of Fact Petitioner was employed by the Board for several years as a driver's education teacher prior to his retirement. This position is a certificated teaching position under the rules of the State Department of Education. The operation of school buses in Duval County was and is done primarily by private companies, who are independent contractors and who, in turn, hire the bus drivers. Several years ago, the State of Florida required by law that all school bus drivers be certified as school bus drivers at the time of their initial employment. The Superintendent of Schools of Duval County instituted a program to certify its school bus drivers using Board personnel. Certificated driver's education teachers were asked to become qualified with the State to evaluate and test school bus drivers to insure that the drivers were in compliance with State law. Rule 6A-3.0141, et seq., Florida Administrative Code. All of the bus driver evaluators were driver's education instructors. Petitioner was one of the driver's education teachers who qualified and was employed to evaluate and test school bus drivers. The job of the Petitioner and other evaluators was to educate and test the drivers about the bus safety rules, to include "check" rides with drivers before certifying them. The school bus driver certification program is operated by the Board on a full-time basis, 5 days a week, 8 hours a day. There is a written job description for the position of driver's education teacher which was not changed or amended to reflect the additional duties of bus driver evaluation. Prior to retiring, Petitioner worked as a driver's education teacher on a full-time basis (7 hours, 20 minutes per day) and performed the duties as evaluator and tester of the drivers after school and on Saturdays. He was paid a salary for his teaching duties and an additional amount for his services as bus driver evaluator. Although Petitioner received one compensation check, the payroll stub indicated regular and overtime pay. His additional compensation was calculated on the basis of hours actually worked and from the salary schedule for part-time teachers. Funding for regular work and overtime was charged to the same cost account, "1850", and all his pay was based upon his duties as a certified teacher in pay classification "0610." The payroll code for a driver's education teacher is "0610". The Board did not have a pay code for a bus driver evaluator. Evaluating bus drivers is an additional duty performed by driver's education teachers. Pay classification code "0610" is applicable to all driver's education teachers; and the Petitioner, as well as all of the driver's education teachers, was compensated from the instructional salary account of the Board. Although all bus driver evaluators were driver's education teachers, not all driver's education teachers were bus driver evaluators. Additional duty as a bus driver evaluator was voluntary, and driver's education teachers were paid additional compensation for performing these duties. Their entire pay, including the additional compensation, was charged to Responsibility Center No. 1850 - Driver's Education. Cost center code "1850" is a cost code associated with academic programs. Petitioner was rehired as a teacher after retirement and placed in pay category "0610". This was done because the only persons performing bus driver evaluations in Duval County are driver's education teachers, and no other classification or pay code is applicable. Petitioner was placed in salary code "0610", driver's education teacher. Messrs. Richard and Boney were Petitioner's supervisors and they did the administrative portion of certifying the drivers. Richard and Boney are "administrators" with the Board and not certificated or instructional personnel. A person is classified as a teacher on the basis of (a) the union collective bargaining agreement and (b) the rules of the Public Employees' Relation Commission. It is up to the supervisor to assign the person's duties. Those duties would determine the salary code from which the person would be paid. Petitioner retired under the FRS, effective July 1, 1989, and was placed on the FRS payroll on that date. In July of 1989, he completed a Board form by which he made himself available for reemployment. Petitioner was rehired in August as a driver's education teacher, pay classification "0610", cost center "1850". His supervisor assigned him duties as a bus driver evaluator and tester beginning on August 21, 1990. Petitioner worked part of the months of August, September and October of 1989 and was paid at the rate of $15.85 per hour, the same rate and from the same account as other hourly teachers, "1850". (Exhibit No. 6). While so employed, he could have taught the classroom phase of the evaluation program or could have been assigned to teach driver's education; however, Petitioner only did the road test and evaluation of bus drivers. Petitioner had the same duties relative to the bus drivers' evaluations and testing both before and after retirement. After retirement, the Petitioner had the same pay code and cost center he had had before his retirement. Although his assigned duties after retirement did not include driver's education, Petitioner did some of the same work that he had done before his retirement and was subject to being assigned student teaching duties. Inadvertently, the Board deducted retirement contributions from Petitioner's pay and reported the contributions to the Division of Retirement. (Exhibit No. 5). This precipitated an audit of the account; and the Division of Retirement concluded, based upon the data, that Petitioner was not employed as a teacher by the local school district.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that Division of Retirement take no action to collect the benefits paid to the retiree during the period of his reemployment by the Duval County School Board between August, September, and October 1989. DONE AND ENTERED this 28 day of September, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28 day of September, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2424 The Petitioner did not submit proposed findings of fact. Respondent's Proposed Findings of Fact 1-8. Adopted. First portion adopted; last two sentences rejected as irrelevant. Adopted. First portion adopted; last sentence rejected as irrelevant. Adopted. Adopted, except first sentence, which was rejected as irrelevant. Rejected as irrelevant. Adopted, except last two sentences, which were rejected as statement of issues. Adopted. COPIES FURNISHED: Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Albert A. Moss, Pro Se 111 Inwood Terrace Jacksonville, FL 32207 Stanley M. Danek, Esq. Department of Administration Division of Retirement Cedars Executive Center Building C 2639 N. Monroe Street Tallahassee, FL 32399-1560
The Issue The issue in this case is whether the Hillsborough Area Regional Transit Authority (Authority) acted in an arbitrary or capricious manner in proposing to award Bid Number 89-03-02, for a transit communication/data system, to Motorola Corporation (Motorola) instead of to Harris Corporation (Harris) since, according to Harris, Motorola's bid materially deviates from the requirements of the Invitation for Bid (IFB) issued by the Authority.
Findings Of Fact The Authority is a public corporation created pursuant to Section 163.567, Florida Statutes, and operates a mass transit system, using buses, within Hillsborough County, Florida. It is funded by the State of Florida, through the Department of Transportation, and also receives federal funds. On April 10, 1989, the Authority issued IFB 89-03-02 for a transit communication/data system, with automatic vehicle locating capability. The Authority sought, through this IFB, to obtain a radio communication system that would be able to provide two-way communication between its central base station, and buses operated by the Authority. It also sought automatic vehicle location and schedule monitoring through this system. In responding to the Authority's IFB, vendors were allowed to bid either a "sign post system" or a "Loran-C system". However, if a sign post system was bid, Section 3.5.1 of the IFB specified that it must be a system that could be converted to a Global Positioning Satellite System (GPSS), when that technology becomes available, with no more than a change out of the vehicular location equipment. A GPSS system locates objects by use of a constant transmission of signals carried on various earth orbiting satellites which are received by equipment placed on vehicles utilizing this technology. Geographic location is determined by measuring the strength of the signals received from multiple satellites. GPSS technology is not presently available for a land- based vehicle locator system, such as proposed by the Authority, since an insufficient number of satellites are in orbit to provide 24-hour coverage for Hillsborough County. A sign post system utilizes small radio transmitters which are placed at regular intervals along a bus route, and as a bus passes each sign post, it receives a transmitted signal from the sign post, and then retransmits that information back to the central dispatcher. Since the dispatcher knows the location of each sign post, the location of the bus can be determined as it passes each sign post and retransmits the signal it receives to the dispatcher. Under a Loran-C system, transmissions from existing Loran transmitter sites located in Jupiter, Florida, and Houston, Texas, are received by equipment located on each vehicle. Those signals are used to determine the geographic coordinates of a bus, and those coordinates are relayed to the central dispatch station by transmitting equipment on each bus. Harris responded to the Authority's IFB by proposing a Loran-C system, and Motorola responded by proposing a sign post system. These bids were timely received prior to June 15, 1989, and upon the opening of the bids, Motorola was determined to be the apparent low bidder. Prior to proposing an award on the IFB, the Authority conducted a technical review of the bids received, and in that process met with representatives of Harris, who expressed concerns about the Motorola bid. As a result of Harris' concerns, the Authority requested clarification from Motorola about two aspects of its bid, but this was done as an accommodation to Harris, and not from any concerns or questions which the Authority had about the Motorola bid. On June 20, 1989, the technical staff review of the Motorola bid concluded that it complied with the IFB, and on June 22, 1989, the Florida Department of Transportation authorized the Authority to award this contract to Motorola. The Authority's Board of Directors formally adopted Resolution 89-25 on July 27, 1989, awarding Bid No. 89-03-02 to Motorola. On August 7, 1989, Harris protested this award by letter which sets forth the specific grounds upon which Harris relies in this case, which are that: Motorola failed to propose a "GPSS-Capable" system as expressly required by the IFB; Motorola failed to submit a complete site block diagram as expressly required by the IFB; and Motorola failed to provide programming necessary to interface the proposed AVL (automatic vehicle locator) system with other (Authority) systems as expressly required by the IFB. The Motorola response the IFB, at Section 3.5(G) states: The Motorola signpost-type location system can be changed out (replaced) in the future by a Global Positioning Satellite System, (GPSS). The vehicular location equipment (i.e. signpost receiver and associated antenna) must be changed out (replaced) by a GPSS receiver and associated antenna that are compatible with the existing Metrocom bus mobile data unit's AVL interface. The existing signposts would be replaced by the GPSS satellites. Since there currently is no guaranty as to when GPSS satellite coverage will be available for Hillsborough County, a GPSS type AVL system cannot be proposed at this time. Contrary to the contention of Harris, the evidence received at hearing indicates that the above-quoted portion of the Motorola bid is responsive, and does not indicate that Motorola cannot bid a GPSS upgrade, as required by the Authority. The Motorola system can be GPSS capable with only a change out of the vehicular location equipment, which will necessarily also include both the signal receiver and associated antenna. Motorola has not conditioned or qualified its response to the IFB requirement that any system must be GPSS capable with only a simple change out or replacement of the vehicular location equipment, and therefore, its bid in this regard is responsive. Section 6.1 of the IFB also requires bidders to submit a site block diagram with their bids which shows gains and losses in decibels, cables, antennas, any necessary control logic, audio panels, as well as transmitters, receivers, combiners, and duplexers. This was intended to provide the Authority with a simplified system architecture diagram, enabling it to confirm that each bidder's proposal complied with the IFB requirements relating to system output. The site block diagram is a visual aid, and does not affect or represent any part of the cost of the system. Motorola's bid omitted that portion of the site block diagram which should have identified system gains and losses from transmitter to antenna. However, this information was included in, and determinable from, other portions of the Motorola bid, such as the technical data sheets, and equipment list with catalog numbers. The Authority's technical review committee concluded that the information which Motorola did provide was sufficient for system gains and losses to be calculated, and for performance capacity to be evaluated, particularly in light of Motorola's performance coverage contour maps. Staff of the Authority was able to calculate the output power in system gains and losses using the information supplied in the Motorola bid, and therefore, while there was a technical oversight in not including certain information on the site block diagram in the Motorola bid, that information was readily ascertainable from a review of the bid in its entirety. The Authority utilizes an existing computer system containing bus routing and scheduling information, as well as personnel information. Section 11.3.5(F) of the IFB provided that bidders must assume responsibility for the interface equipment necessary to allow transfer of data from the existing computer system to the new data transit communication system to be provided pursuant to this IFB. Harris contends that Motorola's bid was nonresponsive because it proposed that the Authority bear the cost of transferring data from the existing computer system to the new system. However, as acknowledged by Harris at hearing, the Motorola bid expressly states that the interface will be provided by Motorola. The Authority reasonably interpreted the Motorola bid as responsive on this point. Motorola was not required to, and did not, commit to pay for the cost of any reprogramming of the Authority's existing computer system, but it has agreed to supply the equipment necessary for an interface between its new system and the Authority's existing system, or to program that interface. There is no evidence in the record which would indicate that the Authority acted fraudulently, in an arbitrary or capricious manner, or out of bad faith in its evaluation of, and proposed award of, this IFB to Motorola. Additionally, there is no evidence that Motorola received any competitive advantage over Harris due to any aspect of the manner in which it submitted its bid, including specifically those three aspects challenged by Harris, or the manner by which it was evaluated by the Authority.
Recommendation Based on the foregoing, it is recommended that the Authority enter a Final Order dismissing Harris' protest of the award of IFB No. 89-03-02 to Motorola. DONE AND ENTERED this 13th day of November, 1989, in Tallahassee, Leon County, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1989. APPENDIX DOAH CASE NO. 89-4410 BID Rulings on Harris' Proposed Findings of Fact: Adopted in Finding of Fact 2. Adopted in Findings of Fact 4, 6. 3-4. Adopted in Finding of Fact 3. Adopted in Finding of Fact 6, but Rejected in Finding of Fact 9. Adopted in Finding of Fact 10. Rejected in Finding of Fact 11. 8-9. Adopted and Rejected in Finding of Fact 12. Rulings on Motorola's Proposed Findings of Fact, which have been joined in by the Authority: Adopted in Finding of Fact 6, but otherwise Rejected as irrelevant. Adopted in Finding of Fact 1. Adopted in Finding of Fact 6, but otherwise Rejected as irrelevant. 4-5. Adopted in Finding of Fact 2. Rejected as immaterial and unnecessary. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. 10-11. Adopted in Finding of Fact 6. 12-19. Adopted in Finding of Fact 7, but otherwise Rejected as unnecessary and immaterial. 20-26. Rejected as unnecessary and irrelevant. 27-30. Adopted in Finding of Fact 3. 31. Adopted in Finding of Fact 8. 32-34. Adopted in Finding of Fact 9, but otherwise Rejected as unnecessary and immaterial. 35-37. Adopted in Finding of Fact 10. 38. Rejected as unnecessary. 39-43. Adopted in Finding of Fact 11, but otherwise Rejected as unnecessary and immaterial. 44-56. Adopted in Finding of Fact 12, but otherwise Rejected as unnecessary and immaterial. COPIES FURNISHED: John W. Wilcox, Esquire Jesse L. Skipper, Esquire 100 South Ashley Drive Suite 1650 Tampa, FL 33602-5348 Stephen D. Marlowe, Esquire One Harbour Place P. O. Box 3239 Tampa, FL 33601 Michael S. Hooker, Esquire 1300 Ashley Tower 100 South Ashley Drive Tampa, FL 33601 Cliff Hayden, Jr. Executive Director Hillsborough Area Regional Transit Authority 4305 East 21st Avenue Tampa, FL 33605
The Issue Whether Respondent, Department of Transportation ("Respondent"), has demonstrated that Petitioner, Frank C. Kunnen, Jr., d/b/a U.S. 19 Commerce Center's ("Petitioner"), right-out driveway to U.S. Highway 19 will present a safety and operational problem following Respondent's reconstruction of Highway 19. Whether Petitioner's access to the state highway system will be reasonable if Petitioner's existing right-out driveway is closed. Whether Respondent is legally entitled to administratively close Petitioner's driveway, pursuant to Rule 14-96.011, Florida Administrative Code, and applicable Florida Statutes.
Findings Of Fact Petitioner is the owner of real property located within the city limits of Clearwater, in Pinellas County, Florida, which property abuts U.S. Highway 19 (State Road 55). It has a right-in and right-out driveway connection to U.S. Highway 19. Petitioner's current right-in, right-out driveway does not create a safety or operational problem with the existing configuration of U.S. Highway 19. Respondent is an agency of the State of Florida created pursuant to Chapter 20, Florida Statutes. Respondent regulates access to the state highway system. Respondent initially cited Rule 14-96.011, Florida Administrative Code, in the Notice as authority for the intended agency action. This Rule pertains to closure or modification of permitted driveways. At hearing on March 20, it was discovered that Respondent had intended to cite Rule 14-96.012, Florida Administrative Code, which pertains to closure or modification of unpermitted driveways that had been in existence since before July 1, 1988, the effective date of the State Highway System Access Management Act. The Rule refers to these driveways as "grandfathered." As of March 20, Respondent was not aware that Petitioner's driveway might have been permitted. In order to provide Petitioner all due process to which he was entitled, Respondent requested that the hearing be continued. After reviewing its files, Respondent indicated to Petitioner on June 28, 2001, that Respondent would be requesting an additional continuance to conduct an engineering study pursuant to Rule 14- 96.011, Florida Administrative Code.¹ Petitioner agreed to both continuances. The study was dated August 20, 2001, and was delivered to Petitioner's counsel just after that date. This study was presented as Respondent's Exhibit 5 at the resumption of the hearing on September 20, 2001. The Study sets out the essential safety and operational bases for Respondent's agency action in this case and was signed and sealed by a professional engineer registered in the State of Florida. Prior to the reconvened hearing, Petitioner did not seek to depose the author of the engineering study nor did he request documents utilized in creating the study. Petitioner decided to wait until the hearing and make a series of objections to the study's admissibility. Prior to and after the study was admitted into evidence, Petitioner's counsel conducted extensive cross-examination of the engineer who signed and sealed the study, Vibert Griffith, P.E., and his assistant in the creation of the study, Julian Parsons. Petitioner did not present any evidence of prejudice resulting from the timing of the creation of the study. Any prejudice which may be presumed was cured by Respondent's requesting a continuance specifically to search its records for evidence of a permit; Respondent's requesting another continuance to create that study; Petitioner's agreeing to both continuances; and Respondent's producing the study approximately one month prior to hearing. This gave Petitioner time to conduct discovery regarding the study, not to mention sufficient time to prepare for the hearing itself. The Notice did not state whether mediation was available in this case. However, the lack of mention of mediation in the Notice was of no prejudice to Petitioner in light of the fact that that Petitioner proposed several alternative driveway designs to Respondent, and that these alternatives had been closely studied and considered. Petitioner did not present any evidence that he had asked whether mediation was available or was denied an opportunity to mediate this case. Accordingly, any error in the lack of information regarding mediation in the Notice was harmless, and any prejudice was cured. Petitioner elicited testimony with respect to a third procedural point in this case. Rule 14-96.011(1)(e), Florida Administrative Code, states that if Respondent seeks to close a driveway, Respondent will offer to meet with the property owner or his representative on-site. As Petitioner's counsel stated during his opening remarks, however, there is a long history of litigation between Petitioner and Respondent, including two pervious mediations. Again, the unrebutted testimony at hearing was that over the last several years Respondent evaluated three alternative designs submitted by Petitioner for access to U.S. Highway 19. Petitioner did not present any evidence of prejudice in not being able to meet on-site with Respondent in this case. Any error in relation to this issue was harmless. U.S. Highway 19 runs north-south through Pinellas County, Florida and is a part of the Florida Intrastate Highway System. In the vicinity of Petitioner's property, U.S. Highway 19 has three lanes of traffic each for northbound and southbound traffic (total of six lanes). As part of the reconstruction of U.S. Highway 19, Respondent has plans to create "grade separated intersections" or "urban interchanges" at the cross street to the south and north of Petitioner's property. The cross street to the south is Drew Street, and the cross street to the north is Coachman Road. Also, just to the north of Petitioner's property, U.S. Highway 19 is elevated over railroad tracks, and will continue to be so elevated after reconstruction. In its reconstructed state, vehicles will reach mainline U.S. Highway 19 by a series of frontage roads and on and off ramps. Vehicles that stay on mainline U.S. Highway 19 will not have to stop for signals at intersections with cross streets because the mainline will travel over the cross streets. The effect of U.S. Highway reconstruction will be to create a more efficient transportation facility by improving safety and capacity. The overall improvements to U.S. Highway 19 are necessary. Although Respondent is closing Petitioner's right-out driveway to mainline U.S. Highway 19, Respondent is not acquiring any property from Petitioner. Accordingly, Respondent provided Petitioner with notice of the intended agency action and right to an administrative hearing (the "Notice"). Respondent's Proposal Respondent proposes, as part of its planned improvements to U.S. Highway 19, to provide Petitioner a right- in only entrance from a frontage road running adjacent to and parallel to U.S. Highway 19. Respondent also proposes to build a new two-way road, referred to as Access Road A, which runs north-south, parallel to U.S. Highway 19, intersects Drew Street, and from that point provides vehicles the option of traveling either north or south on mainline U.S. Highway 19, or east or west on Drew Street. Petitioner's northerly neighbor, a maintenance yard owned by Pinellas County, would also send all of its traffic, including large trucks and emergency vehicles, out Access Road A to Drew Street. Other properties, including several car dealerships, to the south of Petitioner's property would also have access to Access Road A. No other property owner, including Pinellas County, objected to Respondent's proposed access system. It is undisputed that Respondent has all of the right-of-way necessary to construct Access Road A to Petitioner's property line. During construction, the City of Clearwater will install a temporary traffic signal at the intersection of Access Road A and Drew Street. Based on a traffic study conducted by the Pinellas County MPO and endorsed by the City of Clearwater and Pinellas County, the traffic light will become permanent when construction is completed. Even if the temporary light is removed after construction, Access Road A will function properly for right turns onto Drew Street which will provide access to the northbound and southbound mainline lanes of U.S. Highway 19. This is true, even assuming that all of Petitioner's neighbors send all of their traffic out Access Road A. In addition, Petitioner's neighbors to the south have several alternate means of access to travel west on Drew Street and either north or south on U.S. Highway 19. Respondent is closing Petitioner's right-out driveway to U.S. Highway 19 because, post-construction, the driveway would be located on an on-ramp. The frontage road and on-ramp, as currently designed by Respondent, would prevent placement of a right-out driveway in such a location. It is Petitioner's position that Respondent could have designed the frontage road and on-ramp in front of Petitioner's property in such a way as to allow the safe operation of a right-out driveway in the approximate location of Petitioner's current right-out driveway. Petitioner's Proposal In support of his contention that Respondent could have designed a right-out driveway, Petitioner offered an aerial map and overlay (Petitioner's Exhibit 3), which purported to show that Respondent could have designed an on-ramp from Drew Street and an off-ramp to Coachman Road to the north in such a way as to allow Petitioner a right-out driveway. Petitioner's Exhibit 3 was a concept based upon what was referred to as the "Lochner Study" at hearing. The "Lochner Study" was a study performed by the engineering firm H. W. Lochner, and showed a right-in, right-out driveway from Petitioner's property onto a frontage road/on-ramp in approximately the same location as Petitioner's current driveway. In the past Petitioner had proposed other alternatives for access to U.S. Highway 19. Petitioner withdrew from consideration at this hearing all other alternative designs for a right-out driveway for Petitioner. The Lochner Study was undertaken with the specific purpose of determining whether needed improvements to U.S. Highway 19 could be safely constructed within right-of-way already owned by Respondent. The Lochner Study concluded that placing a driveway for Petitioner in the location shown in the study would provide "substandard operation and is very undesirable from a safety stand point." The primary reason for this conclusion was that the physical separation of northbound mainline U.S. Highway 19 and the frontage road ended south of the driveway's location. This lack of physical separation would allow vehicles on northbound mainline U.S. Highway 19 to cross over the frontage road and enter Petitioner's property, creating unsafe traffic movements. Petitioner's witnesses agreed that this lack of separation would be a safety problem. Petitioner's Exhibit 3, prepared and testified about by Reginald Mesimer, attempted to alleviate this admittedly unsafe aspect of the Lochner plan by extending the physical separator between northbound mainline U.S. Highway 19 and the frontage road/on-ramp to a point just beyond the location of where Petitioner's driveway would be. The area of physical separation is the "gore" area. In effect, this extension also would shift the beginning of the on-ramp to the point of Petitioner's driveway. Thus, the issue raised was whether the location of the on-ramp could be safely designed to co-exist with the location of the off-ramp for the next interchange at Coachman Road. The standards for determining whether this design is safe are set by the American Association for State Highway and Transportation Officials ("AASHTO"), who publish these standards in the "Green Book," known as the "Bible" of transportation engineers. In examining Petitioner's Exhibit 3, as well as the requirements of AASHTO submitted in this case, it is clear that the requirements for an on-ramp followed by an off-ramp are: (1) an acceleration area for the on-ramp; (2) a weaving area for vehicles going from the on-ramp to mainline, and for vehicles going from mainline to the off-ramp; (3) a deceleration area for the off-ramp, and (4) a queue area for vehicles at the terminus of the off-ramp. Petitioner's Exhibit 3 shows the start of the acceleration area for the on-ramp at the location of Petitioner's right-out driveway, which indicates that the on- ramp for vehicles leaving Petitioner's property would begin at his driveway. Petitioner's Exhibit 3 shows a 2,000-foot weave area, also beginning at the location of Petitioner's right-out driveway. Placing the start of the acceleration area and the weave area at the same point on an on-ramp is contrary to AASHTO design standards. The beginning of the weave area should be near the end of the acceleration area, which, on Petitioner's Exhibit 3, is supposed to be where vehicles on the on-ramp are traveling at the design speed of the highway they are attempting to enter. AASHTO places the beginning of the weaving area where the outside lane of the mainline and the inside lane of the on- ramp are separated by two feet. The weave area extends to a point where there is a twelve-foot separation of the mainline and off-ramp lanes at the next interchange. The design speed of U.S. Highway 19 is 55 miles per hour. It is uncontested that vehicles leaving Petitioner's property will be in a stopped condition prior to entering the on-ramp. Thus, looking at Petitioner's Exhibit 3, the beginning of the weave area should be placed approximately 965 feet to the north of the current location shown on Petitioner's Exhibit 3. In turn, this forces the deceleration area for the off-ramp to Coachman Road shown on Petitioner's Exhibit 3 to be shifted 965 feet to the north. Petitioner's expert testified that the off- ramp deceleration area at Coachman Road could be shifted between 300 and 400 feet to the north. Assuming this to be correct, this places the start of the off-ramp deceleration area approximately 965 feet to the north of its current location, which is 565 to 665 feet beyond the farthest point Petitioner's expert testified it could be moved. Respondent's experts also examined Petitioner's Exhibit 3 under the dictates of AASHTO. Unlike Petitioner, Respondent assumed a design speed of 50 miles per hour, and assumed that shorter distances for acceleration, weaving, and deceleration could be applied in this situation under AASHTO. Respondent's findings demonstrate that under the "Petitioner's best case scenario" the off-ramp at Coachman Road would still have to be moved approximately 600 feet to the north, which is at least 200 feet past the farthest possible shift testified to by Petitioner's expert. Moving the off-ramp would obviously require redesign and delay of the Coachman Road project to the north, already designed and funded for construction. Further, Petitioner's Exhibit 3 also did not take into account any need for increased acceleration distance on the on- ramp due to the grade of the road. For certain portions of the acceleration area of the on-ramp in Petitioner's Exhibit 3 the grade is steeper that 3 percent, and averages over 2 percent. AASHTO does not require an increase in acceleration distance where the grade is "less that two percent." AASHTO requires an increase when the grade is more than 3 percent. This is, according to Petitioner's witness, a "gray area" in AASHTO. In this situation, while AASHTO may not require a multiplier be applied to the entire acceleration distance, it would be safer for the traveling public to apply the multiplier at least to the portions above 3 percent and perhaps to the entire acceleration distance, and to acknowledge that the grade of the road militates against application of strict minimum AASHTO standard distances. Adjusting at all for grade would result in a longer on-ramp and require pushing the off-ramp at Coachman even further north, which makes Petitioner's Exhibit 3 alternative even less viable. Another factor that Petitioner's Exhibit 3 did not take into account was that a significant amount of traffic leaving the proposed right-out driveway would be fully-loaded heavy trucks both from Petitioner's property and the Pinellas County maintenance yard. The AASHTO acceleration distance of 965 feet shown in that Exhibit is for automobiles. Knowing that heavy, fully loaded trucks would be utilizing this driveway on a regular basis, the acceleration distance for such trucks reaching 55 or even 50 miles per hour would be longer than for a normal passenger vehicle. Petitioner's alternative proposal was fatally flawed in its misplacement of the weave area, and was defective in other respects such as not considering the slower heavy truck traffic or the grade of the road. Thus, it is apparent that under any interpretation of the AASHTO standards, Respondent could not safely design an on-ramp from the Drew Street area and an off-ramp to the Coachman Road interchange and provide Petitioner a right-out driveway in the approximate location of his existing right-out driveway. Based upon all the evidence presented at hearing, Respondent demonstrated that AASHTO standards preclude moving the on-ramp to the location proposed by Petitioner. Therefore, closing Petitioner's right-out driveway to reconstructed U.S. Highway 19 is mandated for safety and operational reasons. Access-Reasonableness Issues Following the reconstruction of U.S. Highway 19, the access proposed by Respondent for Petitioner's property is reasonable. An objective comparison of the alternative proposed by Petitioner and Respondent's proposal reveals that Respondent's design results in safer and more efficient access to the state highway system for Petitioner and direct access to east and west travel on Drew Street. One measurable point of comparison is the relative distance a vehicle would have to travel to reach the state highway system under Respondent's proposal versus Petitioner's. Prior to Petitioner's withdrawing from consideration all alternatives other than what was represented in Petitioner's Exhibit 3, Respondent presented testimony regarding two of Petitioner's earlier alternative concepts. These previous alternatives were referred to as Proposal One and Proposal Two. Proposal One was basically a right-out driveway in the form of an on-ramp that would have tied in to mainline U.S. Highway 19 prior to the railroad tracks. Proposal Two was a right-out driveway/on-ramp that tied into the off-ramp for Coachman Road. As far as comparing relative travel distances, both Proposals One and Two are similar to the alternative in Petitioner's Exhibit 3. For vehicles to travel north from Petitioner's property on U.S. Highway 19 in Respondent's design, vehicles travel south on Access Road A, west on Drew Street, and then south on the frontage road/on-ramp. This is a distance of .44 miles. To reach the same point using the access provided in Proposal One, Proposal Two, or Petitioner's Exhibit 3, a vehicle must travel north to the Coachman interchange, and double back south, a distance of approximately 1.45 miles. Thus, when added together, the distances for vehicles to travel north and south on U.S. Highway 19 in Respondent's design total 1.12 miles, or .33 miles less than the 1.45 miles to reach the same points using any of Petitioner's alternative driveway proposals. In addition, for vehicles that wish to travel east or west on Drew Street from Petitioner's property, Respondent's alternative is much shorter. It is .32 miles to reach Drew Street along Access Road A, and 1.6 miles to reach Drew Street from Proposal One, Proposal Two, or Petitioner's Exhibit 3. Another measurable point of comparison are conflict points, places such as intersections and merge areas where vehicles can be expected to change lanes. In Respondent's design, there are four or five conflict points to travel north on U.S. Highway 19, three or four to travel south on U.S. Highway 19, and one to travel east or west on Drew Street. Petitioner's Exhibit 3 shows two conflict points to travel north (right-out turn to on-ramp and merge to mainline), six or seven to travel south on U.S. Highway 19, and seven or eight to travel east or west on Drew Street (same as south on U.S. Highway 19 plus turn from off-ramp). For vehicles traveling north and south on U.S. Highway 19 from Petitioner's property, the number of conflict points in either Respondent's design or Petitioner's alternative are essentially even, but when travel on Drew Street is included in the comparison Respondent's design is clearly safer. A third point of comparison is that Petitioner's alternative provides one way in and one way out. Respondent's design provides two ways in and one way out. Respondent's design provides reasonable access to Petitioner's property. In comparison to Petitioner's alternative, Respondent's design provides for shorter combined travel distances. In regard to conflict points, Respondent's design is as safe as Petitioner's alternative, and safer if travel on Drew Street is included in the comparison. Finally, Respondent's design provides an additional point of ingress. Both witnesses called by Petitioner opined that the access proposed by Respondent was not reasonable, primarily because the access is not "direct." The basis of that opinion was limited to their belief that a "better" access plan, the alternative shown in Petitioner's Exhibit 3, was viable. Neither of Petitioner's witnesses knew the relative travel distances, nor did either witness testify about actual conflict points or any other possible objective points of comparison. Petitioner's witnesses' view are flawed because the alternative shown in Petitioner's Exhibit 3 is not viable. Assuming, arguendo, that Petitioner's Exhibit 3 reflected a safe design, and assuming that this access is reasonable, it would be contrary to logic to conclude that Respondent's design results in unreasonable access. The only "advantage" in Petitioner's Exhibit 3 versus Respondent's proposal is a right-out "direct" connection to U.S. Highway 19 via the on-ramp. However, comparing travel distances, conflict points, and points of ingress, Respondent's design is comparable if not superior, and thus, reasonable. Petitioner stressed that all other property owners along the U.S. Highway 19 corridor have right-in and right-out driveways on frontage roads, and that Petitioner is the only property owner required to use a facility like Access Road A for egress. Even if true, this circumstance does not in and of itself change Respondent's designed access for Petitioner's property into unreasonable access. Based upon objective criteria, Respondent's design is comparable or superior to Petitioner's alternative, and Respondent's design is comparable or superior to the access enjoyed by all other property owners in this vicinity. Engineering Study Pursuant to Rule 14-96.011, Florida Administrative Code, Respondent conducted an engineering study to examine the closure of Petitioner's right-out driveway. Normally, an engineering study is prepared prior to Respondent serving its Notice of Intent to close or alter a permitted driveway connection. The engineering study documents that there is a safety or operational problem with a particular driveway connection, and ensures that Respondent has an engineering basis to seek closure or alteration of the driveway. However, at the time this case came to hearing on March 20, 2001, Respondent was not aware that Petitioner's driveway may have been permitted. That is the reason the study was conducted during a continuance of this case and delivered to Petitioner on or around August 17, 2001. Petitioner agreed to the continuance for Respondent to conduct the study, and Petitioner had adequate time to conduct any further discovery in this case after receipt of the study. Thus, any procedural error in the timing of the study was waived by Petitioner and/or cured by Respondent. The Study does provide safety and operational bases for Respondent's agency action in this case. The study summarizes the history of the U.S. Highway 19 improvement project, discusses the current conditions, explains the proposed improvements, and reviews the safety and operational issues specific to Petitioner's right-out driveway in the post construction condition. The study also explains why two alternative right-out driveway configurations were not acceptable to Respondent. The study contains exhibits showing traffic patterns in the existing and possible future post construction conditions. The study was signed and sealed by a professional engineer registered in the State of Florida. The study did not discuss the Petitioner's alternative advocated at hearing. The reason the study did not address this concept was that at the time of its creation, Respondent did not have Petitioner's Exhibit 3. One other item not addressed was traffic accident data. Since the improvements of U.S. Highway 19 have not been constructed, there is no accident data for the right-out driveway in the post construction condition. Respondent stipulated that Petitioner's existing right-out driveway is safe, so any accident data relating to current conditions is not relevant.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Transportation enter a final order approving the closure of Petitioner's right- out driveway as part of the future constructed improvements to Highway 19 and the construction of Access Road A. DONE AND ENTERED this 14th day of December, 2001, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2001.
The Issue The issue in this proceeding is whether the Respondent’s decision to award a community transportation provider contract to the Intervenor is clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact The Commission is an independent entity established by Section, 427.012, Florida Statutes (2007). It is housed, administratively and fiscally, within the Florida Department of Transportation. The purpose of the Commission is to coordinate and set policy for transportation services provided to the “transportation disadvantaged.” It also is the entity that awards contracts to service providers in the coordinated transportation system. The term “transportation disadvantaged” is defined in Section 427.011(1), Florida Statutes, as: Those persons who because of physical or mental disability, income status, or age are unable to transport themselves or to purchase transportation and are, therefore, dependent upon others to obtain access to health care, employment, education, shopping, social activities, or other life- sustaining activities, or children who are handicapped or high-risk as defined in § 411.012. Section 427.0155, Florida Statutes, sets forth the powers and duties of a community transportation coordinator as follows: Execute uniform contracts for service using a standard contract, which includes performance standards for operators. Collect annual operating data for submittal to the commission. Review all transportation operator contracts annually. Approve and coordinate the utilization of school bus and public transportation services in accordance with the transportation-disadvantaged service plan. In cooperation with a functioning coordinating board, review all applications for local government, federal and state transportation disadvantaged funds, and develop cost-effective coordination strategies. In cooperation with, and approved by, the coordinating board, develop, negotiate, implement, and monitor a memorandum of agreement including a service plan, for submittal to the commission. In cooperation with the coordinating board and pursuant to criteria developed by the Commission for the Transportation Disadvantaged, establish priorities with regard to the recipients of non-sponsored transportation disadvantaged services that are purchased with Transportation Disadvantaged Trust Fund moneys. Have full responsibility of transportation services for the transportation disadvantaged as outlined in § 427.015(2). Work cooperatively with regional workforce boards established in Chapter 445 to provide assistance in the development of innovative transportation services for participants in the welfare transition program. In addition to the Commission, independent, local metropolitan planning organizations or designated official planning agencies carry out the transportation planning process required by 23 U.S.C. § 134. See 23 U.S.C. § 134(d)(1); § 427.015(1), Fla. Stat. Each metropolitan planning organization or designated official planning agency serves an urbanized area with a population of at least 50,000 individuals. In this case, the Central Florida Regional Planning Council (CFRPC) is the metropolitan planning organization or designated official planning agency covering the multi-county area of Hardee, Highlands, and Okeechobee Counties in Florida. As such, the CFRPC recommends to the Commission a single community transportation coordinator to serve Hardee, Highlands, and Okeechobee Counties. See 23 U.S.C. § 134(d)(1); § 427.015(2), Fla. Stat. A community transportation coordinator may be a not- for-profit entity, a for-profit entity or a public body such as a county commission. A community transportation coordinator may personally provide transportation services to the transportation disadvantaged within its service area or contract with other entities for the provision of those services. In either event, because the coordinator’s duties include payment of transportation providers, there is an expense or cost associated with the provision of those transportation services to the community coordinator. The payment of the expense or estimate of such expense is part of the coordination services of the community coordinator. Since 1993, Veolia has been the community transportation coordinator for Hardee, Highlands, and Okeechobee Counties. The current contract expired on June 30, 2008. On October 16, 2007, the Commission issued Request for Proposal (RFP #10-07-01) entitled “Request for Technical, Cost and Rate Proposals for the Community Transportation Coordinator Under Florida’s Transportation Disadvantaged Program in Hardee, Highlands, and Okeechobee Counties, Florida” (RFP). The contract to be awarded by the Commission through the RFP was a five-year contract. The contract only concerned the provision of coordination services. The contract did not include the actual carrier services. As indicated, however, payment of the estimated or actual expense or cost for future transportation services remained part of the overall expense or cost of the requested coordination services. Section I, B of the RFP states, in pertinent part: The following is the anticipated schedule for the selection of the firm or agency as the designated Community Transportation Coordinator (CTC). If there are changes in the meeting dates, each agency/firm that submits a letter of interest/proposal will be notified. * * * * * * Mandatory Pre- Proposal Conference November 8, 2007 Proposal Due (Deadline) December 6, 2007 3:00 p.m. EST Proposal Opening December 6, 2007 3:00 p.m. EST Proposer Presentations to Selection Committee January 4, 2008 Final Action on Recommendation by Central Florida Regional Planning Council January 9, 2008 Florida Commission for the Transportation Disadvantaged Final Selection Meeting Date Unknown Possibly February /March * * * * * * Section I, C of the RFP states, in pertinent part, as follows: * * * 2. The issuance of this request for proposals constitutes an invitation to present proposals from qualified and experienced proposers. The CFRPC reserves the right to determine, in its sole discretion, whether any aspect of the statement of proposal satisfactorily meets the criteria established in this request for proposal, the right to seek clarification from any proposer, . . . ,and the right to reject any or all responses with or without cause. . . . * * * 8. It is the responsibility of the proposer to prepare the proposal as clearly as possible in order to avoid any misinterpretation of the information presented. Proposals will be reviewed solely on the basis of the information contained therein. Modifications or changes cannot be made to the proposals after they are opened. * * * 13. The criteria for evaluation of the proposals is provided in Section III (Evaluation Criteria/Proposal Rating Sheet). Only these criteria will be used to determine the best response. * * * Section I, D of the RFP states in part: The response to this Request for Proposal will be as follows: 1. Community Transportation Coordinator Only - The Central Florida Regional Planning Council is requesting proposals for the Community Transportation Coordinator only. Proposers who are interested in providing some or all of the transportation trips as a carrier will be expected to competitively compete with other operators to provide that portion of service. The Council will assist the CTC in conducting a Request for Qualifications/Request for Proposals process for selection of carriers prior to service start up on July 1, 2008. * * * Section I, H of the RFP states, in part, as follows: The CFRPC’s Executive Director will appoint a selection team of at least three employees who have experience and knowledge of the coordinated transportation system. Each selection team member will assign points to the proposal using criteria listed in Section III (Evaluation Criteria/Proposal Rating Sheet). Selection team members will assure that each proposal has been rated fairly, impartially and comprehensively. * * * Section K of the RFP specified that proposers “must” use the Florida CTD standardized rate calculation model to determine rates and rate structures for service delivery. The CTD rate calculation model was designed to produce a rate which accounts for the costs associated with providing coordination services and transportation services. As indicated earlier, the contract in this case only asked for prices pertaining to coordination services. Section III of the RFP contains the Evaluation Criteria/Proposal Rating Sheet. The rating sheet states, in part: EVALUATION CRITERIA/PROPOSAL RATING SHEET Each proposal submitted will be evaluated on listed criteria. Evaluation Committee members will use this proposal rating sheet to assign point values to items in Section II using the following scale (the weighing for each criterion has been assigned): 6 Excellent 5 Very Good 4 Good 3 Adequate 2 Fair 1 Poor 0 Not addressed 1. GENERAL The following items must be included in the submitted proposal. Any proposal with a “no” response on any of the following questions will be rejected without further consideration. After the above general introductory language, Section 1 of the rating sheet then lists four criteria that have yes or no responses. The remainder of Section 1 of the rating sheet lists seven categories and subcategories of evaluation criteria along with the total possible points for each category. The categories for evaluation were Management Resources (24 points), Proposer’s Experience (30 points), Financial Capacity to Undertake Project (30 points), Demonstration of Transportation Coordination Ability (42 points), Demonstration of Transportational Coordination Operational Ability (18 points), Vehicle Acquisition (18 points), and Rate Proposal (6 points). The category for Demonstration of Transportational Coordination Operational Ability required the committee members to evaluate and score a proposer’s “transition plan describing the process needed to ensure a smooth change-over.” The employees who would comprise the selection committee were to be employees of CFRPC. In this case, the selection committee consisted of Marcia Staszko, Kathryn Hall, Helen Sears, and Shannon Brett. Therefore, under the RFP, each committee member could award a total of 168 points on a proposal and each proposal could score a maximum of 672 points. Veolia and MV were the only two vendors that submitted responses to the RFP. On December 6, 2007, Ms. Staszko opened Veolia and MV’s responses and distributed them to the other three selection committee members. She also instructed the other selection committee members to preliminarily score Veolia and MV’s proposals but not to finalize their scores until after the oral presentations by representatives of Veolia and MV on January 4, 2008. As set forth in the time table of the RFP, the selection committee members met on December 19, 2007, in order to discuss any questions or concerns that had arisen during the evaluations of the proposals. The December 19th meeting was noted on page 3 of the RFP documents. However, the RFP did not specify where or at what time the December 19, 2007, meeting would occur. Likewise, the RFP did not specify the purpose of the December 19, 2007 meeting. The evidence demonstrated that the purpose of the meeting was to discuss any issues or questions which the individual evaluators had regarding the RFP requirements or the RFP process. The evidence further demonstrated that no final decisions were made regarding the scoring of the parties’ proposals and that no evaluator finalized their individual score regarding the parties’ proposals. Given this lack of finality and the fact that the meeting was limited to the processes of the RFP, the December 19, 2007, meeting was not required to be noticed within the parameters of the Florida Sunshine Law, Section 286.011, Florida Statutes. In its proposal, MV submitted a rate for coordination services of $2.47 per trip for all five years of the contract. Veolia submitted a rate proposal for coordination services of $2.99 per trip until July 1, 2009, at which time the rate would increase to $3.05 per trip. As indicated earlier, the RFP required the proposers to use the CTD rate model to calculate the rate submitted by that proposer. The RFP included a compact disk for use with the model and referenced a web site where the model could be obtained. The RFP also included historical data which could be used in the CTD model. The model’s general use is to calculate a rate based on the provision of both coordination services and transportation services. The calculation in the model includes categories of business costs or expenses of the provider such as salaries and payments made to the actual transportation carriers. The evidence showed that the payment of costs to the carriers are part of the coordination services requested under the RFP and a legitimate cost, or estimate thereof, should be included in any rate calculation for coordination-only services. These costs are not insubstantial and range from $150,000.00 to $300,000.00 a year. Additionally, the use of the rate calculation model ensures that a proposer’s rate for coordination services is based on a budget that includes all of the duties of a transportation coordinator. Prior to the submission of its bid, MV submitted a written question regarding the use of the CTD model. MV asked: The RFP indicates that the current CTC is a broker that only handles the 'administrative' part of the delivery system. When responding with pricing in the RFP, are we expected to base our rates only on this function, or as a total including the service delivery functions? If it is the latter, are we expected to negotiate rates for potential providers in advance of the proposal submittal? Unfortunately, MV did not receive a response to its question and submitted its bid without using the CTD rate calculation model. MV used the rate calculation model as a guideline for including relevant cost data in its proposal. However, MV did not include cost data or estimated cost data regarding the payment of transportation costs to transportation carriers. The exclusion of such data, when such payments are required as part of the coordination services, could potentially lower the rate MV proposed. MV disclosed its non-use of the CTD model in its proposal. The evidence was not clear on what data MV did not include in its rate proposal. On the other hand, Veolia did use the rate calculation model and submitted the model’s calculation as part of its proposal. Veolia made some adjustments to its proposed rate due to the fact that the RFP was requesting a rate proposal only for coordination services. Again, the evidence was not clear what adjustments were made by Veolia to its rate proposal. However, the evidence showed that Veolia did include an expense or cost for the payment of transportation services to carriers. In effect, the inclusion of the transportation expense could potentially increase the rate proposed by Veolia. Ms. Staszko, as well as other committee members, was uncertain whether MV’s failure to use the CTD model was responsive to the RFP. As a result, she contacted Commission staff members and sought guidance on the CTD model issue. The Commission staff members instructed Ms. Staszko that MV’s rate calculation did not render its answer unresponsive since the RFP was only for coordination services. However, that instruction ignored the clear language of the RFP specifications and resulted in a comparison of rates which were not based on a uniform method of calculation. During the December 19, 2007, meeting, Ms. Staszko informed the other committee members of the instructions she received from the Commission’s staff. Ms. Staszko did not instruct other selection committee members how they should score the rate portion of MV’s proposal. That determination was left up to the individual judgment of each selection committee member. In this case, Ms. Staszko awarded MV five out of a possible six points for its rate proposal. She deducted one point because MV did not fully utilize the standardized rate calculation model set forth in the RFP. She awarded a five to Veolia because she considered MV’s rate proposal to be lower. Ms. Hall considered MV’s failure to use the CTD model, but awarded six points on MV’s rate proposal. She also awarded six points to Veolia. Ms. Sears awarded four points to MV because it did not use the rate calculation model. She awarded a score of six to Veolia. Ms. Brett awarded five points to MV and five points to Veolia because she felt both proposals were “sufficient.” In sum, MV received a cumulative score of 20 points and Veolia received a cumulative score of 22 out of 24 possible points on their respective rate proposals. However, even though Veolia received a higher overall score than MV, the higher score cannot offset the impact of the Commission’s attempt to waive the requirement of the rate model. The committee did not have the information necessary to compare MV’s rate with Veolia’s because expense data for transportation carriers was not reported or estimated by all the proposers. This lack of uniformity was material and not waivable by the Commission. Section I-1 of the RFP required each proposer to “provide a transition plan describing the process needed to ensure a smooth startup, July 1, 2008.” Each of the evaluators was to use her own judgment in awarding zero to six points for a proposer’s transition plan. Rather than setting forth any explanation pertaining to the transition from its current contract to the one for which it was competing, Veolia responded that this aspect of the RFP was not applicable to its proposal. Veolia’s statement was clearly non-responsive to the sub-category requesting a transition plan. Veolia’s proposal did not take into consideration the fact that transportation provider contracts would have to be sought or renewed at the termination of this contract. Similarly, Veolia’s response did not mention transition plans should Veolia not be awarded the contract. On the other hand, MV provided a detailed transition plan in its proposal. A comparison of the two clearly shows that MV’s transition plan was superior to Veolia’s. During the December 19, 2007 meeting, the other selection committee members questioned Ms. Staszko about Veolia’s response, and Ms. Staszko stated that she did not consider Veolia’s answer to be responsive to the RFP’s inquiry about a transition plan. However, Ms. Staszko did not instruct the other selection committee members how they should score this aspect of Veolia’s proposal. Ms. Staszko awarded zero points to Veolia on its transition plan. She awarded MV five points on its transition plan. Ms. Hall’s rating sheet reflects that she initially awarded Veolia six points for its transition plan. At some point after discussions on the subject, she changed her score to zero and then three points. Ms. Hall awarded six points to MV for its transition plan. Ms. Sears was also dissatisfied with Veolia’s transition plan and awarded zero points to Veolia for its transition plan. She awarded MV four points. Likewise, Ms. Brett awarded zero points to Veolia for its transition plan. She awarded six points to MV. However, in scoring Veolia’s non-response to the transition plan sub-category, the committee did not recognize the fact that Veolia’s proposal was non-responsive to the RFP. The response was essentially a negative answer to one of the categories that Section III of the RFP stated in bold and underlined language should be materially addressed in a proposal. Finally, as indicated earlier, the RFP required at least three committee members who have knowledge and experience of the coordinated transportation system. The RFP did not require expertise regarding the coordinated transportation system. Ms. Staszko is the CFRPC’s Program Director. She has been with the transportation program since its inception in 1979. As director, she is the person primarily responsible for the transportation disadvantaged program in Hardee, Highlands and Okeechobee Counties and was primarily responsible for writing the RFP. She also was responsible for overseeing the process for procuring the contract at issue in this case. All of the parties to this proceeding agree that Ms. Staszko possesses an extensive amount of knowledge about the coordinated transportation system for the “transportation disadvantaged in Hardee, Highlands and Okeechobee Counties and is well qualified to evaluate responses to the RFP at issue in this proceeding. Ms. Hall has been the Program Coordinator for the CFRPC since October of 2007. In that position, she works with the Director of the Transportation Disadvantaged Program. Prior to becoming the CFRPC’s Program Coordinator, Ms. Hall spent 27 years working as the CFRPC’s executive assistant. During those 27 years, she gained knowledge and experience about the coordinated transportation system and the issues facing it. She also gained knowledge and experience through her time as the coordinator for that program. Ms. Hall is clearly qualified to serve on the selection committee. Ms. Sears is a principal planner at the CFRPC. She has maintained that position for over two years. During her time with the CFRPC, Ms. Sears has worked on a series of projects relating to transportation issues in the Central Florida region. Her transportation planning experience was primarily related to the issue of concurrency of infrastructure, like roads and sewers, and fair share arrangements among developers and various governmental entities for providing such concurrency. In general, her experience did not relate to coordinated transportation systems. Prior to working for the CFRPC, Ms. Sears worked with a national engineering and consulting firm for six years. During her employment at the engineering firm, Ms. Sears gained experience in public and private projects relating to general transportation planning and experience in public contract procurement. Indeed, the evidence demonstrated that Ms. Sears did not have any more than passing knowledge about, and no significant experience with, coordinated transportation systems. Given these facts, Ms. Sears did not meet the requirement of the RFP that committee members have knowledge and experience with coordinated transportation systems. Ms. Brett is employed by CFRPC as a Senior Planner. She has held that position since about June of 2007. During her time with the CFRPC, Ms. Brett has worked on procuring capital improvements for local municipalities, organized a long-term comprehensive plan for infrastructure development, taken part in a series of projects assigned to her by the CFRPC’s Director, and has been responsible for a different RFP pertaining to the acquisition of marketing services for the CFRPC. None of her experience appears to be in the area of transportation or transportation for the disadvantaged. Prior to working for the CFRPC, Ms. Brett was employed as a city manager administrator in Hallandale Beach, Florida. During the course of her seven years with Hallandale Beach, Ms. Brett was involved with hundreds of procurement requests and served on dozens of evaluation committees. Again, none of Ms. Brett’s experience appears to be in the area of transportation or transportation for the disadvantaged. In sum, the evidence demonstrated that only two selection committee members met the requirement of the RFP that the selection committee be comprised of “at least three employees who have experience and knowledge of the coordinated transportation system.” Indeed, Ms. Staszko was aware of the lack of experience and knowledge on the selection committee and attempted to find potential committee members outside of the CFRPC. Her attempts were not successful. On January 4, 2008, Veolia and MV made oral presentations to the selection committee. Following those presentations, the committee members met privately to discuss their scoring and submit their scores for each item set forth in the RFP. Ultimately, the committee members scored the proposals of MV and Veolia. All of the committee members rated MV’s proposal slightly higher than Veolia’s proposal. Ms. Staszko awarded 138 points to MV and 134 points to Veolia. Ms. Hall awarded 165 points to MV and 163 points to Veolia. Ms. Sears awarded 134 points to MV and 132 points to Veolia. Ms Brett awarded 144 points to MV and 142 points to Veolia. When added together, the committee awarded 571 points to Veolia and 581 points to MV. Given the closeness of the scoring and the importance of understanding the information provided by the CTD rate model, the requirement in the RFP of experience and knowledge is material and not waivable by the Commission. The evidence was clear that this RFP had a number of problems associated with its process. Most importantly, the attempted waiver of at least two material requirements of the RFP related to the use of the model calculation and the knowledge and experience of the committee members. Compounding the difficulties is the fact that Veolia’s proposal was not responsive to the RFP. Given this myriad of problems, the Commission should reject all bids and begin the RFP process anew.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Commission enter a final order rejecting all proposals and re-issuing its RFP. DONE AND ENTERED this 9th day of July, 2008, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 9th day of July, 2008. COPIES FURNISHED: Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Michael E. Riley, Esquire Mary-Jo Lewis-Wilkinson, Esquire Amy W. Schrader, Esquire Gray Robinson, P.A. Post Office Box 11189 Tallahassee, Florida 32302-3189 Seann M. Frazier, Esquire Greenberg Traurig, P.A. 101 East College Avenue Tallahassee, Florida 32302 Lisa Bacot, Executive Director Florida Commission for the Transportation Disadvantaged 605 Suwannee Street Mail Stop 49 Tallahassee, Florida 32399 John T. Hoeft, Esquire Vice President and General Counsel Veolia Transportation Services, Inc. 14275 Midway Road, Suite 200 Addison, Texas 75001
The Issue The issue is whether Amalgamated Transit Union Local 1395 (“the Union”) committed an unlawful employment practice against Petitioner (“Addie L. McMillan”) by failing to provide her with the same level of advocacy provided to Union members and non-African-Americans.
Findings Of Fact Ms. McMillan is a 55-year-old, African-American female who had worked at ECAT for 22 years. She began as a part-time beach trolley operator and progressed to becoming a full-time bus driver. The Union and ECAT had a labor agreement1/ in place between October 23, 2013, and September 30, 2016 (“the labor agreement”). Article 52 of the labor agreement had a policy regarding the use of cell phones by ECAT employees and provided as follows: While on duty the use of cellular phone or any other personal communication device is limited as follows: SECTION 1: The use by an employee of a cellular phone or any other personal communication device while behind the wheel of a transit vehicle, or any other Company motor vehicle is prohibited while the vehicle is not secured. Push to talk communication devices issued by the Company may be used for work related purposes only where authorized by the Company and permitted by law, but must be used in a manner, which would not create an unsafe situation. Note – Secured definition: Vehicle must be in neutral/park position and emergency brake on. SECTION 2: If it becomes necessary to use a cellular phone, employees must be at the end of the line/trip (on layover, if applicable) or in a safe location with the bus secure. At no time is it permissible to use a cellular phone if the use will cause the trip to be late at its next scheduled time point. SECTION 3: The use of a cellular phone or other communication device by an employee while on the shop floor or during work time (unless previously approved) is prohibited, other than a Push to Talk communication device issued by the Company for work related purposes, and only where authorized by the Company and permitted by law. Federal and State law supersede the above policy. SECTION 4: Disciplinary Action: Failure to comply with any portion of this policy may result in disciplinary action as follows: Violation of Section 2 or Section 3 of this Article: 1st offense: 3-day suspension 2nd offense: Termination Violation of Section 1 of this Article: 1st offense: Termination On the morning of July 29, 2015, Ms. McMillan was driving a route that went through the Naval Air Station in Pensacola, Florida. At that time, the navy base had been on alert status for approximately one month. As a result, every vehicle entering the navy base had to be searched, and that caused Ms. McMillan’s bus to run behind schedule. At approximately 10:30 that morning, Ms. McMillan needed to use a bathroom and called a dispatcher via a radio provided by ECAT. The dispatcher contacted by Ms. McMillan was not receptive to her request for a bathroom break and cut off communications. Because Ms. McMillan was unsuccessful in re- establishing contact with the dispatcher over the radio, she used her personal cell phone to call a coworker, Elaine Wiggins. Ms. McMillan was hoping that Ms. Wiggins could assist her with contacting an ECAT general manager. At this point in time, the bus driven by Ms. McMillan was in traffic and moving. In other words, it was not “secured” by being in the neutral/park position with the emergency brake on. Diane Hall was an assistant general manager for ECAT during the time period at issue, and Ms. Hall talked to Ms. McMillan via Ms. Wiggins’ cell phone. Ms. Hall stated to Ms. McMillan that the route she was driving had a pre-arranged break point at a bowling alley and that Ms. McMillan could use a bathroom there. It is possible that Ms. McMillan would not have suffered any consequences for her violation of the cell phone policy but for a customer complaint provided to ECAT on July 28, 2015. On July 28, 2015, at 12:25 p.m., Roberta Millender, a customer service representative at ECAT, received a phone call from a customer who reported that the bus driver for Route 57 had left the bus at approximately 11:00 a.m. in order to smoke a cigarette, even though the bus was 25 minutes behind schedule. Ms. McMillan also drives that route. ECAT’s buses are equipped with video cameras. Therefore, ECAT reviewed the videotape from that particular bus in order to investigate the complaint. Because the bus videotapes are on a continuous loop, ECAT had to pull video corresponding to days before and after July 28, 2015. While looking for the incident on July 28, 2015, that led to the customer complaint, an ECAT employee noticed that Ms. McMillan was using her cell phone on July 29, 2015. There is no dispute that Ms. McMillan is not the bus driver who took the cigarette break on July 28, 2015.2/ On July 30, 2015, ECAT began an investigation of Ms. McMillan’s cell phone use. ECAT notified Ms. McMillan that she would continue to work during the investigation. ECAT terminated Ms. McMillan on August 3, 2015, for violating section 1 of Article 52 of the labor agreement. Article 5 of the labor agreement sets forth the procedures that ECAT and the Union follow in order to resolve labor issues. Pursuant to Section 2 of Article 5, Michael Lowery, the President of the Union, filed an “Official Grievance Form” (“the McMillan grievance”) with Mike Crittenden, ECAT’s General Manager. Ms. McMillan had reservations about Mr. Lowery handling her grievance. Because she had not joined a recent strike and was not a Union member, Ms. McMillan feared that Mr. Lowery would not use his best efforts on her behalf. However, Mr. Lowery handles the majority of the grievances, and he handles all of the grievances involving termination.3/ The McMillan grievance stated the following: The employee does not dispute the offered video and will stipulate that she used her personal cellphone while operating a transit bus while not secure. This professional bus operator understood the Company policy but did not clearly understand the proper procedure to request assistance to disembark her motor coach while under tremendous physical bodily stress to relieve herself of a bodily function. Operator McMillan understood the procedure to request a 10-7 (Operator off Motor Coach) but was concerned with her bodily stress and finding a safe, clean rest room which was continuing to cause significant additional stress. The Company has clearly FAILED to work at providing known secure, clean, safe facilities for professional bus operators to utilize while operating ECAT buses. The Union has brought this topic forward to Management numerous times and no action has been taken to formulate the needs of the professional bus operators on many bus routes including the bus route that Operator McMillan was driving on the day in question. Operator McMillan was dealing with other related stress on that particular run. The military base was under alert and traffic was extremely backed up. She was dealing with one Dispatcher Supervisor and had reached agreement with him on how to proceed on the bus route. But when another Dispatch Supervisor came on duty it was clear that neither of those Supervisors had shared information on dealing with Route 57 with the military heighten[ed] alert. The new Dispatch was difficult to communicate with about established procedures set earlier with another Dispatcher. This did not help the already adverse or very demanding circumstance. Mr. Lowery concluded the grievance by asking that ECAT rescind its termination of Ms. McMillan, pay her lost wages and benefits, and remove any discipline from her file. Ordinarily, the first step in resolving a grievance involves settlement discussions between ECAT officials and the Union. However, because Ms. McMillan’s grievance involved a termination, it went directly to Mr. Crittenden for his consideration. Via an e-mail dated August 4, 2015, Mr. Crittenden notified Mr. Lowery that he was “denying this grievance and upholding the termination of the subject employee.” Because Ms. McMillan’s grievance was denied, the next step in the process called for the Union to decide whether it wanted to submit the grievance to arbitration.4/ As part of this next step, Mr. Crittenden prepared a draft version of a “Last Chance Agreement” for the Union to review. A Last Chance Agreement is an agreement between an employee, ECAT, and the Union. The draft Last Chance Agreement prepared by Mr. Crittenden contained the following provisions: The employee violated the Company’s cell phone [policy] which is a serious safety infraction that warrants immediate termination. In lieu of terminating her employment, the Employee’s discipline record will reflect this infraction as suspended without pay from August 3, 2015 to August 14, 2015 and returning to work on August 17, 2015 upon acceptance of this agreement, and placed on a twelve month probation/Last Chance Agreement. The employee will retain her rate of pay and security. The employee understands that in the event she violates company policy by being charged with any infraction that warrants immediate termination, her employment will be terminated without any further consideration. This agreement will be in effect for a period of twelve (12) months from the date of signature. The Employee attests that her signature below was in no way coerced by any party or by the representative of any party. By entering into this agreement, the employee acknowledges that she has read and considered each of the provisions of this Agreement and that she voluntarily enters into this Agreement with full knowledge of the consequences. This Agreement is made on a one-time only, non-precedent basis that shall not be used or referred to in any future discipline or termination case or during any grievance/arbitration hearings between the parties. Mr. Lowery presented the proposed Last Chance Agreement to the Union’s legal counsel, and the Union had an issue with the seventh provision’s reference to “non-precedent basis.” Mr. Lowery attempted to reach an agreement with Mr. Crittenden for amending that provision, but his efforts were unsuccessful. Mr. Crittenden would not consent to the removal of that language. Ms. McMillan was disturbed by the fact that she had no input into the Last Chance Agreement proposed by Mr. Crittenden and that it was not presented to her for approval. However, after the Union decided not to accept Mr. Crittenden’s proposal, Ms. McMillan’s approval or disapproval became irrelevant. As noted above, a Last Chance Agreement involves three consenting parties: the employee, ECAT, and the Union. Thus, even if Ms. McMillan had been satisfied with the Last Chance Agreement proposed by Mr. Crittenden, it would not go into effect without the Union’s approval. In order for the Union’s Executive Board to vote on whether to refer Ms. McMillan’s case to arbitration, Mr. Lowery put Ms. McMillan’s grievance on the agenda of the Executive Board’s August 23, 2015, meeting. The five members of the Executive Board who were present and eligible to vote unanimously recommended against pursuing arbitration for Ms. McMillan’s grievance because her case lacked merit. As for why Ms. McMillan’s case lacked merit, Mr. Lowery testified that Well, basically, it’s pretty simple, we negotiated the policy in the labor agreement, and this was a video. And the video showed that she had clearly violated the policy. And so from there, it was going to be very difficult, based on that evidence, that we were not going to be able to go forward. And that’s why the membership voted not to go forward. The Executive Board’s recommendation was considered by the full Union membership later that day, and the Union voted to accept the Executive Board’s recommendation. When asked to explain why the Union elected not to arbitrate Ms. McMillan’s grievance, Mr. Lowery testified that Simply it’s the severity of the policy, which was it’s in the labor agreement. It was negotiated between the Union and the company. And because they had a solid video, we would not be able to demonstrate a way to achieve a victory in that arbitration case. And, potentially, because it’s in the Labor Agreement, that would be used against us in an arbitration because we negotiated it. We negotiated the policy. When subsequently asked a very similar question, Mr. Lowery reiterated that Well, basically, it’s pretty simple, we negotiated the policy in the labor agreement, and this was a video. And the video showed that she had clearly violated the policy. And so from there, it was going to be very difficult, based on that evidence, that we were not going to be able to go forward. And that’s why the membership voted not to go forward. The Union has not arbitrated any grievances in which a driver has been terminated for using a cell phone while a bus was not secured. Including Ms. McMillan, four drivers have been terminated for violating section 1 of Article 52 since the labor agreement has been in place. Three of those drivers were African-American (two females and one male), and one was a Caucasian female. Mr. Crittenden was unaware of any driver being retained by ECAT after violating the cell phone policy.5/ In addition to Mr. Crittenden, Ms. McMillan called three other ECAT employees who were unaware of any bus driver being retained after violating the cell phone policy. Mr. Lowery represents every grievance to the best of his ability, and he represented Ms. McMillan’s grievance to the best of his ability. The greater weight of the evidence demonstrates that he handled Ms. McMillan’s grievance no differently than any other grievance.6/ Mr. Lowery did not consider Ms. McMillan’s race or religion in the course of representing her.7/ The Union did not discriminate against Ms. McMillan based on her race or non-union status. In addition, to whatever extent that Ms. McMillan is alleging that she was discriminated against on any other grounds, there is no evidence to support such allegations.
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 dismissing Addie L. McMillan’s Petition for Relief from an Unlawful Employment Practice. DONE AND ENTERED this 31st day of May, 2017, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 31st day of May, 2017.
The Issue The issue in this case is whether the application filed by the Florida Department of Environmental Protection (DEP) for abandonment of a segment of Mission Road, from the Ocala Drive intersection to a point east of Yonview Drive, should be granted; and, if so, what conditions should be placed on the abandonment.
Findings Of Fact Proposed Abandonment and Vicinity The eastern terminus of Mission Road is at Ocala Road. At one time, Mission Road intersected Ocala Road and extended farther east along the alignment of Tennessee Street. However, when Tennessee Street was extended farther west, the intersection of Tennessee Street and Ocala Road was moved slightly south of the juncture of Ocala Road and Mission Road. Now at the junction of those roads, Mission Road is designed to have only a right turn in from Ocala Road southbound, and a right turn out from Mission Road onto Ocala Road, headed south. Mission San Luis (Mission) is bisected by Mission Road near its eastern terminus at Ocala Road. While the Mission is accessible from Mission Road, its main entrance is on Tennessee Street just west of Ocala Road. The Mission has administrative offices and an archeological laboratory on the south side of Mission Road, while the re-created Mission and Apalachee Village, along with most of the archeological remains, and visitor parking, are on the north side of Mission Road. Yonview Drive joins Mission Road from the south. The juncture of those two roads marks the western terminus of the part of Mission Road that is the subject of the application for abandonment; Ocala Road marks the eastern terminus of the proposed abandonment. All of the land on either side of this part of Mission Road is owned by the State and is part of the Mission. Proceeding west from Yonview, the Mission is on the northeast side of Mission Road, which provides access to the current parking lot for the Mission and the current visitor center, which is an adaptive use of a house built in 1938. Along that stretch of Mission Road, The Timbers condominium development is on the southwest side of Mission Road. Just west of the Mission property, San Luis Road intersects Mission Road. To the north of Mission Road, San Luis is a public road that proceeds north, past Leon County's San Luis Park (which is on the east side of the road), and residential neighborhoods to the west side, to where San Luis Road intersects Tharpe Street. To the south of Mission Road, aligned with San Luis Road, is an entrance to The Timbers. Sometimes referred to as an extension of San Luis Road, the roadway within The Timbers actually is private and serves as access to The Timbers condominium units; it continues through The Timbers and continues between other properties to the development's other entrance on White Drive. As Mission Road proceeds west from San Luis Road, the rest of The Timbers is on its south side; on its north side, Solana Drive joins it from the residential neighborhood to the north. Solana Drive is a short street between San Luis Road and Mission Road. The northern terminus of Solana Drive is near the southern end of the County Park. Petitioners and Their Interests Petitioners are The Timbers Homeowners’ Association, Inc. ("HOA"), and Brian Moran and Christy Baldwin, individually. The individual Petitioners each own one or more units within The Timbers. Ms. Baldwin has resided there for nearly ten years. The HOA is charged with representing the interests of the owners and residents of The Timbers. It owns and has responsibility for the repair, maintenance, and improvement of the common areas within the development. Mr. Moran and Ms. Baldwin are officers of the HOA. The Timbers is a 223-unit condominium community that fronts, along its entire length, the south side of Mission Road between White Drive and Yonview Drive. A portion of this frontage is located directly across Mission Road from what is now Mission San Luis. The private road within The Timbers between Mission Road and White Drive is how The Timbers connects to the public road system. As it fronts Mission Road, The Timbers is a pleasant, wooded community of multiple condominium structures, each of which fronts on a side street connected to its private "San Luis Road." The Timbers is conveniently located for easy access to Florida State University, Florida A&M University, and other points to the south or east of The Timbers (including downtown Tallahassee). A significant number of residents of The Timbers use Mission Road by turning right onto Mission Road, which takes them to a right turn onto Ocala Road, with no stop sign, stop light, or significant intersection in between. From there, they can go straight south on Ocala Road or turn east or west on Tennessee Street. If the abandonment application is granted, that route would be eliminated, and there would be two remaining ways to leave The Timbers--via the White Drive exit, or by making two left turns, one onto Mission Road and the second, after a stop sign, onto White Drive. Meanwhile, drivers traveling east (toward town) on Mission Road from virtually all points west of The Timbers (and thus west of White Drive) on Mission Road, would take a right curve onto White Drive from Mission Road but they would do so with the right-of-way or, if signalized, a traffic light timed to give them a “longer green” preference. Those Timbers residents, owners, and visitors exiting at White Drive would have to negotiate their left turn without the right-of-way and against whatever increased traffic might be introduced onto White Drive if Mission Road were closed. From there, depending on the ultimate destination, traffic could either go straight on White Drive towards Pensacola Street or turn left onto Tennessee Street to reach the Tennessee Street/Ocala Road intersection. The intersection at White Drive and Tennessee Street is signalized but is not consistent with current design standards in that it has an offset center line. According to the planned unit development documents for The Timbers, the White Drive entrance was supposed to be the main entrance to the development. However, the Mission Road entrance has come to function more like the actual “main” and is more attractive aesthetically. Petitioners have spent significant effort and money in beautifying and otherwise maintaining its private extension of San Luis Road through curbing, landscaping, signage, etc. The part of the road that joins The Timbers to White Drive is not as well constructed and is not bounded by The Timbers but rather by other properties. It also is where the garbage dumpsters for the development are located. (On the other hand, the mailboxes for the development also are located off that part of the private road.) The closure of Mission Road probably will shift some internal Timbers traffic from the Mission Road entrance to the White Drive entrance. It also is possible that some external traffic coming south on San Luis Road might use the private extension of the road within The Timbers as a "short-cut" to White Drive. However, the road through the Timbers may not prove to be a desirable "short-cut" because it is a lower-quality road, has potholes, and is not designed for through-traffic but rather as a feeder road for the parking areas of the development. There are three stop signs; the turns are tight; and cars sometimes are parked along the side of the road. As a result, "friction" would slow through-traffic and discourage use of the road as a cut- through. The design of San Luis Road also makes it less likely that The Timbers would be used as a short-cut to White Drive. There is a hard right turn in the road signed for 15 miles per hour that people tend to avoid by turning onto right onto Solana Drive. Many residents walk within The Timbers, including to the mailboxes, to the tennis courts, and to the dumpsters, or to walk their dogs (perhaps in the green space created by an abandoned railroad right-of-way in the vicinity) on the western side of The Timbers. If traffic increases on that side of the private extension of San Luis Road, both the safety and the subjective experience of those pedestrians would be adversely affected to some extent. However, those effects are speculative. A resident-controlled gate system for the Mission Road entrance to prevent cut-through traffic likely would cost The Timbers HOA in the neighborhood of $15,000. Associated costs for telephone connections to each of the units, electrical service, and maintenance would likely range from $75 to $80 per residential unit per year. But such a gate is not desired by Petitioners as it would constitute a significant inconvenience for Petitioners and others who reside in or visit The Timbers. Should the Timbers elect to install sidewalks along its San Luis Road to accommodate increased or shifted traffic within The Timbers, the costs associated with that could reasonably exceed $110,000, including engineering, permitting, utilities, and remediation. The owners of units within The Timbers would ultimately bear the costs of any needed improvements or additional maintenance that would result from a closure of Mission Road. However, it is speculative whether such measures will be needed or actually undertaken. It is possible that the owners of units in The Timbers might suffer some diminution in property value as a result of the proposed abandonment. According to a property appraiser, Richard Boutin, there will be diminution in value of approximately one percent of the value of units, which ranges between $120,000 and $150,000, that would materialize over time, taking two-to-five years to occur. Whether such a diminution in value actually will occur is uncertain. As described above, due to the location of The Timbers, the proposed abandonment will adversely affect Petitioners more than it will adversely affect most of the rest of the general public. Most of the greater adverse effects on Petitioners will be similar in kind to the adverse effects on most of the general public. At least one of the greater effects on Petitioners also is different in kind -- namely, some drivers probably will use Petitioners' private road as a cut-through. See Findings 9-10, supra. Standards for Abandonment Applications A guiding principle for all City Commission action is to act in the public interest. The City Commission must act in the public interest, whether stated in a regulation or not, including when acting on an application for abandonment of right- of-way. City Commission Policy 410 has been used as a guide for reviewing abandonment applications. Policy 410 provides: The City of Tallahassee will not consider any application for right-of-way abandonment, if the subject right-of-way is currently being used by the City, or if the City has any plans to use the right-of-way at some point in the future. Abandonment of a right-of-way must be demonstrated to be in the best interest of the general public. Neither abandonment of a right-of-way solely for the purpose of placing it on the tax rolls in its current state, nor abandonment of a right-of-way solely to benefit an abutting property owner, is considered to be sufficient to meet the test of "in the public’s best interest". Abandonment of right-of-way automatically reverts only to abutting property owners with one-half of the right-of-way going to each owner by operation of law upon adoption of a City ordinance. Provide applicant with a Quit [sic] Deed for recording, if the right-of-way is abandoned. Unlike ordinances, policies can be waived. Notwithstanding paragraph 1 of the Policy, the evidence was clear that the City abandons right-of-way that is in use, either explicitly or implicitly waiving paragraph 1. Over 90 percent of the abandonment applications processed by the City have been for rights-of-way that are currently being used, including some that were being used heavily. The actual standards for determining whether to abandon a road have been found in the other parts of Policy 410, especially in paragraph 2. Although Policy 410 had a sunset date of March 25, 1997, it has not been replaced, and the Planning Department continued to use it as a guide for review of abandonment applications. On February 23, 2005, the City Commission reviewed proposals from the Planning Department for modifications to the City’s abandonment policies, procedures, and fee requirements. The proposed modifications included revised procedures, added definitions, and added the following specific review criteria: The approval of the application shall not create any safety or public health hazard, including any environmental health hazard; The approval of the application shall not result in the preclusion of right-of-way or fee simple access to any existing parcel/lot of record; The approval of the application shall not result in the preclusion of access to any publicly-maintained facility or infrastructure; The approval of the application shall not create any condition inconsistent with the Tallahassee-Leon County Comprehensive Plan, including the Long Range Transportation Plan included therein; The approval of the application would not eliminate or preclude a street or bicycle/pedestrian interconnection that the City Commission intends to retain; The approval should not adversely affect service access required for any official public safety, utility service, waste collection service provider; the United States Postal Service; Leon County Schools (school buses); or TalTran. On February 23, 2005, the City Commission approved the modifications and approved the Planning Department's recommendation to repeal Policy 410 since the modification would be more definitive. The City Commission approved the Planning Department’s recommendations, and directed staff to draft an ordinance incorporating the proposed modifications to the abandonment policies, procedures, and fee requirements and to bring the ordinance back before the Commission for adoption. As of this date, due to staffing constraints, the Planning Department has not taken an ordinance back to the City Commission for review and action. Conditions of Abandonment The City's Planning Department has placed several conditions on the proposed abandonment to address issues raised by the reviewing departments during the processing of abandonment applications. Placing conditions on abandonment of right-of-way is authorized and common. A standard condition for abandonment is that easements be retained by the City for any utilities. It also is standard to require the maintenance of adequate emergency access for the fire and police departments. Also standard, a vehicular turn- around will have to be constructed at the new eastern terminus of Mission Road. To connect with other bicycle-pedestrian trails in the area and enhance these modes of transportation and the City's Bicycle-Pedestrian Master Plan, the Planning Department recommends that a bicycle/pedestrian easement around the perimeter of the Mission be dedicated to the public as a condition of the abandonment. Finally, the Planning Department recommends that the proposed abandonment be conditioned on payment by the State for signalization at the Mission Road and White Drive intersection if, within 12 months of the abandonment, traffic increases to a point where signalization there is warranted. In testimony, the Executive Director of the Mission, Dr. Bonnie McEwan, supported the idea of a bicycle/pedestrian easement for the City, and DEP did not oppose either the standard or recommended conditions of abandonment. Effects of New Mission Visitor Center on Pedestrian Safety The building that currently functions as a Visitor Center for the Mission is an adaptive use of a 1938 house. Limited restrooms are in a separate building next to the house. Currently, due to the lack of accommodations, frequent requests to hold major events, weddings, receptions, and special functions must be denied. Currently, Mission staff must cross Mission Road between their offices and the public northern section. Staff crossings are a cause for concern because of the limited sight- line distance around the curve in Mission Road to the west. They are warned regularly to use caution, but no other measures to protect staff have been implemented or requested to date. Currently, visitors to the Mission drive to the public parking area on the northern portion of the site. Visitors then remain on the north side of Mission Road until they return to their vehicles to leave. In 2006, the Florida legislature appropriated funds to build a new Visitor Center at the Mission. This Center will be in excess of 20,000 square feet and will include public classrooms, a place to show orientation films, exhibits, 20 public toilets, and a meeting room accommodating 250 people. The new Visitor Center will be a vast improvement over the current facility. The evidence was that the best location for the new Visitor Center is on the western portion of the Mission property south of Mission Road. The site was selected because it is relatively flat and because the relatively few archaeological remains there have been mitigated. The plans are to have people enter the Mission using the driveway entrance on Tennessee Street, park around the new Visitor Center, proceed through the Visitor Center for their orientation, and then walk to the main area of the park, where the re-created Fort, Mission, Apalachee Village, and rich archeological sites are located. If Mission Road is not abandoned, the visitors would be crossing just east and quite close to a sharp curve in the relatively narrow, canopy-like road, which has deep-cut banks. Petitioners suggest that the new Visitor Center could be put on the northern part of the site. Indeed, before the State acquired the land on the south side of Mission Road where it now intends to build the new Visitor Center, the State was planning to build it on the north side of the road. However, the evidence was that the recently acquired site on the south side of the road is better suited and would be a much greater benefit to the general public. In any event, the evidence was that the State is going forward with its plans for the new Visitor Center and already has proceeded with obtaining environmental and building permits for construction on the preferred site. A conservative count of on-site visitation at the Mission last year was 30,239. There are activities year-round, including costume interpretation, a living history program, special events, and camps, including every teacher planning day and break. Most of the Mission programming is geared towards children, and approximately ninety percent of the visitors are children. The State hopes and expects that visitors to the Mission will increase dramatically with construction of the new Visitor Center. The State continues to expect that a high percentage of these visitors will be children. The application for abandonment is based on the reasonable prospect of increased future use of the facility. The application for abandonment seeks to protect the expected increased number of visitors, including many groups of children, and staff from the danger of having to cross back and forth across Mission Road. Pedestrian safety in connection with the use of the planned Mission facilities is a clear benefit to the general public. The abandonment application also would enable the State to optimize the functioning of the Mission, which also benefits the general public. Negative Effects of Abandonment At the same time, granting the application for abandonment would cost the general public in other ways, which the Petitioners point out. The segment of Mission Road proposed to be abandoned has a "canopy-road-like feel" (although it is not officially designated as a canopy road). The public no longer would be able to experience driving on it. A traffic study done by Wilson Miller on behalf of the State confirmed that traffic on the segment of Mission Road in question is relatively light. Traffic count data from 2008 showed that the annual average daily traffic ("AADT") was 1,500 vehicles a day, including both directions. Approximately 57 percent of the 1,500 cars move in an easterly direction. By comparison, the AADT for other area roads in the vicinity is significantly higher: 9,000 vehicles for White Drive; 34,000 for Ocala Road; and 42,500 for Tennessee Street. Mission Road is classified as a minor collector road. The capacity of a minor collector is between 13,000 and 14,000 AADT. The AADT established by the Wilson Miller study is only about 10% of the road's capacity, which is very light for a minor collector road. If the application for abandonment is granted, traffic will shift to other roads. However, the Wilson Miller study was not an origin and destination study and was not sufficient to determine with any precision how the traffic would shift. For that reason, Petitioners' attempt to use the traffic study to identify and quantify the costs associated with such travel shifts was not convincing. Some increase in traffic on other area roads will occur, but it is speculative based on this record where the increases might occur, how large they will be, and whether they will result in the need for taxpayer-funded road and traffic construction. Petitioners contend that the proposed abandonment will shift some eastbound traffic on Mission Road to White Drive. If it does, White Drive is a major collector with recent improvements and excess capacity. Any additional traffic on White Drive would not be significant from a traffic planning standpoint. It might make the road network more efficient overall (even though certain trips may become less efficient). It is possible that the re-routing of traffic from the Mission Road and Ocala Road intersection may be significant enough to warrant a traffic signal at White Drive and Mission Road. For this reason, the City staff recommends, as a condition for abandonment, that the State pay for signalization at that intersection if the need arises within a 12-month period after the abandonment. Based on the evidence, it should not be anticipated that other road and traffic improvements will be necessary as a result of the abandonment, except perhaps reversal of the stop condition at Mission Road and San Luis Road and possibly a turn lane on Solana Drive at its Mission Road junction. Petitioners also contend that the value of the 1.34 acres of road right-of-way to be abandoned is a cost to the general public that should be considered. The appraised value of the 1.34 acres was $240,000, using an "across the fence" appraisal methodology and assuming high-density residential property "across the fence" even though the property on either side of the proposed abandonment would be park land, and the transfer of use from road to park would be from one public purpose to another public purpose. In any event, the City cannot legally "charge" for abandoning right-of-way, and the value of abandoned right-of-way is never a consideration in the City's review of an abandonment application. See Conclusion 77, infra. Petitioners also contend that the proposed abandonment will have the negative effect of hampering emergency response in the area. Any road closure could result in a longer emergency response time by a matter of minutes in a particular circumstance and, depending on the emergency, it is possible that a delay of mere minutes could be significant and even mean the difference between life and death. But the evidence was clear that, from any reasonable planning perspective, the proposed abandonment would not present significant difficulties to fire, hazardous material, or police responders, assuming that maintaining adequate emergency access into the Mission itself is made a condition of the abandonment. Geographic areas are assigned to Fire Department stations for primary response. The response routes of drivers are not assigned, but are instead discretionary on the part of the driver based on the time of day, traffic patterns, nature of the road, and possible school zones. The primary station is called as the First Due, with the secondary being Second Due, and so forth. Station 4, located at the corner of Pensacola Street and Appleyard Drive, is the First Due Station, or engine company, for the area of the proposed abandonment, including The Timbers. The typical route for Station 4 would be to travel from its location at Appleyard Drive and proceed to Tennessee Street, turn right and proceed east to White Drive, then turn left and proceed north to Mission Road. This route would not be affected by the proposed abandonment. The Second Due Station for this area is the Main Fire Station located at 327 North Adams Street. The probable emergency response route for a fire truck coming from this Station would be to travel west on Tennessee Street, go through the Ocala Road intersection with Tennessee Street, turn right and proceed north on White Drive, and turn right and proceed east on Mission Road. The alterative route of proceeding north on Ocala Road at the Tennessee Street intersection and turning left onto Mission Road would be extremely difficult to navigate for a large fire truck, particularly in light of traffic, and typically would not be the preferred route. The typical route from the Second Due station is not affected by the proposed abandonment. The Third Due station for this area is Station 8, which is located on Hartsfield Road. This Station is situated to the west of the Timbers and the Mission. A typical route from this Station to the Timbers would be to drive east on Hartsfield Drive and take one of several southerly connections to Mission Road, and then drive east on Mission Road to access The Timbers or the Mission. Another consideration for Fire Department emergency access is the specialized functions of certain stations in two areas--Urban Search and Rescue, and the Hazardous Material Response. The Urban Search and Rescue team provides specialized services including searching through collapsed buildings and piles of debris. The primary station response for Urban Search and Rescue is Station 4, and its access is unaffected by the abandonment. The primary Hazardous Material Response team is Station 2, located on Sharer Road. There is a secondary specialized station for hazardous materials response, Station 3, which is located on South Monroe Street at Paul Russell Road. In addition, all of the stations have some ability to provide hazardous materials response. Currently, a possible route from Station 2 to the Timbers eventually would take Ocala Road to Mission Road. However, this route is only available for single engine fire trucks. Due to the nature of the equipment it uses, the hazardous materials team may instead proceed along Interstate 10 to Capital Circle and head back east to the area. During a response to an incident, this specialized team would be driving en route, meaning with traffic and not in emergency mode, and the First Due station would already have sent a truck to the site along a route unaffected by the proposed abandonment. As for the Police Department, the main type of call from The Timbers has been for public disturbances, which are frequently related to parties and generally not emergencies. In the three years of calls, only one call received could be considered an emergency response, which was for a young lady who had erratic breathing after passing out from drinking too much alcohol. In contrast to the Fire Department, police patrol cars have no fixed locations but rather are constantly on patrol. Dispatch for police prioritizes current needs and locations of vehicles. The Police Department has a number of methods it can use to access an area in case of an emergency. In addition to the standard method of reaching an area by car, potential options to reach an area include by foot, bike, and helicopter. Even deployment of an armored car/tank type vehicle would be possible if the situation warranted it. If the abandonment occurs, there will be three main routes to access the area, including San Luis Road, White Drive, and Mission Road from the west. With the two entrances to The Timbers, these routes provide at least five different ways to access The Timbers. Some locations in the City, such as cul-de- sacs, have only one access route. The various approaches to the area in question provide more than sufficient access. The proposed abandonment would result in the elimination of a less-than-ideal intersection at Mission Road and Ocala Road. Resulting from the extension of Tennessee Street to the west of Ocala Road, the intersection at Mission Road and Ocala Road does not meet current design standards because it is too close to Tennessee Street. It is not unusual for cars turning right from Mission Road onto Ocala Road to cross two or three lanes within a very short distance in order to turn left onto Tennessee Street. This maneuver is dangerous and illegal. Of six accidents at the intersection over four years, five involved oncoming traffic striking a vehicle turning onto Ocala Road from Mission Road. In a three-month period in 2006 alone, there were three such collisions. One reason there are not more similar accidents appears to be that the danger is so obvious that most drivers--both those attempting the maneuver and those driving south on Ocala Road--use caution. In addition, many of the local residents have become quite skilled at negotiating the intersection. Another illegal maneuver at this less-than-ideal intersection is sometimes used by cars heading north on Ocala Road and crossing Tennessee Street. Since it is not possible to make a legal turn left onto Mission Road, some turn left into a business parking lot on the northwest corner of Tennessee Street and Ocala Road, drive through the business parking lot, and then turn left onto Mission Road. Petitioners contend that the proposed abandonment will shift traffic from the Mission Road/Ocala Road intersection to the White Drive/Tennessee Street intersection, which also is inconsistent with design standards due the centerline offset, making the left turn onto Tennessee Street from White Drive potentially dangerous. However, whether and how much traffic would be shifted to that intersection was not proven. In addition, most of the traffic experts who testified were more concerned about the dangers inherent in the Mission Road/Ocala Road intersection and thought elimination of the Mission Road/Ocala Road intersection would make the Ocala Road/Tennessee Street intersection more efficient. Comprehensive Plan The evidence was that, with the conditions recommended by the City's Planning Department, the proposed abandonment does not create any condition that is inconsistent with the Tallahassee-Leon County Comprehensive Plan, including the Long- Range Transportation Plan. Goal 2 of the Historic Preservation Element of the Comprehensive Plan is to “[e]nsure that all municipal and county actions encourage and promote the preservation of this community’s historic resources.” Closing the proposed portion of Mission Road will serve Goal 2 by supporting and satisfying Policy 2.1.3 (mitigate the impact of development on historic resources), Policy 2.1.5 (property listed in the Florida Master Site File), and Objective 2.4 (develop a land conservation program to protect historic resources). The proposed abandonment also is consistent with other parts of Goal 2, namely: Objective 2.5 (establish a program to protect significant archaeological resources); Policy 2.5.1 (mitigation of adverse impacts to significant sites); Policy 2.5.2 (archaeological sites to be filed with Florida Master Site File and Archaeological Sensitivity Zone Maps of Leon County); Objective 3.2 (provide for the interpretation of local government-owned historic resources in parks and other public lands); Policy 3.2.1 (support and encourage local projects involving walking, bicycling and driving tours through historic areas); and Policy 3.2.2 (include the existence of historic resources as a criterion in the acquisition of public parks). The recommended bicycle/pedestrian path easement condition is consistent with Goal 6 of the Conservation Element of the Comprehensive Plan, which encourages the City/County to "implement a county-wide greenways network . . . to provide for . . . educational and historical interpretive opportunities and increased opportunities for alternative modes of transportation." Goal 6 of the Conservation Element of the Plan and supporting Policies 6.1.1 through 6.1.4 were the origin of the Tallahassee-Leon County Greenways Master Plan. The intent was to link historic and natural resources throughout the community, linking them to residential, work, and business areas. The bicycle/pedestrian easement link San Luis City Park trails with an existing trail at the intersection of Tennessee and Ocala. The proposed abandonment is consistent with the Parks and Recreation Element of the Comprehensive Plan in that state facilities may be included to meet state-required levels of service. Parks are essential to a sustainable community. The Land Use Element of the Comprehensive Plan has the general goal of protecting natural and aesthetic environments and residential areas. One way to protect residential areas is not to route collector roadways through them. Everything adjoining the western boundary of the Mission is classified as Residential Preservation. Closing Mission Road will force traffic away from this area and protect 18 homes on San Luis Road from cut-through traffic. The Planning Department would downgrade area street classifications to "local streets" to reflect their true use and provide better neighborhood protection. Studies performed by the Planning Department resulted in a multi-modal transportation district and a greenways master plan. The City operates under the Tallahassee/Leon County Multimodal Transportation District Plan. That Plan focuses on bike paths, mass transit, and sidewalks to facilitate greater mobility with fewer roads. Service levels for bicycle paths in the San Luis area are close to critical. The bicycle/pedestrian easement will provide greater connectivity, thereby improving service levels. Many students reside in the vicinity of the proposed road closure and provision of a bike path connecting the areas north of Mission Road with the Ocala Trail south of Tennessee Street would attract more bicycle traffic in the hopes of changing the mode of transportation for college students. The City has a Tallahassee-Leon County Greenways Master Plan (Greenways Plan). The abandonment application provides an opportunity under the Greenways Plan. The bicycle/pedestrian easement will connect an existing trail at the intersection of Tennessee Street and Ocala Road to San Luis City Park. This is consistent with the Greenways Plan. The City has adopted the Bicycle and Pedestrian Master Plan (Bike/ped Plan). The purpose of the Bike/ped Plan is to facilitate greater awareness of bike and pedestrian facilities and to promote construction of new facilities. The bicycle/pedestrian easement would provide greater accessibility to existing amenities and infrastructure and meet the intent of the Bike/ped Plan. Petitioners argued that there already exists a better connection between the existing trail at the intersection of Tennessee Street and Ocala Road to San Luis City Park via Ocala Road and Continental Avenue. However, the evidence did not prove that the existing route would be safer or better than the connection that would become available as a result of the bicycle/pedestrian easement condition on the proposed abandonment. Even if it would be, an additional route and connection still would serve a public benefit. Petitioners also pointed out that State could dedicate an easement through its property for purposes of a bicycle/pedestrian connection without applying for abandonment of right-of-way and that the City never asked for such a dedication before the State applied for application of the right-of-way. But it is typical to consider such matters in the context of an application for abandonment. Alternatives to Abandonment Petitioners concede that pedestrian safety at the Mission San Luis "would be rendered perfect if the road were abandoned, closed, and eliminated." However, they contend that other steps could be taken to protect the pedestrians as well or better without abandoning the road. First, Petitioners suggest the alternative of a pedestrian crossing with a pedestrian-controlled stop light and advance warning flashers. This suggestion was supported by the testimony of Petitioners' traffic expert, Wayne Coloney. But he assumed there would be 360 feet between the pedestrian crossing and the curve in Mission Road. Actually, the pedestrian crossing would be only approximately 210 feet from the curve, which is less than the 330 feet that Mr. Coloney considered to be safe. The other traffic experts also believed that it would be unsafe to design a pedestrian-crossing that close to the curve, even with advance warning flashers--a design that works best on straight roads with long sight-line distances, such as Meridian Road. Next, Petitioners suggest the construction of an overpass. This would be a more expensive proposition. It would require the construction of ramps, stairs, and elevators to comply with the Americans with Disabilities Act. In addition, to be effective in protecting pedestrians, fencing would have to be installed for a considerable distance on both sides of the road to discourage pedestrians from crossing the road instead of using the overpass. According to Mr. Coloney, all of this would cost between $300,000 and $390,000 to install and between $20,000 and $30,000 to maintain. Both the overpass and the fencing would be at odds with the environment the State would be trying to re- create and maintain on the Mission property. Petitioners also suggest digging a tunnel under the road, which would be less obvious than an overpass. However, this also would require fencing to be effective and would be the most expensive of the suggested alternatives--costing between $450,000 and $690,000 to install. In addition, it would require digging a tunnel through artifact-rich earth, which would be contrary to the a primary purpose of Mission San Luis. Application of Findings to Standards Paragraph 2 of Policy 410 requires a demonstration that an abandonment of right-of-way is "in the best interests of the general public." It is clear that the proposed abandonment is not in any private interest since the abandonment is to the State for incorporation in its Mission San Luis, a public facility. The abandonment is not for the sole purpose of placing property on the tax rolls, or for the benefit an abutting private property owner. It is to benefit the public. It also is primarily to protect the safety of pedestrians working at and visiting the facility, including many school children. For these reasons, the abandonment clearly is in the public interest, as opposed to any private interest. Whether it is in the best interest of the general public is a more difficult judgment to make. But, on balance, the abandonment application, with the standard and recommended conditions, probably is in the best interest of the general public. The proposed abandonment also meets the new policy criteria for abandonment of right-of-way. It does not create any safety or public heath hazard, including environmental health hazard. It does not preclude access to any existing parcel or lot of record. It does not preclude access to any publicly- maintained facility or infrastructure. It does not create any condition inconsistent with the Comprehensive Plan, including the Long-Range Transportation Plan. It does not eliminate or preclude a street or bicycle/pedestrian interconnection that the City Commission intends to retain. It does not adversely affect any required service access for any official service provider.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Planning Commission recommend to the City Commission that DEP's application for abandonment of right- of-way be granted, with the standard and recommended conditions. DONE AND ENTERED this 2nd day of June, 2008, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 2nd day of June, 2008. COPIES FURNISHED: Deepika Andavarapu Tallahassee-Leon County Planning Department 300 South Adams Street, Fourth Floor Tallahassee, Florida 32301-1721 William H. Davis, Esquire Dobson, Davis & Smith 610 North Duval Street Tallahassee, Florida 32301 Jonathan P. Sanford, Esquire Office of the City Attorney 300 South Adams, Box A-5 Tallahassee, Florida 32301 Lisa M. Raleigh, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399
The Issue As to case 89-3568BID, whether the bid protest filed by B & L Service, Inc., shall be upheld. As to case 89-3569BID, whether the bid protest filed by AAA Wheelchair Wagon Service, Inc., d/b/a County Transportation, shall be upheld.
Findings Of Fact On April 7, 1989, Respondent, Department of Health and Rehabilitative Services (DHRS), published and issued a Request for Proposals (RFP) which solicited proposals for the provision of twelve identified categories of transportation services to Medicaid recipients in DHRS District X. DHRS issued the RFP because it did not want to award the contract primarily on the basis of price. The purpose of the RFP was to solicit proposals which evidenced a demonstrated capability and reliability for providing cost-effective, courteous and prompt transportation services to transportation disadvantaged Medicaid recipients in District X to and from medical appointments and Community Mental Health services. The RFP identified twelve transportation categories which would be the subject of the contract to be awarded. The categories were designated by the letters a-1. Petitioner, B & L Service, Inc. (B & L Service), and Petitioner, AAA Wheelchair Wagon Service, Inc., d/b/a County Transportation (AAA Wheelchair) submitted proposals that were accepted and evaluated by DHRS. Petitioner, B & L Service timely protested the award to AAA Wheelchair of the categories of service identified in the RFP as category f. and category This protest forms the basis for Case 89-3568BID. Petitioner, AAA Wheelchair timely protested the award to B & L Service of several categories of service for which both AAA Wheelchair and B & L Service had submitted proposals. This protest forms the basis for Case 89-3569BID. An evaluation committee consisting of four DHRS employees and one employee of the Florida Department of Transportation was appointed to evaluate the different proposals. The RFP advised all parties that the evaluation committee's recommendations would be reviewed by the District Administrator who would make the final determination. The evaluation committee analyzed each proposal using the rating sheet that was included as a part of the RFP. The following categories and point values were used to analyze each proposal: Response to Statement of Purpose/Need Project Understanding - 10 points Method of Service Provision - 20 points Demonstrated Organizational Capability - 10 points Rate Analysis - 10 points Categories f. and g. are as follows: Demand-responsive wheelchair transpor- tation requested at least 24 hours prior to the provision of service: approximately 800-1000 trips per month Demand-responsive wheelchair transpor- tation requested less than 24 hours prior to the provision of service: approximately 15-30 trips per month The evaluation committee reasonably determined that it should recommend one provider for categories f. and g. to avoid unnecessary confusion for the recipients of the respective services. Category f., which would involve between 800-1000 trips per month, was a more significant category than category g., which would involve 15-30 trips per month, in terms of number of persons served and the amount of money involved. It was reasonable for the winner of category F. to be awarded category g. The evaluation committee awarded B & L Service the following points for category f.: Category I: 45 Category II: 85 Category III: 27 Subtotal: 158 Category IV. 46 Grand Total 204 The evaluation committee awarded AAA Wheelchair the following points for category f.: Category I: 41 Category II: 89 Category III: 36 Subtotal: 166 Category IV: 38 Grand Total 204 The evaluation committee awarded B & L Service the following points for category g.: Category I: 45 Category II: 86 Category III: 27 Subtotal: 158 Category IV: 46 Grand Total 204 The evaluation committee awarded AAA Wheelchair the following points for category g.: Category I: 41 Category II: 89 Category III: 36 Subtotal: 166 Category IV: 32 Grand Total 198 B & L Service and AAA Wheelchair received the same number of total points for category f. The evaluation committee voted to break the tie for category f. between B & L Service and AAA Wheelchair. By a vote of 4 to 1, the evaluation committee voted to recommend that B & L Service be awarded the contract for category f. and, consequently, for category g. There was no justification or explanation given by the committee for its vote. The procedures under which the committee was operating did not provide for a vote in the event of a tie. B & L Service proposed to perform the services required for categories f. and g. for $14.70 per trip while AAA Wheelchair proposed to provide the services for category f. for $15.00 per trip and the services for category g. for $16.00 per trip. The lower price proposed by B & L Service enabled it to score higher than AAA Wheelchair in category g. and to tie AAA Wheelchair in category f. AAA Wheelchair scored higher than B & L Service in categories I-III of categories f. and g., the areas designed to evaluate the provider's ability to deliver quality service. Paul V. Freedlund, the District Administrator for DHRS District X delegated to Carmen Gutierrez, the Acting Deputy District Administrator for DHRS District X, the responsibility to review the RFP process to ensure its validity. Ms. Gutierrez was instructed by Mr. Freedlund to recommend the providers she considered most capable of performing the contracts for the respective categories of service based on the information that was available to her. Ms. Gutierrez delegated to Nancy Porter, the Medicaid Program Administrator for DHRS District X, the responsibility to review the RFP process and to make a recommendation as to which provider should receive the award for categories f. and g. Ms. Porter was also told to justify her recommendation. B & L Services had been the provider of the services required by categories f. and g. during the 1988-1989 DHRS fiscal year. AAA Wheelchair had been the provider of the services required by categories f. and g. for several years immediately preceding the 1988-1989, DHRS fiscal year. During their respective periods of performance, DHRS monitored their performances and maintained monitoring reports which reflected any deficiencies in the performances. Mr. Freedlund told both Ms. Gutierriez and Ms. Porter that because of the close scores any monitoring reports for the competing providers should be reviewed and to go with the provider they felt was better able to render the service effectively. Nancy Porter, pursuant to the instructions she had received, reviewed the proposals submitted by B & L Service and by AAA Wheelchair, reviewed the evaluation committee's work, and reviewed the monitoring reports of B & L Service for the period it performed the subject services and the monitoring reports of AAA Wheelchair for the period it performed the subject services. Nancy Porter recommended that AAA Wheelchair be awarded the contract for the category f. and the category g. services. In her memo to Paul Freedlund dated June 2, 1989, she justified her recommendation to award the category f. and category g. services, together with other categories of service that are not being contested, as follows: Based upon monitoring reports, past performance under prior contracts and response to the RFP, this provider appears to have the ability to provide the quality of services required in the bid specifications, thereby making them the most advantageous to the state and the lowest qualified bidder. Nancy Porter's recommendation to Paul Freedlund was that B & L Service be awarded five of the twelve categories of service and that AAA Wheelchair be awarded the other seven categories of service. Paul Freedlund accepted Nancy Porter's recommendation. These protests followed the announcement of the intended awards. B & L Service's protest is based, in part, on contact between Nancy Caputo, president of AAA Wheelchair, and DHRS after the evaluation committee had met, but before the intended final decision was made. B & L Service's protest is also based on DHRS not following the recommendations of its committee as to categories f. and g. On May 17, 1989, Vera Sharitt, the DHRS contract manager for Medicaid transportation, wrote Nancy Porter advising her of the evaluation committee's results and recommendations. On May 18, 1989, Nancy Porter prepared a memo to Paul Freedlund which erroneously stated that B & L Services had received the highest points from the evaluation committee for category f. as well as category g. On May 19, 1989, Karen Caputo received a copy of Nancy Porter's memo dated May 18, 1989. Karen Caputo telephoned Nancy Porter, advised that an error had been made in the memo of May 18, 1989, and proceeded to tell Nancy Porter that her company could provide much better services than could B & L Service. Karen Caputo was upset when she called Nancy Porter. Nancy Porter listened and agreed to correct the error in her memo to reflect that there had been a tie in points for category f. instead of B & L Service being the point winner. On May 23, 1989, Nancy Porter prepared a second memo to Paul Freedlund which corrected the error in her memo of May 18, 1989. On May 23, 1989, Karen Caputo wrote Paul Freedlund a letter which discussed the merits of her proposal and the higher quality of service that had been provided by her company as compared to B & L Service. Her letter also asserted that B & L Service had the financial ability to offer lower prices than her company and also asserted that her company was a minority owned business. The contact Karen Caputo had with the DHRS employees occurred before Mr. Freedlund instructed Ms. Gutierrez and Ms. Porter to review the RFP process and to make a recommendation since the scores awarded by the evaluation committee were so close. Karen Caputo's contact resulted in the correction of the error in the memo of May 18, 1989. The contact Karen Caputo had with the DHRS employees did not, however, unduly influence their recommendations and did not constitute an unfair interference with the contract award process. The protest of AAA Wheelchair is based on its assertion that B & L Service was not a qualified proposer and that its response to the RFP was deficient. B & L Service's performance of the f. and g. categories of service for the fiscal year 1988-1989 did not disqualify it as a proposer. While a number of deficiencies were noted in the monitoring reports for this period of time, DHRS had taken no steps to disqualify B & L Services as a proposer. B & L Service was a qualified proposer. The response to the RFP submitted by B & L Service was not deficient.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Health and Rehabilitative Services enter in case 89-3568BID a Final Order which denies the bid protest of Petitioner, B & L Service, Inc. IT IS FURTHER RECOMMENDED that the Department of Health and Rehabilitative Services enter in case 89-3569BID a Final Order which denies the bid protest of Petitioner, AAA Wheelchair Wagon Service, Inc., d/b/a County Transportation. DONE AND ENTERED this 8th day of September, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1989. Appendix to the Recommended Order in Consolidated Cases 89-3568BID and 89-3569BID PETITIONER'S PROPOSED FINDINGS: The proposed findings of fact, submitted on behalf of B & L Service, Inc., are addressed as follows: The proposed findings of the first paragraph are addressed in paragraphs 1 and 4. The proposed findings of the second paragraph are rejected as being unnecessary to the results reached. The proposed findings of the third paragraph are addressed, in part, in paragraphs 1 and 2 and are rejected in part as being unnecessary to the results reached. 4 -5. The proposed findings of the forth and fifth paragraphs are rejected as being unnecessary to the results reached. The proposed findings of the sixth paragraph are subordinate to the findings of paragraph 5. The proposed findings of the seventh paragraph are addressed in paragraph 8. The proposed findings of the eighth paragraph are addressed in paragraph 9, 10, 12, 13, and 16. The proposed findings of the ninth paragraph are addressed in paragraph 11 and 16. The proposed findings of the tenth paragraph are addressed in paragraph 24. The proposed findings of the eleventh paragraph are addressed in part in paragraph 25 and are rejected in part as being contrary to the weight of the evidence. The proposed findings of the twelfth paragraph are addressed in part in paragraph 25 and are rejected in part as being unnecessary to the results reached The proposed findings of the thirteenth paragraph are addressed in paragraph 25. The proposed findings of the fourteenth paragraph are addressed in part in paragraph 18 and are rejected in part as being recitation of testimony or as being subordinate to the findings made and the conclusions reached. The proposed findings of the fifteenth paragraph are addressed in part in paragraph 25 and are rejected in part as being recitation of testimony or as being subordinate to the findings made and the conclusions reached. The proposed findings of the sixteenth paragraph are rejected as being contrary to the weight of the evidence and as being recitation of testimony. The proposed findings of the seventeenth paragraph are addressed in part in paragraph 21 and are rejected in part as being unnecessary to the results reached. The proposed findings of the eighteenth paragraph are rejected as being in conflict with the findings of paragraph 27. The proposed findings of the nineteenth paragraph are addressed in part in paragraph 18 and are rejected in part as being contrary to the evidence. The proposed findings of the twentieth paragraph are addressed in paragraph 19. The proposed findings of the twenty-first paragraph are addressed in part in paragraphs 21 and 22 and are rejected in part as being unnecessary to the result reached and as being contrary to the evidence. The proposed findings of the twenty-second paragraph are rejected as being contrary to the findings of paragraphs 22 and 27. The proposed findings of the twenty-third paragraph are rejected. The monitoring reports, taken as a whole, support the recommendations of Nancy Porter. The selective comparison of statistical information is unnecessary to the conclusions reached. The proposed findings of fact, submitted on behalf of AAA Wheelchair Wagon Service, Inc., d/b/a County Transportation, are addressed as follows: 1-2. Addressed in paragraph 1. Addressed in paragraph 8. Addressed, in part, in paragraph 3 and are rejected in part as being unnecessary to the results reached. 5-8. Rejected as being unnecessary to the results reached. Rejected as being contrary to the evidence. Addressed in paragraph 9. Addressed in paragraph 8. Addressed in paragraph 9. Rejected as being argument instead of a finding of fact. Rejected as being unnecessary to the results reached and as being argument. 15-20 and are rejected as being unnecessary to the results reached and as being argument. 21-24 and are rejected as being unsupported by the evidence and as being argument. 25-26 and are rejected as being unnecessary to the results reached. 27-28 and are rejected as being unsupported by the evidence and as being argument. 29. Rejected as being contrary to the evidence and as being argument. RESPONDENT'S PROPOSED FINDINGS: The proposed findings of fact, submitted on behalf of the Department of Health and Rehabilitative Services are addressed as follows Addressed in paragraphs 1, 2, and 3. Addressed in paragraphs 4 and 10. Addressed in paragraph 8. Addressed in part in paragraph 8. Rejected in part as being unnecessary to the results reached. Addressed in paragraph 9. 6-7. Addressed in paragraphs 12, 13, 14, 15, and 16. Addressed in paragraph 11. Addressed in paragraph 16. Addressed in part in paragraphs 12, 13, 14, 15, and 17. Rejected in part as being subordinate to the findings made. 11-12. Rejected as being subordinate to the findings made. Addressed in part in paragraphs 18 and 19. Rejected in part as being unnecessary to the results reached. Addressed in paragraphs 21 and 22. Addressed in paragraph 27. 16-18 Rejected as being conclusions of law. COPIES FURNISHED: Colleen A. Donahue, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Suite 406 Fort Lauderdale, Florida 33301 John M. Camillo, Esquire VERNIS & BOWLING, P. A. 301 Southeast 10th Court Fort Lauderdale, Florida 33316 Karen Caputo, President AAA Wheelchair Wagon Service Post Office Box 2281 5890 Rodman Street Hollywood, Florida 33023 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
