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DEPARTMENT OF TRANSPORTATION vs JOHN J. CURRAN, 94-000767 (1994)
Division of Administrative Hearings, Florida Filed:Miami, Florida Feb. 10, 1994 Number: 94-000767 Latest Update: Apr. 24, 1995

The Issue Whether the Department of Transportation (hereinafter referred to as the "Department") should close the median opening on Northwest 79th Street, immediately west of Northwest 27th Avenue, near Respondent's business located at 2770 Northwest 79th Street, Miami, Florida?

Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent owns and operates a business, J'S Trading Post, which is located on the south side of Northwest 79th Street, just west of Northwest 27th Avenue, in Miami, Florida. Northwest 79th Street is an east-west roadway that is part of the State Highway System, having been designated State Road 934. Although Northwest 79th Street is part of the State Highway System, that segment of the roadway at issue in the instant case has not yet been given an access classification by the Department. The roadway segment has a posted speed limit of 40 miles per hour. Northwest 27th Avenue is a north-south roadway that is also part of the State Highway System, having been designated State Road 9. Northwest 79th Street and Northwest 27th Avenue form a "four legged" intersection. Northwest 27th Avenue is the major approach to the intersection. It has three through lanes (including a combined through/right turn lane), as well as an exclusive left turn lane, in each direction. Northwest 79th Street is the minor approach to the intersection. It also has three lanes (including a combined through/right turn lane) in each direction. Left turns from Northwest 79th Street onto Northwest 27th Avenue, however, are not presently permitted. Both Northwest 79th Street and Northwest 27th Avenue have restrictive medians at the intersection approaches. The Department conducted a traffic study and analysis of the intersection of Northwest 79th Street and Northwest 27th Avenue in 1993, which revealed, among other things, the following: the average speeds of eastbound and westbound traffic in the intersection were 35 and 38 miles per hour, respectively; the intersection's morning and afternoon peak hour volumes were 4,588 and 5,250 vehicles, respectively; the levels of service (LOS) for the intersection's morning and afternoon peak hours were D (with a 39.3 second delay) and F (with an undetermined amount of delay), respectively; and the intersection had been the site of a significant number of accidents.1 Following the completion of the study and analysis of the intersection, the Department reasonably determined that, in the interest of operational efficiency and safety, exclusive left turn lanes should be added to Northwest 79th Street at the intersection. There is presently an opening in the restrictive median that separates the eastbound and westbound lanes of Northwest 79th Street to the west of the intersection. The distance from the centerline of the median opening to the centerline of the intersection is 260 feet. The median opening is near, but not directly across from, the driveway that connects Respondent's property with the eastbound lanes of Northwest 79th Street. Westbound motorists on Northwest 79th Street use the median opening to access Respondent's property and other nearby driveways, even though such a maneuver is dangerous inasmuch as it involves the motorist travelling westbound for a short distance in the eastbound lanes of the roadway. The planned addition of an exclusive left turn lane on eastbound Northwest 79th Street will result in the closure of the median opening and the elimination of this safety hazard. Notwithstanding that it will be more inconvenient for westbound motorists on Northwest 79th Street to get to and from Respondent's business, it is prudent, from a traffic engineering and safety perspective, to close the median opening. Although Respondent's and his customers' direct access to and from Northwest 79th Street will be restricted if the median opening is closed, such access will not be eliminated entirely as a result of the closure. They will still have direct access to and from the eastbound lanes of the roadway.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order rejecting Respondent's challenge to the Department's proposed closure of the median opening on Northwest 79th Street, immediately west of Northwest 27th Avenue, near Respondent s business. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of September, 1994. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1994.

Florida Laws (4) 335.18335.181335.184335.188 Florida Administrative Code (2) 14-97.00214-97.004
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LOKEY OLDSMOBILE, INC., D/B/A LOKEY VOLKSWAGEN vs VOLKSWAGEN OF AMERICA, INC., 13-000007 (2013)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Jan. 03, 2013 Number: 13-000007 Latest Update: May 29, 2013

Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Thomas P. Crapps, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice Of Dismissal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. Filed May 29, 2013 9:27 AM Division of Administrative Hearings DONE AND ORDERED this Ay day of May, 2013, in Tallahassee, Leon County, Florida. Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this QQ day of May, 2013. tes Vorecvcte Nalini Vinayak, Dealer Ficense AE NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jdc Copies furnished: A. Edward Quinton, III, Esquire Adams, Quinton and Paretti, P.A. Brickell Bayview Center 80 Southwest 8" Street, Suite 2150 Miami, Florida 33130 equinton@adamsquinton.com John C. deMoulpied, Esquire Barack, Ferrazzano, Kirschbau, Perlman & Nagelberg LLP 200 West Madison Street Chicago, Illinois 60606 john.demoulpied@pbfkn.com James R. Vogler, Esquire Barack, Ferrazzano, Kirschbau, Perlman & Nagelberg LLP 200 West Madison Street Chicago, Illinois 60606 Jim.vogler@bfkn.com Thomas P. Crapps Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS LOKEY OLDSMOBILE, INC. d/b/a LOKEY VOLKSWAGEN, Petitioner, Case No.: 13-0007 vs. VOLKSWAGEN OF AMERICA, INC., Respondent. / NOTICE OF VOLUNTARY DISMISSAL WITH PREJUDICE COMES NOW Petitioner, LOKEY OLDSMOBILE, INC. d/b/a LOKEY VOLKSWAGEN, by and through its undersigned counsel and hereby files this Notice of Voluntary Dismissal with Prejudice regarding its pending Petition Protesting Charge-back of Incentive Payments, pursuant to settlement of this matter. I HEREBY CERTIFY that a true and correct copy of the foregoing was served on the parties as reflected on the attached Service List, this 13" day of May, 2013. s/ A, Edward Quinton, III (Florida Bar No. 464074) ADAMS, QUINTON & PARETTI, P.A. Attorneys for Petitioner 80 SW 8™ Street, Suite 2150 Miami, Florida 33130 PH: (305) 358-2727 Email: equinton@adamsquinton.com Filed May 13, 2013 3:24 PM Division of Administrative Hearings SERVICE LIST Jennifer Clark Office of the Hearing Officer Florida Highway Safety & Motor Vehicles Neil Kirkman Bldg. - Room A-308 Tallahassee, Florida 32399-0635 jenniferclark@flhsmv.gov James R. Vogler, Esquire John C. deMoulpied, Esquire Barack Ferrazzano Kirschbaum & Nagelberg LLP 200 West Madison Street, Suite 3900 Chicago, IL 60606 jim.vogler@bfkn.com john.demoulpied@bfkn.com STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS LOKEY OLDSMOBILE, INC., d/b/a LOKEY VOLKSWAGEN, Petitioner, vs. Case No. 13-0007 VOLKSWAGEN OF AMERICA, INC., Respondent. ~~~ rere rere re rere rr ORDER CLOSING FILE AND RELINQUISHING JURISDICTION This cause having come before the undersigned on Petitioner’s Notice of Voluntary Dismissal with Prejudice, filed May 13, 2013, and the undersigned being fully advised, it is, therefore, ORDERED that: 1. The final hearing scheduled for June 18 through 21, 2013, is canceled. 2. The file of the Division of Administrative Hearings is closed. Jurisdiction is relinquished to the Department of Highway Safety and Motor Vehicles. DONE AND ORDERED this 21st day of May, 2013, in Tallahassee, Leon County, Florida. va bay THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 2013. COPIES FURNISHED: Jennifer Clark, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-430 2900 Apalachee Parkway, Mail Stop 61 Tallahassee, Florida 32399 A. Edward Quinton, III, Esquire Adams, Quinton and Paretti, P.A. Brickell Bayview Center 80 Southwest 8th Street, Suite 2150 Miami, Florida 33130 equinton@adamsquinton.com John C. deMoulpied, Esquire Barack, Ferrazzano, Kirschbaum, and Nagelberg LLP 200 West Madison Street Chicago, Illinois 60606 john.demoulpied@bfkn.com James R. Vogler, Esquire Barack, Ferrazzano, Kirschbaum, Perlman & Nagelberg, LLP Suite 3900 200 West Madison Street Chicago, Illinois 60606 jim.vogler@bfkn.com

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JOE DAVID RIGGINS AND BARBARA JEAN RIGGINS vs DEPARTMENT OF TRANSPORTATION, 17-000815 (2017)
Division of Administrative Hearings, Florida Filed:Lakeland, Florida Feb. 07, 2017 Number: 17-000815 Latest Update: Oct. 05, 2017

The Issue Is it necessary for Respondent, the Department of Transportation (Department), to close two driveways on the property of Petitioners, Joe David and Barbara Jean Riggins? If the driveways are closed, will the property affected by the driveway closings still have reasonable access to the State Highway System?

Findings Of Fact The parties stipulated to the following facts: On October 4, 2016, the Department sent Joe David and Barbara Jean Riggins a Notice of Intent to Modify Driveway Connection. Mr. and Ms. Riggins received the Notice of Intent to Modify Driveway Connection on October 8, 2016. The Notice of Intent to Modify Driveway Connection related to the property located at 964 State Road 441 Southeast, Okeechobee, Florida. The approximate 0.787 acre property has been held by the Joe David and Barbara Jean Revocable Trust since September 24, 2012. The property is not developed, with the exception of a boat ramp aligned with the property’s westernmost driveway that is scheduled to remain open. The remainder of the property consists of asphalt and a bare concrete slab from a demolished structure. State Road 441 is a part of the state highway system. Mr. and Ms. Riggins own two adjacent lots located at 964 State Road 441, Southeast, in Okeechobee County, Florida. The Okeechobee County Property Appraiser identifies them as lots 13 and 14. The lots are vacant. Three driveways exit those properties. The driveways have been in existence since at least 1992. The driveways have not gone a year without use. The Department is an agency of the State of Florida. It regulates access to the state highway system to ensure safe, efficient, and effective maintenance and operation of the roads. The Department is planning a resurfacing project for State Road 441 from State Road 78 to Southeast 30th Terrace in Okeechobee County. That approximately two-mile stretch of road runs past the Rigginses’ property. The Department intends for the project to enhance roadway safety through improvements to the roadway surface, driveway modifications, sign and pavement markings, elevation corrections, bridge retrofits, and guardrails. The planned resurfacing project also includes modifications and improvements to driveways along State Road 441 and installation of a bicycle lane adjacent to the Rigginses’ land. The project is a significant change to the roadway and the roadway design. As part of the resurfacing project, the Department conducted an evaluation of modification of all driveways along the project corridor to improve motorist, bicyclist and pedestrian safety and operation of the roadway. When the Department plans significant changes in roads, it conducts an evaluation to determine whether existing driveways meet design standards in conformance with access management act standards. Mr. Leon, Engineer of Record and Project Manager for the project, conducted the evaluation. He recommended closing the eastern and middle driveways on the Rigginses’ two lots. The Department gave the Rigginses’ notice of the plan to close the two driveways. Department representatives reviewed the plan and the reasons for it with the Rigginses, by telephone and in person. The Department maintains that closing the driveways is necessary to improve safety and compliance with the Department’s design standards. Because of their age, the driveways are “grandfathered” and without the substantial changes of the project would not be subject to current design standards. Most recently, the Rigginses leased the lots to Edison Power Company for parking utility line trucks. The utility company used the two lots as if they were one. The lease expired December 31, 2016. If Edison Power were to resume use of the lots, there is sufficient room for its trucks to maneuver and to enter and exit the property using only the westernmost driveway. The eastern driveway is 16 feet wide at its throat where the driveway meets the road. The throat of the middle driveway is 27 feet wide. The throat of the western driveway is 35 feet wide. This driveway lines up with a boat ramp on the other side of the lot. Each driveway is substantially less than 1,320 feet apart from the adjacent driveway. The Department has design standards for driveway dimensions. For rural roadways, like the one involved here, the size range for driveway throats is 24 feet to 36 feet. Department Rule 14-97.003 classifies roadways and establishes driveway spacing for each class. State Road 441 is a Class 5 roadway. Its speed limit is 45 miles per hour. The rule requires driveways on the roadway to be spaced 1,320 feet apart. The spacing requirement is important for reducing driver confusion and wreck potentials caused by multiple turns onto or from the road in quick sequence. The project design work included examining existing driveways and their effect on traffic flows and interaction with motor vehicle, bicycle, and pedestrian traffic on State Road 441. The Department reasonably focused on limiting conflict points created by driveways and bringing affected existing driveways into compliance with current access standards. Closing the two easternmost driveways will reduce conflict points on the roadway caused by vehicles entering and leaving the property. The activity increases risks of crashes for motor vehicles and for bicyclists who will use the newly created bike lanes and vehicles entering and leaving the property. As a rule, limiting the number of driveway connections promotes better traffic movement and an increased level of safety and mobility for the system as a whole. The westernmost driveway on the Rigginses’ property will provide reasonable access to the property.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Transportation, enter a final order approving the closure of the easternmost and middle driveways on the property of Respondents, Joe David and Barbara Riggins, as part of the Department's State Road 441 Resurfacing Project. DONE AND ENTERED this 28th day of July, 2017, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings This 28th day of July, 2017.

Florida Laws (8) 120.569120.595120.68334.044335.18335.181335.1825335.188
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J. GLENN WRIGHT TRUST vs DEPARTMENT OF TRANSPORTATION, 19-005716 (2019)
Division of Administrative Hearings, Florida Filed:Lakeland, Florida Oct. 29, 2019 Number: 19-005716 Latest Update: Mar. 27, 2020

The Issue Whether Respondent’s proposed modifications to Petitioner’s driveway connections provide the public with reasonable access to or from the State Highway System.

Findings Of Fact The Department, pursuant to section 334.044(14), Florida Statutes, has a duty: [t]o establish, control, and prohibit points of ingress to, and egress from, the State Highway System, the turnpike, and other transportation facilities under the department’s jurisdiction as necessary to ensure the safe, efficient, and effective maintenance and operation of such facilities. By correspondence to Petitioner dated September 23, 2019, the Department advised of its plans to modify, as part of a reconstruction and resurfacing project, certain existing driveways that connect from Petitioner’s property to US 27 and SR 60. According to the Department, the modification of Petitioner’s driveway connections “will improve safety or traffic operations on the state roadway.” The planned US 27/SR 60 interchange reconstruction (US 27/SR 60 interchange) seeks to change certain operational and design features of the two roadways. In the area of Petitioner’s property, SR 60 is classified as a Class 5 road with a posted speed limit of 45 miles per hour. The Class 5 designation is assigned to roads where adjacent land has been extensively developed and where the probability of major land use change is not high. In the area of Petitioner’s property, US 27 is classified as a Class 3 road with a posted speed limit of 50 miles per hour. The Class 3 designation is assigned to roads where abutting land is controlled to maximize the operation of the through traffic movement, and the land adjacent to these roadways is generally not extensively developed. Petitioner, since approximately 1968, has continuously owned and operated a Sunoco gas station on approximately a one-acre parcel, located at 19300 U.S. 27 South, Lake Wales, Florida. It is undisputed that the existing driveway connections from Petitioner’s property to the State Highway System have been in continuous use since 1968. According to the testimony of Department witness Leanna Schail, current Department access management standards provide that a driveway connection on a Class 5 road must be at least 225 feet from an intersection and at least the same distance from other connections. As for Class 3 roads, the access standards provide that a driveway connection must be at least 660 feet from an intersection and at least the same distance from other connections. The respective distance standards are necessary in order to facilitate the reduction of driver confusion and rear-end collisions. U.S. Highway 27, at its location nearest Petitioner’s gas station, is a north-south highway that intersects SR 60, which runs east and west. Petitioner’s gas station is located southwest of the US 27/SR 60 interchange. The parcel where Petitioner’s gas station is located appears essentially square-shaped, with the northern edge of the parcel abutting the exit ramp from SR 60. The eastern edge of Petitioner’s parcel abuts US 27. The southern edge of Petitioner’s parcel abuts Oak Avenue. The western edge of Petitioner’s parcel abuts private property. West of the “private property” is Mulberry Street, which runs north and south, and connects to the south with Oak Avenue, and to the north at the SR 60 exit ramp. EXISTING ACCESS TO AND FROM STATE HIGHWAY SYSTEM In its current configuration, eastbound motorists on SR 60 who are west of the SR 60/US 27 interchange must transition to the right to access the exit ramp which has direct access connections to Mulberry Street, Petitioner’s property (two turn-in points), and US 27 South. The Department’s witness credibly testified that the “two turn-in points” from the SR 60 exit ramp are less than 225 feet from the existing and planned SR 60/US 27 interchange and do not meet current design standards. Westbound motorists on SR 60 do not have direct access to Petitioner’s gas station. In its current configuration, southbound motorists on US 27 have direct access to a driveway connection to Petitioner’s gas station. Northbound motorists on US 27, who are south of the SR 60/US 27 interchange, properly access Petitioner’s gas station by turning left on Oak Avenue and then right onto Petitioner’s driveway connection to Oak Avenue.2 Southbound motorists on US 27 can also indirectly access Petitioner’s gas station by turning right onto Oak Avenue and then right on Petitioner’s driveway connection to Oak Avenue. In its current configuration, motorists leaving Petitioner’s gas station have right-turn-only direct access from the two driveways that connect to the SR 60 exit ramp, right-turn-only direct access to US 27 South, and indirect 2 A reasonable inference deduced from the evidence is that motorists turning left to access Petitioner’s gas station from US 27 North will be inclined, under certain conditions, to avoid Oak Avenue by driving north a short distance on the US 27 South travel lanes (i.e. in the wrong direction) so as to access that portion of Petitioner’s driveway that connects directly to US 27 South. The Department’s proposed design change to this driveway connection will lessen the probability of a motorist engaging in this dangerous driving maneuver. Additionally, the Department’s proposed redesign of this driveway connection will improve traffic movement through the interchange by enhancing bicycle and pedestrian safety. access to US 27 by turning left on Oak Avenue and then right on US 27 South. PROPOSED ACCESS TO AND FROM STATE HIGHWAY SYSTEM Beginning at a point approximately 1,000 feet west of the SR 60/US 27 interchange, the Department proposes to construct near the southern edge of SR 60 a bi-directional frontage road which will abut and run parallel to the SR 60 eastbound travel lanes. The eastern-most segment of the bi-directional frontage road will terminate at Mulberry Street. Motorists travelling east on the frontage road who desire to access Petitioner’s gas station will be able to do so by way of a one-way extension that runs from Mulberry Street east to the northwest portion of Petitioner’s property. The addition of the frontage road eliminates the second eastern-most access point to Petitioner’s property from the current SR 60 exit ramp, but still allows for direct ingress to Petitioner’s property from the new frontage road. In its proposed configuration, eastbound motorists on SR 60 who are west of the SR 60/US 27 interchange, and who desire to exit to US 27 South, will transition from SR 60 via a redesigned exit ramp which will bypass the northern portion of Petitioner’s property and take motorists to US 27 South, where they will have one direct and one indirect access point to Petitioner’s gas station. The direct point of ingress to Petitioner’s gas station will be at a point nearest to the central eastern quadrant of Petitioner’s property which abuts US 27 South. If a motorist misses this point of direct ingress, then the motorist may proceed to the indirect point of ingress by turning right from US 27 South on Oak Avenue, and then making a second right turn to access Petitioner’s property. These same access points are available to motorist travelling southbound on US 27. The totality of the evidence shows that egress from Petitioner’s property to the State Highway System has dropped from three direct access points (two onto the SR 60 exit ramp/one onto US 27 South) to only one indirect access point (Oak Avenue). Furthermore, the evidence shows that ingress to Petitioner’s property from the State Highway System has been reduced from three direct access points (two from SR 60 exit ramp/one from US 27 South) to two direct access points (frontage road/US 27 South), with no material change to the indirect access point from Oak Avenue.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order finding that the proposed modifications to the driveway connections of the J. Glenn Wright Trust property provide the public with reasonable access to or from the State Highway System, and denying the challenge of the J. Glenn Wright Trust to the Amended Notice of Intent to Modify Driveway Connection issued on September 23, 2019. 3 See Footnote two regarding concerns associated with motorists traveling northbound on US 27. DONE AND ENTERED this 13th day of February, 2020, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 13th day of February, 2020. COPIES FURNISHED: David W. Holloway, Esquire David W. Holloway, P. A. 10764 70th Avenue, Suite 6206 Seminole, Florida 33772 (eServed) Richard E. Shine, Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 (eServed) Erik Fenniman, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 (eServed) Kevin J. Thibault, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 57 Tallahassee, Florida 32399-0450 (eServed)

Florida Laws (7) 120.569334.044335.18335.181335.182335.1825335.184 Florida Administrative Code (5) 14-96.001114-96.00214-96.01114-96.01514-97.003 DOAH Case (1) 19-5716
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DEPARTMENT OF TRANSPORTATION vs. GENE SIMMS, 78-002371 (1978)
Division of Administrative Hearings, Florida Number: 78-002371 Latest Update: Apr. 11, 1979

Findings Of Fact Two signs are located 0.8 mile west of State Road, 79 on Interstate 10, and 0.8 mile east of State Road 79 on Interstate 10. Both signs do not have permits attached to them. Both signs bear messages which are visible from the traveled way of Interstate 10. Neither sign is located within an incorporated municipality or town. Both signs advertise in part Simbo's Restaurant. Mr. Jim Williams, Outdoor Advertising Inspector for the Department of Transportation, testified that he had spoken with Mr. Simms on June 28, 1978. Williams stated that he asked Simms if Simms would remove the signs; however, Williams did not identify the signs to which he was referring. According to Williams, when Simms was asked if he would take the signs down, Simms stated he would leave them up and go to court. There was no substantial and competent evidence introduced that Simms was referring to the signs in question in this case. Both signs were measured by Charles Averitt, a surveyor with the Department of Transportation, and the sign 0.8 mile west of State Road 79 on Interstate 10 was determined to be 16 feet from the edge of the right-of-way of Interstate 10. The sign 0.8 mile east of State Road 79 on Interstate 10 was determined to be 16.5 feet from the edge of the right-of-way of Interstate 10. Gene Simms testified that he was the owner and operator of Simbo's Truck Stop and Restaurant. Simms testified the signs in question were the property of Simms' Enterprises, Inc., and had been at all times pertaining to this complaint. Simms stated that he owned 50 percent of the stock in Simms Enterprises, Inc., and the remainder was owned by his brother, Jimmy Simms. The notice of violation in this cause names Gene Simms as the Respondent.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation take no action regarding the subject DONE and ORDERED this 22nd day of March, 1979, in Tallahassee, Leon County, Florida STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1979. COPIES FURNISHED: Phillip S. Bennet, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Richard C. Hurst, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. Gene Simms Simbo's Auto-Truck Stop and Restaurant Route 1, Box 186 Bonifay, Florida 32425

Florida Laws (3) 120.57479.07479.11
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CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE vs DEPARTMENT OF TRANSPORTATION, 91-001562 (1991)
Division of Administrative Hearings, Florida Filed:Tampa, Florida Mar. 11, 1991 Number: 91-001562 Latest Update: Aug. 16, 1991

Findings Of Fact At all times pertinent to the issues herein, the Respondent, Department of Transportation, (Department), was the state agency regulating the utilization of the state highway system by commercial vehicles. The Petitioner, Consolidated Freightways, (Consolidated), is a long haul interstate carrier operating in forty-eight states, including Florida. It has a freight terminal in Brooksville, Florida, a city approximately 11 miles west of I-75 which it has used since December 1, 1986. On October 24, 1990, Andrew J. Gay, Jr., Petitioner's Southern Area Safety Supervisor, requested tandem trailer access to its terminal facilities in Brooksville, via a route over State Road 50 from its intersection with I-75 to the old Dade City highway, then over that road to the terminal. The application indicated the proposed route would be used for on the average of 10 round trips per 7 day week, during the approximate hours of from 2:00 AM to Noon. Upon receipt at the Department, the file was forwarded to the District Operating Engineer in the Department's District VII office in Tampa, that office responsible for supervision of operations in the pertinent area, where it was given to Kevin Dunn, an assistant civil engineer, for evaluation. This was the first evaluation such as this that Mr. Dunn had made. In accomplishing the evaluation, he relied upon a department directive, TOPIC NO. 750-010-050-C; effective November 21, 1990, good to May 21, 1991, entitled, EVALUATION OF PROPOSED TANDEM TRAILER TRUCK ROUTES, in which, at PROCEDURE; (4)(B) 1 & 2, rejection criteria, including vehicular safety and highway safety considerations, are listed. Section (4) of the Directive deals with Terminal Access Route Evaluation Standards, and provides that when an operator of a terminal facility located more than 5 miles from the tandem trailer truck highway network submits a request for access routing, it shall be for the shortest route available, and shall be evaluated utilizing the rejection criteria outlined which indicate that a request may be rejected when one of the criteria for rejection are met, but shall be rejected when two or more are met. Mr. Dunn considered that one of the vehicular safety considerations was met as was one of the highway safety considerations. The former, he felt, authorizes rejection when: The total combined length of high accident locations exceeds 15% of the total length of the proposed route. In analyzing the stretch of highway involved, Mr. Dunn compared it with similar highway sections throughout the state for its accident frequency record. He found that each year there was a segment along the proposed route which appeared as a high accident segment area. He added these up to get the total length of high accident highway and got a figure that was 13% of the total route. Though the directive considered a minimum of 15% as disqualifying, Mr. Dunn concluded that 13% was close enough to qualify. The figure arrived at was not the required 15%, however. Mr. Dunn also considered that Highway safety consideration which read: d. The route does not provide a minimum passing sight distance of one-half mile at a maximum of three mile intervals. To qualify as a safe segment, there must be passing areas with a 1/2 mile sight distance, within 3 miles of each other. This road does not comply with that criterion. Mr. Dunn made field measurements of the route in question and found that heading westbound, the first passing zone started at mile 1.3 and ended at mile 1.8; the second started at mile 2.4 and ended at mile 2.5; and the third started at mile 4.1 and ended at mile 4.8. After that, westbound, there were no more 1/2 mile passing zones within the 3 mile maximum separation. Evaluating that stretch, while the 1.3 - 1.8 segment is 1/2 mile in length, it is not within 3 miles of the next qualifying passing segment. The same can be said for zone 4.1 - 4.8. Passing segment 2.4 - 2.5 is no good because it is not 1/2 mile in length. Looking at the eastbound route, there is one qualifying passing zone, between mile .4 and mile 1.0 and one between mile 3.8 and mile 4.3, but there are no more 1/2 mile passing zones within 3 miles of each other, so, in his opinion, the eastbound route does not qualify, either. Sometime later, Mr. Dunn measured the highway again based on information presented to him that the route had been re-striped. His second evaluation indicated the situation is now worse that it was before since fewer areas are now striped for passing. A 1989 report of the Transportation Research Board of the National Research Council, supports the method of evaluation Mr. Dunn used here. It increases the minimum passing distance to 3040 feet, a distance much greater than the 2640 feet, (1/2 mile) utilized in the Department's criteria. In addition, the Manual on Uniform Traffic Control Devices, published by the Federal Highway Administration, supports a 900 foot passing distance for passenger cars passing passenger cars. That's a much shorter distance than is needed for cars passing large trucks. Mr. Dunn concluded that taken alone, the passing distance rejection criteria would have been enough to disqualify the Petitioner's application, and when it was considered along with the close issue of the high accident percentage, he was satisfied that rejection was clearly appropriate. However, he did not make any recommendation to his supervisor as to what should be done with this application. He merely reported his findings to his supervisor, Mr. Buser, who made the decision to deny approval. Mr. Buser has serious doubts was to whether the intersection of State Road 50 and I-75 is a trouble spot. The high number of accidents utilized by Mr. Dunn in his analysis all took place at or near the intersection, a point argued by Mr. Gay. Mr. Buser is of the opinion that even if that intersection is not a trouble spot, the Department could prohibit tandem trailer trucks from exiting the interstate there in any case. This has not been done, however. According to Petitioner's representative, Mr. Gay, the requirement to break down the tandem rigs and tow them individually over the route to the terminal creates additional traffic and a resultant increased risk of accident. It also requires increased fuel usage, utilizes increased mileage, and results in increased environmental pollutions. Costs increase, wear to the equipment increases and the result is a loss in productivity. Allowing tandems to traverse the route to the terminal intact would, he claims, reduce traffic and avoid the other undesirable consequences he cited. No doubt it would. On May 13, 1991, Mr. Gay covered the route from I-75 to the terminal. He got behind a truck at I-75 and by the time they got to the first passing zone, the truck was doing 55 mph in a 55 mph zone. After that, there was no reason to pass, since 55 mph is the maximum speed permitted. This presupposes that all drivers observe the speed limit. Travel on the highways of this state show this to be an unjustified presumption. On May 20, 1991, he repeated the experiment and followed a truck to the first passing zone, by which time he was going 49 mph. These two experiments do not have major evidentiary value. Mr. Gay also noted some other pertinent facts regarding permitted activities on State Road 50, which went uncontradicted by the Department. Mobile homes up to 85 feet in length may be towed by a tractor; trailers up to 57.6 feet in length with a 12 month permit, (when the tractor is added, the total length is 68.6 feet); large boat haulers are allowed; and tandem trailers for household movers are allowed anywhere. Only tandem long haulers are not allowed on highway 50. These tandems trailers are 28 feet long each, with a 4 foot dolly between them. When a tractor is added, the total length is 71 feet, which is 2 1/2 feet longer than a large tractor and trailer. In light of the above, Mr. Gay contends that since all these other units are allowed, his should be allowed as well. He admits, however, that mobile homes and other oversize loads generally have escort vehicles preceding and following. He also recognizes that the handling characteristics of the tandem rig are different than those of the single unit trailer. Nonetheless, based on his research, he contends there are sufficient passing zones all along the route to make it safe. State guidelines, however, indicate to the contrary. Nothing above is intended to indicate that Petitioner is operating other than in a satisfactory manner. In its most recent rating by the United States Department of Transportation, the company was awarded a satisfactory evaluation. In addition, there is no doubt that numerous commercial enterprises served by the Petitioner would consider the opportunity to carry more cargo beneficial to their operations.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that if such action is consistent with then existing legislation, the Petition by Consolidated Freightways, for a tandem trailer route over State Road 50 from I-75 to its terminal near Brooksville, Florida be denied. RECOMMENDED this 11th day of July, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1991. Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, MS - 58 Tallahassee, Florida 32399-0450 Andrew J. Gay, Jr. Safety Supervisor Consolidated Freightways 5625 Carden Road Orlando, Florida 32810 Ben G. Watts Secretary Department of Transportation Hayden Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel D.O.T. 605 Suwannee Street Tallahassee, Florida 32399-458

Florida Laws (2) 120.57316.515
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DEPARTMENT OF TRANSPORTATION vs LAURA UWANAWICH, D/B/A MRS. CLAIR, 91-004799 (1991)
Division of Administrative Hearings, Florida Filed:Haines City, Florida Jul. 30, 1991 Number: 91-004799 Latest Update: Feb. 28, 1992

The Issue Whether a sign owned by Respondent and located on the northbound side of 27, at 853 U.S. 27 South, Lake Placid, Florida, is located in the road right-of-way, and must be removed.

Findings Of Fact The Florida Department of Transportation (DOT) is the state agency charged with the duty to administer and enforce the provisions of Chapter 479, Florida Statutes, which regulates outdoor advertising structures along the state highway system. U.S. 27 in Highlands County, Florida, is a part of the state highway system, and title to the right-of-way for said highway is held in the name of the State. Respondent is the owner, and maintains a two sided sign structure (sign) located at 853 U.S. Highway 27 South, Lake Placid, Florida, in Highlands County, which has been erected in the DOT right of way of U.S. Highway 27, inventory section 44, approximately 300 feet South on the North bound side of the highway. The sign is approximately 8 foot by 8 foot made of wood with wooden poles, and contains the advertising copy: "Mrs. CLAIR Psychic...Tarot...Palms...(Se habla espanol)", followed by a telephone number. On March 22, 1991, Respondent was served with a Notice of Violation from the DOT concerning said sign, and was advised that said sign was erected in violation of Florida law, and must be removed within ten working days of the notice. Said sign is presently standing in the DOT right-of-way, as of the date of the formal hearing.

Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent's request for an exemption from the provisions of Section 479.11(8), Florida Statutes, be DENIED and that Respondent be ordered to remove said sign from the DOT right of way, in accordance with the provisions of Section 479.107, Florida Statutes. DONE AND ENTERED this 23rd day of December, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 23rd day of December, 1991. Copies furnished: Jay O. Barber, Esq. Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Laura Uwanawich Mrs. Clair 853 U.S. 27 South Lake Placid, FL 33852 Ben G. Watts, Secretary Attn: Eleanor F. Turner, M.S. #58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458

Florida Laws (3) 120.57479.107479.11
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FRANK C. KUNNEN, JR., D/B/A U.S. 19 COMMERCE CENTER vs DEPARTMENT OF TRANSPORTATION, 01-000009 (2001)
Division of Administrative Hearings, Florida Filed:Clearwater, Florida Jan. 02, 2001 Number: 01-000009 Latest Update: May 16, 2002

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.

Florida Laws (9) 120.569120.57120.573334.044335.18335.181335.184335.187335.188
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FLORIDA REAL ESTATE COMMISSION vs JOHN C. LARKER, 89-005021 (1989)
Division of Administrative Hearings, Florida Filed:Shalimar, Florida Sep. 14, 1989 Number: 89-005021 Latest Update: Mar. 23, 1990

Findings Of Fact At all times material to these proceedings, Respondent was a licensed real estate salesman licensed by the Division of Real Estate. On November 1, 1983, J.B. and N., Inc., a Florida Corporation, purchased a parcel of real estate located in Santa Rosa County, Florida, for the purpose of developing a residential subdivision. Robert J. Furse (Furse) and Respondent were officers, director, and owners of J.B. and N., Inc. At the time of the acquisition of the parcel of real property referenced above, Furse and the Respondent each owned 50 per cent of J.B. and N., Inc. The parcel of property purchased by J.B. and N., Inc., was roughly rectangular running north to south between US Highway 98 and the Gulf of Mexico/Santa Rosa Sound. Mr. Lewis Johnston, registered surveyor, was retained by J.B. and N., Inc., to survey the property and prepare a preliminary plat for subdividing the parcel. A drawing of this plat is attached to Petitioner's Exhibit 5. The parcel was divided east and west by a north-south road from U.S. 98 which stops short of the sound. Ten lots of equal size border the east and west boundaries of the road and three waterfront lots front on Santa Rosa Sound. The Respondent and Furse intended and attempted to provide the inland lot owners in the subdivision with a pedestrian access to the waterfront. This access can be seen along the western boundary of Lot 13 as depicted in the plat attached to Petitioner's Exhibit 5. The plat prepared by Johnston was never recorded in the official records of Santa Rosa County. The regulations for establishing a subdivision in Santa Rosa County did not require filing of a plat plan when this subdivision was developed. On November 2, 1983, Furse purchased Lot 13 which was adjacent to the access easement as surveyed and drawn but not recorded. At the time of the purchase, Furse received a survey indicating the location of the access way. Furse had a privacy fence constructed between the access way and his property as depicted on the attachment to Petitioner's Exhibit 5. Furse and the Respondent intended to create an easement for access to the water across the lot Furse purchased from J.B. and N., Inc. Closing on the sale from J.B. and N., Inc., to Furse was handled by Furse's attorney. The Respondent understood that the attorney was supposed to create the easement in the deed to Furse. Furse instructed his attorney to prepare a deed transferring the property to him to which he was to take title. Furse did not think that this included the access way. Subsequently, J.B. and N., Inc., listed for sale the other lots in the subdivision with Shore to Shore Realty, Inc. The listing agents were Brice and Hanks. To induce purchasers to purchase the lots, the lots were advertised as having water access as indicated by the MLS listing, the plat, and advertising signs. In October, 1984, Lot No. 6 was purchased by Lowell Ray. In November of 1984, Lot No. 3 was purchased by John Alvarez. In the summer of 1985, Lot No. 4 was purchased by Balfour and Linda Clark. All of these purchasers were told that they had access to the water. Access to the water was a major consideration in their decision to purchase. Furse had a house built, centered on the lot, allowing for the access way mentioned above. During the summer of 1984, Furse divorced his wife; and thereafter, they defaulted on payments on the mortgage on the property in question. The mortgagee foreclosed on the property in 1985 and thereafter sold it to Mr. Thomas Ferguson in August of 1987. During a title search, Mr. Ferguson's attorney found that the access way had been conveyed to Furse. After purchasing the property, Mr. Ferguson removed the privacy fence separating the access way from the remainder of the property and fenced off the access way to prevent further access across his property. The access way had never been deeded in the form of an easement. All of the property had been conveyed initially to Furse and thereafter to Ferguson. The Respondent did not know that the easement had not been created until after Ferguson took possession of the property and restricted access. Prior to that, the Respondent thought that the easement had been created at the time of Furse's acquisition of the lot. Prior to Ferguson's restriction of the access, Ray, Alvarez, and Balfour did have access to the water over the access way as prepared by Furse. Upon being notified that the access had been restricted by Ferguson, the Respondent attempted through negotiation to acquire an easement from Ferguson for the benefit of the property owners. However, Ferguson ultimately decided that he did not desire to grant such access except as a license to those property owners who had purchased the property prior to his purchase of the property.

Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the charges against the Respondent be dismissed. DONE and ENTERED this 3 day of March, 1990, in Tallahassee, Florida. STEPHEN F. DEAN, 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 23rd day of March, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5021 The parties submitted proposed findings of fact and conclusions of law which were read and considered. The following is a listing of the findings which were adopted and those which were rejected and why. Respondent's Proposed Findings of Fact 1-9. Adopted. Adopted, but rewritten. Adopted. Adopted, but rewritten. 13-19. Adopted. Rejected, as irrelevant. Adopted, but rewritten. Petitioner's Proposed Findings of Fact 1-2. Adopted. Rejected; corporation bought the land. Adopted. 5-6. Rejected, contrary to the evidence. Adopted, but rewritten. Rejected, contrary to the evidence. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Stephen R. Moorhead, Esquire McDonald, Fleming, & Moorhead 700 South Palafox Street Pensacola, FL 32501 Darlene F. Keller, Division Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792

Florida Laws (2) 120.57475.25
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