08-006353RX Daniel Metsch vs. Department Of Transportation Status: Closed DOAH Final Order on Tuesday, June 9, 2009.

Summary: Petitioner failed to prove that Florida Administrative Code Rule 14-100.004(2)(a) and (5) is an invalid exercise of delegated legislative authority. The Rule is consisent with the law implemented and is not arbitrary or capricious.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANIEL METSCH, )

)

Petitioner, )

)

vs. ) Case No. 08-6353RX

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case

before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, on March 2, 2009, by video

teleconferencing between sites in Lauderdale Lakes and

Tallahassee, Florida, where the undersigned presided.

APPEARANCES

For Petitioners: Lawrence R. Metsch, Esquire

Metsch Law Firm

20801 Biscayne Boulevard, Suite 307

Aventura, Florida 33180-1423

For Respondent: Bruce R. Conroy

Assistant Attorney General

Department of Transportation

Hayden Burns Building

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUE

The issue in this case is whether paragraphs (2)(a) and

(5), of Florida Administrative Code Rule 14-100.004, constitute

an invalid exercise of delegated legislative authority because

these paragraphs of the Rule enlarge, modify, or contravene the

law implemented and are arbitrary and capricious.

PRELIMINARY STATEMENT

On December 18, 2008, Petitioner Daniel Metsch filed a

Petition Seeking Administrative Determination of the Invalidity

of Agency Rule (hereinafter referred to as the "Petition") with

the Division of Administrative Hearings. Petitioner's challenge

was designated DOAH Case No. 08-6353RX by Order of Assignment

entered by Robert S. Cohen, Chief Judge of the Division of

Administrative Hearings, on December 18, 2008, and was assigned

to the undersigned.

By Notice of Hearing entered December 22, 2008, after

consultation with the parties, the final hearing was scheduled

for January 9, 2009. An Order of Pre-Hearing Instructions and

an Order Directing Filing of Exhibits was entered simultaneously

with the Notice of Hearing. These Orders required, in part,

that, “[n]o later than three days before the scheduled hearing

. . . ,” an exhibit list and all exhibits the parties intended

to offer at hearing were to be exchanged and filed with the

Division of Administrative Hearings, along with a list of all

witnesses the parties intended to call at the final hearing.

On December 31, 2008, a Joint Motion to Continue was filed.

That Motion was granted by an Order entered January 6, 2009.

The final hearing was rescheduled for March 2, 2009.

On February 25, 2009, Respondent, as ordered, filed a list

of the witnesses it intended to call, a list of Respondent’s

Exhibits, and a copy of all of Respondent’s Exhibits.

Petitioner did not comply with the Order Directing Filing of

Exhibits or the Order of Pre-Hearing Instructions.

On February 27, 2009, Lawrence R. Metsch, Esquire, filed a

Notice of Appearance on behalf of Petitioner. While an exhibit

list was also filed, no witness list or exhibits were provided

by Petitioner.

Due to inadequacies in the Petition, at the commencement of

the final hearing, Petitioner was required to specify precisely

what portions of the definition of an “invalid exercise of

delegated legislative authority” found in Section 120.52(8),

Florida Statutes (2008), Petitioner was contending the

challenged paragraphs of the rule come within. Petitioner

represented that he was challenging the rule pursuant to Section

120.52(8)(c) and (e), Florida Statutes (2008).

Although Petitioner had not notified Respondent of the

names of any witnesses, Petitioner requested leave to testify,

limiting his testimony to evidence in support of his standing.

Finding no prejudice to Respondent, Petitioner’s request was

granted. Petitioner offered no exhibits. Respondent presented

the testimony of Debora Rivera, P.E., Rory J. Santana, P.E.,

PTOE, and Edward T. Denham, AICP, who was accepted without

objection as an expert in transportation planning and policy

planning. Respondent also had admitted Respondent’s Exhibits

numbered 1 through 13.

On April 8, 2009, a Notice of Filing Transcript was issued

informing the parties that the one-volume Transcript of the

final hearing had been filed. The parties were also informed

that their proposed final orders were to be filed on or before

May 8, 2009.

Petitioner filed Petitioner’s Proposed Final Order on

April 6, 2009, even though the parties had requested leave to

file their proposed orders on or before 30 days after the

Transcript was filed. Respondent filed Respondent’s Proposed

Order on May 8, 2009. Both Proposed Orders have been fully

considered in preparing this Final Order.

All references to the Florida Statutes in this Final Order

are to the 2008 version.

FINDINGS OF FACT

A. The Parties .

1. Respondent Department of Transportation (hereinafter

referred to as the “Department”), is the state agency

responsible for, among other things, broad authority over the

State’s transportation system, including, but not limited to,

planning, acquiring, leasing, constructing, maintaining, and

operating toll facilities in Florida and fixing and collecting

tolls and other charges for travel on any such facilities.

2. Petitioner, Daniel Metsch, his spouse, and their two

minor children (hereinafter collectively referred to as the

“Metsch Family”) are residents of Hollywood, Broward County,

Florida.

3. Mr. Metsch is employed in Key Biscayne, Miami-Dade

County, Florida, and Mrs. Metsch is employed at the University

of Miami in Miami, Miami-Dade County, Florida.

4. The Metsch’s two minor children attend pre-school at

the University of Miami in Miami, Miami-Dade County, Florida.

5. The Metsch Family travels in a single motor vehicle

from Broward County to Miami-Dade County each weekday morning,

and from Miami-Dade County and Broward County each weekday

afternoon. The Metsch Family utilizes, in part, portions of

Interstate 95 to which the challenged rules apply, for these

trips.

6. Mr. Metsch applied for an exemption from the payment of

tolls for the use of newly created “High Occupancy Toll”

(hereinafter referred to as “HOT”) lanes on Interstate 95

(hereinafter referred to as “I-95). His application for

exemption was denied because the Metsch Family, while qualifying

for use of previously designated High Occupancy Vehicle

not meet the criteria for any exemption from paying tolls for

use of HOT lanes. By denying the Metsch Family an exemption

from the payment of tolls for their use of HOT lanes along their

commuter route, Mr. Metsch will suffer an adverse financial

impact unless he travels by alternative routes or uses general

purpose lanes on I-95 rather than HOT lanes. Choosing to travel

on such alternative routes or using general purpose lanes on I-

95 will cause delays in the Metsch Family commute each weekday

morning and afternoon.

B. The Challenged Paragraphs of the Rule .

7. Mr. Metsch has challenged portions of Florida

Administrative Code Rule 14-100.004 (hereinafter referred to as

the “Rule”), which provides in pertinent part, the following,

with the challenged portions (hereinafter referred to as the

“Challenged Paragraphs”) underlined:

The provisions of this section apply to the

express lanes on I-95 in Miami-Dade and

Broward County.

(1) Purpose. To address congestion and

to offer travel-choice options to motorists

in South Florida, the 95 Express project

implements a combination of tolling,

technology, travel demand management and

transit elements into a single project along

the Interstate 95 corridor from just south

SR 112/I-195 in Miami-Dade County to just

north of I-595 in Broward County. Tolls

will be collected electronically. Toll

exemptions are allowed for certain vehicle

types as specified in this section. Both

the tolls and toll exemptions are intended

to provide incentives for increased vehicle

occupancy, shift in travel demand, and

overall congestion relief.

( 2) Exemptions. Tolls shall be collected

from all vehicles using the express lanes,

unless a valid exemption applies. The

following qualify for an exemption from

payment of tolls on 95 Express:

(a) Carpools with three or more

occupants, registered in the manner

described in subsection (5) below;

. . . .

(5) Decals will be provided for the

following vehicles eligible for an exemption

from payment of tolls for use of the express

lanes: registered 3 passenger carpools ,

registered ILEV and hybrid vehicles and

registered South Florida Vanpools. 3

passenger carpools means at least three

commuters traveling to and from work in one

vehicle and properly registered by [South

Florida Commuter Services] as a 3 passenger

carpool . . . .

C. The Law Implemented .

8. The Department designated the following statutory

provisions as the “law implemented” by the Rule: “316.0741,

316.1001, 316.640(1), 334.044(16), 335.02(3), 338.155(1),

338.165(7), 338.231 F.S.”

D. The Adoption of the Rule .

9. The Rule and the Challenged Paragraphs were adopted by

the Department as part of its effort to implement a pilot

project instituted by the Department and other entities in an

effort to reduce traffic congestion along I-95 in the South

Florida area. The pilot project involves the portion of I-95

between downtown Miami and what is known as the Golden Glades

Interchange (where State Road 826 and I-95 intersect). Before

the project was implemented, this portion of I-95 was made up of

four general lanes of the use of all vehicles and one HOV lane

for vehicles occupied by two or more individuals running to the

north and the same number and type of lanes running to the

south. Prior to instituting the pilot project and the adoption

of the Rule, this portion of I-95 was congested to the point of

breakdown of the facility during morning and afternoon rush

hours.

10. Because of the near break-down state of I-95,

especially in the south Florida area, the Department had been

looking for solutions to traffic congestion for a number of

years. At the same time, the U.S. Department of Transportation

(hereinafter referred to as the “USDOT”) and other federal

organizations responsible for the federal highway system, were

studying the problem, which exists throughout the United States,

and were seeking innovative solutions to highway congestion.

11. In April of 2007, the Department, along with

interested local entities, submitted a proposal to the USDOT,

described generally as the “I-95 Express Project.” The

Department’s I-95 Express Project proposal, along with proposals

from four other United States cities, was accepted in August

2007.

12. On September 18, 2007, the USDOT formally accepted the

proposed I-95 Express Project by entering into an Urban

Partnership Agreement. The project is summarized as follows in

the “Executive Summary” of the Urban Partnership Agreement,

Respondent’s Exhibit 9:

This Urban Partnership Agreement sets forth

an agreement in principle between the U.S.

Department of Transportation (the

“Department”) and the Department’s Miami-

Area Urban Partner, comprised of the Florida

Department of Transportation (“FDOT”), the

Miami-Dade Metropolitan Planning

Organization, the Broward Metropolitan

Planning Organization, Miami-Dade Transit,

Broward County Transit, the Miami-Dade

Expressway Authority, and the Florida

Turnpike Enterprise. Under this agreement,

the Urban Partner agrees to (i) convert not

less than 21 miles of two (one in each

direction) high-occupancy vehicle (“HOV”)

lanes along I-95 from I-395 in Miami to I-

595 in Fort Lauderdale into variably-priced

high-occupancy toll (“HOT”) lanes; (ii) re-

stripe portions of I-95 from I-395 in Miami

to I-595 in Fort Lauderdale to create two

additional HOT lanes (one in each

direction) ; (iii) expand transit capacity to

enhance current express bus services and

implement new Bus Rapid Transit (“BRT”)

service within the HOT lanes, east-west on

Hollywood/Pines Boulevard in Broward County,

and between Broward and Miami-Dade Counties

on US 441/SR7 and SR 817 (University Drive);

and (iv) improve the Golden Glades multi-

modal park-n-ride transit facility in Miami-

Dade County. In addition, the Urban Partner

agrees that all projects will be in

operation by certain deadlines, the latest

of which is September 30, 2009. In exchange

for these commitments, the Department

intends to allocate $62.9 million in Federal

grant funding for the HOV-to-HOT conversion

and bus services according to the terms of a

grant agreement (or series of grant

agreements) to be negotiated by the

Department and the Urban Partner. The Urban

Partner will be responsible for funding the

improvements to the Golden Gates transit

facility. (Emphasis added.)

13. The project moved expeditiously, with a request for

proposal seeking a contractor for the lane changes being issued

in December 2007, the selection of a contractor in January 2008,

construction of the project commencing in February 2008, the

completion of the conversion of the I-95 HOV to two HOT lanes in

July 2008, and placement of the project under tolling by

December 2008.

14. Of relevance to this matter, the I-95 Express Project

created two HOT lanes in each direction which are equipped with

sensors that allow the real-time measurement of use and the

speed of automobiles in the HOT. That information is used to

calculate the amount of the toll to be charged based upon the

premises that the higher the use of the facility, the higher the

cost that should be charged.

15. The Rule allows any vehicle to utilize the HOT at any

time, including the vehicle utilized by the Metsch Family.

Pursuant to the Challenged Paragraphs, however, vehicles, like

the Metsch Family vehicle, which are not occupied by three or

more “commuters,” will be assessed the then currently calculated

toll charge, which is always displayed electronically so that

vehicle drivers can made a decision as to whether utilizing an

HOT is worth the toll they may be assessed for such use. The

rationale for the imposition of a toll charge on vehicles with

fewer than three commuters, like the Metsch Family and others

who have the option of utilizing a HOT but do not fall within

any exemption from payment of a toll, is that those not

qualifying for an exemption place a greater strain on the

facility (by having fewer individuals in the vehicle who could

otherwise be driving their own vehicles on the facility if they

were not in the exempt vehicle) and should pay a greater fee for

its use. A vehicle occupied by three or more commuters

potentially is reducing the number of vehicles on I-95 by the

number of commuters in the vehicle in excess of the driver,

while the Metsch Family only represents the reduction of one

potential additional vehicle from use of the facility.

16. The Department, through its adoption of the Rule and,

in particular the Challenged Paragraphs, is attempting to

influence use of the facility by vehicle drivers who may

potentially use I-95, especially during peak use times of the

facility. By allowing an exemption for use of the HOT to

vehicles in which there are three or more commuters (and through

rapid transit alternatives), it is expected that more commuters

will choose to car pool or use rapid transit, taking their

vehicles off of I-95, and consequently reducing the number of

vehicles using the facility. Unfortunately for the Metsch

Family, their two minor children do nothing to reduce use of the

facility.

17. At best, the evidence presented by Mr. Metsch may have

shown the Rule could be improved (by expanding the definition of

those who may be considered for purposes of obtaining an

exemption from tolls for use of a HOT from “commuters” to

persons having a driver’s license), Mr. Metsch did not prove

that the Challenged Paragraphs or any other portion of the Rule

are not supported by logic or reason or are irrational.

18. Finally, the evidence failed to prove that the

Challenged Paragraphs establish or govern the use of a HOV.

Instead, the Challenged Paragraphs simply describe the

circumstances under which vehicles utilizing two designated

lanes of I-95 will be subject to the payment of a toll and the

circumstances for which an exemption may be obtained.

CONCLUSIONS OF LAW

A. Jurisdiction .

19. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.56(1) and (3), Florida

Statutes.

B. Standing .

20. Only “substantially affected persons” may challenge

the facial validity of existing rules pursuant to Section

120.56(1) and (3), Florida Statutes. Mr. Metsch was, therefore,

as a threshold issue, required to prove he is “substantially

affected” by the Challenged Paragraphs to institute the instant

proceeding. See Department of Professional Regulation, Board of

Medical Examiners v. Durrani , 455 So. 2d 515 (Fla. 1st DCA

1984).

21. In order to prove that he is “substantially affected,”

Mr. Metsch was required to specifically prove (a) a real and

sufficiently immediate injury in fact; and (b) that his alleged

interest is arguably within the “zone of interest” to be

protected or regulated. See Ward v. Board of Trustees of the

Internal Improvement Trust Fund , 651 So. 2d 1236 (Fla. 4th DCA

1995). The Department has argued unconvincingly that Mr. Metsch

has failed to prove either prong of the foregoing test.

22. The Challenged Paragraphs, by excluding the Metsch

Family from exemption from the payment of tolls, places a

financial burden on Mr. Metsch for the use of a portion of the

road system in Florida, causing an immediate financial injury.

C. Petitioner’s Challenge .

23. Section 120.56(1) and (3), Florida Statutes, provides

in part the following:

(1) GENERAL PROCEDURES FOR CHALLENGING

THE VALIDITY OF A RULE OR A PROPOSED RULE.—

(a) Any person substantially affected by

a rule or a proposed rule may seek an

administrative determination of the

invalidity of the rule on the ground that

the rule is an invalid exercise of delegated

legislative authority.

(b) The petition seeking an

administrative determination must state with

particularity the provisions alleged to be

invalid with sufficient explanation of the

facts or grounds for the alleged invalidity

and facts sufficient to show that the person

challenging a rule is substantially affected

by it, or that the person challenging a

proposed rule would be substantially

affected by it.

. . . .

(3) CHALLENGING EXISTING RULES; SPECIAL

PROVISIONS.--

(a) A substantially affected person may

seek an administrative determination of the

invalidity of an existing rule at any time

during the existence of the rule. The

petitioner has a burden of proving by a

preponderance of the evidence that the

existing rule is an invalid exercise of

delegated legislative authority as to the

objections raised.

(b) The administrative law judge may

declare all or part of a rule invalid. The

rule or part thereof declared invalid shall

become void when the time for filing an

appeal expires. The agency whose rule has

been declared invalid in whole or part shall

give notice of the decision in the Florida

Administrative Weekly in the first available

issue after the rule has become void.

24. An existing rule may be challenged pursuant to Section

120.56, Florida Statutes, only on the ground that it is an

"invalid exercise of delegated legislative authority.” See

Schiffman v. Department of Professional Regulation, Board of

Pharmacy , 581 So. 2d 1375, 1379 (Fla. 1st DCA 1991); and Lewis

Oil Co., Inc. v. Alachua County , 496 So. 2d 184, 189 (Fla. 1st

DCA 1986).

25. As the First District Court of Appeal observed in

Southwest Florida Water Management District v. Save the Manatee

Club, Inc. , 773 So. 2d 594, 597-98 (Fla. 1st DCA 2000):

This phrase ["invalid exercise of

delegated legislative authority," as used in

Section 120.56, Florida Statutes] is defined

in section 120.52(8), Florida Statutes, as

an "action that goes beyond the powers,

functions, and duties delegated by the

Legislature." Section 120.52(8) then lists

seven circumstances in which a rule is an

invalid exercise of delegated legislative

authority:

. . . .

In addition to the seven enumerated

grounds for challenging a rule, section

120.52(8) provides a set of general

standards to be used in determining the

validity of a rule in all cases. These

standards are contained in the closing

paragraph of the statute. . . .

26. In the instant case, Mr. Metsch contends that the

Challenged Paragraphs are an "invalid exercise of delegated

legislative authority," within the meaning of Subsections (8)(c)

and (e) of Section 120.52, Florida Statutes, which provide as

follows:

"Invalid exercise of delegated legislative

authority" means action that goes beyond the

powers, functions, and duties delegated by

the Legislature. A proposed or existing

rule is an invalid exercise of delegated

legislative authority if any one of the

following applies:

. . . .

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

by s. 120.54(3)(a)1.;

. . . .

(e) The rule is arbitrary or capricious.

A rule is arbitrary if it is not supported

by logic or the necessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational;

27. In Petitioner’s Proposed Final Order, Mr. Metsch

phrases the point of his challenge as follows:

Is Rule 14-100.004(5), Florida

Administrative Code, an “invalid exercise of

delegated legislative authority” because it

requires that a “3 carpool” consist of

three (3) “commuters”, rather than three (3)

“occupants”?

D. The Law Implemented .

28. In Petitioner’s Proposed Final Order, Mr. Metsch only

addresses one provision cited by the Department as the law

implemented by the Rule: Section 316.0741, Florida Statutes,

which provides, in pertinent part, the following:

(1) As used in this section, the term:

(a) "High-occupancy-vehicle lane" or "HOV

lane" means a lane of a public roadway

designated for use by vehicles in which

there is more than one occupant unless

otherwise authorized by federal law.

. . . .

(2) The number of persons who must be in

a vehicle to qualify for legal use of the

HOV lane and the hours during which the lane

will serve as an HOV lane, if it is not

designated as such on a full-time basis,

must also be indicated on a traffic control

device.

(3) Except as provided in subsection (4),

a vehicle may not be driven in an HOV lane

if the vehicle is occupied by fewer than the

number of occupants indicated by a traffic

control device. A driver who violates this

section shall be cited for a moving

violation, punishable as provided in chapter

318.

. . . .

(5) The department shall issue a decal

and registration certificate, to be renewed

annually, reflecting the HOV lane

designation on vehicles meeting the criteria

in subsection (4) authorizing driving in an

HOV lane at any time. The department may

charge a fee for a decal, not to exceed the

costs of designing, producing, and

distributing each decal, or $5, whichever is

less. The proceeds from sale of the decals

shall be deposited in the Highway Safety

Operating Trust Fund. The department may,

for reasons of operation and management of

HOV facilities, limit or discontinue

issuance of decals for the use of HOV

facilities by hybrid and low-emission and

energy-efficient vehicles, regardless of

occupancy, if it has been determined by the

Department of Transportation that the

facilities are degraded as defined by 23

U.S.C. s. 166(d)(2).

. . . .

(7) The department may adopt rules

necessary to administer this section.

29. Relying upon Section 316.0741(1)(a), Florida Statutes,

Mr. Metsch goes on to argue that this provision, by referring to

an “occupant” in defining a HOV, prohibits the Department from

basing the imposition of tolls in a HOT upon a “commuter.”

Mr. Metsch’s argument is misplaced for several reasons.

30. First, Section 316.0741(1)(a), Florida Statutes, is

nothing more than a definition. It does not prescribe any duty

or action on the part of the Department. For example, Section

316.0741(1)(a), Florida Statutes, does not say that “the

Department may only establish HOV’s on interstate roads in

Florida as defined in this section” or contain any other similar

proscription or prescription.

31. More importantly, Mr. Metsch mischaracterizes what the

Challenged Paragraphs actually do and the authority therefore.

The Rule, in part, provides for the creation of a portion of a

road facility for which a toll will be imposed (referred to as a

HOT), and the Challenged Paragraphs describe one of the

circumstances under which the toll will not be imposed. A HOT,

which neither party has cited a Florida definition for, is not,

however, a HOV by statutory or rule definition. Therefore, even

though, as Mr. Metsch correctly argues, a HOV may by definition

be required to be based upon the number of occupants utilizing a

lane, that definition has no application to a HOT.

32. Because the Department is not creating or regulating a

HOV through its adoption of the Rule, it is Section 334.044,

Florida Statutes, and not Section 316.0741(1)(a), Florida

Statutes, which authorizes the Department to adopt the

Challenged Paragraphs. Section 334.044, Florida Statutes,

establishes the Department’s broad “powers and duties.”

Subsection (16) provides the following broad Department power

and duty with regard to the imposition of tolls:

To plan, acquire, lease, construct,

maintain, and operate toll facilities; to

authorize the issuance and refunding of

bonds, and to fix and collect tolls or other

charges for travel on any such facilities.

Sections 316.640, 316.1001, and 338.155, Florida Statutes,

provide additional authority to the Department with regard to

tolls and toll facilities.

33. The Challenged Paragraphs implement and interpret

“specific powers and duties” granted to the Department by the

Legislature with regard to the tolls in Florida. See Board of

Trustees of Internal Improvement Trust Fund v. Day Cruise

Association, Inc. , 794 So. 2d 696, 701 (Fla. 1st DCA 2001). The

Challenged Paragraphs establish the circumstances under which

tolls will and will not be imposed as part of the I-95 Express

Project.

34. Mr. Metsch has, therefore, failed to prove that the

Challenged Paragraphs “enlarge, modify, or contravene the

specific provisions of law implemented, citation to which is

argued in Petitioner’s Proposed Final Order.

E. Rationale for the Challenged Paragraphs; Are the

Challenged Paragraphs Arbitrary or Capricious ?

35. A rule is considered arbitrary if it is not supported

by logic or reason; it is capricious if it is irrational and not

supported by reason. Agrico Chemical Company v. Department of

Environmental Regulation , 365 So. 2d 759, 763, (Fla. 1st DCA

1978), cert . denied , 376 So. 2d 74 (Fla. 1979).

36. The Department described in detail the genesis of, and

the rational behind, the Rule and, in particular the Challenged

Paragraphs. While Mr. Metsch may have proved and the Department

may have conceded how the Rule could be improved (by expanding

the definition of those entitled to an exemption from tolls for

use of a HOT), Mr. Metsch did not prove that the Challenged

Paragraphs are not supported by logic or reason or are

irrational and not supported by reason.

37. Mr. Metsch has, therefore, failed to prove that the

Challenged Paragraphs are “arbitrary or capricious” as alleged

in his Petition and as argued in Petitioner’s Proposed Final

Order.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED:

1. Daniel Metsch failed to prove that Florida

Administrative Code Rule 14-100.004(2)(a) and (5), constitute an

invalid exercise of delegated legislative authority because the

Challenged Paragraphs enlarge, modify, or contravene the law

implemented, or are arbitrary and capricious; and

2. Mr. Metsch’s Seeking Administrative Determination of

the Invalidity of Agency Rule is DISMISSED.

DONE AND ORDERED this 9th day of June, 2009, in

Tallahassee, Leon County, Florida.

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of June, 2009.

COPIES FURNISHED :

Bruce R. Conroy, Esquire

Department of Transportation

Hayden Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Lawrence R. Metsch, Esquire

Metsch & Metsch, P.A.

Aventura Corporate Center

20801 Biscayne Boulevard, Suite 307

Aventura, Florida 33180-1423

Daniel Metsch

3900 Flamewood Lane

Hollywood, Florida 33021

James C. Myers, Agency Clerk

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

Stephanie Kopelousos, Interim Secretary

Department of Transportation

Haydon Burns Building, Mail Station 57

605 Suwannee Street

Tallahassee, Florida 32399-0450

Alexis M. Yarbrough, General Counsel

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

Scott Boyd, Executive Director

Joint Administrative Procedures Committee

120 Holland building

Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of appeal with the Clerk of the

Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.