91-004389
Pablo Sanchez vs.
Department Of Transportation
Status: Closed
Recommended Order on Wednesday, January 29, 1992.
Recommended Order on Wednesday, January 29, 1992.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8PABLO SANCHEZ, )
11)
12Petitioner, )
14)
15vs. ) CASE NO. 91-4389
20)
21DEPARTMENT OF TRANSPORTATION, )
25)
26Respondent. )
28___________________________________)
29RECOMMENDED ORDER
31A hearing was held in this case in Miami, Florida on December 11, 1991,
45before Arnold H. Pollock, a Hearing Officer with the Division of Administrative
57Hearings.
58APPEARANCES
59For the Petitioner: Juan Carlos Perez, Esquire
664770 Biscayne Blvd., #600
70Miami, Florida 33137
73and
74Michael A. Bienstock, Esquire
7825 SE 3rd Avenue, Suite 1240
84Miami, Florida 33134
87For the Respondent: Vernon L. Whittier, Jr., Esquire
95Department of Transportation
98605 Suwannee Street
101Tallahassee, Florida 32399-0450
104STATEMENT OF THE ISSUES
108The issue for consideration in this case is whether Petitioner, Pablo
119Sanchez, should be issued a driveway permit, (Application No. 001-91) for a site
132at 700 E 8th Avenue, State Road 953, LeJune Road, in Dade County, Florida.
146PRELIMINARY MATTERS
148By letter dated March 19, 1991, Gus Pego, P.E., the Department's District
160Maintenance Engineer in the Department District headquartered in Miami, notified
170the Petitioner herein, Pablo Sanchez, that his application No. 001-91, for a
182driveway permit for the property located at 700 East 8th Avenue, in Dade County,
196Florida had been denied. Thereafter, by Petition filed with the Department on
208April 15, 1991, Petitioner's counsel, on behalf of the Petitioner, requested a
220formal hearing and by letter dated July 17, 1991, the matter was forwarded to
234the Division of Administrative Hearings for appointment of a Hearing Officer.
245On September 18, 1991, after neither party responded to the Initial Order
257entered herein, the undersigned issued a Notice of Hearing setting the matter
269for hearing in Miami on December 11, 1991, at which time the case was heard as
285scheduled.
286At the hearing, Petitioner testified in his own behalf and presented the
298testimony of his son, Joel Sanchez. Petitioner also introduced Petitioner's
308Exhibits 1 through 9. Respondent presented the testimony of Debora Moran
319Rivera, assistant traffic operations engineer for the Department in the Miami
330District and formerly District Permit Engineer at the time the instant
341application was acted on, and introduced Respondent's Exhibits A though C. At
353the request of Respondent and without objection by the Petitioner, the
364undersigned officially recognized the provisions of Rules 14-96 and 14-97,
374F.A.C.
375A transcript of the hearing was provided. Respondent submitted Proposed
385Findings of Fact which have been accepted and are incorporated into this
397Recommended Order.
399FINDINGS OF FACT
4021. At all times pertinent to the matters in issue herein, the Respondent,
415Department of Transportation, was the state agency responsible for the
425monitoring and control of vehicular access to and traffic control on the state
438highways of this state.
4422. Petitioner, Pablo Sanchez, owns the property in issue. This property
453is a 24 x 40 foot house located on a 70 x 103.62 foot lot located at the corner
472of East 8th Avenue ( LeJeune Road) and East 7th Street in Hialeah, Florida.
486LeJeune Road, depending upon the location, both has and does not have a
499restrictive median. At this location it does not.
5073. Mr. Sanchez currently and historically, over the 3 years he has lived
520in the property in question, enters and exits the property, which has no formal
534driveway, from LeJeune Road. By the same token, guests who visit him enter and
548exit the property the same way. During this 3 year period there have been no
563accidents or traffic problems as a result of this use even though traffic on
577LeJeune Road, a main thoroughfare, is heavy. There is no obstruction on or near
591the property to hinder visibility of either an individual exiting the property
603onto LeJeune Road or a driver on LeJeune Road observing anyone coming off the
617property. In Mr. Sanchez' opinion, a permitted driveway practically would change
628nothing from the current situation.
6334. The area in which the property is located is rapidly changing from
646residential to commercial. Mr. Sanchez is trying to have the zoning of his
659property changed from residential to office use. His efforts in this regard are
672with the City of Hialeah. If his application for zoning change is approved, it
686is his intention to use the house as an office for his insurance business which
701is currently conducted at a different location at 24th Street and LeJeune Road.
714The current office is located on a corner lot from which Mr. Sanchez has access
729onto LeJeune Road and it is his contention there have been no traffic problems
743at that location either. No evidence to rebut this contention was forthcoming.
7555. There are currently commercial businesses in operation on both sides of
767LeJeune Road between the area now being used as a business by Petitioner and
781the area for which he submitted his application. The majority of these enter
794onto LeJeune Road. Mr. Sanchez contends that the use of the property in issue
808as an insurance office would not generate as much traffic as either the
821neighboring bank or service station in the area, and if he were to receive the
836driveway permit for this property, he claims, the amount of traffic onto LeJeune
849Road from it would not be increased by any significant amount. He submitted his
863application and paid the $1,000.00 fee.
8706. Most of Mr. Sanchez' time is spent at his business building because his
884parents live at that location and when he is not working, he spends a great deal
900of time with them. His experience has been that he can easily go from his home
916to his office on LeJeune Road at any time without difficulty, and he goes up and
932back each day expending 6 or 7 minutes for each trip.
9437. Petitioner introduced photographs of several businesses purported to be
953in the area which, he claims, have commercial entrances onto LeJeune Road.
965Respondent entered no evidence to contradict the identity or location of the
977sites reflected in the photos and they are, therefore, accepted as offered. One
990of them is a bank which, he contends, has been in operation for approximately 10
1005years. Another is a service station which has been in operation for "a
1018considerable amount of time." This facility was there before Petitioner arrived
1029in the area. Another business depicted, Marina Insurance, opened approximately
1039two years ago. The facility used to be a residence and Mr. Sanchez does not
1054know when or if a driveway permit was issued for that property. Another service
1068station in the area was opened "many years ago" and a store for wedding gowns
1083was opened "seven or eight years ago." The photographs fail to show any
1096traffic, however, either in front of, exiting, or entering the properties. Mr.
1108Sanchez claims they are active businesses and have been contributing to traffic
1120on LeJeune Road for many years. In the absence of evidence to contradict that
1134assertion, it is accepted.
11388. Mr. Sanchez' contentions were supported by his son, Joel, who is in
1151business with his father and who used to live in the house in question with his
1167father, his mother, his wife and his two children. With four adults living
1180there, three cars were frequently in use, and all usually entered and exited the
1194property from LeJeune Road. On occasion, they would come in or exit from 7th
1208Street, but between 80 and 85% of the time the LeJeune Road access was utilized,
1223primarily because the property faces on LeJeune Road.
12319. Visitors to the property usually park to the right of the front door,
1245and so far there has been no problem getting on or off of LeJeune Road. The
1261younger Sanchez confirms his father's testimony that entrance onto or exit from
1273LeJeune Road from either the current residence or the current business property
1285has not been a problem over the years, and he sees no traffic hazard.
129910. According to Joel Sanchez, LeJeune Road is no longer a residential
1311street. He confirms his father's statement that new businesses are constantly
1322going in and all seem to have been able to get driveway access onto LeJeune
1337Road. The older businesses have had access to LeJeune for a long time and there
1352appears to have been no problem with traffic.
136011. The property in issue here became a problem only when the Sanchezes
1373tried to rezone it. Notwithstanding the fact that at the residence they already
1386use an access onto LeJeune Road, according to the city zoning officials, if the
1400property were to be converted into a business use property, a formal access onto
1414LeJeune, to accommodate 8 parking spaces on the property, would be necessary.
1426The only way 8 parking spaces could be placed onto the existing property would
1440be to place the entrance and exit onto LeJeune Road.
145012. From a practical standpoint, the only change would be the actual
1462paving of access ramps out to the highway instead of driving onto and off the
1477property across the lawn as is the current practice. The number of the
1490customers the business would bring to the new site would not be heavy, no more
1505than 6 or 7 per day. This would be a maximum, Petitioner claims, because the
1520nature of the insurance business he is conducting is changing to that which
1533would reduce to an even lesser amount the traffic required. Most of the
1546business customers are now renewals who deal with the company by mail, and the
1560only traffic would be new business. In that regard, they are changing more to
1574commercial lines of insurance, dealing with businesses, which does not have a
1586large office visit rate.
159013. Neither of the Sanchez men have any training in traffic management or
1603safety, but both sincerely feel their proposal will not increase traffic or pose
1616a risk to traffic safety in the area.
162414. Debora Moran Rivera, a traffic engineer with the Department's Miami
1635District is familiar with the instant permit application and, in fact, reviewed
1647it when it was submitted. When first received by the District, the application
1660was sent to the field for comments. It was determined that a 25 foot radius
1675exit was required. Photographs were received along with the comments and based
1687on the review by both the field office and the District office, it was
1701determined that the application here was not consistent with the rules of the
1714Department governing permits of this nature. As a result, on February 26, 1991,
1727a Notice of Intent to Deny the application was sent to Mr. Sanchez in which the
1743reason for denial was the availability of access to the State Highway from
1756another public road, (East 7th Street).
176215. Sometime thereafter, Ms. Rivera was contacted by Joel Sanchez who
1773asked for a formal denial which could be appealed and thereafter, a formal
1786denial letter dated March 19, 1991 was sent. This letter indicated the
1798Department rules limited access to a point at least 115 feet from the nearest
1812connection, East 7th Street.
181616. The denial decision was based on information provided by the field
1828operations office to whom the application was sent for verification. The
1839decision to grant or deny is a joint one made by several individuals whose
1853identity is dependant upon where the property in question is located. Mr. Pego,
1866Ms. Rivera's supervisor and Ms. Rivera were the individuals who made this
1878decision based upon the input from the staff in the field. In this case, the
1893field information consisted of a statement based upon his visit to the site and
1907two photographs. Based on this information along with that provided by the
1919applicant, the decision to deny was made. Admittedly no traffic study of the
1932area in question was made by either party. Further, in evaluating the
1944application, however, Ms. Rivera did not look at any other driveway permits for
1957property in the immediate area. She thinks she went out to visit the site
1971before the official denial letter was sent out on March 19, 1991 but she does
1986not recall what the business characteristics of the area were like. While she
1999is generally familiar with the area, she does not recall the specifics. Based
2012on the evidence presented, nothing was put before the undersigned to demonstrate
2024the insufficiency or impropriety of the Department's evaluation and decision
2034making process and it is accepted that the process was sufficient and adequate.
204717. There is some indication from the testimony of Petitioner that he had
2060called the District office to request a Spanish speaking representative come out
2072to the property. In response, the District sent out a Mr. Montez. According to
2086Mr. Sanchez, Montez initially told him that the application would probably not
2098be approved because the property fronted on LeJeune Road. However, Sanchez
2109claims Montez later changed his mind and indicated the application would
2120probably be granted because of the small nature of the business. The evidence
2133on this point is unclear as to whether the visit by Mr. Montez is the site visit
2150described by Ms. Rivera. No evidence was presented to clarify this, but in any
2164case, there is no showing that Montez had any authority to commit the Department
2178to a position. His opinions, therefore, are irrelevant.
2186CONCLUSIONS OF LAW
218918. The Division of Administrative Hearings has jurisdiction over the
2199parties and the subject matter of these proceedings pursuant to Section
2210120.57(1), Florida Statutes.
221319. Respondent has denied Petitioner a permit to connect his property to
2225LeJeune Road, a State Highway, on the basis that his application does not
2238conform to the criteria outlined in Rules 14- 96 and 14.97, F.A.C.
225020. Rule 14-96.003(1), F.A.C. provides in part:
2257Every owner of property which abuts a State
2265Highway where limited access rights have not
2272been acquired has a right to have reasonable
2280access, but may not have the right to a
2289particular means of access to the State
2296Highway. All new connections or alterations
2302to existing connections ... providing ingress
2308to or egress from residential, commercial,
2314industrial, agricultural, or any other public
2320or private land use shall require a connection
2328permit.
232921. Rule 14-96.004(1), F.A.C.m defines a "Category II- Minor Connection"
2339as:
2340... a connection to the State Highway System
2348for medium volume traffic generation expected
2354to have an average daily traffic (ADT) of
23621,500 or less but not included in Category I.
237222. A Category I connection relates only to residential property.
238223. Rule 14-96.007(2)(a), F.A.C., relating to review of applications,
2391provides:
2392Upon timely receipt of all required
2398information, ..., the location and design of
2405the connection shall be examined for
2411consistency with current Department location,
2416quantity, spacing classification, and
2420Department design standards. The review shall
2426also include an analysis of the site's
2433existing and projected traffic on the
2439operation and safety of the state highway.
244624. Rule 14-97.003(1)(i)4, F.A.C. provides that corner clearance at
2455intersections with a restrictive median which allows right in/out access shall
2466be no less than 115 from the intersection. On roads without a restrictive
2479median, full access is allowed no less than 125 feet from the intersection.
2492Right in/out access shall be no less than 100 feet from the intersection.
250525. Here, Petitioner seeks a permit for a 25 foot radius driveway
2517connection onto LeJeune Road, on which his property is located at the
2529intersection of East 7th Street. Petitioner has the burden to establish his
2541entitlement (conformity with rules) to that access by a preponderance of the
2553evidence. Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla.
25651DCA 1981).
256726. Respondent has denied the permit on the basis that the access cannot
2580be located less than 115 (100) feet from the closest existing connection, East
25937th Street, and in addition, on the basis that Petitioner has an acceptable
2606access to LeJeune Road through his access to East 7th Street which enters
2619LeJeune Road at his property.
262427. The above-cited rule clearly defined the distance criteria for access
2635onto a State Highway. It is 115 feet from an intersection on roads where there
2650is a restrictive median, and 100 feet where there is not. Under either
2663criteria, Petitioner's property does not qualify since his frontage on LeJeune
2674Road is only 70 feet total and that means Petitioner's property line furthest
2687from the intersection is closer than the minimum distance required.
269728. It is unfortunate for Petitioner that the Hialeah zoning officials
2708will not change his property's zoning to permit a commercial use unless he can
2722provide 8 parking spaces on the property. It is even more unfortunate that the
2736only configuration that will permit the required 8 spaces necessitates a
2747connection on LeJeune Road.
275129. The evidence presented at the hearing clearly demonstrates, however,
2761that regardless of the other connections which exist onto LeJeune Road from
2773other properties, permitted or not, this particular application does not meet
2784the Department's criteria for approval.
278930. Notwithstanding his counsel's impassioned argument that Petitioner is
2798being denied the highest and best use of his property as a result of the
2813Department's denial of his application; notwithstanding the lack of evidence
2823that approval of the connection would create additional safety hazards;
2833notwithstanding the non-existence of a traffic study demonstrating adverse
2842impact on traffic conditions in the area; notwithstanding the unsupported
2852allegations by counsel of selective enforcement by the Department resulting in
2863an unfair competitive edge to others; and notwithstanding counsel's unproven
2873allegations of discrimination, there is still an unrefuted showing that
2883Petitioner's application fails to conform to the standards and criteria set
2894forth in the Department's rule.
2899RECOMMENDATION
2900Based on the foregoing Findings of Fact and Conclusions of Law, it is,
2913therefore:
2914RECOMMENDED that a Final Order be entered in this case denying Petitioner's
2926application for a connection from his property located at 700 East 8th Avenue,
2939Hialeah, onto East 8th Avenue, ( Lejeune Road).
2947RECOMMENDED in Tallahassee, Florida this 29th day of January, 1992.
2957______________________________
2958ARNOLD H. POLLOCK
2961Hearing Officer
2963Division of Administrative Hearings
2967The DeSoto Building
29701230 Apalachee Parkway
2973Tallahassee, Florida 32399-1550
2976(904) 488-9675
2978Filed with the Clerk of the
2984Division of Administrative Hearings
2988this 29th day of January, 1992.
2994COPIES FURNISHED:
2996Juan Carlos Perez, Esquire
30004770 Biscayne Blvd.
3003Miami, Florida 33137
3006Michael A. Bienstock, Esquire
301025 SE 3rd Avenue, Suite 1240
3016Miami, Florida 33134
3019Vernon L. Whittier, Jr., Esquire
3024Department of Transportation
3027605 Suwannee Street
3030Tallahassee, Florida 32399-0450
3033Ben G. Watts
3036Secretary
3037Department of Transportation
3040605 Suwannee Street
3043Tallahassee, Florida 32399-0450
3046Thornton J. Williams
3049General Counsel
3051Department of Transportation
3054605 Suwannee Street
3057Tallahassee, Florida 32399-0450
3060NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
3066All parties have the right to submit written exceptions to this Recommended
3078Order. All agencies allow each party at least 10 days in which to submit
3092written exceptions. Some agencies allow a larger period within which to submit
3104written exceptions. You should consult with the agency which will issue the
3116Final Order in this case concerning its rules on the deadline for filing
3129exceptions to this Recommended Order. Any exceptions to this Recommended Order
3140should b e filed with the agency which will issue the Final Order in this case.
![](/images/view_pdf.png)
- Date
- Proceedings
- Date: 02/27/1992
- Proceedings: Final Order filed.
- Date: 01/27/1992
- Proceedings: (Respondent) Proposed Findings of Fact Conclusions of Law and Recommendation filed.
- Date: 01/10/1992
- Proceedings: Transcript filed.
- Date: 09/18/1991
- Proceedings: Notice of Hearing sent out. (hearing set for December 11, 1991: 1:00pm: Miami)
- Date: 07/17/1991
- Proceedings: Initial Order issued.
- Date: 07/12/1991
- Proceedings: Agency referral letter; Agency action letter; Petition for Administrative Hearing; Notice of Change of Address (from J. Perez) filed.
Case Information
- Judge:
- ARNOLD H. POLLOCK
- Date Filed:
- 07/12/1991
- Date Assignment:
- 07/17/1991
- Last Docket Entry:
- 02/27/1992
- Location:
- Miami, Florida
- District:
- Southern
- Agency:
- ADOPTED IN TOTO