92-004202 Hack Corporation, D/B/A Florida Keys Payfair Supermarket vs. Department Of Transportation Status: Closed Recommended Order on Tuesday, May 4, 1993.

Summary: Requested median opening did not meet DOT spacing requirements, plus it presented safety hazard; denial of request recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HACK CORPORATION, d/b/a )

FLORIDA KEYS PAYFAIR )

SUPERMARKET, )

)

Petitioner, )

)

vs. ) CASE NO. 92-4202

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February

17, 1993, in Key Largo, Florida, before Stuart M. Lerner, a duly designated

Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gus H. Crowell, Esquire

Gus H. Crowell, P.A.

Post Office Box 777

Tavernier, Florida 33070

For Respondent: Paul Sexton, Esquire

Assistant General Counsel

Department of Transportation

Haydon Burns Building, M.S. 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUE

The parties have stipulated that the ultimate issue to be resolved in the

instant case is "[w]hether the Respondent should provide a median cut or paved

[non-restrictive] median [o]n U.S. Highway 1, State Road 5 ("US-1"), to allow

Northbound traffic to turn left onto Petitioner's property on the West side of

the Highway."

PRELIMINARY STATEMENT

By letter dated September 11, 1991, the Department of Transportation

(hereinafter referred to as the "Department") advised Petitioner of its

intention to deny Petitioner's request for "a median cut on US-1 so as to

provide [direct] access for Northbound traffic to [Petitioner's] property"

abutting U.S. Highway 1 (hereinafter referred to as "U.S. 1"). The letter

further informed Petitioner of its right to request an administrative hearing on

the matter within 30 days of Petitioner's receipt of the letter. The Department

subsequently extended the deadline for requesting such a hearing.

On May 5, 1992, Petitioner filed a petition challenging the Department's

preliminary determination to deny its request for a median cut or opening.

Inasmuch as the petition did not indicate whether Petitioner was seeking a

formal or informal proceeding, the Department sought clarification from

Petitioner. In response to this request, Petitioner filed a written request for

a formal hearing. Paragraphs 4 through 6 of this written request provided as

follows:

4. The reason provided by the Department of

Transportation personnel for disallowing a

median cut was:

a. That the proposed cut was too close to an

intersection. This is incorrect because the

property owned by the Florida Keys Payfair has

so much highway frontage that an adequate

median cut could have been provided at an

appropriate distance from the intersection and

still serve the property.

b. The second reason given was that the

median was not wide enough and DOT personnel

claimed that DOT did not own enough

right-of-way to widen the road. This is

incorrect because the right-of-way maps show

more than enough right-of-way in that area to

widen the road the extra couple of feet

claimed to be needed. Another alternative

would be a paved median strip as is done in

many cases throughout the Keys.

5. In any event, median cuts exist throughout

this area of the Upper Keys much closer

together than would be provided for the

Florida Keys Payfair, despite the fact that

our median cut was denied based on proximity

of other median cuts.

6. Florida Keys Payfair has been operating at

this location for many many years and has had

continuous access from the northbound lanes of

U.S. One until this project. The loss of the

access from the northbound lanes has caused

severe economic damages, loss of business and

related problems to the Florida Keys Payfair.

On July 8, 1992, the Department referred the matter to the Division of

Administrative Hearings for the assignment of a Hearing Officer to conduct the

formal hearing Petitioner had requested. The hearing was originally scheduled

for November 18, 1992, but was twice continued. The hearing was ultimately held

on February 17, 1993.

At the outset of the hearing, the parties presented the Hearing Officer

with an amended prehearing stipulation. Thereafter, following a discussion of

certain preliminary matters, the evidentiary portion of the hearing began.

Petitioner presented the testimony of Ernie Hack, its president, Ralph Aronberg,

a traffic engineer, and Craig Belcher, the owner of a restaurant that is

adjacent to Petitioner's business. Two witnesses, Gary Donn, a traffic engineer

who works for the Department, and Andy Garganta, a traffic engineering

consultant, testified on behalf of the Department. In addition to the testimony

of these witnesses, a total of ten exhibits (Petitioner's Exhibits 1 and 2 and

Respondent's Exhibits 1 through 8) were offered and received into evidence. At

the request of Petitioner, the Hearing Officer conducted a view of the area

surrounding Petitioner's business following the conclusion of the evidentiary

portion of the hearing.

At the hearing, the Hearing Officer, on the record, advised the parties of

their right to file post-hearing submittals and established a deadline for the

filing of such submittals. On April 12, 1993, the parties each filed a proposed

recommended order.

The parties' proposed recommended orders contain what are labelled as

"findings of fact." These proposed "findings of fact" have been carefully

considered and are specifically addressed in the Appendix to this Recommended

Order.

FINDINGS OF FACT

Based upon the parties' stipulations of fact, the evidence adduced at

hearing, and the record as a whole, the following Findings of Fact are made:

1. For the past 31 years, Petitioner has owned and operated a small

grocery store (hereinafter referred to as the "store" or "Payfair") on the bay

side of Plantation Key.

2. The store is open for business from 8:00 a.m. to 9:00 p.m. seven days a

week.

3. Payfair is situated on a block that is bounded on the north by Palm

Avenue, on the south by Royal Poinciana Boulevard, on the east by U.S. 1 (or

State Road 5, as it is also known), and on the west by Gardenia Street.

4. On this same block, to the south of the store, are a restaurant and the

office of an insurance agency. All three businesses face U.S. 1. A paved

driveway running parallel to U.S. 1 passes in front of all three establishments.

5. The property on which Payfair is located consists of ten platted lots,

six of which abut U.S. 1 (for a total distance of approximately 300 feet).

6. U.S. 1 is a north-south roadway that is part of the State Highway

System. In this area of the Upper Keys, it serves not only as a through highway

linking the Upper Keys with the Middle and Lower Keys to the south and with the

rest of the State to the north, but it also must carry local traffic because of

the absence of any other major through streets in the area.

7. The remaining four lots of Petitioner's property abut Gardenia Street.

8. On the other (western) side of Gardenia Street are residences.

9. There are no street lights on Gardenia Street.

10. Gardenia Street dead ends several blocks to the south of Petitioner's

property at Wood Avenue, where an elementary school is located.

11. Plantation Key High School is also nearby.

12. School children living in the residential area behind Payfair walk or

ride their bikes on Gardenia Street past the store on their way to and from

school.

13. There are signs on the street that warn motorists that there are

"children at play."

14. It is desirable to minimize the amount of traffic, particularly

commercial traffic, on streets in residential areas where there are school-aged

children.

15. Motorists can enter the Payfair parking lot from either U.S. 1 or

Gardenia Street.

16. Until recently, both southbound and northbound motorists on U.S. 1

could turn directly from U.S. 1 onto the Payfair property anywhere along the 300

feet the property fronted the roadway. Likewise, upon leaving the property,

from anywhere along the frontage of the property, they could turn right and head

south on U.S. 1 or turn left and go north on U.S. 1.

17. Such unrestricted, direct access to and from U.S. 1 is no longer

available to Petitioner and its customers as a result of work that has been done

as part of Department Project No. 90060-3557 (hereinafter referred to as the

"project").

18. The project, which is nearly finished, has converted a portion of U.S.

1 from a two-lane roadway without curbs, gutters or a restricted median to a

four-lane roadway with these features which, at its southern terminus, makes the

transition to a two-lane roadway.

19. That portion of U.S. 1 on which work either has been or will be done

in furtherance of the project extends from Station 379, on Key Largo, south to

Station 298, on Plantation Key. 1/ (The project plans call for the restrictive

median to run only as far south as Station 308, which is immediately north of

Royal Poinciana Boulevard.)

20. Station 298, the southern terminus of the project, is north of Wood

Avenue.

21. The issue of where the southern terminus of the project should be

located was raised at a public meeting held by the Department at Plantation Key

High School on March 14, 1991.

22. Stan Cann, the Department's District 6 Director of Operations,

following the meeting, wrote a letter to the Monroe County Superintendent of

Schools in which he provided the following sound and reasonable explanation as

to why the Department, in designing the project, had selected Station 298,

rather than some point to the south of Wood Avenue, as the southern terminus of

the project:

A major concern of most of the meeting

participants was where the final location of

the southern transition from four lanes to two

would be. Currently our plans call for that

to occur prior to the signalized intersection

at Woods Avenue. It was the overall opinion,

however, that the four laning should be

continued through the intersection and

transition somewhere farther south.

After considerable review, the Department

feels strongly that the current design for the

transition is the best alternative for

pedestrian safety. We understand the tendency

of some drivers to attempt passing as many

vehicles as possible before entering a two

lane section. This tendency makes it

preferable for all opportunities for passing

to be complete before coming to the pedestrian

crossing. The current design accomplishes

this. Extending the four-lane section farther

south would result in these drivers continuing

their passing movements through the

intersection thereby increasing the likelihood

of vehicles running a red light which, of

course, is when pedestrians are told to cross.

In addition, with the increased length of the

crossing to traverse the four lanes,

pedestrians would be in the roadway itself

twice as long. We believe that placing the

transition to the south where there is no

signal indicating to drivers that they may

have to stop ahead, will tend to increase

vehicle speeds in order to make passing

movements, thus endangering the elementary

school students.

With due consideration of the parents'

concerns and recommendation, the Department

must pursue what it firmly believes provides

the most pedestrian safety. Completing all

passing opportunities prior to the approach

to the intersection, as currently designed,

is the safest alternative.

23. The focus of the instant case is on that portion of the project

between Station 308 (at or near the intersection of U.S. 1 and Royal Poinciana

Boulevard) and Station 315 (at or near the intersection of U.S. 1 and Palm

Avenue).

24. This segment of U.S. 1 (hereinafter referred to as the "subject

roadway segment") has a design speed of 45 miles an hour. As a result of the

project, it now has four lanes instead of two. Its two southbound lanes are

separated from its two northbound lanes by a raised concrete, restrictive

median, which is six feet in width at its southern end just north of Royal

Poinciana Boulevard. 2/ The project also added curbs along the right side of

the outer lanes which separate the subject roadway segment from the abutting

property. There are, however, on the western side of the subject roadway

segment, four driveways (curb cuts) that provide access to and from the

southbound lanes. 3/ Two of these driveways lead to the Payfair parking lot.

Another driveway is located between Payfair and the restaurant next door. The

remaining driveway services the insurance agency's parking lot to the south of

the restaurant. 4/

25. Accordingly, while the installation of the raised concrete median and

curbing has restricted access to and from U.S. 1 in this area, it has not

eliminated such access entirely.

26. Southbound motorists on U.S. 1 still have direct access to the Payfair

parking lot from U.S. 1; however, they must use one of the driveways that have

been installed as part of the project.

27. Similarly, motorists departing the Payfair parking lot can still turn

right onto to U.S. 1 and go south; however, they can do so only from one of the

aforementioned driveways.

28. Because of the restrictive median that divides the subject roadway

segment, northbound motorists on U.S. 1 can no longer turn left and directly

access the Payfair parking lot from U.S. 1, nor can motorists leaving the

Payfair lot any longer turn left onto U.S. 1 and head north.

29. Reasonable, although somewhat more inconvenient, alternatives remain

for these motorists, however.

30. The Department has constructed left turn lanes on U.S. 1 so that

northbound traffic can turn left (west) onto either Royal Poinciana Boulevard

5/ or Palm Avenue. Since both Royal Poinciana Boulevard and Palm Avenue connect

U.S. 1 with Gardenia Street, vehicles travelling north on U.S. 1 can enter the

Payfair parking lot through the rear entrance on Gardenia Street by turning left

onto either Royal Poinciana Boulevard or Palm Avenue, travelling one block west,

and then turning onto Gardenia Street. Alternatively, some northbound vehicles

on U.S. 1 will be able to make a U-turn at Palm Avenue and then travel

southbound on U.S. 1 to one of the store's front driveways. 6/

31. Motorists leaving Payfair and desiring to travel north on U.S. 1 can

exit the parking lot via the store's rear driveway, get to U.S. 1 by taking

Gardenia Street to either Royal Poinciana Boulevard or Palm Avenue, 7/ and then

turning left onto U.S. 1. 8/ They can also exit the parking lot via the front

driveways, turn right onto U.S. 1, travel southbound to Fontaine Drive, turn

eastbound onto Fontaine Drive, 9/ travel a very short distance on Fontaine

Drive before turning northbound onto S-905, travel northbound on S-905 to

Sunshine Boulevard, make a left onto Sunshine Boulevard, and then, at the

intersection of Sunshine Boulevard and U.S. 1, turn northbound onto U.S. 1.

Another option they have available is to drive southbound on the paved driveway

that runs parallel to U.S. 1 in front of the businesses on the block, exit via

the driveway that connects the insurance agency's parking lot with Royal

Poinciana Boulevard, make a left onto Royal Poinciana Boulevard, and then turn

northbound onto U.S. 1.

32. From a traffic engineering and safety perspective, it was prudent to

install a restrictive median on the subject roadway segment, notwithstanding

that its existence may result in some inconvenience to the travelling public.

33. The subject roadway segment is south of where southbound motorists are

first warned that the two southbound lanes of U.S. 1 will merge into one

southbound lane (hereinafter referred to as the "warning point"). Therefore,

although the subject roadway segment is before the actual merger and it has two

southbound lanes like that portion of the roadway to its north, 10/ it is in a

transition area where motorists can be expected to begin jockeying for position

in anticipation of the elimination of one of the two lanes of traffic.

34. It is more appropriate to have a restrictive median than a painted or

non-restrictive median on a segment of a through highway which has a design

speed of 45 miles per hour and serves as a transition area as does the subject

roadway segment.

35. A restrictive median on such a roadway segment helps to channelize

traffic that will soon have to merge. More importantly, it minimizes the

conflicts and dangers that motorists in the transition area must face as they

jockey for position in anticipation of the merger.

36. The fewer the openings a restrictive median has the more effective it

will be in accomplishing these objectives.

37. Prior to the installation of the restrictive median on the subject

roadway segment, Petitioner requested that the Department provide an opening in

the median across from Payfair.

38. The Department's District 6 Director of Operations, Stan Cann,

addressed this request as follows in his aforementioned letter to the Monroe

County Superintendent of Schools:

We have investigated the request of a median

opening between [Royal] Poinciana Boulevard

and Palm Avenue and are unable to grant this

for two reasons. First, the median width is

inadequate to safely provide for the left

turn storage lane. Secondly, the minimum

distance between median openings is 660 feet

unless they serve publicly dedicated roadways.

The distance between Poinciana and Palm is

approximately 700 feet or just over the

minimum. An intermediate opening would

certainly introduce operational problems to

USuck traffic serving the commercial

establishments on the bay side of US-1 will

continue to use Poinciana or Palm to re-enter

US-1 as they do today. We will recommend to

Monroe County that they post No Trucks signs

on those residential streets behind this area,

particularly south of Poinciana.

39. The District 6 Secretary, Charles W. Baldwin, Jr., by letter dated

September 11, 1991, formally advised Petitioner of the Department's intention to

deny its request for a median opening. In his letter, Baldwin stated the

following regarding the matter:

The second issue you raised concerns a median

cut on US-1 so as to provide access for

Northbound traffic to your client's property.

The Department must deny this request because

of safety factors which include but are not

limited to 1) the physical infeasibility of

constructing a median opening because of the

width of the median and 2) the placement of a

median opening would violate the Department's

minimum design criteria.

40. The Department proceeded to install a restrictive median, in

accordance with the project plans, without the "intermediate opening" sought by

Petitioner, or any other "intermediate opening," between the openings at Royal

Poinciana Boulevard and at Palm Avenue. The work was completed in December,

1992.

41. The distance from the centerline of the median opening at Royal

Poinciana Boulevard to the centerline of the median opening at Palm Avenue

(approximately 700 or 800 feet) is such that it is not possible to have an

"intermediate opening" with a centerline that is 660 or more feet from the

centerlines of both the Royal Poinciana Boulevard and Palm Avenue openings.

42. Furthermore, as Cann also noted in his letter, any such "intermediate

opening would certainly introduce operational problems to US-1."

43. While the Department's decision to install a restrictive median

without any "intermediate openings" may have certain undesirable consequences,

such as increasing the vehicular traffic on Gardenia Street, on balance, having

such a restrictive median is safer than having one with an "intermediate

opening" or having a non-restrictive median like the one proposed by

Petitioner's expert witness, Ralph Aronberg.

44. The Department has provided median openings on other portions of U.S.

1, north of the subject roadway segment, which service intersecting public

roadways, notwithstanding that the centerlines of these openings are less than

660 feet from the centerlines of other openings.

45. Other median openings provided by the Department on U.S. 1 include one

that services an office building, the Turek Building, which is a block and a

half north of Payfair, and another that services a shopping center in Tavernier.

CONCLUSIONS OF LAW

46. As the parties have stipulated, "[t]his proceeding is governed by the

provisions of Sections 335.18, et seq, and Chapter 14-97, Florida Administrative

Code."

47. Sections 335.18 through 335.188, Florida Statutes, constitute the

"State Highway System Access Management Act" (hereinafter referred to as the

"Act").

48. The Act defines the scope of the Department's authority to regulate

access to the State Highway System and prescribes the manner in which that

authority shall be exercised.

49. Section 335.181(2), Florida Statutes, addresses the extent to which

the Department may exercise its regulatory authority where access to a roadway

on the State Highway System is sought by an abutting property owner such as

Petitioner. It provides as follows:

It is the policy of the Legislature that:

(a) Every owner of property which abuts a

road on the State Highway System has a right

to reasonable access to the abutting state

highway but does not have the right of

unregulated access to such highway. The

operational capabilities of an access

connection 11/ may be restricted by the

department. However, a means of reasonable

access to an abutting state highway may not

be denied by the department, except on the

basis of safety or operational concerns as

provided in s. 335.184.

(b) The access rights of an owner of property

abutting the State Highway System are subject

to reasonable regulation to ensure the

public's right and interest in a safe and

efficient highway system. This paragraph does

not authorize the department to deny a means

of reasonable access to an abutting state

highway, except on the basis of safety or

operational concerns as provided in s.

335.184. Property owners are encouraged to

implement the use of joint access where

legally available.

50. Section 335.1825, Florida Statutes, provides that a property owner

seeking a connection to or from a State roadway abutting his property must

obtain an access permit from the Department before such a connection is

constructed. 12/

51. In reviewing any access permit application submitted by an abutting

property owner, the Department must act in accordance with the following

legislative directives set forth in Section 335.184(3), Florida Statutes:

A property owner shall be granted a permit

for an access connection to the abutting state

highway, unless the permitting of such access

would jeopardize the safety of the public or

have a negative impact on the operational

characteristics of the highway. Such access

connection and permitted turning movements

shall be based upon standards and criteria

adopted, by rule, by the department.

52. Accordingly, in those cases where the denial of the property owners'

access permit application would deprive the property owner of his "right to

reasonable access to the abutting state highway," the Department may deny the

application only if it is able to establish that the requested connection "would

jeopardize the safety of the public or have a negative impact on the operational

characteristics of the highway;" however, where the applicant already has

"reasonable access to the abutting state highway" and he is merely seeking

additional access to the highway, he bears the burden of proving his entitlement

to the permit by demonstrating by a preponderance of the evidence that the

requested connection and permitted turning movements meet the "standards and

criteria adopted, by rule, by the department." See Pershing Industries, Inc.,

v. Department of Banking and Finance, 591 So.2d 991, 994 (Fla. 1st DCA 1991);

Cohen v. Department of Business Regulation, 584 So.2d 1083, 1086 (Fla. 1st DCA

1991); Young v. Department of Community Affairs, 567 So.2d 2, 3 (Fla. 3d DCA

1990); Florida Department of Transportation v. J.W.C., 396 So.2d 778 (Fla. 1st

DCA 1981).

53. The "standards and criteria adopted, by rule, by the department" are

found in Chapter 14-97, Florida Administrative Code.

54. The "interim standards" set forth in Rule 14-97.004, Florida

Administrative, are applicable in the instant case because the subject roadway

segment has not yet been formally classified by the Department.

55. These "interim standards" provide in pertinent part that, where the

posted or design speed limit of the roadway segment in question is 45 miles per

hour, the "minimum median opening spacing" is 0.25 miles for a "full median

opening" and 660 feet for a "directional median opening."

56. "Minimum median opening spacing," as that term is used in the "interim

standards," is defined in Rule 14-97.002(20), Florida Administrative Code, as

follows:

[T]he minimum allowable distance between

openings in a restrictive median 13/ to allow

for crossing the opposing traffic lanes to

access property or for crossing the median to

travel in the opposite direction (U-turn).

The minimum spacing or distance is measured

from centerline to centerline of the openings

along the traveled way.

57. A "full median opening," as that term is used in the "interim

standards," is defined in Rule 14-97.002(15), Florida Administrative Code, as

follows:

[A]n opening in a restrictive median designed

to allow all turning movements to take place

from both the state highway and the adjacent

connection.

58. A "directional median opening," as that term is used in the "interim

standards," is defined in Rule 14-97.002(11), Florida Administrative Code, as

follows:

[A]n opening in a restrictive median which

provides for U-turn only, and/or left-turn

in movements. Directional median openings for

two opposing left or "U-turn" movements along

one segment of road are considered one

directional median opening. 14/

59. In the instant case, the Department has already provided Petitioner

with "reasonable access" to U.S. 1 by permitting the driveways that connect

Petitioner's property with the southbound lanes of the highway. See Division of

Administration, State Department of Transportation v. Capital Plaza, Inc., 397

So.2d 682, 683 (Fla. 1981)(construction of "a raised four-foot-wide median" on

roadway preventing northbound drivers from "turn[ing] across traffic directly

into Capital's service station" did not constitute a "deprivation of access"

inasmuch as there was "still free, unimpeded access to Capital's service station

albeit only by southbound traffic"); Division of Administration, State

Department of Transportation v. Palm Beach West, Inc., 409 So.2d 1130, 1131

(Fla. 4th DCA 1982)(construction of a "median strip" did not amount to denial of

access). The median opening Petitioner seeks therefore will merely provide it

with additional access to the highway. Accordingly, the Department may grant a

permit authorizing such a median opening only if the record establishes that

Petitioner has shown by a preponderance of the evidence that the opening meets

the applicable standards and criteria set forth in Chapter 14-97, Florida

Administrative Code. See Section 335.184(3), Fla. Stat.("Such access connection

and permitted turning movements shall be based upon standards and criteria

adopted, by rule, by the Department"); Gadsen State Bank v. Lewis, 348 So.2d

343, 345 n.2 (Fla. 1st DCA 1977)("[A]gencies must honor their own substantive

rules until . . . they are amended or abrogated").

60. An examination of the record reveals that Petitioner has not made such

a showing. It has failed to demonstrate that the median opening it has

requested meets the applicable spacing requirements of the "interim standards."

Indeed, the preponderance of the evidence affirmatively establishes that the

opening does not meet these requirements. Accordingly, the opening requested by

Petitioner should not be provided.

61. Petitioner, alternatively, has suggested that the Department should

remove entirely the restrictive median that now divides the subject roadway

segment. It contends that a restrictive median "was not required nor desirable

at this location," and it should be replaced by a non-restrictive median which

would provide Petitioner with direct access to and from the northbound lanes of

U.S. 1. 15/

62. The greater weight of the evidence, however, establishes that, for the

reasons cited in Finding of Fact 35 of this Recommended Order, it is desirable,

from an operational and safety perspective, to have a restrictive median on the

subject roadway segment given its location in a transition area of the highway

where the design speed is 45 miles per hour. 16/

63. Even assuming arguendo that the presence of a restrictive median on

the subject roadway segment results in an increased number of turning movements

at other locations on U.S. 1 that are of "sub-standard design," as Petitioner

claims, this is not a reason for the Department to replace the restrictive

median with a non-restrictive median. If these alleged design flaws exist, the

Department should correct them, not introduce an additional hazardous condition

by removing the restrictive median and thereby allowing motorists to make the

dangerous turning movements onto and from the northbound lanes of the highway

that the median now prevents them from making.

64. Furthermore, while the installation of the restrictive median has the

adverse consequence of generating additional traffic volume in the residential

area behind Payfair, 17/ it nonetheless, on balance, promotes and protects,

rather than endangers, the public health, safety and welfare.

65. Although Petitioner has alleged that it has been a victim of disparate

treatment in its dealings with the Department, it has failed to show that it has

been treated any differently by the Department than has any other property owner

or business along the subject roadway segment or at any other comparable

location.

66. In view of the foregoing, the restrictive median should remain as it

presently exists on the subject roadway segment.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Transportation enter a final order

denying Petitioner's request that the Department either provide Petitioner an

opening in the restrictive median on the subject roadway segment across from

Payfair or, alternatively, replace the restrictive median with a non-restrictive

median which would provide Petitioner with direct access to and from the

northbound lanes of U.S. 1.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of May,

1993.

___________________________________

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of May, 1993.

ENDNOTES

1/ There is a distance of 100 feet between each "station" on U.S. 1.

2/ While the median is less than 19 and a half feet in width at this point, it

is wide enough to adequately serve its function as a traffic separator.

3/ There are no curb cuts on the eastern side of the subject roadway segment

inasmuch as the abutting property on this side is undeveloped and likely will

remain so.

4/ Motorists may also enter and exit the insurance agency's parking lot via

Royal Poinciana Boulevard.

5/ The left turn lane onto Royal Poinciana Boulevard has a 100 foot taper and

40 or 50 feet of storage.

6/ Although there is no sign prohibiting a U-turn at this intersection, some

motorists with larger vehicles may have difficulty safely making this maneuver.

7/ More likely than not, these motorists wanting to head north from Payfair

will get on U.S. 1 at Palm Avenue rather than at Royal Poinciana Boulevard

inasmuch as Palm Avenue is north of the store whereas Royal Poinciana Boulevard

is to the store's south.

8/ When turning northbound onto U.S. 1 from Royal Poinciana Boulevard,

motorists must be especially careful because the width of the median just north

of this location may not allow them to pull into the intersection and safely

wait there for the northbound lanes to clear before turning.

9/ The centerlines of Fontaine Drive and Royal Poinciana Boulevard, measured

from where they each intersect U.S. 1, are less than 660 feet apart. The median

on U.S. 1 between these two roadways is a non-restrictive one.

10/ While the subject roadway segment has the same number of southbound lanes

as that portion of U.S. 1 to north of the warning point, its lanes are slightly

narrower.

11/ A "connection," as that term is used in the Act, "means driveways, streets,

turnouts, or other means of providing for the right of reasonable access to or

from the State Highway System."

12/ With certain exceptions, it is the property owner who must bear the costs

involved in constructing the connection.

13/ A "restrictive median," as that term is used in Rule 14-97.002(20), Florida

Administrative Code, is "the portion of a divided highway or divided driveway

physically separating vehicular traffic traveling in opposite directions." The

term includes "physical barriers that prohibit movement of traffic across the

median such as a concrete barrier, a raised concrete curb and/or island, and a

grassed or swaled median." Rule 14-97.002(26), Fla. Admin. Code. A "non-

restrictive median," on the other hand, is "a median or painted centerline which

does not provide a physical barrier between center traffic turning lanes or

traffic lanes traveling in opposite directions." Rule 14-97.002(23), Fla.

Admin. Code.

14/ It is apparent from a reading of the language of Rule 14-97.002(11),

Florida Administrative Code, that an opening need not allow for opposing left

turn movements in order to be a "directional median opening" subject to the

spacing requirements of the "interim standards."

15/ The "minimum median opening spacing" requirements of Rule 14-97.004,

Florida Administrative Code, apply only to "full median openings" and

"directional median openings," which are defined in Rule 14-97.002, Florida

Administrative Code, as "opening[s] in a restrictive median."

16/ Including the subject roadway segment in the transition area has not been

shown to have been anything other than the sound exercise of the Department's

discretion to plan and design State roadways. See Department of Transportation

v. Lopez-Torres, 526 So.2d 674, 676 (Fla. 1988)(Department has "plenary power to

plan and construct state roads and bridges;" the Department's power, however,

"is not absolute and is limited to the lawful exercise of its discretion").

17/ There are measures that can be taken to minimize the negative impact of

this additional traffic volume. These measures include the construction of

sidewalks, the addition of street lights, the use of school crossing guards, and

the strict enforcement of traffic regulations during times of peak pedestrian

activity in the area combined with the posting of appropriate warning signs and

the visible presence of law enforcement personnel.

APPENDIX TO RECOMMENDED ORDER

IN CASE NO. 92-4202

The following are the Hearing Officer's specific rulings on the "findings

of fact" set forth in the parties' proposed recommended orders:

Petitioner's Proposed Findings of Fact

1. First sentence: Accepted and incorporated in substance, although not

necessarily repeated verbatim, in this Recommended Order; Second sentence:

Rejected because it is contrary to the parties' stipulation that Petitioner has

operated the store at this particular location "for 31 years."

2-4. Accepted and incorporated in substance.

5. Rejected because it constitutes a summary of evidence rather than a

finding of fact.

6. Accepted and incorporated in substance.

7. Rejected because it would add only unnecessary detail to the factual

findings made by the Hearing Officer.

8. Accepted and incorporated in substance.

9. First sentence: Accepted and incorporated in substance; Second and

third sentences: Rejected because, even if the alternative routes in question

are not "readily observable," the outcome of the instant case would be the same.

10-12. Rejected because they constitute summaries of testimony rather than

findings of fact.

13. First and second sentences: Rejected because they are not supported

by persuasive competent substantial evidence; Third sentence: Accepted and

incorporated in substance; Fourth and fifth sentences: To the extent that

these proposed findings assert that "the intersection of U.S. 1 and Royal

Poinciana is substandard" because the intersection's left turn lane does not

meet taper and storage capacity requirements, they have been rejected because,

even if true, the outcome of the instant case would be the same. To the extent

that these proposed findings state that the intersection of U.S. 1 and Royal

Poinciana Boulevard is "[t]he intersection that is nearest [to Payfair] to the

south" and that the left turn lane at the intersection has "a 100 feet taper"

and "40 feet of storage," they have been accepted and incorporated in substance;

Sixth sentence: Rejected because it constitutes unpersuasive argument; Seventh

sentence: To the extent that this proposed finding asserts that the restrictive

median is "too narrow," it has been rejected because it is not supported by the

greater weight of the evidence. To the extent that it states that the

restrictive median deprives Petitioner of direct access to and from the

northbound lanes of U.S. 1, it has been accepted and incorporated in substance.

14. First sentence: Accepted and incorporated in substance; Second

sentence: To the extent that this proposed finding asserts that the width of

the restrictive median "is below minimum criteria," it has been rejected because

it is not supported by the greater weight of the evidence. To the extent that

this proposed finding states that the median, at its southern terminus, "is much

narrower than 19-1/2 feet," it has been accepted and incorporated in substance.

15. Rejected because it is not supported by the greater weight of the

evidence.

16. Accepted and incorporated in substance.

17. First sentence: Rejected because it constitutes unpersuasive legal

argument; Second sentence: Accepted and incorporated in substance.

18. First and second sentences: To the extent that these proposed

findings assert that northbound motorists on U.S. 1 are "forced" to make a left

turn at Royal Poinciana Boulevard in order to get to the Payfair parking lot, it

has been rejected because the greater weight of the evidence establishes that

there are other options available. To the extent that these proposed findings

state that the left turn lane is "undesirable" and its use "should be

discouraged instead of encouraged," they have been rejected because, even if

true, the outcome of the instant case would be the same. To the extent that

these proposed findings state that the left turn lane has "storage of only 40

feet and a taper of only 100 feet," they have been accepted and incorporated in

substance; Third sentence: To the extent that this proposed finding asserts

that the restrictive median is of "sub-standard width," it has been rejected

because it is not supported by the greater weight of the evidence. Otherwise,

it has been accepted and incorporated in substance.

19. To the extent that this proposed finding suggests that the "mixing of

vehicle traffic with children [in the residential area behind Payfair]. . . can

[reasonably] be prevented," it has been rejected because it is not supported by

the greater weight of the evidence. Otherwise, it has been accepted and

incorporated in substance.

20. Rejected because it is not supported by persuasive competent

substantial evidence.

21. First sentence: Rejected because it constitutes legal argument rather

than a finding of fact; Second and third sentences: To the extent that these

proposed findings assert that the restrictive median plays no role whatsoever in

the merger of traffic, they have been rejected because they are not supported by

the greater weight of the evidence. Otherwise, they have been accepted and

incorporated in substance.

22. Rejected because it is more in the nature of argument regarding the

sufficiency of the Department's evidentiary presentation than a finding of fact.

23. First sentence: Rejected because it constitutes a summary of

testimony rather than a finding of fact; Second sentence: Rejected because,

even if true, the outcome of the instant case would be the same.

24. First sentence: Rejected because it is not supported by the greater

weight of the evidence; Second sentence: To the extent that this proposed

finding asserts that the referenced streets were not designed to accommodate

any commercial traffic, it has been rejected because it is not supported by

persuasive competent substantial evidence. Otherwise, it has been accepted and

incorporated in substance.

25. Before comma: Accepted and incorporated in substance; After comma:

Rejected because it constitutes legal argument rather than a finding of fact.

26. Rejected because it constitutes a summary of evidence rather than a

finding of fact.

27. Third sentence: Rejected because it constitutes a summary of

testimony rather than a finding of fact; Remaining sentences: Rejected because

they would add only unnecessary detail to the factual findings made by the

Hearing Officer.

28. First and second sentences: Rejected because they are not supported

by the greater weight of the evidence; Third sentence: To the extent that this

proposed finding asserts that one of "[t]he reason[s] given for denial of the

left turn into Petitioner's property by [the Department] was the . . .

application of the minimum spacing requirement of 660 feet," it has been

accepted and incorporated in substance. To the extent that it states that the

Department's application of this "requirement" was "improper," it has been

rejected because it constitutes unpersuasive legal argument.

29. Rejected because it constitutes unpersuasive legal argument.

30. First and second sentences: Rejected because they constitute

summaries of testimony rather than findings of fact; Third sentence: To the

extent that this proposed finding suggests that safety and operational

considerations played no role in the Department's decision to install a

restrictive median on the subject roadway segment, it has been rejected because

it is not supported by the greater weight of the evidence.

31. Second sentence: Rejected because it would add only unnecessary

detail to the factual findings made by the Hearing Officer; Remaining

sentences: Rejected because they constitute summaries of testimony rather than

findings of fact.

32. First and second sentences: Rejected because they constitute

summaries of testimony rather than findings of fact; Third sentence: Rejected

because, even if true, the outcome of the instant case would be the same.

33. First sentence: Accepted and incorporated in substance; Second

sentence: Rejected because it is not supported by persuasive competent

substantial evidence.

34-37. Rejected because they constitute summaries of testimony rather than

findings of fact.

38. Accepted and incorporated in substance.

The Department's Proposed Findings of Fact

1-3. Accepted and incorporated in substance.

4. First sentence: Rejected because it is a statement of the ultimate

legal issue in the instant case rather than a finding fact; Remaining

sentences: Rejected because they are statements of the parties' respective

positions rather than findings of fact.

5. Rejected because it constitutes a summary of evidence rather than a

finding of fact.

6. Accepted and incorporated in substance.

7. Rejected because it is a statement of the factual issues in the instant

case rather than a finding of fact.

8. First, second, third, fourth and sixth sentences: Rejected because

they constitute argument regarding the sufficiency of proof submitted at hearing

rather than a finding of fact; Fifth sentence: Accepted and incorporated in

substance.

9. Rejected because it constitutes legal argument rather than a finding of

fact.

10. First and second sentences: Rejected because they constitute legal

argument rather than findings of fact; Remaining sentences: Rejected because

they constitute argument regarding the sufficiency of proof submitted at hearing

rather than findings of fact.

11-12. Accepted and incorporated in substance.

13. First sentence: Rejected because it constitutes argument regarding

what matters are at issue in the instant case rather than a finding of fact;

Second and third sentences: Rejected because they constitute summaries of

testimony rather than findings of fact.

14. Accepted and incorporated in substance.

15. Rejected because it constitutes a summary of testimony rather than a

finding of fact.

16. Rejected because it would add only unnecessary detail to the factual

findings made by the Hearing Officer.

17. First and second sentences: Rejected because they constitute

summaries of testimony rather than findings of fact; Third sentence: Accepted

and incorporated in substance.

18. Fourth sentence: Rejected because it would add only unnecessary

detail to the factual findings made by the Hearing Officer; Remaining

sentences: Accepted and incorporated in substance.

19-21. Accepted and incorporated in substance.

22. Rejected because it constitutes argument regarding the sufficiency of

proof submitted at hearing rather than a finding of fact.

23. First, second and fourth sentences: Rejected because they constitute

summaries of testimony rather than findings of fact; Third sentence: Accepted

and incorporated in substance; Fifth sentence: Rejected because it would add

only unnecessary detail to the factual findings made by the Hearing Officer.

24. First sentence: Rejected because it constitutes a summary of

testimony rather than a finding of fact; Remaining sentences: Accepted and

incorporated in substance.

25. First sentence: Rejected because it constitutes legal argument rather

than a finding of fact; Second sentence: Rejected because it constitutes

argument regarding the state of the evidentiary record rather than a finding of

fact; Third and fourth sentences: Rejected because it would add only

unnecessary detail to the factual findings made by the Hearing Officer;

Remaining sentences: Rejected because they constitute summaries of testimony

rather than findings of fact.

26. First sentence: Rejected because it constitutes legal argument rather

than a finding of fact; Second sentence: Rejected because it constitutes a

summary of testimony rather than a finding of fact; Third sentence, before

"and:" Rejected because it constitutes legal argument rather than a finding of

fact; Third sentence, after "and:" Rejected because it constitutes a summary

of testimony rather than a finding of fact.

27. First and second sentences: Rejected because it constitutes argument

regarding the nature and relevancy of testimony rather than a finding of fact;

Third and fourth sentences: Rejected because they constitute summaries of

testimony rather than findings of fact; Fifth sentence: Accepted and

incorporated in substance; Sixth sentence: Rejected because it is a summary of

evidence submitted at hearing rather than a finding of fact; Seventh sentence:

Rejected because it constitutes argument regarding the sufficiency of proof

submitted at hearing rather than a finding of fact.

COPIES FURNISHED:

Gus H. Crowell, Esquire

Gus H. Crowell, P.A.

Post Office Box 777

Tavernier, Florida 33070

Paul Sexton, Esquire

Assistant General Counsel

Department of Transportation

Haydon Burns Building, M.S. 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Ben G. Watts, Secretary

Department of Transportation

ATTN: Eleanor F. Turner

Haydon Burns Building, M.S. 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams, Esquire

General Counsel

Department of Transportation

562 Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended

order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period of time within which to

submit written exceptions. You should contact the agency that will issue the

final order in this case concerning agency rules on the deadline for filing

exceptions to this recommended order. Any exceptions to this recommended order

should be filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF TRANSPORATION

HACK CORPORATION, d/b/a/

FLORIDA KEYS PAYFAIR SUPERMARKET,

Petitioner,

vs. DOAH CASE NO. 92-4202

DOT CASE NO. 92O225

DEPARTMENT OF TRANSPORTATION,

Respondent.

___________________________________/

FINAL ORDER

On July 8, 1992, Petitioner, HACK CORPORATION, d/b/a/ FLORIDA KEYS PAYFAIR

SUPERMARKET (hereinafter HACK CORPORATION), filed a Petition for Formal

Administrative Hearing with the DEPARTMENT OF TRANSPORTATION (hereinafter

DEPARTMENT) seeking review of the DEPARTMENT's intent to deny HACK CORPORATION's

application for a median cut on U.S. Highway 1 to provide access for Northbound

traffic to its property on U.S. Highway 1 in Plantation Key, Florida. The

matter was referred to the Division of Administrative Hearings (hereinafter

DOAH) for formal administrative proceedings.

A formal hearing was held in the matter on February 17, 1993, in Key Largo,

Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the

Division of Administrative Hearings. The Final Order rules on the exceptions

and adopts the Hearing Officer's recommendation, attached hereto and

incorporated herein.

EXCEPTIONS

Petitioner filed exceptions to the Hearing Officer's Recommended Order.

Those exceptions are addressed below:

1.- 4. These exceptions are in the nature of legal argument and do not go

to specific factual findings made by the hearing officer and are therefore

rejected. The Department's view of the law applicable to this case is contained

in the Conclusions of law below.

5. The definition of reasonable access is controlled by section 335.181,

et seq and the Department's construction of that term through its rule

promulgation activities. Petitioner's expert's characterization of access

cannot be construed as affecting such definition outside of the context of a

Chapter 120 rule challenge. The reasonableness of the Department's regulations

as to access may only be challenged in the context of a 120.56 rule challenge.

Hack also misapprehends the law of access as articulated in both the cases

cited by the hearing officer and the access management statute. The act

specifically notes that the Access Management Act does not create any additional

property rights which do not exist absent the act. Section 335.181(6), Florida

Statutes. This exception is rejected as legal argument. The Department's view

of the law applicable to this case is contained in the Conclusions of law below.

6. Rejected for the same reasons as set out in 5 above. Where rule

criteria clearly demonstrates that Hack is not eligible for the type access

sought, Hack bears the burden of demonstrating compliance with the rule

criteria.

7. Rejected. See 6 above.

8. Rejected as argument.

9.-11. The hearing officer did in fact note that the record must establish

Hack's compliance with the rule criteria in order for the Department to grant a

permit allowing turning movements through a median opening. By also noting that

the site does not meet the spacing requirements found in the interim standards

contained in Rule 14-97, the hearing officer's finding demonstrates compellingly

that Hack is not entitled to such permit. There is no Chapter 120 right of

review by a property owner seeking a particular form of access to

administratively challenge the Department's road design decision. Advance

Leasing and Development. Inc. v. Department of Transportation, DOT Case No. 92-

0261, DOAH Case No. 92-1644 (September 29, 1992), affirmed. Advance Leasing and

Development, Inc. v. Department of Transportation, Case No. 924)3835 (Fla.2d

DCA, 1993). These exceptions are rejected in that Hack has no standing to seek

review of the Department's design decision.

12. Rejected. The hearing officer's finding that use of a restrictive

median on the disputed roadway segment is desirable is supported by competent

substantial evidence. Further, Hack has no standing to challenge the

Department's roadway design decisions. Advance Leasing Company.

13.- 14. Rejected. Hack's citation in its Proposed Recommended Order

regarding the safety of the median width was to page 82 of the transcript.

There is no discussion of that issue on page 82, hence the hearing officer's

rejection of Hack's proposed finding was correct on its face. Hack's citation

to page 84 in its exception does not address anything other than roadway design

and Department specifications. While Department specifications may be

challenged by a bidder on a state project on a project by project basis, the

Department's design standards and specifications are not reviewable in this type

of proceeding. Therefore this exception is rejected. Advance Leasing Company

Blackhawk Quarry Company v. Department of Transportation. 528 So.2d 447 (Fla.

5th DCA 1988).

15. Rejected. The Standard Index contains Department design guidelines

which are not subject to Chapter 120 review. See 14 above. Hack's failure to

demonstrate its entitlement to a certain type of turning movement at its

connection point to the State Highway System involves a failure to comply with

the access rule standards for the particular roadway design.

16. Rejected. Hack cites to page 124 of the Transcript for support for

the suggestion that no standards or criteria adjust for driver behavior in vying

for position at the end of a taper. The record is silent at page 124 of the

transcript on this matter. The witness testified he based his opinion on his

personal experience and not on AASHTO standards as he was not sure whether there

were AASHTO standards regarding vehicle movement prior to median tapers.

17. Rejected. The only testimony on the pages cited by Hack concerning

the existence of standards, criteria or studies was that the witness was not

familiar with or aware of such studies. That does not result in the conclusion

that none exists or that the Hearing Officer's order was not well founded.

18. Rejected. The Hearing Officer's conclusion was based on competent

substantial evidence. The purported lack of national standards on which to base

such a conclusion should not obviate the Hearing Officer's finding. The

Department did in fact offer expert witness testimony to support its decisions

regarding the median on the disputed highway section. (Tr. p. 149 through p.

151, line 7).

19. Rejected. The Hearing Officer's finding is supported by competent

substantial evidence.

20. Rejected. The Hearing Officer's finding was some larger vehicles

could not make the u-turn. Hack's expert testified that some compact cars could

make the u-turn. (Tr. p.53).

21. Rejected. The Hearing Officer's finding is supported by competent

substantial evidence. (Tr. p.151, line 8-9).

22. Rejected. There is no basis for overturning the Hearing Officer's

language in describing the roadway around or near the Payfair as a "transition

area."

23. Rejected. The Hearing Officer's finding is supported by competent

substantial evidence.

24. Rejected. A paved median is not appropriate here. The Department's

witness testified that the disputed road's main purpose was to provide through

access for the entire Keys and a secondary purpose was local access. p.162,

line 1-3).

25. Rejected. The appropriateness of the Department's action is clearly

supported by the Access Management Act and the administrative rules promulgated

pursuant thereto.

FINDINGS OF FACT

The Hearing Officer's findings of fact are deemed to be correct alter a

review of the record in its entirety.

CONCLUSIONS OF LAW

Based on the foregoing Findings of Fact and a review of the record in its

entirety, the Hearing Officer's conclusions of law are adopted and incorporated

herein.

The Hearing Officer's recommended order having been adopted in its

entirety, it is hereby determined that HACK CORPORATION's request for a median

opening for the Payfair Supermarket is hereby DENIED.

DONE AND ORDERED this 27th day of July, 1993.

____________________________________

BEN G. WATTS, P.E.

Secretary

Florida Department of Transportation

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

NOTICE OF RIGHT TO APPEAL

THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY

PETITIONER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULE 9.110, FLORIDA

RULES OF APPELLATE PROCEDURE, BY FILING A NOTICE OF APPEAL CONFORMING TO THE

REQUIRED OF RULE 9.110(D), FLORIDA RULES OF APPELLATE PROCEDURE, BOTH WITH THE

APPROPRIATE DISTRICT COURT OF APPEAL, ACCOMPANIED BY THE APPROPRIATE FILING FEE,

AND WITH THE DEPARTMENT'S CLERK OF AGENCY PROCEEDINGS, HAYDON BURNS BUILDING,

605 SUWANNEE STREET, M.S. 58, TALLAHASSEE, FLORIDA 32399-0458, WITHIN THIRTY

(30)DAYS OF RENDON OF THIS ORDER.

COPIES FURNISHED

Stuart M. Lerner

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Gus H. Crowell, Esquire

Gus H. Crowell, P.A.

Post Office Box 777

Tavernier, Florida 33070

Paul Sexton

Assistant General Counsel

Florida Department of Transportation

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

=================================================================

DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA, THIRD DISTRICT

JANUARY TERM, A.D. 1994

HACK CORPORATION, d/b/a FLORIDA NOT FINAL UNTIL TIME EXPIRES

KEYS PAYFAIR SUPERMARKET, TO FILE REHEARING MOTION

AND, IF FILED, DISPOSED OF.

Appellant,

CASE NO. 93-1989

vs. DOAH CASE NO. 92-4202

STATE OF FLORIDA, DEPARTMENT

OF TRANSPORTATION,

Appellee.

________________________________/

Opinion filed May 10, 1994.

An appeal from the Department of Transportation. Gus H. Crowell

(Tavernier), for appellant. Thornton J. Williams and Gregory G. Costas

(Tallahassee), for appellee.

Before HUBBART and GERSTEN and GODERICH, JJ.

PER CURIAM.

Affirmed. s. 335.181(2)(a), Fla. Stat. (1991); Palm Beach County v.

Tessler, 538 So. 2d 846, 848-49 (Fla. 1989); Division of Admin., State Dep't of

Trans. v. Capital Plaza, Inc., 397 So. 2d 682, 683 (Fla. 1981); State Dep't of

Trans. v. Stubbs, 285 So. 2d 1, 4 (Fla. 1973); Smith v. Department of H.R.S.,

555 So. 2d 1254, 1255-56 (Fla. 3d DCA 1989).

M A N D A T E

DISTRICT COURT OF APPEAL OF FLORIDA

THIRD DISTRICT

HACK CORPORATION, etc.

DCA CASE NO. 93-1989

vs.

STATE OF FLORIDA, DEPARTMENT OF

TRANSPORTATION

This cause having been brought to this Court by appeal, and after due

consideration the Court having issued its opinion;

YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause in

accordance with the opinion of this Court attached hereto and incorporated as

part of this order, and with the rules of procedure and laws of the State of

Florida.

DOT NO. 92-0225

CASE NO. DOAH NO. 92-4202

WITNESS, The Honorable ALAN R. SCHWARTZ

Chief Judge of said Court at Miami, this 30th day of June, 1994.

_______________________________

Clerk District Court of Appeal of Florida

Third District