94-000790F Union Trucking, Inc. vs. Department Of Transportation Status: Closed DOAH Final Order on Tuesday, November 15, 1994.

Summary: DOT not substantially justified in relying on DGS order to deny DOT MBE status; time for pet. discussed rel. f/o after jur. reliquished by DOAH.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

UNION TRUCKING, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-0790F

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

_______________________________)

FINAL ORDER

Upon due notice, this cause came on for formal hearing on July 25, 1994, in

Tallahassee, Florida, before Ella Jane P. Davis, a duly assigned hearing officer

of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Frank M. Gafford, Esquire

34 North Marion Street

Post Office Box 1789

Lake City, Florida 32056-1789

For Respondent: Cindy S. Price, Esquire

Assistant General Counsel

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUES

(1) Whether or not Petitioner's original "Application (sic., Petition) for

Award of Attorneys Fees Pursuant to F.S. 57.111" was untimely filed and,

therefore, should be dismissed; and whether or not Respondent waived any

objection to jurisdiction; and

(2) Whether or not Petitioner is entitled to an award of attorneys fees of

$2,775.00 pursuant to Section 57.111, F.S.

PRELIMINARY STATEMENT

This cause arose upon an application for award of attorney's fees pursuant

to Section 57.111 F.S. Because the procedural history is relevant to

disposition of the jurisdictional issue, it appears within the findings of fact.

At formal hearing on July 25, 1994, Petitioner stood upon all undisputed

facts as related in the Amended Petition for Award of Attorneys Fees filed May

11, 1994. Respondent Florida Department of Transportation (FDOT) defended

exclusively upon the grounds that its original denial of recertification in the

underlying case was "substantially justified," as provided by statute. FDOT had

14 exhibits admitted in evidence and presented the oral testimony of Russell

Waldon, Toni Bernstein, Howard Jemison, and Kenneth Cannon.

A transcript was filed on August 15, 1994. A posthearing order explaining

how to prepare proposed final orders was entered and mailed on August 16, 1994.

Respondent DOT filed a proposed final order on September 9, 1994. Petitioner

has filed none. Respondent's proposed findings of fact are ruled upon in the

appendix to this recommended order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. The underlying case for which attorneys fees in the undisputed amount

of $2,775.00 are sought involved a 1992 application by Union Trucking, Inc. for

recertification by the Florida Department of Transportation (FDOT) as a

disadvantaged business enterprise (DBE). Union Trucking, Inc. had originally

been certified by FDOT in 1988, and upon successive applications for

certification, had been recertified by FDOT in 1989, 1990 and 1991.

2. Recertification was applied for on July 20, 1992 and denied on December

14, 1992. A request for formal hearing followed on January 15, 1993 and the

case proceeded before the Division of Administrative Hearings (DOAH) until FDOT

recertified Union Trucking, Inc. on October 15, 1993. On November 17, 1993,

DOAH hearing officer P. Michael Ruff entered an order relinquishing

jurisdiction, which resulted in FDOT's December 17, 1993 final order. FDOT's

final order was entered on the grounds that certification had been granted, did

not alter the recertification terms, and dismissed the request for formal

hearing.

3. On February 14, 1994, less than sixty days after entry of the FDOT

final order, Petitioner filed its original "Application for Award of Attorneys

Fees Pursuant to F.S. 57.111," hereafter "petition."

4. On March 2, 1994, FDOT filed a response, which, although no motion to

dismiss was filed, addressed assorted insufficiencies of the petition. FDOT's

response did not raise any timeliness bar. An order of dismissal with leave to

amend within fifteen days was entered by the undersigned hearing officer on

April 21, 1994. The amended petition was filed May 11, 1994, and FDOT filed its

response on May 26, 1994, still not asserting any timeliness bar.

5. At formal hearing, the parties stipulated that the only issue for

consideration was whether or not FDOT had been substantially justified in

denying the 1992 recertification. Otherwise, it was undisputed that Petitioner

is a small business party; that FDOT was not merely a nominal party; that the

employment, amount of fee, and hours worked by Petitioner's counsel were as

stated in the pleadings, and that there were no "unusual circumstances" as

contemplated within the applicable statute and rule. The undersigned hearing

officer suggested that the parties include in their post-hearing proposals

arguments directed to timeliness, vel non, of the attorney's fee and costs

petition, and thus, whether or not DOAH has jurisdiction of this case.

6. With regard to the "substantial justification" issue, it is necessary

to review the DBE process since 1991. Union Trucking, Inc.'s 1991 application

for recertification was received by FDOT on April 30, 1991. Documents submitted

to FDOT by Union Trucking, Inc. in conjunction with the 1991 application

revealed that Petitioner corporation had undergone an ownership change on April

1, 1991, approximately 29 days prior to submittal of the 1991 application, which

ownership change had transferred 49 percent of Union Trucking, Inc.'s corporate

stock from Denise Willis to Robin P. Wilson; that the new owner, Robin P.

Wilson, did not list any employment on her resume other than at Pritchett

Trucking, Inc.; that Union Trucking, Inc. had a business relationship with

Pritchett Trucking, Inc.; and that the new 49 percent owner of Union Trucking,

Inc., Robin P. Wilson, is the daughter of Marvin Pritchett, owner of Pritchett

Trucking, Inc.

7. Marvin Pritchett is a white American male. Robin Pritchett Wilson is a

white American female. Denise Willis, who previously owned the 49 percent of

Union Trucking, Inc. stock which was transferred to Robin Wilson is also a white

American female, and the stepdaughter of Marvin Pritchett. From Union Trucking,

Inc.'s inception and at all times material, 51 percent of Union Trucking, Inc.'s

stock has been owned by Warren Lee, a black American male. At all times

material, Union Trucking, Inc. has been 100 percent owned by disadvantaged

classes (female and black). At all times material, FDOT did not break down its

disadvantaged certifications as to "black" versus "female" for purposes of

categorizing DBE status, but only looked to whether or not at least 51 percent

of the stock was owned by a member(s) of a disadvantaged class. FDOT has no

rule specifically requiring that all owners work in the business, only that day

to day control be in the hands of the disadvantaged class.

8. FDOT conducted an on-site visit to Union Trucking, Inc. on July 22,

1991, at which time FDOT requested additional information as to Robin Wilson's

employment with Union Trucking, Inc. and was notified that Robin Wilson spent

approximately one to two hours per day working for Union Trucking, Inc.

9. FDOT also inquired about Union Trucking Inc.'s business relationship

with Pritchett Trucking, Inc. and received the explanation that the relationship

was "like any lease owner with the company they lease with." DBE personnel at

FDOT did not understand what this response meant, but they did not inquire

further in 1991. Instead, the FDOT DBE certification committee voted to

recertify Union Trucking, Inc. with a special monitor, because there were

undefined "concerns" and unidentified "feelings" about the eligibility of Union

Trucking, Inc. At formal hearing, FDOT personnel were very clear that

recertification in 1991 with a "special monitor" meant that when Union Trucking,

Inc. came up for recertification in 1992, an on-site review must be conducted.

10. Prior to receiving Union Trucking, Inc.'s July 20, 1992 application

for recertification, FDOT was notified by the Department of General Services

(DGS) that DGS also had "concerns" about Union Trucking, Inc.

11. On September 10, 1992, DGS notified FDOT that DGS had denied Union

Trucking, Inc.'s application to DGS for Minority Business Enterprise (MBE)

certification, that the DGS denial had been upheld at a DOAH hearing, and that

FDOT would be provided a copy of the DOAH hearing officer's recommended order.

FDOT subsequently received a copy of that recommended order which had been

entered September 9, 1992.

12. FDOT's Minority Programs Office Manager testified that, in his

opinion, the recommended order in the DGS case (Exhibit DOT 9) "verified" the

FDOT "concerns" expressed during the 1991 FDOT recertification process, but he

defined those concerns as independent financing. The FDOT DBE certification

committee chairperson testified that the recommended order addressed concerns

expressed during the 1991 FDOT recertification process, but he defined the

concerns differently, as lack of independency from familial relationships, i.e.

control, and financial relationships of family corporations. Both men

considered FDOT's and DGS' rules to be substantially similar.

13. In fact, the September 9, 1992 recommended order to DGS involved a

different agency (DGS) than FDOT, a different statute (Section 287.0943 F.S.)

than the one authorizing FDOT's DBE program and different rules (Rules 13A-

2.005(4)(a) and (b) and 13A-4 F.A.C.) than the ones administered by FDOT. FDOT

is required to operate under Section 337.135 F.S. and administer Rules 14-78.002

and 14-78.005 F.A.C. Also, the recommended order focused on a legal conclusion

that Union Trucking, Inc. was financially dependent, or at least at the time of

its corporate "start-up" in 1986 was financially dependent, upon Pritchett

Trucking, Inc. The recommended order stated, in pertinent part, as follows:

. . . co-owner of the applicant is Pritchett's

daughter and a natural subject of his goodwill

and generosity, such a relationship is prohibited

by the statute, [referring to Section 287.0943 F.S.]

Similarly, her service as a director of Pritchett

corporation, carrying on Union's business from her

desk at Pritchett Trucking is natural, but estab-

lishes a prohibited relationship. [Bracketed

material added her for clarification].

14. Upon receipt of the DGS recommended order, FDOT did not seek further

explanatory information from the applicant, as was FDOT's standard procedure

under its normal operation. Further, FDOT did not follow its own specially

prescribed procedure for certified DBEs with "special monitor" status, in that

FDOT did not conduct a new 1992 on-site review.

15. Instead, two months later, FDOT sent its December 14, 1992 denial

letter. The FDOT employee who prepared the letter testified that the letter

denial was based on her review of all the information already in FDOT's DBE file

on Union Trucking, Inc., upon the audio tape of the old 1991 on-site review

interview, and upon corporate records of the Secretary of State. The FDOT

letter, however, closely tracked the DGS recommended order but denied

recertification by FDOT on the basis of FDOT Rules 14-78.005(7)(c)1. and 2.c.

and 14-78.005(7)(a) F.A.C. It also stated that Union Trucking, Inc. was not an

independent business entity or a small business concern and that there was an

"affiliate" relationship under FDOT rules due to "Susan [sic] Wilson." It

renamed Robin Wilson and also extrapolated a great deal of financial information

that appears to come directly from the DGS recommended order.

16. As a result of FDOT's denial of its 1992 recertification application,

Union Trucking, Inc. requested a formal hearing. During the progress of that

case before DOAH, FDOT received a copy of an affidavit by Robin Wilson in which

she stated that Union Trucking, Inc. only purchased parts and fuel from

Pritchett Trucking because Pritchett's Lake Butler terminal was the least

expensive and most convenient source. Ms. Wilson also stated that Union

Trucking, Inc. had not received any loans from her father's companies in four to

five years, and that there were no current outstanding loans.

17. In an effort to negotiate the issues and resolve matters without

formal hearing before DOAH, FDOT finally conducted an on-site review in July

1993. Documentation was provided by Union Trucking, Inc. to show that all

recent transactions with any of Marvin Pritchett's companies were properly

invoiced "arm's length" transactions and that Union Trucking, Inc. dealt with

many other companies as well; that Union Trucking, Inc.'s old debts to Marvin

Pritchett's companies had been retired with zero balances prior to Union

Trucking, Inc.'s 1992 recertification application to FDOT; and that Union

Trucking, Inc. had three trucks and trailers normally being used full-time in

its business. Random samplings by FDOT's consultant during this on-site review

confirmed the information in the possession of FDOT prior to the 1992

application for recertification, most of which had been provided and was already

in FDOT's possession as early as April 30, 1991. If FDOT had inquired

concerning any loans at the time it received the recommended order in September

1992, it would have determined that all loans to Union Trucking, Inc. from any

of Marvin Pritchett's various enterprises had been paid off prior to Union

Trucking, Inc.'s 1992 recertification application to FDOT. FDOT's consultant's

report after the 1993 on-site review determined that there currently were no

"affiliated" firms under FDOT rules. It also appears from the report that FDOT

then accepted that Robin Wilson split her time between office management for

Union Trucking, Inc., running her own company named "Robin Pritchett Trucking

Inc.," and working for her father's "[Marvin] Pritchett Trucking Inc." Having

clarified these matters, FDOT no longer had problems or concerns with such an

arrangement. Union Trucking, Inc.'s records on file for contract work with FDOT

through other contractors also reflected use of owned trucks and drivers

employed by Union Trucking, Inc. FDOT then recertified Petitioner effective

October 15, 1993.

18. At the attorney's fee and costs hearing herein, FDOT presented

evidence that it did not have the correct location address for Union Trucking,

Inc. when its personnel went to the July 1993 on-site review. This evidence

does not justify FDOT's 1992 denial. Union Trucking, Inc.'s corporate office

had moved a few weeks previous to the 1993 on-site review. Since Union

Trucking, Inc. and its lawyer had been in constant communication with FDOT

during the litigation phase of the recertification denial case, consistently

urging an on-site inspection, any failure by Union Trucking, Inc. to clarify the

geographical relocation of its office in 1993 was either an oversight or an

innocent miscommunication. This change of address was not noted in Union

Trucking, Inc.'s 1992 reapplication because the move had not yet occurred when

that reapplication was submitted in July of 1992. Obviously, FDOT did not use

the 1993 failure to notify the agency of a change of address as a reason to

deny recertification in 1992, and FDOT also did not consider it a sufficiently

serious flaw to withhold recertification after the July 1993 on-site review.

19. FDOT also presented evidence that Robin Wilson did not tell the agency

that she owned 100 percent of another corporate entity, "Robin Pritchett (her

maiden name) Trucking, Inc." until the July 1993 on-site review. FDOT's two on-

site reviewers concurred that "Robin Pritchett Trucking," consisting of one

truck, which was sporadically used to haul wood chips, was never any cause for

FDOT's concern. Apparently, FDOT considers hauling wood products to be an

entirely different industry than the hauling of highway aggregates, which is the

type of work done on FDOT contracts and the type of work done by Union Trucking,

Inc. While Robin Pritchett Wilson's "affiliation" with her own independent

corporation, "Robin Pritchett Trucking, Inc.," possibly was the type of

"affiliation" which she should have disclosed, pursuant to FDOT's DBE rule, on

Union Trucking Inc.'s 1992 application for recertification by FDOT as a DBE, it

is clear that FDOT did not know of this nondisclosure when the agency denied

recertification in December 1992. FDOT did not deny recertification at that

time for that reason. FDOT also did not consider such nondisclosure to be a

sufficiently serious flaw so as to withhold recertification after the disclosure

at the July 1993 on-site review. Also, FDOT never asserted that its personnel

had been confused in 1992 between "Robin Pritchett Trucking, Inc." and "[Marvin]

Pritchett Trucking, Inc." Therefore, this late disclosure does not justify

FDOT's 1992 denial of certification.

20. In its July 1993 on-site review, FDOT investigated but found no

barrier to recertifying Union Trucking, Inc. under the statutes and rules FDOT

administers. There were no barriers related to familial relationships, related

to Robin Wilson's being an owner of her own corporation, related to her being a

director of any corporation, related to her owning a nominal number of stock

shares in Marvin Pritchett's several businesses, related to her use of

Pritchett's desk or office equipment, related to Pritchett loans to Union

Trucking, Inc., related to Mr. Lee's use of a special account, or related to any

other factual reason cited in either FDOT's December 14, 1992 denial letter or

the September 9, 1992 recommended order affecting DGS.

21. Nonetheless, FDOT's consultant's closing comments in the 1993 on-site

report sum up FDOT's continuing overall approach to Union Trucking, Inc., both

before the 1993 on-site review and thereafter. This approach is to "continue to

question" successful DBEs whose principals have successful families and

successful corporate investments. He wrote:

Because of the close family relationships and

multiple companies owned or operated, this firm

will continue to be questioned as to eligibility

for the DBE program. Any concerns I have remaining

can only be resolved through the actual job perform-

ance and compliance on future projects. I strongly

recommend a continued compliance report be addressed

with detailed concerns to support the next certif-

ication provided the firm is recertified.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter of this cause, pursuant to Section 120.57(1), F.S.

23. It was appropriate for the undersigned to raise the jurisdictional

issue at formal hearing. See, Walt v. Walt, 574 So.2d 205 (Fla 1st DCA 1991).

The jurisdictional issue was not waived simply by FDOT's failure to raise it

until that point in time. Jurisdiction, as a threshold issue, may be raised at

any time. See, State of Florida Department of Health and Rehabilitation v.

Schreiber, 561 So.2d 1236 (Fla. 4th DCA 1990).

24. The law relating to a time bar pursuant to Section 57.111 F.S. is as

follows:

Section 57.111(4)(b)1., F.S., provides:

The application for an award of attorney's fees

must be made within 60 days after the date that

the small business party becomes a prevailing

small business party.

Section 57.111(3)(c), F.S., provides:

A small business party is a "prevailing small

business party" when:

1. A final judgment or order has been entered

in favor of the small business party and such

judgment or order has not been reversed on appeal

or the time for seeking judicial review of the

judgment or order has expired;

2. A settlement has been obtained by the small

business party which is favorable to the small

business party on the majority of issues which

such party raised during the course of the

proceeding; or

3. The state agency has sought a voluntary

dismissal of its complaint. (Emphasis supplied).

25. The alternative starting points for determining when a small business

party has prevailed are listed in the disjunctive. Accordingly, any of the

alternatives separated by "or" may be the starting point, and the last point is

as good a starting point as the first. In the case of an unappealed final

order, the time for filing the Section 57.111 F.S. petition does not begin to

run until the time for appeal has expired. FDOT felt the case was not concluded

finally until it entered a final order on December 17, 1993, and it should be

bound by that determination, even though the final order's only purpose was to

dismiss the petition for hearing long after the relief prayed-for (DBE

certification) had, in fact, been granted. The final order, in effect,

consummated the parties' settlement. The petition herein was timely. This

result is in accord with the liberal legislative intent to award attorney's fees

expressed in Sections 57.111(2) and (4)(a) F.S.

26. In making the foregoing conclusion, FDOT's argument that the

recertification on October 15, 1993 or the DOAH order relinquishing jurisdiction

constituted the date Petitioner "prevailed," is rejected. With regard to

whether or not the order relinquishing jurisdiction constituted a "settlement,"

it is specifically concluded to the contrary. See, Gessler v. Board of Medical

Examiners, DOAH Case No. 88-4902F (November 17, 1988). "Settlements," as

recognized in Section 57.111(3)(c)2 refer primarily to the type of final

agreements reached between parties in Circuit Court civil actions which then are

followed by voluntary dismissals requiring no order of court. DOAH orders

relinquishing jurisdiction do not consummate settlements or provide the

mechanism to enforce settlements. They are certainly not voluntary dismissals.

After DOAH relinquishes jurisdiction, if a settlement is not ultimately

consummated, agencies frequently refer cases back to DOAH and DOAH merely

reopens its old file. DOAH's relinquishment of jurisdiction in the underlying

case cannot be read as a "settlement," or as an end to the case, given FDOT's

entry of its final order of dismissal.

27. Respondent asserted that its denial of recertification and subsequent

handling of the case was "substantially justified." The evidence shows

otherwise.

28. Union Trucking, Inc. showed that FDOT knew or had the information,

except for some inconsequential matters, upon which it ultimately relied to

grant recertification, before its December 14, 1992 denial, and that the

information had remained essentially unchanged between the previous 1991 FDOT

certification and the 1992 reapplication.

29. FDOT witnesses denied that the recommended order in the DGS case was

the sole reason for FDOT to deny recertification, but all conceded that it was

the precipitating factor. The evidence as a whole is persuasive that the

recommended order was the only significant change in information between the

1991 FDOT certification and the 1992 denial. Therefore, I conclude that the

recommended order was the sole reason for denial of certification in 1992.

Nothing in the record rationally explains why FDOT felt DOAH's interpretation of

DGS' rules or even DGS' interpretation of its own rules should relieve FDOT of

the duty to process this reapplication like any other application under FDOT

rules. The doctrine of stare decisis is not generally applicable to decisions

of administrative bodies, Mercedes Lighting, Inc. v. Department of General

Services, 560 So.2d 272 (Fla. 1st DCA 1990).

30. FDOT also argued that since it was the applicant's duty and burden to

provide information sufficient for FDOT to certify it, and since FDOT had the

discretion to determine whether or not to request further information or to

conduct an on-site review, FDOT was substantially justified in denying

recertification without further inquiry of Union Trucking, Inc. or its

principals. Upon the foregoing findings of fact, it is concluded otherwise.

31. Seeking more information may have been discretionary under the

statute, rules and case law, but such a procedure was so standardized with FDOT

that to not to follow it meant this reapplicant was treated differently than all

the others. Likewise, once "special monitor" status was assigned by the DBE

certification committee in 1991, FDOT's failure to conduct an on-site review for

Union Trucking, Inc.'s 1992 reapplication constituted FDOT's ignoring its own

policy and procedure and treating this reapplicant differently than all others

similarly situated. The "special monitor" status may have been hatched in a

spirit of suspicion or in an effort to "catch" an applicant who was not truly an

independent DBE, but once "special monitor" status was in place, the standard

policy had to be followed. Had it been followed, an on-site review in the fall

of 1992 could have easily resolved all FDOT's concerns as evidenced in the

result of the on-site review in July 1993. Had FDOT followed its own policy,

Union Trucking, Inc. would not have lost a year's worth of business.

32. Under the circumstances, FDOT was not entitled to save itself the

effort of an on-site review by relying on a recommended order based on different

statutes and rules than those FDOT was charged with applying to the applicant.

An atmosphere of undefined "concerns" and residual suspicion blossomed into

FDOT's 1992 denial without reasonable consideration of the 1992 reapplication.

This degree of zeal to "root out the bad guys" does not constitute "substantial

justification." See, by analogy, the following cases, Department of Health and

Rehabilitative Services v. S.G., 613 So.2d 1386 (Fla. 1st DCA 1993) and Altman

v. Department of Health and Rehabilitative Services, DOAH Case No. 92-4034F

(March 11, 1993), each holding that irresponsible and one-sided investigation

excluding all witnesses and documents favorable to Respondent's position was not

substantially justified; F&F Equipment d/b/a American Ammunition v. Department

of General Services, DOAH Case No. 91-4951F (March 19, 1992) which awarded fees

when an order in the underlying case showed the agency failed to follow its own

standards in assessing an applicant's proposals; the agency was not

substantially justified; Barnard v. Department of State, Division of Licensing,

DOAH Case No. 90-0738F (July 3, 1990) where an agency's retroactive application

of statutory amendments was not substantially justified; Alario et. al. v.

Department of Professional Responsibility, Board of Real Estate, DOAH Case No.

97-4093F (March 22, 1988) where a speculative and selective reading of the

intent of the Circuit Court in rendering judgment confirming a jury verdict was

not substantially justified; and Robaina v. Division of Professional Regulation,

DOAH Case No. 87-1242F (July 9, 1987) where an agency's retroactive application

of its own statute was not substantially justified. The instant case is

distinguishable from Business Telephone Systems v. Department of General

Services, DOAH Case No. 89-2715 (October 29, 1989) for many reasons, not the

least of which is the absence in this case of an on-site review and the lack of

opportunity for this applicant to explain or supplement its application prior to

denial.

ORDER

Upon the foregoing findings of fact and conclusions of law, it is ORDERED

that the Florida Department of Transportation pay to Petitioner $2,775.00 in

earned attorney's fees and costs.

DONE AND ORDERED this 15th day of November, 1994, at Tallahassee, Florida.

___________________________________

ELLA JANE P. DAVIS

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 15th day of November, 1994.

APPENDIX TO FINAL ORDER 94-0790F

The following constitute specific rulings, pursuant to S120.59(2), F.S.,

upon the parties' respective proposed findings of fact (PFOF).

Petitioner filed no PFOF

Respondent DOT's PFOF:

1-6 Accepted, except that unnecessary, subordinate, and/or cumulative

material was not utilized.

7 Rejected as covered in FOF 15 upon the greater weight of the credible

evidence as a whole.

8-14 Accepted as modified to more closely conform to the record and

eliminate, except that unnecessary, subordinate, and/or cumulative material was

not utilized.

15 Rejected as immaterial or legal argument.

16-17 Rejected as covered in Findings of Fact 12-14 upon the greater

weight of the credible evidence as a whole. See Conclusions of Law.

18 Accepted, except that unnecessary, subordinate, and/or cumulative

material was not utilized.

19 Accepted, except that unnecessary, subordinate, and/or cumulative

material was not utilized. The issue of address is modified upon record

evidence as set forth in Finding of Fact 17.

20-24 Accepted, except that unnecessary, subordinate, and/or cumulative

material was not utilized.

COPIES FURNISHED:

Frank M. Gafford, Esquire

34 North Marion Street

Post Office Box 1789

Lake City, Florida 32056-1789

Cindy S. Price, 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

Haydon Burns Building

Attn: Eleanor F. Turner, M.S. 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

Thornton J. Williams, General Counsel

Department of Transportation

562 Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO JUDICIAL REVIEW

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 ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE

DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND 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.