95-000673 Department Of Transportation vs. First Mortgage Corporation Status: Closed Recommended Order on Thursday, October 12, 1995.

Summary: Permit not subject to strict statute/rule; expired date but respondent requires to comply within reasonable time. Insufficient evidence to show safety or operation; problems created by permit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 95-O673

) DOT CASE NO. 95-0032

FIRST MORTGAGE CORPORATION, )

)

Respondent, )

_______________________________)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Hearing Officer, Division of

Administrative Hearings, held a formal hearing in this matter on August 1, 1995,

in Lakeland, Florida.

APPEARANCES

For Petitioner: Francine M. Ffolkes, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: Stephen W. Moran, Esquire

Moran & Tileston

1738 East Edgewood Drive

Lakeland, Florida 33803

STATEMENT OF THE ISSUE

1. Has Respondent's connection permit number C-16-095-93 (permit) expired

under Section 335.185, Florida Statutes?

2. Has Respondent timely complied with the requirements and conditions of

the permit? If not, does Respondent's noncompliance cause safety or operational

problems on State Road 555 (SR 555) which would require closing Respondent's

connection to SR 555?

PRELIMINARY STATEMENT

By a Notice of Permit Nonconformance - Violation of the Florida Statutes

and Florida Administrative Code and Notice to Show Cause (Notice) dated December

22, 1994, the Department of Transportation (Department) advised Respondent that

construction required by the permit had not been completed in that: (a) signing

and pavement marking had not been placed so that the connection on State Road

655 (SR 655) is operated as ingress only; (b) site parking layout and traffic

flow had not been constructed to obviate unsafe traffic operation caused by the

connection on SR 555. The Notice further advised Respondent that the expiration

date of the permit had not been extended by the Department and that the permit

would expire and become invalid upon receipt of the Notice. In accordance with

the Notice Of Appeal Rights attached to the Notice, Respondent, by letter dated

January 9, 1995, filed a petition for formal hearing in this matter. By letter

dated February 14, 1995, the Department referred this matter to the Division of

Administrative Hearings (Division) for the assignment of a Hearing Officer and

conduct of a formal hearing.

The Department presented the testimony Michael J. Tako. Department's

exhibits 1 - 7 and 10 were received as evidence. Respondent objected to the

admissibility of Department's exhibits 8 and 9 on the basis that they were not

relevant. A ruling on their admissibility was reserved. Upon further review of

Department's exhibits 8 and 9 and a review of Michael Tako's testimony these

exhibits are rejected. The Respondent presented the testimony of Dennis Davis.

Respondent did not offer any documentary evidence. Sections 335.18 through

335.188, Florida Statutes, Chapter 120, Florida Statutes, Chapters 14-96 and

60Q-2, Florida Administrative Code, Article X, Section 6 of the Florida

Constitution and the Partial Final Judgement, Amended Final Judgment and Second

Amended Final Judgment in the case of State of Florida Department of

Transportation vs. Edward M. Shaffer, et al., Case No. GCG-91-786, in the

Circuit Court of the Tenth Judicial Circuit In and For Polk County, Florida

(FDOT v. Shaffer) were officially recognized.

A transcript of the proceeding was filed with the Division on August 17,

1995. The Respondent timely filed its Proposed Findings of Fact and Conclusions

of Law. The Department's Proposed Findings of Fact were not timely filed. A

ruling on each proposed finding of fact submitted by the parties has been made

as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the

hearing, the following relevant findings of fact are made:

1. At all times pertinent to this proceeding, the Department was the state

agency responsible for regulating vehicular access and connections to or from

the State Highway System in accordance with Sections 335.18-335.188, Florida

Statutes, known as the State Highway System Access Management Act.

2. Respondent owns the property in issue which is located on the southwest

corner of the intersection of SR 555 and SR 655 in Polk County, Florida.

3. As a cure for the problem created by the eminent domain proceeding in

FDOT v. Shaffer concerning the preexisting connections to SR 555 and SR 655, the

Department agreed to provide connections to SR 555 and SR 655 for the property

involved in the instant case. By letter dated September 27, 1993, the

Department agreed to honor this agreement even though it was not included in the

final order in FDOT v. Shaffer. In its letter, the Department agrees to issue a

permit and construct the connections "on the condition that the remaining lands

are reconstructed as shown in the attachment." The letter informs Respondent

that the attachment was prepared by Reggie Mesimer for the Department and that

"it appears that the settlement was based on that cure." The letter also informs

Respondent that the "permit will contain limiting language to make clear that

the permit has not been reviewed for compliance with DOT standards and that it

is issued for replacement of preexisting access." Attached to the letter was a

site plan showing: (a) the parking layout for the site which included two

parallel parking spaces in front of the building, six perpendicular south to

north parking spaces on the south end of the building and eight perpendicular

north to south parking spaces on the south side of the south parking area; (b) a

connection to SR 655 on the north side of the building; (c) a connection to SR

555 at the front of the building; and (d) a connection to First Avenue, a side

street, on the south side of the building. The site plan shows a driveway

commencing at the connection to SR 655 and continuing on in front of the

building to First Avenue on the south side of the building. The site plan does

not show any signings or pavement markings to indicate traffic flow in and out

of the site.

4. Sometime around June 1993, the agreement in FDOT v. Shaffer

notwithstanding, the Department attempted to close the preexisting connections

to SR 555 and SR 655. As a result, Respondent requested a formal administrative

hearing and Department of Transportation vs First Mortgage Corporation, DOAH

Case No. 93-9037 was filed with the Division. This case was later rendered moot

by the issuance of the permit for the connections to SR 555 and SR 655 and the

Department's agreement to construct the connections to SR 555 and SR 655.

5. By letter dated December 15, 1993, with an addendum dated December 16,

1993, the Respondent agreed "to designating two parallel parking spaces in front

of the building and have the striping done immediately." In return, the

Department would "agree to have the driveway installed as shown on the drawing

originally submitted." In the addendum, Respondent states that the two

designated parallel parking spaces in front of the building were being striped

on December 16, 1993, and that the Respondent was removing the chain link fence

on the south side of the building to provide additional parking. The addendum

also states that the Respondent will resurface the entire area of the drive and

parking areas after the Department finishes the road construction.

Additionally, the Respondent agreed to substantially comply with the driveway

and parking area as shown on an attachment. The attachment was a copy of site

plan referred to above in Finding of Fact 3.

6. Respondent's Connection Application, number C-16-095-93, was approved

by the Department on December 20, 1993, and the permit was issued. The

application "requests permission for the construction of a connection(s) on

Department of Transportation right-of-way. . . " The connections are described

as: "REPLACEMENT OF EXISTING CONNECTION: ONE 24 FT INGRESS ON SR 655, ONE 30 FT

INGRESS & EGRESS ON US 17 (SR 555) FOR A CONVENIENCE STORE AND RESTAURANT."

Although the permit provides blank spaces where the mandatory beginning and

completion of construction dates are to be filled in, these spaces were left

blank on the permit. Likewise, there is no expiration date shown on the permit.

7. A site plan was attached to the permit. The site plan is a copy of the

site plan attached to the Department's September 27, 1993, letter referred to

above with signings and pavement markings added to indicate the traffic flow in

and out of the site.

8. General Provision one of the permit provides:

The permittee agrees and obligates himself

to perform at his own expense the relocations,

closure, alteration of the permitted connection,

should the Department determine that the traffic

patterns, points of connection, roadway geometrics

or traffic control devices are causing an undue

disruption of traffic or creating safety hazards

at the exiting connections.

9. Special Provisions one through five provide:

1. This permit application has not been

reviewed for compliance with DOT standards and

is issued for replacement of preexisting access

by the Florida Department of Transportation.

The permit is subject to the limitations in

Chapter 335, Florida Statutes, to the same

extent as the preexisting access.

2. The permittee shall place signing and

pavement marking, as indicated on the attached

site plan, so that the connection on SR 655 is

operated as ingress only.

3. Parking layout and traffic flow will be

constructed and maintained in substantially

the same manner as indicated in the attached

site plan.

4. The permittee acknowledges that the

attached site plan was the cure in the settle-

ment in DOT vs. EDWARD M. SHAFFER, case number

GC-G-91-786, Parcel 105.

5. The permittee acknowledges that with the

issuance of this permit and the Florida Depart-

ment of Transportation's agreement to construct

the two connections referenced in this permit,

DEPARTMENT OF TRANSPORTATION, Petitioner, vs.

FIRST MORTGAGE CORPORATION, Defendant, case

number 93-3037 has been rendered moot. Further-

more, the permittee agrees to make the appropriate

filing with the State of Florida Division of

Administrative Hearings. (Emphasis supplied).

10. The permit application was signed by Dennis G. Davis as president of

First Mortgage Corporation. Dennis G. Davis also signed accepting the Special

Provisions attached to the permit.

11. As to signings and pavement markings the site plan shows:

(a) a designated driveway beginning at

the SR 655 connection (north end of property)

and proceeding around the front of the building

(east side) to the south end of the building

and commencing on to the First Avenue connection;

(b) large arrows within the designated

driveway indicating ingress only from SR 655

and one-way traffic around the front of the

building to a point on the south end of the

building where stop signs are to be located;

(c) stop signs on each side of the one-way

driveway where the one-way driveway intersects

a designated two-way driveway;

(d) to the south of the stop signs, arrows

indicating that the one-way traffic is to move

into the south side parking lot or move into the

south-bound lane of the two-way driveway that

exits onto First Avenue;

(e) arrows indicating that incoming traffic

from First Avenue is to move into the south side

parking lot only;

(f) a No Right Turn sign on the east side of

the one-way driveway just south of the stop signs

where the one-way driveway intersects the two-way

driveway;

(g) a No Left Turn sign on the southwest side

of the south side parking lot where the south

side parking lot intersects the outgoing lane of

the two-way driveway that exits onto First Avenue;

(h) a stop sign just south of the southeast

corner of the south side parking lot to the west

of the outgoing lane of the two-way driveway just

before First Avenue; and

(i) a No Exit sign on each side of the one-way

driveway facing the opposite direction of the

traffic flow in the one-way driveway at the

northeast corner of the building.

12. As to the parking layout, the site plan shows:

(a) two parallel parking spaces running north

to south in front of the building along the west

side of the one-way driveway;

(b) six perpendicular parking spaces running

south to north abutting the south side of the

building, and

(c) eight perpendicular parking spaces running

north to south abutting the south side of the

property west of the two-way driveway.

13. The Department constructed the connection on SR 655 for ingress to the

property from SR 655 and the connection on SR 555 for ingress to the property

from SR 555 and egress to SR 555 from the property sometime in June 1993, which

was before the expiration of one year after the date of issuance of the permit.

14. Respondent started to comply with the signings and pavement markings

of the site plan attached to the permit as early as December 16, 1993.

Respondent has complied with the signings and pavement markings for traffic flow

and parallel parking as shown on the site plan attached to the permit beginning

at the connection to SR 655 and up to and including the two stop signs at the

south end of the one-way driveway where it intersects the two-way driveway. The

Respondent has maintained these signs and pavement markings during the

construction on SR 555 by restriping the pavement and replacing signs that were

torn down. However, due to the wear on the striping caused by construction

traffic the pavement markings for the parallel spaces and traffic flow are dim

and need painting. Due to a misunderstanding as to the Department's

jurisdiction over First Avenue, Respondent has not completed the signings and

pavement markings from the stop signs where the one-way driveway intersects the

two-way driveway over to First Avenue or over to the parking lot.

15. The Respondent has not completed the striping for the south to north

perpendicular parking spaces abutting the south end of the building where there

is pavement which would allow such striping. A segment of a chain link fence

abuts the south end of the building preventing any further perpendicular parking

abutting the south end of the building without going inside to the grassed area

(green area) enclosed by the chain link fence. However, instead of parking

perpendicular to the south end of the building, customers are parking east to

west, perpendicular to the existing chain link fence.

16. At the time the permit was issued, a chain link fence surrounded the

green area on the south end of the property. Respondent removed the middle

section of the chain link fence on the east side of the green area to provide

additional parking inside the green area. Respondent has not placed signs or

pavement markings around or at the entrance to the green area so that customers

are made aware that the green area is available for parking. However, some

customers are using the green area for parking. Although the parking layout of

the site plan includes delineated parking spaces in the green area, nothing in

the permit, including the site plan, specifically requires the green area to be

paved. Although Respondent has indicated a willingness to stripe the designated

parking spaces in the green area as shown on the site plan, striping the green

area is neither feasible nor is it required under the permit. While all of the

parking spaces have not been delineated by striping, there was no evidence that

there were insufficient parking spaces on the site or that the lack of

designated parking spaces was creating any safety or operational problem on SR

555.

17. Although the site plan does not indicate by signings or pavement

markings that the connection to SR 555 is an ingress and egress connection, the

permit specifically provides for ingress and egress at the SR 555 connection and

nothing on the site plan prohibits such access.

18. On occasions customers park perpendicular to the front of the building

ignoring the delineated parallel parking spaces in front of the building.

Respondent has agreed to place a solid concrete curb along the building side

(west side) of the parallel parking spaces and remove the yellow concrete stop

blocks now in place that may be unintentionally inviting customers to park

perpendicular to the building.

19. The Department's expert, Michael Tako, testified that perpendicular

parking in front of the building could result in vehicles on SR 555 having to

slow down for vehicles that are backing out of those perpendicular parking

spaces onto SR 555, creating a hazard on SR 555 known as stacking. However,

there was insufficient evidence to establish facts to show that stacking

actually occurred or that there was any safety or operational problem being

created on SR 555 by customers parking perpendicular to front of the building

rather than parking in the two parallel parking spaces in front of the building.

20. There was no engineering study presented that had been conducted

subsequent to the issuance of the permit substantiating any safety or

operational problem on SR 555 resulting from the failure of the Respondent to

comply with signings and pavement markings of the site plan or any of the

special provisions of the permit or from customers parking perpendicular to the

building rather than in the parallel parking spaces.

21. Construction on SR 555 had not been completed as of the date of the

hearing. However, Respondent agreed that construction was at the stage where

the driveway and parking area could now be resurfaced and restriped without

substantial damage to the striping, pavement markings and signings due to

construction activity.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, these proceedings pursuant to Section

120.57(1), Florida Statutes.

22. The Department is attempting to close Respondent's access to SR 555

and SR 655 on the basis that construction required by the permit has not been

completed in that signings and pavement markings have not been placed so that

the connection on SR 655 is operated as ingress only and site parking layout and

traffic flow has not been constructed to obviate unsafe traffic operation caused

by the connection on SR 555. It is the Department's position that construction

authorized by the permit was not completed within one year of the date of

issuance of the permit and therefore, under Section 335.185, Florida Statutes,

the permit has expired and is invalid since the Department did not extend the

expiration date of the permit.

23. Section 335.185, Florida Statutes, provides;

(1) The department may issue a permit subject

to any reasonable conditions necessary to carry

out the provisions of this act. The department

may revoke a permit if the applicant fails to

comply with the conditions upon which the issuance

of the permit was predicated.

(2) All permits issued pursuant to this act

shall automatically expire and become invalid

if the connection is not constructed within 1

year after the issuance of the permit, unless

the department extends the date of expiration,

for good cause, upon its own initiative or upon

the request of a permittee. (Emphasis supplied)

24. Rule 14-96.008(1), Florida Administrative Code, provides:

(1) Time Limit. Substantial construction of

the connection shall begin within 90 days of

the effective date of the permit, unless a longer

time is approved by the Department or a time

extension is requested and approved by the

Department. Construction shall be completed

within one year of the date of issuance of the

permit. As a condition of the permit, the

Department may further limit construction time

due to special circumstances. Failure to comply

with the time limits specified in the permit shall

result in an automatic expiration of the permit

following written notification to the permittee.

. . .(Emphasis supplied)

25. Rule 14-96.002(3) and (5), Florida Administrative Code, define

"connection" and "connection permit" as follows:

(3) "Connection" as defined in Section

335.182(3)(a), Florida Statutes, means driveways,

streets, turnouts or other means of providing for

the right of reasonable access to and from the

State Highway Systemaffic control features

and devices in the Department's right of way are

not part of the connection.

. . .

(5) "Connection Permit" means a written author-

ization issued by the Department allowing for

initiation and construction of a specifically

designed connection and any specific conditions

related to the subject connection to the State

Highway System at a specific location generating

an estimated volume of traffic. (Emphasis supplied)

26. Rule 14-96.007(3), Florida Administrative Code, concerning permit

conditions provides:

(3) Permit Conditions. Any special requirements

or provisions for the connection including off-site

mitigation shall be clearly and specifically

identified as part of the permit. Failure by the

applicant or permittee to abide by the permit

provisions shall be sufficient cause for the

Department to initiate action to alter the

connection or revoke the permit and close the

connection at the expense of the permittee.

. . . (Emphasis supplied)

27. Rule 14-96.011(1), Florida Administrative Code, concerning permit

modification, revocation and closure of permitted connections provides:

(1) The Department can initiate action to

revoke any permit if significant changes have

occurred in the use, design or traffic flow of

the property requiring the relocation, alteration

or closure of the connection; if the connection

was not constructed at the location or to the

design specified in the permit; of if permit

provisions were not met; or if the connection

causes a safety or operational problem on the

State Highway System substantiated by an

engineering study signed and sealed by a

professional engineer registered in the State

of Florida. . . . (Emphasis supplied)

28. From the above language, it is clear that both the legislature and

the Department have made a distinction between the construction of a connection

on the State Highway System right of way as authorized by the permit and the

conditions placed on the issuance of the permit for the construction of the

connection. The evidence clearly shows that the Department agreed to construct

the connections to SR 555 and SR 655. Furthermore, it is clear that the

connections were completed within one year after the issuance of the permit.

Therefore, Section 335.185(2), Florida Statutes, does not apply in this case.

However, if the Department can show that Respondent has failed to substantially

comply with the conditions of the permit within the time specified it may revoke

the permit under Section 335.185(1), Florida Statutes, after the permittee is

notified and given the opportunity to comply with the conditions of the permit.

29. Clearly, the permit involved in this case was issued as a result of a

negotiated settlement in FDOT v Shaffer and Department of Transportation v.

First Mortgage Corporation, Case No 93-9037. Therefore, Respondent's compliance

with the conditions of the permit within a given time period needs to be viewed

in light of the negotiations leading up to the issuance of the permit along with

statutory and rule requirements. Although Respondent has not substantially

complied with all conditions of the permit, Respondent has substantially

complied with that portion of the site plan beginning at the connection to SR

655 and ending at the stop signs where the one-way driveway intersects the two-

way driveway. Clearly, the Respondent would have complied with pavement

markings and signings of that portion of the site plan but for the

misunderstanding as to the Department's jurisdiction over First Avenue,

Respondent's understanding (even though it was not stated in the permit) that

total compliance with the site plan was to be accomplished upon completion of

the construction on SR 555 which is buttressed by no expiration date listed on

the permit, and the necessity of resurfacing the driveway and parking area that

is presently paved due to the raised height of SR 555 after construction. When

viewed in this manner, it does not appear that the parties through their

negotiations intended for there to be strict adherence to the statutory or rule

expiration date. Both parties agree that the stage of construction on SR 555 is

now such that Respondent can move forward to comply with all the conditions of

the permit.

30. The special provisions of the permit pertinent to the instant case are

Special Provisions 2 and 3 which involve the placement of signing and pavement

markings and require the parking layouts and traffic flow to be constructed and

maintained in substantially the same manner as indicated in the site plan

attached to the permit. Therefore, in addition to initially complying with the

signings and pavement markings of the site plan, the Respondent must maintain

the signs and pavement markings shown on the site plan in order for the

connection to SR 555 and SR 655 to function properly.

31. The Department has failed to establish facts to show that Respondent's

failure to fully comply with the pavement markings and signings of the site plan

or that customers parking perpendicular to the front of the building contrary to

the delineated parallel parking spaces have created any safety or operational

problems on SR 555.

RECOMMENDATION

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

recommended that the Department enter a final order requiring the Respondent to:

(a) comply with the placement of signs as shown on the site plan attached to the

permit including those signs required for the First Avenue connection; (b)

comply with the pavement markings for traffic flow as shown on the site plan

attached to the permit, including those necessary for the First Avenue

connection and direction for entrance to the green area; (c) pave any surface

necessary to comply with the pavement markings provided for in (b) above,

including that necessary for the First Avenue connection and to allow necessary

pavement markings for traffic flow into the green area but not to include the

green area; (d) restripe the parallel parking spaces in front of the building

and place a solid curb on the immediate west side of the parallel parking to

replace the curb stops now in place; (e) stripe the perpendicular parking spaces

that abut the south end of the building where pavement presently exists; (f)

place the necessary signs at the entrance to the green area so that customers

will be aware of the additional parking inside the fenced green area and; (g)

remove whatever portion of the chain link fence is necessary to allow reasonable

entrance to and exit from the green area. It is further recommended that

Respondent be allowed sufficient time to complete the above, not to exceed 60

days unless the Respondent wishes to resurface the entire driveway area

including the First Avenue connection and any parking area that is presently

paved. In that event, it is recommended that Respondent be allowed 90 days. It

is further recommended that Respondent not be required to pave any area that is

to be used for parking including the green area and that adjacent to the green

area that does not already have existing pavement.

RECOMMENDED this day 12th of October, 1995, at Tallahassee, Florida.

___________________________________

WILLIAM R. CAVE, 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 12th day of October, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0673

The following constitutes my specific rulings, pursuant to Section

120.59(2), Florida Statutes, on all of the proposed findings of fact submitted

by the parties in this case.

Petitioner's Proposed Findings of Fact.

1. Proposed findings of fact 1-7, 10-13, 16-18, 20, and 21 are adopted in

substance as modified in Findings of Fact 1 through 21 of the Recommended Order.

2. Proposed findings of fact 8 and 9 are covered in the Preliminary

Statement.

3. Proposed findings of fact 14, 22 and 24 are rejected as not being

supported by competent substantial evidence in the record.

4. Proposed findings of fact 19 and 23 are rejected as being argument

rather than findings of fact.

5. Proposed finding of fact 15 goes to the weight to be given to Tako's

testimony and is not a finding of fact per se.

The Respondent Proposed Findings of Fact.

The first two sentences of Respondent's introductory paragraph under

"Findings Of Fact" are covered in the Preliminary Statement. The balance of the

introductory paragraph and unnumbered paragraphs 2 - 6 are presented as

restatements of Tako's and Davis' testimony and not as findings of fact.

However, this testimony has been adopted in substance as modified in Findings of

Fact 1 - 21 of the Recommended Order and where it has not been so adopted it is

rejected as not being supported by competent substantial evidence in the record.

COPIES FURNISHED:

Ben Watts, Secretary

Department of Transportation

ATTN: Diedre Grubbs

Haydon Burns Building

Mail Station 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 32399-0450

Francine M. Fflokes, Esquire

Department of Transportation

Haydon Burns Building

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Stephen W. Moran, Esquire

Moran & Tileston

1738 East Edgewood Drive

Lakeland, Florida 33803

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended

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

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

written exceptions. You should consult with the agency that will issue the

final order in this case concerning their 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.