97-000431 Visher Corporation vs. Department Of Transportation Status: Closed Recommended Order on Thursday, July 24, 1997.

Summary: Median modification in the form of a directional opening does not deny reasonable access to Petitioner's business and is reasonable necessity for safe and efficient highway.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VISHER CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 97-0431

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

)

RECOMMENDED ORDER

An administrative hearing was conducted on May 9, 1997, in

Lakeland, Florida, by Daniel Manry, Administrative Law Judge,

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Glen Anderson, Esquire

1128 First Street South

Post Office Box 9159

Winter Haven, F lorida 33883-9159

For Respondent: Francine Ffolkes, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUE

The issue in this case is whether a directional opening

Respondent constructed in the median of State Road 540 ("SR 540")

at 2nd Street, Southeast, ("Second Street") in Polk County,

Florida complies with the requirements of Chapters 334 and 335,

Florida Statutes, and Florida Administrative Code Rules 14-96 and

97. 1/

PRELIMINARY STATEMENT

In June, 1996, Respondent modified a median opening in front

of Petitioner's business by converting it from a full opening to

a directional opening. On July 10, 1996, Petitioner filed a

petition for administrative hearing. Respondent referred the

matter to the Division of Administrative Hearings to conduct the

hearing.

At the hearing, Petitioner presented the testimony of two

witnesses, and submitted one composite exhibit for admission in

evidence. Respondent presented the testimony of two witnesses

and submitted five exhibits for admission in evidence.

The identity of the witnesses and exhibits, and the rulings

regarding each, are set forth in the transcript of the hearing

filed on May 28, 1997. Petitioner timely filed its proposed

recommended order ("PRO") on June 10, 1997. Respondent timely

filed its PRO on June 25, 1997.

FINDINGS OF FACT

1. Petitioner is a Florida corporation wholly owned by Mr.

Mr. Vivian DeSousa and Mrs. Sherry DeSousa, his wife. Petitioner

is engaged in the business of operating a restaurant known as

Schoop's Hamburgers ("Schoop's").

2. Schoop's is located in Winter Haven, Florida at the

intersection of SR 540 and Second Street. SR 540 is an east-

west, four lane, divided arterial roadway that is known locally

as "Cypress Gardens Boulevard." Second Street is a north-south,

two lane, residential city street. SR 540 is part of the State

Highway System, while Second Street is owned by the City of

Winter Haven.

3. Schoop's faces south toward the westbound lanes of SR

540 in the northwest corner of the intersection of SR 540 and

Second Street. The east side of Schoop's abuts the southbound

lane of Second Street.

4. Second Street intersects SR 540 approximately 300 feet

west of the intersection of SR 540 and 1st Street, Southeast.

("First Street"). First Street is a four lane divided highway.

5. The southern end of Second Street forms a "T"

intersection with SR 540. Second Street does not continue south

of SR 540.

6. The property to the south of SR 540 (the "Outback

property") houses several businesses that face north toward the

eastbound lanes of SR 540 on the opposite side of SR 540 from

Schoop's. The businesses include a Boston Market, an Outback

Steak House (the "Outback"), a Days Inn Motel, and a Red Lobster

Restaurant. The Outback is newly constructed.

7. The Outback and Days Inn are in the middle of the

Outback property more or less at the intersection of Second

Street and SR 540. The Red Lobster is east of the intersection,

and the Boston Market is at the western end of the Outback

property where SR 540 intersects First Street.

8. The median that separates the westbound and eastbound

lanes of SR 540 includes an opening at the intersection of Second

Street and SR 540. The median opening is immediately east of

both Schoop's and the Outback. Petitioner does not have an

access connection permit for the median opening.

9. Petitioner has a direct d riveway connection to Second

Street. Prior to modification, the median opening allowed easier

access to and from Schoop's.

10. Prior to modification, the median opening was a full

opening. It allowed eastbound traffic on SR 540 to turn left

across the westbound lanes of SR 540 onto the northbound lane of

Second Street without the protection of a left turn storage lane

eastbound on SR 540. It also allowed southbound traffic on

Second Street to turn left across the westbound lanes of SR 540

onto the eastbound lanes of SR 540.

11. The full median opening median opening allowed

westbound traffic on SR 540 to turn left across the eastbound

lanes of SR 540 into the Outback property without the protection

of a left turn storage lane westbound on SR affic leaving

the Outback property could also cross the eastbound lanes of SR

540 and turn left into the westbound lanes of SR 540.

12. Respondent modified the median opening in June, 1996.

The modification changed the median opening from a full opening

to a directional opening. The directional opening allows

westbound traffic on SR 540 to turn left into the Outback

property, or to make a "U" turn, from a left turn storage lane

westbound on SR 540. The directional opening prevents all other

turns at the intersection of SR 540 and Second Street.

13. The directional opening prevents southbound traffic on

Second Street from crossing the westbound lanes of SR 540 to turn

left onto the eastbound lanes of SR 540. It prevents traffic

leaving the Outback property from crossing the eastbound lanes of

SR 540 to turn left onto the westbound lanes of SR 540. It also

prevents eastbound traffic on SR 540 from making "U" turns on the

westbound lanes of SR 540.

14. The turns prevented by the directional opening at

Second Street have been diverted to a full median opening at 3rd

Street, Southeast ("Third Street") where left turn storage lanes

exist in both the eastbound and westbound lanes of SR 540.

Eastbound traffic from Schoop's can turn left onto SR 540 by

first turning left onto Second Street and proceeding one block to

Third Street. Westbound traffic from the Outback property can

turn left onto SR 540 by first turning right onto SR 540 and

making a "U" turn at Third Street.

15. The directional opening was reasonably necessary to

eliminate traffic hazards caused by queuing at the intersection

of First Street and SR 540. Queuing occurs when vehicles are

backed up, one behind the other, by traffic control devices at

intersections.

16. Respondent conducted a traffic operations and safety

evaluation to determine whether it was safe and efficient to

maintain a full median opening at the intersection of SR 540 and

Second Street. The evaluation included field reviews and a

review of police accident reports. The City of Winter Haven

provided substantial input into the evaluation because the City

has jurisdiction over the side streets impacted by the median

modification.

17. The evaluation found that queuing of westbound vehicles

on SR 540 created a traffic problem several times each day.

Queuing of westbound traffic on SR 540 extended far enough

eastward to block the intersection at Second Street during 12 of

the 57 signal cycles in the noon peak hour and during 29 of the

56 signal cycles in the p.m. peak hour.

18. Queuing could not be reduced by modifying the traffic

signal at First Street to add "green time" for westbound traffic

on SR 540 and reduce "green time" for north-south traffic on

First Street. Re-timing the traffic signal would result in

increased delay for north-south traffic to unacceptable levels.

The signal at the intersection at First Street and SR 540 was

operating near capacity.

19. Queuing of westbound traffic on SR 540 created a

traffic hazard for both westbound and eastbound traffic. Queuing

did not always occur simultaneously in both westbound lanes of SR

540. Vehicles could be queued in either the curb lane or the

median lane while vehicles in the other lane continued in motion.

20. The traffic hazard was greatest when queuing oc curred

in the median westbound lane of SR 540. Queued vehicles in the

median lane tended to leave a "courtesy gap" that allowed

eastbound vehicles on SR 540 to make a left turn across both

westbound lanes or to make a "U" turn into the westbound curb

lane of SR 540. Vehicles entering the "courtesy gap" did not

have the sight distance needed to see westbound vehicles in

motion in the curb lane of SR 540 and complete the turn safely.

21. Queuing of westbound traffic on SR 540 created

additional traffic hazards for eastbound traffic. Left turns and

"U" turns from the eastbound median lane of SR 540 frequently

stopped traffic in that lane. The result was to increase queuing

for eastbound traffic or to increase lane changes by eastbound

vehicles not using the median opening.

22. Respondent was unable to construct a directional

opening at the intersection of SR 540 and Second Street that

included a left turn storage lane for eastbound traffic on SR

540. The distance between Second Street and First Street is not

sufficient to accommodate a left turn storage lane. Any left

turn storage lane Respondent could have included in the

directional opening would not have been long enough to accomplish

its purpose.

23. The additional traffic created by the addition of the

Outback to the Outback property exacerbated the traffic hazards

caused by the full median opening at Second Street. Those

hazards are substantially reduced by diverting left turns and "U"

turns to Third Street.

CONCLUSIONS OF LAW

24. The Divisio n of Administrative Hearings has

jurisdiction over the parties and the subject matter. Section

120.57(1). The parties were duly noticed for the hearing.

25. The burden of proof is on Petitioner. Petitioner must

show by a preponderance of evidence that the directional opening

Respondent constructed at the intersection of SR 540 and Second

Street violates applicable law. Florida Department of

Transportation vs. J.W.C. Company, Inc. , 396 So.2d 778 (Fla. 1st

DCA 1981); Balino vs. Department of Health and Rehabilitative

Services , 348 So.2d 349 (Fla. 1st DCA 1977).

26. Petitioner must show that Respondent's action injured

Petitioner, and that the injury is the type the statute is

designed to protect. Ameristeel Corporation vs. Clark , 691 So.

2d 473 (Fla. 1997); Agrico Chemical Company vs. Department of

Environmental Regulation , 406 So. 2d 478 (Fla. 2nd DCA 1981),

review denied sub nom ; Freeport Sulphur Company v. Agrico

Chemical Company , 415 So. 2d 1359 (Fla. 1982); Fairbanks, Inc.

vs. State , 635 So. 2d 58 (Fla. 1st DCA 1994). The directional

opening constructed by Respondent injured Petitioner by diverting

traffic from Petitioner's place of business. The issue is

whether that is the type of injury the statute is designed to

protect.

27. Section 335.182(2)(a) provides that every owner of

property that abuts a road on the State Highway System has a

right to reasonable access. The right of access is defined in

Section 334.03(21) as the right of ingress from abutting land to

the state highway and the right of egress from the state highway

to abutting land. Section 334.044(14) authorizes Respondent to

establish, control, and prohibit such points of ingress and

egress.

28. The median modification constructed by Respondent does

not affect Petitioner's right of access. The modification

affects traffic flowaffic flow is not part of Petitioner's

right of access. Sections 334.03(21), 334.044(13), and

335.181(2)(a); Rule 14-96.003(5); Department of Transportation

vs. Gefen , 636 So. 2d 1345 (Fla. 1994); Department of

Transportation vs. Capital Plaza, Inc. , 397 So. 2d 682 (Fla.

1981); Hack Corporation vs. Department of Transportation , DOAH

Case No. 92-4202, Final Order (July 27, 1993), aff'd 637 So. 2d

14 (Fla. 3rd DCA 1994). See also , Racetrac Petroleum, Inc. vs.

Department of Transportation , 17 F.A.L.R. 2239 (DOAH April 27,

1995) (holding in a rule challenge case that median openings are

not connections).

29. Petitioner could successfully challenge the median

modification constructed by Respondent if Petitioner held an

access connection permit and the median modification eliminated

one or more turning movements described in the permit. However,

Petitioner does not hold an access connection permit for the

median opening modified by Respondent.

30. Respondent has the statutory authority and

responsibility to plan and implement safe and efficient highways.

Section 334.044; Department of Transportation vs. Lopez-Torres ,

526 So. 2d 674, 675 (Fla. 1988). However, Respondent's statutory

authority is not absolute and is limited to the lawful exercise

of its discretion. Lopez-Torres , 526 So. 2d at 676.

31. The technical engineering judgment that Respondent

necessarily exercises in designing safe transportation facilities

is a function intended by the legislature to repose in

Respondent. Courts are generally predisposed to leave such

decisions to Respondent. State, Department of Transportation vs.

Myers , 237 So. 2d 257, 261 (Fla. 1st DCA 1970).

32. Respondent has the statutory authority to undertake the

median modification that is the subject of this proceeding.

Respondent exercised its discretion in a lawful manner based on

technical engineering judgment.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent enter a Final Order denying

Petitioner's challenge to the median modification.

DONE AND ENTERED this 24th day of July, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 -3060

(904) 488 -9675 SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of July, 1997.

ENDNOTES

1/ All chapter and section references are to Florida Statutes

(1995) unless otherwise stated.

2/ Unless otherwise stated, all references to rules are to rules

promulgated in the Florida Administrative Code in effect on the

date of this Recommended Order.

COPIES FURNISHED:

Ben G. Watts, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel

Department of Transportation

562 Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Francine Ffolkes, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 50

605 Suwannee Street

Tallahassee, Florida 32399-4458

Glen Anderson, Esquire

1128 First Street South

Post Office Box 9159

Winter Haven, Florida 33883-9159

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.