01-000009 Frank C. Kunnen, Jr., D/B/A U.S. 19 Commerce Center vs. Department Of Transportation Status: Closed Recommended Order on Friday, December 14, 2001.

Summary: Respondent is entitled to administratively close Petitioner`s driveway; right-out driveway to U.S. Highway 19 will present safety and operational problem. Respondent is providing Petitioner with reasonable access to state highway system.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK C. KUNNEN, JR., d/b/a )

U.S. 19 COMMERCE CENTER, )

)

Petitioner, )

)

vs. ) Case No. 01 - 0009

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal administrative hearing was held in this case in

Clearwater, Florida, before Arnold H. Pollock, Administrative

Law Judge, on March 20, 2001, and Daniel M. Kilbride,

Administrative Law Judge, on September 20 through 21, 2001.

APPEARANCES

For Petitioner: James A. Helinger, Jr., Esquire

James A. Helinger, Jr., P.A.

814 Chestnut Street

Clearwater, Florida 33756

For Respondent: Robert C. Downie, II, Esquire

Department of Transportation

605 Suwannee Street

Haydon Burns Building, Mail Station 58

Tallahassee, Florida 32399 - 0458

STATEMENT OF THE ISSUES

Whether Respondent, Departm ent of Transportation

("Respondent"), has demonstrated that Petitioner, Frank C.

Kunnen, Jr., d/b/a U.S. 19 Commerce Center's ("Petitioner"),

right - out driveway to U.S. Highway 19 will present a safety and

operational problem following Respondent's reconst ruction of

U.S. Highway 19.

Whether Petitioner's access to the state highway system

will be reasonable if Petitioner's existing right - out driveway

is closed.

Whether Respondent is legally entitled to administratively

close Petitioner's driveway, pursuant t o Rule 14 - 96.011, Florida

Administrative Code, and applicable Florida Statutes.

PRELIMINARY STATEMENT

On December 11, 2000, Respondent sent Petitioner a notice

of intent to change driveway connections. On December 21, 2000,

Petitioner filed a petition for formal administrative hearing.

On January 2, 2001, the Petition was referred to the Division of

Administrative Hearings ("DOAH") and the case was assigned to

Arnold H. Pollock, Administrative Law Judge. The case was set

for hearing and discovery ensued.

The formal administrative hearing was commenced on

March 20, 2001, before Administrative Law Judge Arnold H.

Pollock. During the hearing, an issue arose concerning whether

Respondent was proceeding under Rule 14 - 96.011, Florida

Administrative Code, a s specified in its Notice, or was actually

attempting to proceed under Rule 14 - 96.012, Florida

Administrative Code, which regulates the closure and

modification of unpermitted connections. Judge Pollock granted

Respondent a continuance to research the iss ue of whether

Petitioner's subject driveway connection was a "permitted

connection" under Rule 14 - 96.011, Florida Administrative Code,

or an "unpermitted connection" under Rule 14 - 96.012, Florida

Administrative Code.

The hearing was reconvened on September 19 and 20, 2001,

before Administrative Law Judge Daniel M. Kilbride at which time

Respondent stipulated that it was proceeding under Rule 14 -

96.011, Florida Administrative Code, thus acknowledging for the

purposes of this proceeding, that Petitioner's dri veway

constituted a "permitted connection." The parties also filed a

written Joint Stipulation dated September 13, 2001, which

provided:

The Department stipulated that the

Petitioner's existing right - in/right - out

driveway to the existing configuration to

U.S. 19 does not constitute a safety or

operational problem.

At the formal administrative hearing, Respondent presented

the testimony of Frank Ghadimi, P.E., an expert in the areas of

highway design and engineering and safety operation; Vibert

Griffith, P .E., an expert in the areas of highway design and

engineering; and Julian Parsons, an engineer. Petitioner

presented the testimony of Joseph Hitterman, David May, and

Reginald Mesimer. Respondent offered 8 exhibits into evidence.

Petitioner offered 8 ex hibits into evidence.

At the end of the final hearing, the parties ordered a

transcript of the final hearing, and the parties were given 20

days from the filing of the transcript to file proposed

recommended orders. The Transcript from the March 20 hearin g

date was filed on September 12, 2001, and the Transcript from

the September 20 through 21 hearing dates was filed on

October 31, 2001. Each party filed its Proposed Recommended

Order on November 20, 2001. Respondent filed a corrected

proposed order on November 26, 2001. Each party's proposals

have been give careful consideration in the preparation of the

Recommended Order.

FINDINGS OF FACT

1. Petitioner is the owner of real property located within

the city limits of Clearwater, in Pinellas County, Florida,

which property abuts U.S. Highway 19 (State Road 55). It has a

right - in and right - out driveway connection to U.S. Highway 19.

Petitioner's current right - in, right - out driveway does not

create a safety or operational problem with the existing

con figuration of U.S. Highway 19.

2. Respondent is an agency of the State of Florida created

pursuant to Chapter 20, Florida Statutes. Respondent regulates

access to the state highway system.

3. Respondent initially cited Rule 14 - 96.011, Florida

Administra tive Code, in the Notice as authority for the intended

agency action. This Rule pertains to closure or modification of

permitted driveways. At hearing on March 20, it was discovered

that Respondent had intended to cite Rule 14 - 96.012, Florida

Administrat ive Code, which pertains to closure or modification

of unpermitted driveways that had been in existence since before

July 1, 1988, the effective date of the State Highway System

Access Management Act. The Rule refers to these driveways as

"grandfathered." As of March 20, Respondent was not aware that

Petitioner's driveway might have been permitted. In order to

provide Petitioner all due process to which he was entitled,

Respondent requested that the hearing be continued. After

reviewing its files, Respo ndent indicated to Petitioner on

June 28, 2001, that Respondent would be requesting an additional

continuance to conduct an engineering study pursuant to Rule 14 -

96.011, Florida Administrative Code.¹ Petitioner agreed to both

continuances. The study wa s dated August 20, 2001, and was

delivered to Petitioner's counsel just after that date. This

study was presented as Respondent's Exhibit 5 at the resumption

of the hearing on September 20, 2001. The Study sets out the

essential safety and operational ba ses for Respondent's agency

action in this case and was signed and sealed by a professional

engineer registered in the State of Florida.

4. Prior to the reconvened hearing, Petitioner did not

seek to depose the author of the engineering study nor did he

r equest documents utilized in creating the study. Petitioner

decided to wait until the hearing and make a series of

objections to the study's admissibility. Prior to and after the

study was admitted into evidence, Petitioner's counsel conducted

extensive cross - examination of the engineer who signed and

sealed the study, Vibert Griffith, P.E., and his assistant in

the creation of the study, Julian Parsons. Petitioner did not

present any evidence of prejudice resulting from the timing of

the creation of the study. Any prejudice which may be presumed

was cured by Respondent's requesting a continuance specifically

to search its records for evidence of a permit; Respondent's

requesting another continuance to create that study;

Petitioner's agreeing to both con tinuances; and Respondent's

producing the study approximately one month prior to hearing.

This gave Petitioner time to conduct discovery regarding the

study, not to mention sufficient time to prepare for the hearing

itself.

5. The Notice did not state wh ether mediation was

available in this case. However, the lack of mention of

mediation in the Notice was of no prejudice to Petitioner in

light of the fact that that Petitioner proposed several

alternative driveway designs to Respondent, and that these

alt ernatives had been closely studied and considered.

Petitioner did not present any evidence that he had asked

whether mediation was available or was denied an opportunity to

mediate this case. Accordingly, any error in the lack of

information regarding me diation in the Notice was harmless, and

any prejudice was cured.

6. Petitioner elicited testimony with respect to a third

procedural point in this case. Rule 14 - 96.011(1)(e), Florida

Administrative Code, states that if Respondent seeks to close a

drivewa y, Respondent will offer to meet with the property owner

or his representative on - site. As Petitioner's counsel stated

during his opening remarks, however, there is a long history of

litigation between Petitioner and Respondent, including two

pervious med iations. Again, the unrebutted testimony at hearing

was that over the last several years Respondent evaluated three

alternative designs submitted by Petitioner for access to U.S.

Highway 19. Petitioner did not present any evidence of

prejudice in not bei ng able to meet on - site with Respondent in

this case. Any error in relation to this issue was harmless.

7. U.S. Highway 19 runs north - south through Pinellas

County, Florida and is a part of the Florida Intrastate Highway

System. In the vicinity of Petit ioner's property, U.S. Highway

19 has three lanes of traffic each for northbound and southbound

traffic (total of six lanes). As part of the reconstruction of

U.S. Highway 19, Respondent has plans to create "grade separated

intersections" or "urban interc hanges" at the cross street to

the south and north of Petitioner's property. The cross street

to the south is Drew Street, and the cross street to the north

is Coachman Road. Also, just to the north of Petitioner's

property, U.S. Highway 19 is elevated o ver railroad tracks, and

will continue to be so elevated after reconstruction.

8. In its reconstructed state, vehicles will reach

mainline U.S. Highway 19 by a series of frontage roads and on

and off ramps. Vehicles that stay on mainline U.S. Highway 19

will not have to stop for signals at intersections with cross

streets because the mainline will travel over the cross streets.

The effect of U.S. Highway reconstruction will be to create a

more efficient transportation facility by improving safety and

cap acity. The overall improvements to U.S. Highway 19 are

necessary.

9. Although Respondent is closing Petitioner's right - out

driveway to mainline U.S. Highway 19, Respondent is not

acquiring any property from Petitioner. Accordingly, Respondent

provided P etitioner with notice of the intended agency action

and right to an administrative hearing (the "Notice").

Respondent's Proposal

10. Respondent proposes, as part of its planned

improvements to U.S. Highway 19, to provide Petitioner a right -

in only entranc e from a frontage road running adjacent to and

parallel to U.S. Highway 19. Respondent also proposes to build

a new two - way road, referred to as Access Road A, which runs

north - south, parallel to U.S. Highway 19, intersects Drew

Street, and from that poin t provides vehicles the option of

traveling either north or south on mainline U.S. Highway 19, or

east or west on Drew Street. Petitioner's northerly neighbor, a

maintenance yard owned by Pinellas County, would also send all

of its traffic, including larg e trucks and emergency vehicles,

out Access Road A to Drew Street. Other properties, including

several car dealerships, to the south of Petitioner's property

would also have access to Access Road A. No other property

owner, including Pinellas County, obj ected to Respondent's

proposed access system. It is undisputed that Respondent has

all of the right - of - way necessary to construct Access Road A to

Petitioner's property line.

11. During construction, the City of Clearwater will

install a temporary traffi c signal at the intersection of Access

Road A and Drew Street. Based on a traffic study conducted by

the Pinellas County MPO and endorsed by the City of Clearwater

and Pinellas County, the traffic light will become permanent

when construction is completed . Even if the temporary light is

removed after construction, Access Road A will function properly

for right turns onto Drew Street which will provide access to

the northbound and southbound mainline lanes of U.S. Highway 19.

This is true, even assuming t hat all of Petitioner's neighbors

send all of their traffic out Access Road A. In addition,

Petitioner's neighbors to the south have several alternate means

of access to travel west on Drew Street and either north or

south on U.S. Highway 19.

12. Respond ent is closing Petitioner's right - out driveway

to U.S. Highway 19 because, post - construction, the driveway

would be located on an on - ramp. The frontage road and on - ramp,

as currently designed by Respondent, would prevent placement of

a right - out driveway in such a location.

13. It is Petitioner's position that Respondent could have

designed the frontage road and on - ramp in front of Petitioner's

property in such a way as to allow the safe operation of a

right - out driveway in the approximate location of Pet itioner's

current right - out driveway.

Petitioner's Proposal

14. In support of his contention that Respondent could

have designed a right - out driveway, Petitioner offered an aerial

map and overlay (Petitioner's Exhibit 3), which purported to

show that Resp ondent could have designed an on - ramp from Drew

Street and an off - ramp to Coachman Road to the north in such a

way as to allow Petitioner a right - out driveway. Petitioner's

Exhibit 3 was a concept based upon what was referred to as the

"Lochner Study" at hearing. The "Lochner Study" was a study

performed by the engineering firm H. W. Lochner, and showed a

right - in, right - out driveway from Petitioner's property onto a

frontage road/on - ramp in approximately the same location as

Petitioner's current driveway . In the past Petitioner had

proposed other alternatives for access to U.S. Highway 19.

Petitioner withdrew from consideration at this hearing all other

alternative designs for a right - out driveway for Petitioner.

15. The Lochner Study was undertaken wi th the specific

purpose of determining whether needed improvements to U.S.

Highway 19 could be safely constructed within right - of - way

already owned by Respondent. The Lochner Study concluded that

placing a driveway for Petitioner in the location shown in the

study would provide "substandard operation and is very

undesirable from a safety stand point." The primary reason for

this conclusion was that the physical separation of northbound

mainline U.S. Highway 19 and the frontage road ended south of

the driv eway's location. This lack of physical separation would

allow vehicles on northbound mainline U.S. Highway 19 to cross

over the frontage road and enter Petitioner's property, creating

unsafe traffic movements. Petitioner's witnesses agreed that

this lack of separation would be a safety problem.

16. Petitioner's Exhibit 3, prepared and testified about

by Reginald Mesimer, attempted to alleviate this admittedly

unsafe aspect of the Lochner plan by extending the physical

separator between northbound mainlin e U.S. Highway 19 and the

frontage road/on - ramp to a point just beyond the location of

where Petitioner's driveway would be. The area of physical

separation is the "gore" area. In effect, this extension also

would shift the beginning of the on - ramp to th e point of

Petitioner's driveway. Thus, the issue raised was whether the

location of the on - ramp could be safely designed to co - exist

with the location of the off - ramp for the next interchange at

Coachman Road. The standards for determining whether this

design is safe are set by the American Association for State

Highway and Transportation Officials ("AASHTO"), who publish

these standards in the "Green Book," known as the "Bible" of

transportation engineers.

17. In examining Petitioner's Exhibit 3, as we ll as the

requirements of AASHTO submitted in this case, it is clear that

the requirements for an on - ramp followed by an off - ramp are: (1)

an acceleration area for the on - ramp; (2) a weaving area for

vehicles going from the on - ramp to mainline, and for veh icles

going from mainline to the off - ramp; (3) a deceleration area for

the off - ramp, and (4) a queue area for vehicles at the terminus

of the off - ramp.

18. Petitioner's Exhibit 3 shows the start of the

acceleration area for the on - ramp at the location of

Petitioner's right - out driveway, which indicates that the on -

ramp for vehicles leaving Petitioner's property would begin at

his driveway. Petitioner's Exhibit 3 shows a 2,000 - foot weave

area, also beginning at the location of Petitioner's right - out

drivew ay.

19. Placing the start of the acceleration area and the

weave area at the same point on an on - ramp is contrary to AASHTO

design standards. The beginning of the weave area should be

near the end of the acceleration area, which, on Petitioner's

Exhibit 3, is supposed to be where vehicles on the on - ramp are

traveling at the design speed of the highway they are attempting

to enter. AASHTO places the beginning of the weaving area where

the outside lane of the mainline and the inside lane of the on -

ramp are separated by two feet. The weave area extends to a

point where there is a twelve - foot separation of the mainline

and off - ramp lanes at the next interchange.

20. The design speed of U.S. Highway 19 is 55 miles per

hour. It is uncontested that vehicles l eaving Petitioner's

property will be in a stopped condition prior to entering the

on - ramp. Thus, looking at Petitioner's Exhibit 3, the beginning

of the weave area should be placed approximately 965 feet to the

north of the current location shown on Petit ioner's Exhibit 3.

In turn, this forces the deceleration area for the off - ramp to

Coachman Road shown on Petitioner's Exhibit 3 to be shifted 965

feet to the north. Petitioner's expert testified that the off -

ramp deceleration area at Coachman Road could be shifted between

300 and 400 feet to the north. Assuming this to be correct,

this places the start of the off - ramp deceleration area

approximately 965 feet to the north of its current location,

which is 565 to 665 feet beyond the farthest point Petition er's

expert testified it could be moved.

21. Respondent's experts also examined Petitioner's

Exhibit 3 under the dictates of AASHTO. Unlike Petitioner,

Respondent assumed a design speed of 50 miles per hour, and

assumed that shorter distances for acceler ation, weaving, and

deceleration could be applied in this situation under AASHTO.

Respondent's findings demonstrate that under the "Petitioner's

best case scenario" the off - ramp at Coachman Road would still

have to be moved approximately 600 feet to the n orth, which is

at least 200 feet past the farthest possible shift testified to

by Petitioner's expert. Moving the off - ramp would obviously

require redesign and delay of the Coachman Road project to the

north, already designed and funded for construction.

22. Further, Petitioner's Exhibit 3 also did not take into

account any need for increased acceleration distance on the on -

ramp due to the grade of the road. For certain portions of the

acceleration area of the on - ramp in Petitioner's Exhibit 3 the

grade is steeper that 3 percent, and averages over 2 percent.

AASHTO does not require an increase in acceleration distance

where the grade is "less that two percent." AASHTO requires an

increase when the grade is more than 3 percent. This is,

according to Pet itioner's witness, a "gray area" in AASHTO. In

this situation, while AASHTO may not require a multiplier be

applied to the entire acceleration distance, it would be safer

for the traveling public to apply the multiplier at least to the

portions above 3 pe rcent and perhaps to the entire acceleration

distance, and to acknowledge that the grade of the road

militates against application of strict minimum AASHTO standard

distances. Adjusting at all for grade would result in a longer

on - ramp and require pushing the off - ramp at Coachman even

further north, which makes Petitioner's Exhibit 3 alternative

even less viable.

23. Another factor that Petitioner's Exhibit 3 did not

take into account was that a significant amount of traffic

leaving the proposed right - out driveway would be fully - loaded

heavy trucks both from Petitioner's property and the Pinellas

County maintenance yard. The AASHTO acceleration distance of

965 feet shown in that Exhibit is for automobiles. Knowing that

heavy, fully loaded trucks would be utilizing this driveway on a

regular basis, the acceleration distance for such trucks

reaching 55 or even 50 miles per hour would be longer than for a

normal passenger vehicle.

24. Petitioner's alternative proposal was fatally flawed

in its misplacement of the weave area, and was defective in

other respects such as not considering the slower heavy truck

traffic or the grade of the road. Thus, it is apparent that

under any interpretation of the AASHTO standards, Respondent

could not safely design an on - ra mp from the Drew Street area and

an off - ramp to the Coachman Road interchange and provide

Petitioner a right - out driveway in the approximate location of

his existing right - out driveway.

25. Based upon all the evidence presented at hearing,

Respondent de monstrated that AASHTO standards preclude moving

the on - ramp to the location proposed by Petitioner. Therefore,

closing Petitioner's right - out driveway to reconstructed U.S.

Highway 19 is mandated for safety and operational reasons.

Access - Reasonableness Issues

26. Following the reconstruction of U.S. Highway 19, the

access proposed by Respondent for Petitioner's property is

reasonable. An objective comparison of the alternative proposed

by Petitioner and Respondent's proposal reveals that

Respondent's d esign results in safer and more efficient access

to the state highway system for Petitioner and direct access to

east and west travel on Drew Street.

27. One measurable point of comparison is the relative

distance a vehicle would have to travel to reach t he state

highway system under Respondent's proposal versus Petitioner's.

Prior to Petitioner's withdrawing from consideration all

alternatives other than what was represented in Petitioner's

Exhibit 3, Respondent presented testimony regarding two of

Petit ioner's earlier alternative concepts. These previous

alternatives were referred to as Proposal One and Proposal Two.

Proposal One was basically a right - out driveway in the form of

an on - ramp that would have tied in to mainline U.S. Highway 19

prior to th e railroad tracks. Proposal Two was a right - out

driveway/on - ramp that tied into the off - ramp for Coachman Road.

As far as comparing relative travel distances, both Proposals

One and Two are similar to the alternative in Petitioner's

Exhibit 3. For vehic les to travel north from Petitioner's

property on U.S. Highway 19 in Respondent's design, vehicles

travel south on Access Road A, west on Drew Street, and then

south on the frontage road/on - ramp. This is a distance of .44

miles. To reach the same point u sing the access provided in

Proposal One, Proposal Two, or Petitioner's Exhibit 3, a vehicle

must travel north to the Coachman interchange, and double back

south, a distance of approximately 1.45 miles. Thus, when added

together, the distances for vehicle s to travel north and south

on U.S. Highway 19 in Respondent's design total 1.12 miles, or

.33 miles less than the 1.45 miles to reach the same points

using any of Petitioner's alternative driveway proposals. In

addition, for vehicles that wish to travel east or west on Drew

Street from Petitioner's property, Respondent's alternative is

much shorter. It is .32 miles to reach Drew Street along Access

Road A, and 1.6 miles to reach Drew Street from Proposal One,

Proposal Two, or Petitioner's Exhibit 3.

28. Another measurable point of comparison are conflict

points, places such as intersections and merge areas where

vehicles can be expected to change lanes. In Respondent's

design, there are four or five conflict points to travel north

on U.S. Highway 19, th ree or four to travel south on U.S.

Highway 19, and one to travel east or west on Drew Street.

Petitioner's Exhibit 3 shows two conflict points to travel north

(right - out turn to on - ramp and merge to mainline), six or seven

to travel south on U.S. Highway 19, and seven or eight to travel

east or west on Drew Street (same as south on U.S. Highway 19

plus turn from off - ramp). For vehicles traveling north and

south on U.S. Highway 19 from Petitioner's property, the number

of conflict points in either Respond ent's design or Petitioner's

alternative are essentially even, but when travel on Drew Street

is included in the comparison Respondent's design is clearly

safer.

29. A third point of comparison is that Petitioner's

alternative provides one way in and one way out. Respondent's

design provides two ways in and one way out. Respondent's

design provides reasonable access to Petitioner's property. In

comparison to Petitioner's alternative, Respondent's design

provides for shorter combined travel distances. I n regard to

conflict points, Respondent's design is as safe as Petitioner's

alternative, and safer if travel on Drew Street is included in

the comparison. Finally, Respondent's design provides an

additional point of ingress.

30. Both witnesses called by Petitioner opined that the

access proposed by Respondent was not reasonable, primarily

because the access is not "direct." The basis of that opinion

was limited to their belief that a "better" access plan, the

alternative shown in Petitioner's Exhibit 3, was viable.

Neither of Petitioner's witnesses knew the relative travel

distances, nor did either witness testify about actual conflict

points or any other possible objective points of comparison.

Petitioner's witnesses' view are flawed because the altern ative

shown in Petitioner's Exhibit 3 is not viable.

31. Assuming, arguendo , that Petitioner's Exhibit 3

reflected a safe design, and assuming that this access is

reasonable, it would be contrary to logic to conclude that

Respondent's design results in un reasonable access. The only

"advantage" in Petitioner's Exhibit 3 versus Respondent's

proposal is a right - out "direct" connection to U.S. Highway 19

via the on - ramp. However, comparing travel distances, conflict

points, and points of ingress, Respondent 's design is comparable

if not superior, and thus, reasonable.

32. Petitioner stressed that all other property owners

along the U.S. Highway 19 corridor have right - in and right - out

driveways on frontage roads, and that Petitioner is the only

property owne r required to use a facility like Access Road A for

egress. Even if true, this circumstance does not in and of

itself change Respondent's designed access for Petitioner's

property into unreasonable access. Based upon objective

criteria, Respondent's desi gn is comparable or superior to

Petitioner's alternative, and Respondent's design is comparable

or superior to the access enjoyed by all other property owners

in this vicinity.

Engineering Study

33. Pursuant to Rule 14 - 96.011, Florida Administrative

Code, Respondent conducted an engineering study to examine the

closure of Petitioner's right - out driveway. Normally, an

engineering study is prepared prior to Respondent serving its

Notice of Intent to close or alter a permitted driveway

connection. The engin eering study documents that there is a

safety or operational problem with a particular driveway

connection, and ensures that Respondent has an engineering basis

to seek closure or alteration of the driveway. However, at the

time this case came to hearing on March 20, 2001, Respondent was

not aware that Petitioner's driveway may have been permitted.

That is the reason the study was conducted during a continuance

of this case and delivered to Petitioner on or around August 17,

2001. Petitioner agreed to th e continuance for Respondent to

conduct the study, and Petitioner had adequate time to conduct

any further discovery in this case after receipt of the study.

Thus, any procedural error in the timing of the study was waived

by Petitioner and/or cured by Re spondent.

34. The Study does provide safety and operational bases

for Respondent's agency action in this case. The study

summarizes the history of the U.S. Highway 19 improvement

project, discusses the current conditions, explains the proposed

improvemen ts, and reviews the safety and operational issues

specific to Petitioner's right - out driveway in the post

construction condition. The study also explains why two

alternative right - out driveway configurations were not

acceptable to Respondent. The study c ontains exhibits showing

traffic patterns in the existing and possible future post

construction conditions. The study was signed and sealed by a

professional engineer registered in the State of Florida. The

study did not discuss the Petitioner's alternat ive advocated at

hearing. The reason the study did not address this concept was

that at the time of its creation, Respondent did not have

Petitioner's Exhibit 3.

35. One other item not addressed was traffic accident

data. Since the improvements of U.S. Highway 19 have not been

constructed, there is no accident data for the right - out

driveway in the post construction condition. Respondent

stipulated that Petitioner's existing right - out driveway is

safe, so any accident data relating to current conditions is not

relevant.

CONCLUSIONS OF LAW

36. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.569 and 120.57(1), Florida

Statutes.

37. Respondent regulates, among oth er things, access to

the state highway system pursuant to Sections 335.18 through

335.188, Florida Statutes, the State Highway System Access

Management Act. Respondent is also the state agency charged

with construction, operation, and maintenance of the s tate

highway system. Respondent had plenary authority with respect

to the state highway system and must exercise its discretion

according to its enabling statutes to serve the public need.

Department of Transportation v. Lopez - Torres , 526 So. 2d 674

(Fla . 1988).

38. Section 334.044(14), Florida Statutes, provides in

pertinent part, as follows:

Department; powers and duties. -- The

department shall have the following general

powers and duties:

* * *

(14) To establish, control, and prohibit

point s of ingress to, and egress from, the

State Highway System, the turnpike, and

other transportation facilities under the

department's jurisdiction as necessary to

ensure the safe, efficient, and effective

maintenance and operation of such

facilities.

39. Section 335.181, Florida Statutes, provides in

pertinent part, as follows:

(1) It is the finding of the Legislature

that:

(a) Regulation of access to the State

Highway System is necessary in order to

protect the public health, safety, and

welfare, to preserve the functional

integrity of the State Highway System, and

to promote the safe and efficient movement

of people and goods within the state.

* * *

(2) It is the policy of the Legislature

that:

(a) Every owner of property which a buts 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 may be restricted by the

departm ent. 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 author ize 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 .

* * *

(7) Nothing in this act prohibits the

construction of service roads along a

highway on the State Highway System so long

as such service roads provide reasonable

access to such highway. A property owner

whose land abuts a service road is e ntitled

to reasonable access to such service road

pursuant to s. 335.184 . However, nothing in

this act requires that a property owner

whose land abuts a service road be given

direct access across the service road to the

state highway served thereby.

40. Section 335.184(3), Florida Statutes, provides as

follows:

(3) A property owner shall be granted a

permit for an access connection to the

abutting state highway, un less the

permitting of such access connection would

jeopardize the safety of the public or have

a negative impact upon 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.

41. The burden of proof is on the party asserting the

affirmative of an issue before an administrative tribunal.

Florida Department of Transportation v. J. W. C. Co., Inc. , 396

So. 2d 778 (Fla. 1st DCA 198 1). To meet this burden, Respondent

must establish facts upon which its allegations are based by a

preponderance of evidence. Section 120.57(1)(j), Florida

Statutes. If Respondent makes a prima facie showing of

reasonable assurances, the burden shifts t o Petitioner to

present evidence of equivalent quality. J. W. C. Co. , 396 So.

2d at 788.

42. Respondent seeks to close Petitioner's right - out

driveway to mainline U.S. Highway 19 as party of a major

reconstruction project of that facility. In order to c lose the

driveway, Respondent must comply with Rule 14 - 96.015, Florida

Administrative Code, which provides:

(3) Where connections are to be closed or

substantially re - located as part of a

Department improvement project, and the

Department is not plannin g to acquire any

portion of the property for the project, the

Department will provide notice and

opportunity for an administrative proceeding

pursuant to rules 14 - 96.011 or 14 - 96.012 and

Chapter 120, Florida Statutes.

43. Rule 14 - 96.011, Florida Ad ministrative Code, applies

to closure of permitted driveways, and Rule 14 - 96.012, Florida

Administrative Code, applies to closure of "grandfathered"

driveways. The parties agreed that Rule 14 - 96.011, Florida

Administrative Code, would apply in this case.

44. Rule 14 - 96.011(1)(d), Florida Administrative Code,

provides as follows:

. . . The Department may initiate action to

revoke or modify any permit or existing

permitted connections if:

* * *

(d) Such revocation or modification is

determined to be necessary because the

connection poses a current or potential

safety or operational problem on the State

Highway System. This problem must be

substantiated by an engineering study signed

and sealed by a professional engineer

registered in the State of Florida

qualified in transportation engineering.

Such engineering study shall consider, but

not be limited to, the following:

1. Accident or operational analysis

directly involving the access points or

similar access points, or a traffic

conflicts a nalysis of the site.

2. Analysis of the impact the closure,

modification, or relocation will have on

maintenance, or safety of the Public Road

System.

3. Analysis of the impact [sic] closure,

modification, relocation will have on

traffic patterns and circulation on the

Public Road System.

4. The principles of transportation

engineering as determined by generally

accepted Professional Practice.

45. The timing of the creation of the study was of no

prejudice to Petitioner. The study provides safet y and

operational bases for Respondent's proposed agency action in

this case, summarizes the history of the U.S. Highway 19

improvement project, discusses the current conditions, explains

the proposed improvements, and reviews the safety and

operational is sues specific to Petitioner's right - out driveway

in the post construction condition. The study also explains why

two alternative right - out configurations are not acceptable to

Respondent. The study contains exhibits showing traffic

patterns in the existi ng and possible future post - construction

conditions. The study was signed and sealed by a professional

engineer registered in the State of Florida. The engineering

study performed by Respondent meets the requirements of Rule 14 -

96.011, Florida Administra tive Code.

46. Rule 28 - 106.111, Florida Administrative Code, and

Section 120.573, Florida Statutes, both provide that a notice of

agency action inform an affected party of whether mediation is

available in a particular case. With respect to the Notice no t

mentioning whether mediation was available in this case, there

is no evidence that this prejudiced Petitioner in any way, and,

thus, any error was harmless.

47. Rule 14 - 96.011(1)(e), Florida Administrative Code,

states that Respondent will offer to meet on - site with a

property owner and take into consideration documents, reports,

studies and alternative solutions proposed by the property

owner. With respect to Respondent not offering to meet on - site,

no evidence of prejudice was presented. In fact, it was

testified to by both sides that for several years prior to this

hearing Respondent and Petitioner had been discussing

alternatives. Further, no testimony was provided that the

parties did not comply with the Order of Prehearing Instructions

issued Jul y 23, 2001, which required the parties to meet at

least 15 days prior to hearing and discuss the possibility of

settlement. Any error with respect to the lack of on - site

meeting was harmless.

48. At hearing, Respondent demonstrated that following the

pla nned improvements to U.S. Highway 19 there is no acceptable

way to construct Petitioner a right - out driveway in the location

of Petitioner's current right - out driveway. The alternatives

considered and rejected by Respondent prior to hearing and the

altern ative presented for the first time at hearing

(Petitioner's Exhibit 3), indicate that the action by Respondent

to close Petitioner's right - out driveway is proper.

Petitioner's preference for a right - out cannot outweigh the

Respondent's acceptable route de termination. See Pasco County

v. Franzel , 569 So. 2d 877, 879 (Fla. 2d DCA 1990) ("a landowner

cannot force a taking authority to select the landowner's

preferred route when the authority has carefully selected an

acceptable alternative route . . . ."). Based upon the

evidence, Respondent is authorized to close Petitioner's right -

out driveway.

49. Respondent's action will not deny Petitioner access to

his property. Further, Respondent's action will result in

reasonable access to Petitioner's property. Rule 14 - 96.002(22),

Florida Administrative Code, defines "reasonable access" as

follows: "[T]he minimum number of connections, direct or

indirect, necessary to provide safe ingress and egress to the

State Highway System based on Section 335.18, Florida St atutes,

the Access Management Classification, projected connection and

roadway traffic volumes, and the type and intensity of the land

use." Respondent is providing Petitioner reasonable ingress to

his property via the frontage road and Access Road A.

Re spondent is providing reasonable egress from Petitioner's

property via Access Road A. The evidence demonstrated that with

or without a traffic signal at the intersection of Access Road A

and Drew Street, Access Road A will function as designed. The

local governments with jurisdiction over the intersection will

keep a traffic signal after construction is completed. Thus,

Petitioner will have reasonable access to his property.

50. The record is clear that Respondent has met its burden

to show that Petitio ner's right - out driveway connection to U.S.

Highway 19, after the constructed improvements, will create a

safety and operational problem, and that Respondent has been

given safe and reasonable access to U.S. Highway 19 via the

frontage road and Access Road A. Respondent has also met its

burden to show that the prospective closing of Petitioner's

driveway connection is in compliance with the State Highway

System Access Management Act, Sections 335.18 through 335.188,

Florida Statutes, and Chapter 14 - 96, Flo rida Administrative

Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Department of Transportation

enter a final order approving the closure of Petitioner's right -

out driveway as part of the future constructed improvements to

U.S. Highway 19 and the construction of Access Road A.

DONE AND ENTERED this 14th day of December, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative H earings

this 14th day of December, 2001.

ENDNOTE

1/ Respondent filed a Motion for Continuance on June 29, 2001,

which recited the chain of events that led up to the decision to

conduct the engineering study as the basis for a continuance.

Respondent w as authorized to represent that Petitioner had no

objection to the Motion. The full text of the Motion is as

follows:

Respondent, Department of Transportation

(Department), hereby requests a continuance

in the above - styled matter, and in support

states:

1. The original continuance in this case

was granted on March 20, 2001, in part, so

that the Department could search its files

for any permits which may have been issued

to Petitioner for an access

connection/driveway to U.S. 19 in Pinellas

County, Flori da.

2. On April 12, 2001, the Department

communicated to counsel for Petitioner that

the Department had searched its records for

an access management/driveway permit for

Petitioner's property and had found a permit

dated December 7, 1982, which appeared to

authorize placement of fill material and

removal of a curb rail within the

Department's right of way. At that time,

and based upon that document alone, the

Department took the position that Petitioner

did not have a driveway permit as

contemplated by Section 335.187, Florida

Statutes, and Rule 14 - 96.011, Florida

Administrative Code.

3. Within the last week, the Department

has found another document relevant to this

issue, a letter dated September 16, 1980,

from the Department to Petitioner. Based

u pon this letter, together with the above -

referenced permit, the Department is

reevaluating whether Petitioner had an

access permit, and if so whether that access

permit was in effect or valid as of July 1,

1988. However, in order to accord

Petitioner all rights to which he may be

entitled, the Department is going to prepare

an engineering study pursuant to the

requirements of Rule 14 - 96.011, Florida

Administrative Code. When completed, the

Department will immediately deliver

Petitioner's counsel a copy of the study.

The Department anticipates that Petitioner

may at that time wish to engage in further

discovery.

4. The Department requests that this case

be continued until such time as the parties

are again ready to proceed. Based upon

witness availabil ity at this time the

parties do not anticipate the hearing

commencing until late September, 2001.

Frank Ghadimi, the Department's witness who

was testifying when this case was continued

on March 20, 2001, will be out of the

country for all of August and t he first

fifteen days of September, 2001.

5. The Department is authorized to

represent that Petitioner has no objection

to this requested continuance.

COPIES FURNISHED :

Robert C. Downie, II, Esquire

Department of Transportation

605 Suwannee Street

Ha ydon Burns Building, Mail Station 58

Tallahassee, Florida 32399 - 0458

James A. Helinger, Jr., Esquire

James A. Helinger, Jr., P.A.

814 Chestnut Street

Clearwater, Florida 33756

James C. Myers, Clerk of Agency Proceedings

Department of Transportation

Hay don Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Pamela Leslie, General Counsel

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

NOTICE OF RI GHT 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 .