17-003348RU Ocala Herlong, Llc vs. Department Of Transportation Status: Closed DOAH Final Order on Tuesday, November 21, 2017.

Summary: Petitioner demonstrated, by a preponderance of the evidence, that an agency statement was an unadopted rule that violates section 120.54(1)(a).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OCALA HERLONG, LLC,

Petitioner,

vs. Case No. 17 - 3348RU

DEPARTMENT OF TRANSPORTATION,

Respondent.

_______________________________/

FINAL ORDER

A final hearing was held in this case, pursuant to

sections 120.56(4), 120.569, and 120.57(1), Florida Statutes , 1/

before Cathy M. Sellers, a designated Administrative Law Judge

("ALJ") of the Division of Administrative Hearings ("DOAH") . The

final hearing was conducted on July 13, 2017 , in Tallahassee,

Florida.

APPEARANCES

For Petitioner: D. Ty Jackson, Esquire

GrayRobinson, P.A.

301 South Bronough Street, Suite 600

Post Office Box 11189

Tallahassee, Florida 32302 - 3189

For Respondent: Susan Schwartz, Esquire

Department of Transportation

605 Suwa nnee Street , Mail Station 58

Tallahassee, Florida 32399 - 0458

STATEMENT OF THE ISSUE

Whether a statement included in the Department of

Transportation 's 2014 Median Handbook constitutes an unadopted

rule, as defined in section 120. 52(20), in violation of

sectio n 120.54(1)(a) .

PRELIMINARY STATEMENT

On June 13, 2017, Petitioner, Ocala Herlong, LLC, filed a

Petition for the Administrative Determination of the Invalidity

of an Agency Statement , requesting an administrative

determinati on that a statement in Respondent, Department of

Transportation 's, 2014 Median Handbook ( " Handbook " ) constitutes a

rule under section 120.52(16) that violates section 120.54(1)(a),

and prohibiting Respondent from applying or otherwise relying on

the statem ent or a substantially similar statement.

The final hearing was set for, and held on, July 13, 2017.

Petitioner presented the t estimony of Gary Sokolow . Joint

Exhibits 1 through 20 were admitted into evidence without

objection. Respondent did not call any witnesses to testify a t

the final hearing.

The one - volume Transcript was filed on July 21, 2017. The

agreed deadline for filing proposed final orders was August 4,

2017. Both parties timely filed their proposed final orders,

which were duly conside red in preparing this Final Order.

FINDINGS OF FACT

I. The Parties

1. Petitioner, Ocala Herlong, LLC, is a Florida limited

liability company that owns property located at 2905 North Pine

Avenue, Ocala , Florida. This property abuts the State Highway

System ( " SHS " ).

2. Respondent, Department of Transportation, is the state

agency that is responsible for, among other things, overseeing

access connections to the SHS and the planning, design, and use

of traffic control features and devices , including traffic

signals, channelizing islands, medians, median openings, and turn

lanes , in the SHS right of way.

II. T he Statute

3. The statute at issue in this proceeding, s ection

335.199 , Florida Statutes, states in pertinent part:

ansportation projects modifying

access to adjacent property. -

(1) Whenever the Department of

Transportation proposes any project on the

State Highway System which will divide a

state highway, erect median barriers

modifying currently available vehicle turning

moveme nts, or have the effect of closing or

modifying an existing access to an abutting

property owner, the department shall notify

all affected property owners, municipalities,

and counties at least 180 days before the

design of the project is finalized. The

d epartmentÓs notice shall provide a written

explanation regarding the need for the

project and indicate that all affected

parties will be given an opportunity to

provide comments to the department regarding

potential impacts of the change.

§ 335.19 9, Fla. Stat.

4. T h e statute requires that for projects that will ( among

other things ) erect median barriers modifying currently available

vehicle turning movements, affected property owners will be

notified at least 180 days before the project's design is

finalized.

III. Background of the Challenged Statement

5 . Respondent publishes a document titled " Median

Handbook." T he cover of the Median Handbook explains that its

purpose is to :

guide the professional through existing

rules, standards, and proce dures . . . on the

best ways to plan for medians and median

openings. Unless specifically referenced,

this is not a set of standards nor [sic] a

Departmental procedure. It is a

comprehensive guide to allow the professional

to make the best decisions on m edian

planning.

The Median Handbook has not been adopted as a rule pursuant to

the rulemaking procedures in section 120.54.

6 . On June 13, 2017, Petitioner initiated this proceeding

by filing a Petition for the Administrative Determination of the

Invalidity of an Agency Statement , pursuant to section 120.56(4),

challenging a provision in section 1.3.8 of Respondent's H andbook

as an unadopted rule that violates section 120.54(1)(a). 2 /

7 . Section 1.3.8 of the Handbook is titled " Florida Statute

335.199 - Public Involvement ." This section addresses the

meaning and applicability of section 335.199 , which was enacted

in 2010.

8 . The provision alleged to be an unadopted rule

(hereafter, the " Challenged Statement " ) appears on page 2 0 of the

Handbook . This provision, which refers to Committee Substitute

for Committee Substitute for Senate Bill (or "SB") 1842 , 3 / states:

This bill applies to any proposed work

program project beginning design on or after

November 17, 2010. The language of the bill

states 'whenever the Department of

Transportation' proposes any project,' so

this language does not apply to permit

applications. However, for permit

applications that affe ct medians and median

openings, the effected [sic] people and

businesses should be informed and involved by

the permittee as soon as possible.

9 . Upon the enactment of section 335.19 9, 4 / Respondent's

staff, including its chief engineer and its legislative liaison,

engaged in email discussions, dated November 17 and 18 , 2010,

regarding the effect the statute would have on R espondent's

existing procedures regarding median openings and access

management 5/ and the application of its access management

standards in Florida Administrative Code Rule 14 - 97 .003.

Although the email discussion referred to an " implementation

plan, " a t this point, Respondent's discussion primarily focused

on whether it s procedures and existing rules would need to be

amended to address section 335.199.

10 . However, by November 2 9 , 2010, Respondent's staff

were raising q uestions as to whether section 335.199 applied

to " permit jobs " ÏÏ referring to the construction of connections

to the SHS, which require connection permits pursuant to

section 335.1825 and Florida Administrative Code Chapter 14 - 96.

Specifically, in an email dated November 29, 2010, from

Respondent's legislative liaison to Responde nt's secretary and

chief engineer, the following matters were discussed:

Brian: You asked me to forward any further

questions/comments on the median bill,

SB 1842. I had some further thinking - out -

loud with DS folks who outlined a couple more

thoughts.

Recall the opening words of the new language

in the bill: Whenever the Department of

Transportation proposes any project.

1. These comments/questions are all about

permit jobs . Let's use a hypothetical permit

application to put in a big gas station.

Let's say a left - turn lane will need to be

lengthened , so maybe an opening needs to be

closed; maybe another needs to be relocated,

etc.

• It's a permit job, not a project DOT is

proposing. Does the bill apply at all?

• If the bill does apply, how is the time of

issuance of the permit impacted?

11 . On November 30, 2010, Respondent's chief engineer and

district operations directors conducted a videoconference to

address, among other things, the " [e]ffects of legislative action

on SB 1842. How will depar tment practices be impacted, on a

statewide basis? Specifically as it relates to permit reviews."

1 2 . A s a result of the November 30, 2010, videoconference,

Respondent's staff made the decision that " SB 1842 will not apply

to permit projects since the Bill says ['] whenever the Department

of Transportation proposes a project [']. We should not try to

expand the Bill or read it in a broade r sense."

1 3 . On December 18, 2010, Respondent's chief engineer sent

an email to Respondent's secretary and others , titled " SB 1842

transportation projects modifying access to adjacent properties."

That email (hereafter, the " Blanchard Memo " ) , which addresses the

applicability of section 335.19 9 to projects, permit

applications, and permittees , states in pertinent par t:

This bill applies to any proposed work

program project beginning on or after

November 17, 2010. The language of the bill

states [']whenever the Department of

Transportation proposes any project['], so

this language does not apply to permit

applications . However, for permit

applications that affect medians and median

openings, the effected [sic] people and

businesses should be informed by the permitee

[sic] as soon as possible.

On December 20, 2010, Respondent's secretary responded: " OK."

1 4 . After receiving Respondent's secretary's approval, on

December 21, 2017, Respondent's chief engineer distributed the

Blanchard Memo to Respondent's district secretaries. 6 /

15 . Respondent's d ocument regarding Topic No. 625 - 010 -

021 - h , titled " Median Openings and Access Management " and dated

February 20, 2013 , was revised to include , in section 7.2 , a

statement substantially similar to t he Blanchard Memo. This

document was approved by Respondent's secretary.

1 6 . In 2014, Respondent published an up dated version of its

Handbook c ontain ing the Challenged Statement ( which is set forth

in paragraph 6, above ).

17. The Challenged Statement has not been adopted pursuant

to the rulemaking procedures in section 120.54.

18. Respondent contends that the Challenged Statement is

not a rule but is inst ead merely a reiteration of the statute 's

language stating that the 180 - day notice requirement applies only

when Respondent proposes a project.

IV. Effect of the Challenged Statement

S tatu te Applicable Only to " Work Program " Projects

1 9 . By its terms, the Challenged Statement concludes that

section 335.199 applies only to " work program " projects.

20 . At the final hearing, Respondent's party

r epresentative, Gary Sokolow, 7 / acknowledged that section 335.199

does not define the term " project, " and that a person could not

determine, from reading the statute, what would ( or would not ) be

considered a " department project " for purposes of determining

applicability of the statute.

2 1 . He further acknowledged that the Challenged Statement

contains the words " work program " to define projects covered by

the statute, but that the statute itself does not contain the

words " work program " to define the projects to which it applies.

2 2 . Sokolow also acknowledged that a " work program project "

is a specific type of project . 8 / He testified that Respondent

undertake s " safety " projects that are not "work program" projects

and that entail the erection of median barriers that change

vehicle turning movements.

2 3 . This evidence establishes that a " work program project "

is a specific kind of project , and further establishes that

Respondent does undertake projects which are not " work program "

projects , and that involve erecting median barriers that chang e

vehicle turning movements.

Statute Not Applicable to Connection Permit Applications

2 4 . By its terms, th e Challenged Statement also concludes

that section 335.199 does not apply to applications for

connection permits to obtain access to the SHS . 9 /

2 5 . Pursuant to section 335.1825, a connection permit must

be obtained in order for the owner of property abutting the SHS

to construct a connection to the SHS. To obtain a connection

permit, the owner of property for which the connection is sought

must file , with Respondent's pertinent district office , an

application for a connection permit. The permit application must

detail the specific design features of the p roposed connection to

the SHS. As part of a permit appl ication, the applicant may

suggest or request that a median opening be created to

accommodate traffic flow as related to the proposed connection to

the SHS. Respondent reviews the application for compliance with

the applicable requirements of chapter 14 - 9 6, and either issues

the connection permit or denies the application.

2 6 . Rule 14 - 96.003(4) states that traffic control features

and devices in the right of way ÏÏ which expressly includ e medians,

median openings, and turn lanes ÏÏ are not a means of access to the

SHS. The rule further states that connection permits are only

issued for connections ÏÏ not for existing or future traffic

control features or devices at or near the permitted connections;

thus, while a permit may describe s uch traffic control features

or devices, such description does not create any type of interest

in such features. Fla. Admin . Code R. 14 - 96.003(4). Therefore,

although a c onnection permit applicant may request or suggest the

construction of a traffic cont rol device, such as a median

opening or other device , the applicant is not entitled to such a

device .

2 7 . Additionally, Respondent, in the context of reviewing a

connection permit application, m ay, on its own volition ,

determine that it is appropriate , based on traffic and safety

studies, to erect a median , create a median opening, or close an

existing median opening ÏÏ even where (as here) such median

erection, opening, or closure has not been requested by the

connection permit applicant.

2 8 . To this point, Sokolow distinguished between median

changes associated with Respondent's work program projects and

those associated with permit applications in that , in the former,

the changes are necessitated by Respondent's projects, while in

the latter, they ar e necessitated by a new con nection to the SHS.

However, h e confirmed that Respondent's decision - making process

regarding creation of a new median opening and closing of an

existing median process in the permit application context is the

same as when Respo ndent itself constructs a project that requires

creation of a new median opening and closure of an existing

opening , in that in both contexts, Respondent's d ecision s

regarding medians are driven by traffic and safety studies.

2 9 . Th is evidence establishes that based on Respondent's

rules and as a matter of its practice, all decision s to propose,

approve, construct , or modify traffic control features ÏÏ such as

erecting a median or opening or clos ing a median opening ÏÏ are, in

all scenarios , solely within Respondent's control and discretion .

Binding Nature of the Challenged Statement

30 . When questioned about the effect of the Challenged

Statement as set forth in the Handbook , Sokolow testified:

" [m] andatory Î it's stating that this is what Brian Blanchard

asked us to do . . . . It should be followed unless there is a

darn good reason not to follow it. " When asked whether

Respondent's district offices could elect not to follow the

Challenged Statement, Sokolow responded " [m]y opinion is no.

They really need to follow what it says there."

3 1 . Specifically regarding the third sentence in the

Challenged Statement, which states " for permit applications that

affect medians and median openings , the effected [sic] people and

businesses should be informed and involved by the permittee as

soon as possible, " Sokolow testified that Respondent wanted to

ensure that affected property owners would be given notice of

connection permit applications that would affect medians and

median openings ÏÏ whether by the permittee (who technically, at

the time of applicant processing, would be an " applicant, " rather

than a " permittee " ) or by Respondent.

3 2 . However, he acknowledged that Respondent did not have

any ru les or policies requiring it, rather than a connection

permit applicant, to notify property owners regarding

applications for connection permits that would affect medians and

median openings. He further acknowledged that pursuant to the

Challenged Statement, Respondent includes , i n notices of intent

to issue highway connection permits that would affect a median or

median opening , the requirement that the applicant give notice to

affected people or businesses as soon as possible .

3 3 . The u pshot of Sokolo w's testimony is that Res pondent's

districts must comply with the determination that the statute is

applicabl e only to Respondent's work program projects and is not

applicable t o p ermit connection applications , but that the notice

directive in the third sentence of the Challenged Statement is

not " mandatory " because the notice may be provided either by the

permittee or by Respondent. To that point, Sokolow acknowledged

that this sentence r equire s such notice to be provided to

affected people and businesses, so providing such notice is not

discretionary in the sense that a permittee may simply choose

whether or not to provide the notice ; h owever, he contended that

the notice requirement is not binding or mandatory for permittees

because, as a matter of practice , Respondent , rather than the

permittee, sometimes provides the notice. Sokolow acknowledged

that Respondent did not have any formal standards for determining

when Respondent, in lieu of the permittee, would assume

responsibility for providing the notice.

Impact of the Challenged Statement on Petitioner

3 4 . As noted above, Petitioner owns property in Ocala,

Florida, that abuts the SHS. Because the C hallenged S tatement

prescribes the notice to be provided for projects that will

affect medians and median o penings on the SHS , and, thus ,

potentially impact access to and from Petitioner 's property,

Petitioner is substantially affected by the Challenged Statement.

Feasibility and Practicability of Rulemaking

3 5 . Respondent does not argue, and did not present evidence

to show , that if the Challenged Statement i s determined to be a

rule, rulemaking is not feasible or practicable. 10/

C ONCLUSIONS OF LAW

3 6 . DOAH has jurisdiction over the parties to , and subject

matter of , this proceeding pursuant to sections 120.5 6 (4),

120.569, and 120.57(1).

3 7 . For the reasons discussed above, it is determined that

Petitioner is a substantially affected person who has standing to

challenge the Challenged Statement as an unadopted rule in this

proceeding.

38 . Section 120.56(4) establishes the procedure applicable

to challenging agency statements that have not been adopted as

rules pursuant to section 120.54. This statute states in

pertinent part:

( a) Any person substantially affected by an

agency statement that is an unadopted rule

may seek an administrative determination that

the statement violates s. 120.54 (1)(a ). The

petition shall include the text of the

statement or a description of the statement

and shall state facts sufficient to show that

the statement constitutes an unadopted rule.

* * *

( c) If a hearing is held and the petitioner

proves the al legations of the petition, the

agency shall have the burden of proving that

rulemaking is not feasible or not practicable

under s. 120.54 (1)(a).

(d) The administrative law judge may

determine whether all or part of a statement

violates s. 120.54 (1)(a). The decision of

the administrative law judge shall constitute

a final order. The division shall transmit a

copy of the final order to the Department of

State and the committee. The Department of

State shall publish notice of the final order

in the first available issue of the Florida

Administrative Register.

(e) If an administrative law judge enters a

final order that all or part of an unadopted

rule violates s. 120.54 (1)(a), the agency

must immediately discontinue all reliance

upon the unadopted rule o r any substantially

similar statement as a basis for agency

action.

39 . Petitioner bears the burden in this proceeding to

prove, by a preponderance of the evidenc e, that the Challenged

Statement is an unadopted rule that viol ates section

120.54(1)(a). Ag. for Pers. with Disab . v. C.B. , 130 So.

3d 713, 717 (Fla. 1st DCA 2013); S.W. Fla. Water Mgmt. Dist. v.

Charlotte Cnty. , 774 So. 2d 903, 908 (Fla. 2d DCA 2001).

4 0 . The sole issue in this proceeding is whether the

Challenged Statement is a " rule, " as that term is defined in

section 120.52(16). 11/

4 1 . The term " rule " is defined in section 120.52(16) 12/ as :

[E] ach agency statement of general

applicability that i mplements, interprets, or

prescribes law or policy or describes the

procedure or practice requirements of an

agency and includes any form which imposes

any requirement or solicits any information

not specifically required by statute or by an

existing rule. The term also includes the

amendment or repeal of a rule.

42. Whether an agency statement is a rule turns not on the

agency's characterization of the statement by some appellation

other than " rule , " but , rather , on the effect of the statement.

Dep't of Admin. v. Harvey , 356 So. 2d 323, 325 (Fla. 1st DCA

1977) .

4 3 . A statement of general applicability is a statement

that purports to affect not just a single person or in singular

situations, but to a category or class of similarly - situated

per sons or activities. See McCarthy v. Dep't of Ins. , 479 So. 2d

135 , 137 (Fla. 1st DCA 1985). Thus, a statement need not apply

to every person or activity within the agency's jurisdiction;

rather, it is sufficient that it apply uniformly to a class of

pers ons or activities over which an agency exercises

jurisdiction. See Dep't of High. Saf. & Motor Veh. v . Schluter ,

705 So. 2d 81, 83 (Fla. 1st DCA 1997).

44. Additionally, because the definition of " rule "

expressly includes statements of general applicability that

implement or interpret law, an agency's interpretation of a

statute that gives the statute a meaning not readily apparent

from its literal reading and purports to create rights, adversely

affect rights, require compliance, or otherwise have the direct

and consistent effect of law is a rule. State Bd. of Admin. v.

Huberty , 46 So. 3d 1144, 1147 (Fla. 1st DCA 2010); Beverly

Enterprises - Florida, Inc. v. Dep't of HRS , 573 So. 2d 19, 22

(Fla. 1st DCA 1 990); St. Francis Hosp. v. Dep't of HRS , 553 So.

2d 1351, 1354 (Fla. 1st DCA 1989).

4 5 . Here, t he evidence establishes that the Challenged

Statement is generally applicable. As discussed above,

Respondent's districts statewide are uniformly required to adhere

to the Challenged Statement ; they do not have the discretion to

choose whether to follow or disregard the Challenged Statement .

4 6 . The evidence also establishes that the Challenged

Statement is binding or mandatory with respect to connection

p ermit holders. S imply because Respondent may, as a matter of

practice, elect , on a case - by - case basis , to provide the notice

rather than placing that burden on the permittee does not render

the Challenged Statement non - binding on permittees. 1 3 / See

Harvey , 356 So. 2d at 326. 14/ Indeed, the language in the

Challenged Statement regarding notice provision is directed

solely at permittees; there is no language that shifts th at

burden to Respondent or identifies any circumstances under which

Respondent, rather than the permittee, will assume that burden .

As such, the Challenged Statement requires compliance.

47. The Challenged Statement also interprets and implements

section 335.199.

4 8 . S ection 335.119 is susceptible to multiple reasonable

interpretatio n s that result in different outcomes , and, thus, is

ambiguous . As discussed above, the statute can reasonably be

read to apply only to work program projects ; to projects that

entail both work program projects and non - work program projects ;

an d also to projects that arise in the context of connection

permit applications where Respondent ÏÏ which has sole control over

the placement of median barriers and the location of median

openings ÏÏ decid es to close existing median openings or create new

media n openings to maintain required traffic and safety

standard s . Cent. Fla. Reg'l Transp. Auth. v. Post - Newsweek

Stations, Orlando, Inc. , 157 So. 3d 401, 404 (Fla. 5th DCA

2015) (a statute is ambiguous if its language is susceptible to

more than one reasonable interpretation and permits more than one

outcome).

4 9 . Tasked with administering this ambiguous statute,

Respondent was placed in the position having to determine its

meaning. The evidence shows that Respondent's staff , in an

earnest effort to administer and implement the statute in a

manner that was consistent with its existing transportation

programs and regulatory processes and timefram e s, engaged in

extensive dialogue about the types of projects to which the

statute applied and whether ( or not ) the statute applied to

projects resulting in median changes that arise in the permit

application project.

50 . Respondent ultimately determined that section 3 35.199

should be read as imposing the 180 - day statutory notice

requirement only on Respondent's " work program " projects . This

decision ha d the effect of limit ing the universe of Respondent's

projects to which the statutory notice requirement would apply ,

and it further exclud ed those circumstances in which Respondent ,

in the connection permitting context, erects medians or locates

or relocates median openings to address traffic and safety

issues. Moreover , r ecognizing the importance of ensuring that

property owners whose access to the SHS may be affected by median

changes that arise in the connection permitting context receive

notice of those changes and have an opportunity to provide

comment and input, Respondent included the third senten ce in the

Challenged Statement , imposing a notice requirement on connection

permittees that is nowhe re mentioned in section 335.199. In sum,

t he Challenged Statement d oes not simply echo or reiterate the

statute ; r ather, it imposes limitations and require ments that are

not apparent fro m the statute's plain language.

5 1 . The circumstances in this case are comparable to those

in Department of Revenue v. Vanjaria Enterprises , 675 So. 2d 252

(Fla. 5th DCA 1996) . In Vanjaria , at issue was whether a

procedure that the Department of Revenue ( " DOR " ) used to

determine the amou nt of taxable property in multi - use real estate

properties constituted an unadopted rule. The statute

specifically exempted from taxation the portion of multi - use

properties that were used exclusively as dwelling units. The

statute was susceptible to more than one interpretation with

respect to how to determine the portion of the property used

exclusively as dwelling units for purposes of calculating the tax

owed . Vanjaria used one method, based on the percentage of its

rent payments allocated for its motel use . DOR chose another

method, based on the proportion of the total square footage of

the property that consisted of motel use , which it had developed

and included in a sales and use tax training manual . DOR's

method resulted in Vanjaria owing a substantially larger amount

of tax than it had paid using the alternative metho d to calculate

the taxes owed. On appeal, the court a ffirm ed that the procedure

was a n unadopted r ule because it impleme nted and interpreted the

statute , created DOR's entitlement to taxes , adversely affect ed

property owners , and established a uniformly applicable procedure

that DOR was required to apply in determining the taxes owed on

dwelling units in multi - use properties.

52. Likewise, here, the Challenged Statement interprets the

statute and implements it in a manner that Respondent chose in

order to render it workable and consistent with Respondent's

existing transportation programs and regulato ry processes and

timeframes. The Challenged Statement adversely affects owners of

property adjacent to the SHS who, by virtue of Respondent's

interpretation of section 335.19 9, will not receive the statu tory

notice when Respondent elects to erect medians or to close or

relocate median openings pursuant to traffic and safety dictates

within the connection permitting context. In imposing a notice

burden on permittees, it mandates compliance with a newly - cr eated

requirement not established in the statute. Like the agency

procedure in Vajaria , the Challenged Statement is a rule.

5 3 . At this point, i t bears reiterating that in developing

the Challenged Statement, Respondent thoughtfully considered

alter native interpretations of section 335.199 and chose the one

that it believed best embodied the Legislature's intent in

enacting an ambiguous statute. However, whether Respondent chose

the best interpretation, or even an authorized interpretation, of

the s tatute is immaterial in this proceeding . The question here

is whether Respondent's interpretation, set forth in the

Challenged Statement, constitutes a rule that has not been

adopted pursuant to the rulemaking procedure in section 120.54.

54 . For the reasons discussed above, it is concluded that

the Challenged Statement is an unadopted rule that violates

section 120.54(1)(a). 15/

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that :

1. T he provision that is published on page 20 of

Respondent's 2014 Median Handbook and that has been identified in

this proceeding as the Challenged Statement is an unadopted rule

that violates section 120.54(1)(a) , Florida Statutes .

2. Jurisdiction is retained to condu ct further proceedings

as necessary to award attorney's fees and costs as applicable

pursuant to section 120.595(4) , Florida Statutes . Petitioner

shall have 30 days from the date of this Final Order in which to

file a motion for attorney's fees and costs, to which will be

attach ed all supporting documentation, including documentation

demonstrating that the 30 - day notice set forth in section

120.595(4)(b) was provided; appropriate affidavits, such as those

attesting to the reasonableness of the fees sought; and other

documentation to support the claim for attorney's fees and costs,

such as time sheets, bills, and receipts. If such motion is

filed, Respondent shall have 21 days in which to file a response

in opposition disputing Petitioner's legal entitlemen t to an

award of attorney's fees and costs and/or the amount of those

fees and costs sought by Petitioner.

DONE AND ORDERED this 6th day of September, 2017, in

Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of September , 2017.

ENDNOTES

1/ All references are to the 2016 version of Florida Statutes

unless otherwise stated.

2/ To clarify, although Petitioner characterizes Respondent's

statement as an " unadopted and invalid " rule, th is proceeding,

which was brought under section 120.56(4), concerns only whether

the agency statement is a rule that has not been adopted pursuant

to the rulemaking procedures in section 120.54, in violation of

section 120.54(1)(a). This proceeding does no t address whether

the agency statement constitutes an " invalid exercise of

delegated legislative authority " under section 120.52(8); that

standard is applicable only to challenges of proposed rules,

existing rules, and emergency rules pursuant to sections

120.56(2), 120.56(3), and 120.56(5), respectively.

3/ Committee Substitute for Committee Substitute for Senate Bill

1842 was passed during a special session of the Florida

Legislature in 2010 and is codified at section 335.199, titled

" Transportation p rojects modifying access to adjacent property."

4/ The email discussion between Respondent's st aff referred to

SB 1842. After the bill was passed, it became chapter 2010 - 281,

Laws of Florida, with an effective date of November 17, 2010.

The 2010 version of Florida Statutes published on the

Legislature's website, Online Sunshine, includes section 335.199,

which was created by SB 1842. Therefore, even though

Respondent's discussion referred to SB 1842 or " the bill, " this

Order refers to th is legislation as " section 335.199."

5/ See paragraph 15, infra .

6/ Respondent is a decentralized agency having seven district

offices, established on a geographic basis, around the state.

Each district is managed by a district secretary.

7/ Soko low is employed by Respondent as a senior transportation

planner, and was involved in preparation of the Challenged

Statement.

8/ The term "work program" is a term of art defined in

section 339.135 , Florida Statutes . This statute defines and

describes the types of projects that are part of Respondent's

" district work programs, " its " tentative work program, " and its

" adopted work program." These terms describe lists of projects

being planned and that are in various stages of proposal for

funding through legislative appropriation.

9/ Although the regulation and management of access to the

SHS is not directly at issue in this unadopted rule challenge

proceeding, some background regarding the role of connection

permits in managing access to the SHS is helpful to understanding

the effect of the Challenged Statement. Florida's State Highway

System Access Management Act, sections 335.18 through 335.188 ,

Florida Statutes , establish that every owner of property that

abuts a road on the SHS has a right to reasonable access to the

abutting state highway and, further, authorize the establishment,

by rule, of a system for regulating and managing access to the

SHS to ensure the public's right and interest in a safe and

efficient highway system. To implement this statutory directive,

Respondent has adopted Florida Administrative Code Chapter 14 - 96,

governing the issuance of permits for connections by abutting

property owners to the SHS.

10/ Respondent also does not argue, and did not present evidence

to show, that the Challenged Statement falls within one of the

exemptions from the definition of rule in section 120.52(16)(a)

through (c).

11/ T his proceeding does not address either the substantive

validity of the Challenged Statement or whether Respondent made

the correct decision in changing the location of a median opening

in relation to the issuance of a connection permit to a business

owning property near Petitioner's pro perty. Petitioner has

challenged Respondent's action to close the median opening across

from its property pursuant to sections 120.569 and 120.57(1), and

that matter is in abeyance pending the resolution of this

proceeding.

12/ Section 120.52(16) expre ssly excludes from the definition of

" rule " certain items not applicable here.

13/ The third sentence of the Challenged Statement provides:

"[h]owever, for permit applications that affect medians and

median openings, the effected [sic] people and busine sses should

be informed and involved by the permittee as soon as possible."

Respondent posits that the use of the word "should" in this

sentence makes notice provision by permittees permissive rather

than mandatory. Although that is one reading of this s entence,

an alternative reading ÏÏ likely preferable in this context, given

the potential impact of median changes on affected property ÏÏ

treats the word "should" as synonymous with "ought" ÏÏ thus

obligating permittees to provide notice as soon as possible. S ee

Merriam - Webster Collegiate Dictionary , 11th e d. (2003). This

reading is consistent with Sokolow's testimony that notice of

median changes, in the permitting context, needs to be provided ÏÏ

whether it is provided by the permittee or Respondent.

Furtherm ore, even if the third sentence of the Challenged

Statement were to be interpreted as permissive rather than

mandatory, that does not negate the effect of the first two

sentences of the Challenged Statement, which, as discussed above,

impose limitations on the statute's reach that are not stated in

the statute.

14/ In Harvey , the court determined that the agency's statement,

which imposed enhanced training and experience requirements as a

qualification for certain employment positions, constituted a

ru le, even though the agency had the discretion to waive those

requirements in certain circumstances. The court stated: " we do

not consider that the Director's discretion mitigates the

decisive effect, as rules, of the minimum training and experience

requi rements. . . . [T]he prescribed minimum requirements . . .

remain the yardstick by which the applicant's qualifications must

be measured." Similarly, here, the notice requirement in the

third sentence is made applicable to all connection permits and,

as d iscussed above, the evidence establishes that the burden to

provide the notice is on the permittee unless, under unspecified

circumstances, Respondent assumes that burden. As with the

agency statement in Harvey , here, the Challenged Statement

imposes a re quirement that is not contemplated by the statute.

15/ Section 120.56(4)(e) states: " [i]f an administrative law

judge enters a final order that all or part of an unadopted rule

violates s. 120.54(1)(a), the agency must immediately discontinue

all relian ce upon the unadopted rule or any substantially similar

statement as a basis for agency action." § 120.54, Fla. Stat.

(emphasis added).

COPIES FURNISHED:

D. Ty Jackson, Esquire

GrayRobinson, P.A.

301 South Bronough Street, Suite 600

Post Office Box 11189

Tallahassee, Florida 32302 - 3189

(eServed)

Susan Schwartz, Esquire

Department of Transportation

605 Suwannee Street , Mail Stop 58

Tallahassee, Florida 32399 - 0458

(eServed)

Andrea Shulthiess, Clerk of

Agency Proceedings

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Stop 58

Tallahassee, Florida 32399 - 0450

(eServed)

Michael J. Dew, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Stop 57

Tallahassee, Florida 32399 - 04 50

(eServed)

Tom Thomas, General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Stop 58

Tallahassee, Florida 32399 - 0450

(eServed)

Ken Plante, Coordinator

Joint Admin Proceed Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

Ernest Reddick, Chief

Anya Grosenbaugh

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eserved)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the ori ginal

notice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of th e District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.