19-001398 Harry E. Miller vs. Department Of Transportation Status: Closed Recommended Order on Friday, January 15, 2021.

Summary: Resp. proved its modifications to Pet's driveway were necessary for safety and operational reasons under chapter 335, and Rules 14-96.011 and 14-96.015, F.A.C; Petitioners failed to prove Resp. engaged in improper purpose under section 120.569(2)(e).

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

J OHN M AJKA , I NDIVIDUALLY , A ND O N

B EHALF OF H ARRY E. M ILLER ,

Petitioners,

Case No. 19 - 1398

and

J PM V ENTURES , I NC .,

Intervenor ,

vs.

D EPARTMENT OF T RANSPORTATION ,

Respondent .

/

R ECOMMENDED O RDER

The final hearing in this matter was conducted before Andrew D. Manko,

Administrative Law Judge of the Division of Administrative Hearings

(ÑDOAHÒ) , pursuant to section s 120.569 and 120.57(1), Florida Statutes

(2020), 1 on July 21 through 23, 2020, by video teleconference between sites in

Tallahassee and Ft. Myers , Florida , and on August 6 and 7, 2020, by Zoom .

A PPEARANCES

For Petitioner s : John Majka, pro se

18700 Old Bayshore Road

Ft. Myers, Florida 33917

For Intervenor : John Majka, pro se

18700 Old Bayshore Road

Ft. Myers, Florida 33917

1 All references to the Florida Statutes are to the 20 20 version , unless otherwise noted.

For Respondent: David Tropin, Assistant General Counsel

Austin M. Hensel, Assistant General Counsel

Florida Department of Transportation

605 Suwannee Street, Mail Station 58

Tallaha s see, Florida 32399

S TATEMENT OF T HE I SSUE S

(1) Whether the Second Amended Not ice of Driveway Modification, in

which Respondent, Florida Department of Tran sportation (ÑFDOTÒ), seeks to

modify the driveway used by Petitioners, John Majka, individually and on

behalf of Harry E. Miller, and Intervenor, JPM Ventures, Inc. (ÑJPMÒ), is

consistent with sections 335.181, 335.182, and 335.1825, Florida Statutes,

and Florida Administrative Code Rules 14 - 96.011 and 14 - 96.015 ; and

(2) whether FDOT engaged in conduct in violation of section 120.569(2)(e).

P RELIMINARY S TATEMENT

FDOT issued its Amended Notice of Driveway Modification ( Ñ Amended

Notice Ò ) on January 7, 2019 , in which it sought to modify PetitionersÔ

driveway as part of a construction project along State Road 80 (ÑSR 80Ò) .

Petitioners timely requested a hearing on January 30, 2019. FDOT dismissed

the request because it purportedly failed to contain requisite in formation, but

transmitted the case to DOAH after Petitioners responded to the dismissal

order. Petitioners moved for a default on grounds that FDOT failed to timel y

rule on their hearing request, which t he undersigned denied on April 3, 2020.

The undersi gned set the final hearing to be heard live in Ft. Myers on

May 23 and 24, 2019. On April 18, 2019, Petitioners filed a Motion for

Summary Judgment Declaring Driveway Connection Grandfathered, to

which FDOT responded in opposition on April 22, 2020. After holding a

telephonic hearing, the undersigned denied the motion without prejudice to

raising the issue at the final hearing where disputed facts could be resolved.

On May 8, 2019, the undersigned granted the partiesÔ request for a

continuance so they could discuss settlement and rescheduled the final

hearing in Ft. Myers for July 23 and 24, 2019. However, on May 31, 2019, the

undersigned granted PetitionersÔ unopposed request to hold the case in

abeyance pending their representativeÔs recovery from surgery for a serious

medical condition. The parties agreed to extend the stay for several months.

On August 30, 2019, FDOT filed a Second Amended Notice of Project

Update to Driveway Connection ( Ñ Second Amended Notice Ò ), seeking to revise

its intended modifica tions to the driveway after additional discussion s with

Petitioners. In an Order dated September 16, 2019, the undersigned noted

that FDOT would have to seek leave if it intended to proceed on the Second

Amended Notice once the case was out of abeyance.

On March 20, 2020, after holding the case in abeyance for ten months, the

undersigned held a teleconference at which the parties agreed to continue the

abeyance for 30 days to further discuss settlement and to allow Petitioner sÔ

representative time to reco ver . On March 24, 2020, the undersigned ordered

the parties to file status reports and directed Petitioners to support any

request to continue the stay with medical documentation .

FDOTÔs Status Report, filed April 29, 2020, noted that the parties had

con ferred but were unable to reach a settlement. FDOT also incorporated two

motions in its Status Report: (1) to take j udicial n otice of PetitionersÔ public

records requests for transcripts of teleconferences and a complete set of pla ns

for the construction p roject ; and (2) to recommence discovery and reschedule

the final hearing . Petitioner s Ô Status Report , filed April 30, 2020, argued that

their representative remained medically unable to conduct discovery or

proceed to a final hearing ; it attached a letter from his primary care

physician , which noted that he was being treated for an infection and that his

work restrictions shall remain in place until released from his surgeon. The

letter said nothing about an inability to participate in discovery or the fina l

hearing. Petitioner s also re - raised their argument that their driveway should

be declared grandfathered and argued that FDOT violated several provisions

of the Florida Administrative Code by fail ing to both provide notice of its

intended agency action to all occupants of the property and meet on site with

Petitioners regarding the Amended Notice.

On May 8, 2020, the undersigned held a pre - hearing teleconference on the

Status Reports and in corporated motions. In an Order dated May 13, 2020,

the undersigne d detailed the lengthy procedural history of FDOTÔs efforts to

modify PetitionersÔ driveway, which began in December 2017. The Order

explained why Petitioners failed to substantiate their representative Ôs

inability to participate in a final hearing given t he insufficiency of the

documentation provided, the fact that he had been actively engaged in motion

practice in this case and in local government meetings about the project, and

his concession at the teleconference about his ability to proceed. The Order

authorized Petitioners to file a written response to FDOTÔs request to proceed

on the Second Amended Notice and to file a motion as to the alleged failure to

provide notice to all occupants of the property; the Order noted that FDOT

withdrew its request fo r judicial notice.

The Order also set a discovery deadline of June 30, 2020, and rescheduled

the final hearing by video conference with sites in Tallahassee and Ft. Myers

for July 21 and 22, 2020. As a result of COVID - 19 travel restrictions, the

undersig ned had given the parties the option of conducting the hearing by

Zoom . Although Petitioners opted for a video conference , the undersigned

ma de clear orally and in various O rders that Petitioners Ô representative could

attend the hearing at the Tallahassee site. The Order re - affirmed the

provisions of the Notice of Hearing and Order of Pre - Hearing Instructions

issued on March 29, 2019, including the applicable deadlines for serving and

filing witness lists, exhibit lists , and proposed exhibits.

The parti es timely filed the pleadings authorized in the May 13th Order .

Petitioners also moved to reschedule the hearing because their engineer

needed 45 days to prepare a report based on the Second Amended Notice. On

May 22, 20 20, the undersigned issued two O rder s that: ( 1) granted FDOT

leave to amend and rejected PetitionersÔ request to reschedule the final

hearing because their engineer had the 45 days he requested to complete his

report; and (2) denied PetitionersÔ request to dismiss the case for failure to

ser ve all occupants of the property. But, the Order required FDOT to provide

a copy of the Second Amended Notice to Superior Sheds, Inc., another

business operating on the property, and gave Superior Sheds seven days to

intervene after receipt thereof. FDOT t imely provided the Second Amended

Notice to Superior Sheds, which did not move to intervene.

The parties engaged in discovery over the next two months. On June 3,

2020, Petitioners filed a Motion to Correct Case Style, which the under signed

treated as a motion by JP M Ventures, Inc. Ð a business owned by PetitionersÔ

representative that operates on the property Ð to intervene in this proceeding.

On June 13, 2020, the undersigned granted that motion.

On June 29, 2020, FDOT sought leave to file a corrected Sec ond Amended

Notice, which would attach complete diagrams inadvertently cropped from

the version initially filed, correct a typographical error in the table as to the

drivewayÔs width, and remove a reference to a joint use agreement that had

been inadverten tly left in from a version used solely for purposes of

settlement. On July 6, 2020, Petitioners moved for a continuance, a stay of

their discovery deadline, and an emergency teleconference. Petitioners

argued that their representative had suffered a heart attack on June 2, 2020,

that they could not prepare for the hearing given FDOTÔs request to correct

the Second Amended Notice, and that their engineer was unavailable on the

dates of the final hearing.

The undersigned held a teleconference on July 10, 202 0, and issued a

detailed Order on the pending motions on July 13, 2020. The Order granted

FDOTÔs request to correct its Second Amended Notice because the changes

were immaterial and would not prejudice Petitioners who had the complete

exhibits for almost a year. The Order denied PetitionersÔ requests for a stay

and a continuance because they were: (1) untimely made on the eve of the

hearing and over a month after the heart attack, three weeks after their

engineer informed them that he would be unavailable o n the dates of the

hearing, and ten days after receiving the medical documentation;

(2) inconsistent with the actions of PetitionersÔ representative who actively

litigated both this case and another one pending before the Southwest

Florid a Water Management District (ÑS F W MDÒ) in the month since his heart

attack; and (3) unsubstantiated by documentation from his treating

cardiologist. However, in an effort to accommodate Petitioners, the Order

extended the deadline to serve witness lists, exhibit lists, and r esponses to

outstanding discovery until July 16, 2020.

FDOT timely filed its witness list, served responses to PetitionersÔ

discovery requests, and filed its amended exhibit list. Petitioners timely filed

their proposed witness list (naming 42 witnesses, including the FDOT district

secretary, several Lee County commissioners and their staff, and numerous

FDOT employees, among others) and filed what appeared to be several

proposed exhibits but without an exhibit list.

On July 16, 2020, the undersigned he ld a nother teleconference to address

the exhibits. Petitioners conceded that they had not yet identified all of their

exhibits or disclosed them to FDOT; the undersigned found their reasons for

not doing so by the extended deadline to lack merit. But, in a n Order dated

July 17, 2020, the undersigned extended the deadline for Petitioners to e -

mail their exhibit list, exhibits, and responses to discovery requests to FDOT

until July 20, 2020 , at 9:00 a.m. Ð the date Petitioners believed they could

finish these t asks. The Order warned that failing to do so may result in

Petitioners being precluded from introducing un disclosed exhibits. The Order

required Petitioners to deliver their exhibit list and exhibits to the

undersigned Ôs office by July 21, 2020. On the sam e day, the undersigned also

granted PetitionersÔ requests to allow two witnesses to testify by Zoom.

On July 20, 2020, FDOT timely filed an amended exhibit list to include

PetitionersÔ responses to its discovery requests . Petitioners filed several

additio nal proposed exhibits that day, but failed to serve their exhibit list,

proposed exhibits, or discovery responses on FDOT . Instead, about 30

minutes before the 9:00 a.m., extended discovery deadline, Petitioners filed a

Motion to Compel Key Witness Testimo ny seeking to require FDOT to make

its district secretary and two employees available to testify the next day.

These individuals were included on PetitionersÔ witness list, but they had not

been served with subpoenas. Petitioners failed to do so despite un derstanding

the process, as they had (belatedly) served subpoenas that day on several Lee

County Commissioners and their staff.

The two - day final hearing was set for J uly 21, 2020. Around 8:00 a.m. ,

Petitioners filed an untimely exhibit list and also mov ed to compel FDOT to

provide their exhibits and discovery in PDF format. Lee County also moved to

quash the subpoenas served the day before .

Though scheduled to begin at 9:00 a.m., the final hearing did not start

until after 10:45 a.m. , because Petitioner sÔ representative arrived late.

Because Petitioners failed to subpoena the FDOT employees, waited until the

day of the hearing to argue for the first time Ð despite teleconferences being

held in the prior two weeks Ð that they could not access some of FDOTÔs

p roposed exhibits, and had difficulty identifying which exhibits were

problematic, the undersigned denied the motions to compel as untimely and

without merit. Because Petitioners waited until the day before the hearing to

subpoena the County commissioners a nd staff and had not attempted to

obtain discovery from them previously , the undersigned granted the CountyÔs

motion. The rest of the first day focused on the partiesÔ exhibits. 2 T hough

Petitioners initially indicated that they wanted to appear live in Tal lahassee

the next day , they chose to stay in Ft. Myers to have more time to prepare.

Despite the undersignedÔs warning that the second day would convene at

8:30 a.m., PetitionersÔ representative e - mailed the parties a new exhibit

around that time and call ed the undersignedÔs office to say he would be late.

The undersigned delayed the hearing for ten minutes and PetitionersÔ

representative arrived during FDOTÔs opening statement. As the party

bearing the burden of proof, FDOT began its case - in - chief and pre sented the

testimony of one witness. As an accommodation, the undersigned allowed

PetitionersÔ engineer to testify during FDOTÔs case - in - chief. Because the

parties had not yet presented the entirety of their cases - in - chief, they agreed

to return the next m orning and extend the hearing to a third day.

On the third day of the hearing, PetitionersÔ representative informed the

security guard inside the Ft. Myers office that he had COVID - 19 symptoms.

He called into the hearing to discuss his symptoms, which he said he had the

day before but did not inform anyone. He rejected the undersignedÔs offer to

2 Although Petitioners had not complied with the extended discovery deadline and belatedly

raised the issue concerning FDOTÔs exhibits , the undersigned permitted them to seek to

introduce their proposed exhibits and also spent substantial time ensur ing they had access to

FDOTÔs exhibits. FDOT also offered to hand - deliver copies of its exhibits the nex t day.

finish the hearing by Zoom and requested that it be continued because he

was confused and having trouble hearing. FDOT objected and presented

testimony from its re presentative as to the prejudice FDOT would suffer if

the hearing were continued. PetitionersÔ representative effectively cross -

examined FDOTÔs representative and had sent detailed e - mails that morning,

which seemed to belie a physical or mental inability to finish the hearing that

day . But, in an abundance of caution, the undersigned continued the hearing

for two weeks to allow PetitionersÔ representative to recover.

On July 23, 2020, the undersigned issued an Or der scheduling the

continuation of the fin al hearing via video conference for August 6, 2020, at

8:30 a.m. The Order made clear that no new exhibits could be filed and only

the three remaining witnesses, i.e. , an FDOT employee, FDOTÔs engineer,

and PetitionersÔ representative, would be testifying. The Order also required

Petitioners to file a status report by July 30, 2020, with details as to their

representativeÔs COVID - 19 status and to provide a negative COVID - 19 test

result if he intended to appear at the Tallahassee or Ft. Myers locations.

Othe rwise, the Order confirmed that PetitionersÔ representative could appear

by Zoom to ensure everyoneÔs safety.

Petitioners filed a Status Report on July 30, 2020, and an Addendum to

Status Report on July 31, 2020. Petitioners did not request a continuance ,

but attached a letter from their representativeÔs primary care doctor noting

that he had unspecified COVID - 19 symptoms and was unable to proceed at

that time. An Order dated July 31, 2020, confirmed that the letter was

insufficient to justify a continuan ce given the circumstances , if Petitioners

had intended to ask for a continuance. The Order required Petitioners to

make a physician available to testify on August 6, 2020, if they intended to

request a continuance on medical grounds, and be ready to appea r by Zoom if

they could not prove that their representative was negative for COVID - 19.

On August 3 and 4, 2020, Petitioners moved to compel FDOT to provide

answers to discovery requests and to immediately provide free copies of

transcripts of a pre - hearin g teleconference and the first three days of the

final hearing. On August 5, 2020, the undersigned issued an Order denying

the requests as untimely and without merit.

On August 5 and 6, 2020, prior to the start of the fourth day of the final

hearing, Pe titioners filed several motions to: (1) declare them the prevailing

party; (2) recognize their engineer as an expert and allow him to testify on

rebuttal; (3) consolidate this case with one pending before SFWMD; and

(4) declare that FDOT violated section 3 35.199, Florida Statutes, and Florida

Administrative Code Rule 61G - 15. In two detailed Orders dated August 6,

2020, the undersigned denied the first three requests as either untimely or

without merit. As to the request regarding expert testimony, the under signed

explained at the final hearing and in the Order that neither partyÔs engineer

would be treated as an expert because they did not timely seek to present

expert testimony. However, both engineers discussed their qualifications and

offered opinions, an d the undersigned evaluated their testimony and gave it

the weight he deemed appropriate. The undersigned treated the fourth

request as one relating to PetitionersÔ argument that FDOT engaged in an

improper purpose in this proceeding, which is resolved her ein.

The continuation of the final hearing was held on August 6 and 7, 2020.

Although PetitionersÔ representative could have appeared in Tallahassee or

at the Ft. Myers location because he had tested negative for COVID - 19, he

chose to appear via Zoom. Af ter making argument on the motions discussed

above, the parties finished presenting their witness testimony.

Over the five hearing days, the parties presented the following evidence.

FDOT presented the testimony of three witnesses: (1) Gina Bonyani, an

F DOT transportation engineering specialist; (2) Dawn Ratican, an engineer

of record for the construction project; and (3) Ryan Weeks, the FDOT project

manager. R espo n d ent Ôs Exhibits 1 through 25 were admitted in evidence.

Petitioners presented the testimo ny of their engineer, Norman Trebilcock,

and their representative, John Majka. PetitionersÔ Exhibits 1, 2, 4, and 6

through 10 were admitt ed in evidence. PetitionersÔ proposed e xhibi t 3 was

excluded; PetitionersÔ proposed e xhibit 5 was combined with Petiti onersÔ

Exhibit 4.

The filing of the nine - volume Transcript was completed on September 15,

2020. On September 18, 2020, Petitioners moved to extend the deadline to file

proposed recommended orders (ÑPROsÒ) based on purported errors in the

Transcript and to compel the court reporters to produce their audio files. The

undersigned held a post - hearing teleconference on September 25, 2020, and ,

over FDOTÔs objection, gave Petitioners until September 28, 2020, to file an

errata sheet listing any material errors. Petitioners filed an incomplete

errata sheet on September 28, 2020, but failed to timely file a completed

errata sheet e ven after the undersigned extended the deadline twice .

Notwithstanding, the undersigned issued a n Order on September 30,

2020, giving the parties until October 2, 2020, to file complete errata sheets,

requiring the court reporter to review same and file an amended transcript if

any corrections needed to be made, and extending the deadline to file PROs

until ten days after the filing of t he amended transcript.

As a result of this process, t he court reporter corrected volumes 6, 7, and

8. The court reporter filed corrected volume 8 on October 7, 2020, and

corrected volumes 6 and 7 on October 9, 2020. Thus, the PROs were due by

October 19, 2020.

FDOT timely filed its PRO on October 19, 2020, which was duly

considered in preparing this Recommended Order. Petitioners did not file a

PRO, even after receiving extensions to do so until November 2, 2020. 3

In making the findings below, the under signed only considered hearsay

evidence that either supplemented or explained other admissible evidence or

would be admissible over objection in civil actions. § 120. 57(1)(c), Fla. Stat.

F INDINGS OF F ACT

Background and Existing Driveway

1. FDOT is the sta te agency responsible for regulating access to the state

highway system , which includes SR 80 . § 335.182, Fla. Stat.

2. Based on a request by Lee County Ôs Metropolitan Planning

Organization (ÑMPOÒ), FDOT began designing plans to build a four to five

mile shared use path for pedestrians and bicyclists along SR 80 ( ÑProjectÒ). In

that area, SR 80 is a class three road with a 45 mph speed limit.

3. PetitionersÔ property is within the Project and uses a 98 - foot wide,

unpermitted driveway to access SR 80. The Estate of Harry Miller owns the

easternmost parcel on which the entire driveway and an office building are

located. Mr. MajkaÔs business, JPM Ventures, is a licensed motor vehicle

dealer and uses the Miller parcel as both an office (the right half of the

b uilding) and to store recreational vehicles, such as motor homes, campers,

and trailers . Mr. Majka owns the three adjacent parcels to the west and

leases those parcels to Superior Sheds , which sells sheds that are delivered to

and picked up from the proper ty on large trucks. Superior Sheds uses the

3 As detailed in Orders dated October 21, 2020, and November 10 and 30, 2020, the

undersigned made extraordinary efforts to accommodate Petitioners throughout this case,

including granting several extensions to file their PRO. But, instead of doing so, PetitionersÔ

representative spent that time filing numerous motions raising untimely and already -

rejected issues while arguing that he was too sick to file the PRO. The O rders denied

PetitionersÔ motions and explained that the undersigned could no lon ger acquiesce to these

improper efforts to delay the resolution of this case.

Miller parcel as an office (the left half of the building) and to access SR 80 via

the driveway, and uses the Majka parcels to store its sheds . The following

photo taken in January 2018 depicts the driveway and t he two businessÔs

operations , which are delineated by the two dotted - lined boxes :

4. PetitionersÔ driveway has been in existence since at least the 1960s and

remains unchanged today. Aerial photographs from 1986 and 1990 confi rm

the presence of a building on the Miller parcel, the driveway in its current

form, and the Majka parcels being used for what appears to be parking or

storage. Mr. Majka purchased his parcels in 1998 and has been using the

driveway continuously since. JP M Ventures has operated on the Miller parcel

and Superior Sheds has operated on the Miller and Majka parcels since as

early as 2015. Superior Sheds uses a paved pathway so its trucks can travel

between the Majka parcels, where the sheds are stored, and the driveway.

5. Based on the weight of the credible evidence, PetitionersÔ driveway has

existed and been continuously used since 1988 . T hough the vehicles and/or

storage containers located on the Majka parcels may vary and a pathway was

paved on the Majka p arcels to allow for easier access to the driveway, the

evidence did not establish significant changes to the buildings, facilities , or

overall use of the property that Ñcaus[ed] an increase in the trip generation of

the property exceeding 25 percent more t rip generation (either peak hour or

daily) and exceeding 100 vehicles per day more than the existing use ,Ò as

required by section 335.182 (3) (b) .

The Project and Proposed Modifications to PetitionersÔ Driveway

6. Based on the MPOÔs request, FDOT began plann ing for the Project in

2014. FDOT retained AIM Engineering to design the Project. Ms. Ratican, an

AIM employee, is one of the engineers of record on the Project. FDOT

identified 24 driveways along the Project that required modification.

7. In late 2017, FD OTÔs project manager, Mr. Weeks, went door - to - door

along SR 80 to try to meet with as many property owners as possible and

discuss the Project. FDOT thereafter sent certified letters to all property

owners to notify them about any proposed modifications to their driveway.

8. On December 7, 2017, FDOT issued its Notice advising Petitio ners of its

plans to modify the driveway to improve safety and operations along SR 80.

FDOT sought to reduce the driveway width from 98 feet to a design standard

of 24 feet.

9 . Upon receipt, Mr. Weeks met on sit e with Mr. Majka . A t the time of the

2017 meeting and as depicted in the following photograph, there was a

covered parking spot in front of the left half of the building (Superior ShedsÔ

office), but there were neither d efined parking spots with painted lines along

the front of the right half of the building (JPM VenturesÔ office) nor a fence

next to the covered parking spot that separated the two business operations:

Mr. Majka objected to the smaller driveway and requested a hearing.

10. FDOT transmitted the Notice to DOAH and it was assigned C ase

N o. 18 - 4433. While that case was pending at DOAH, the parties engaged in

numerous discussions to try to reach an amicable resolution.

11. In July 2 018, Mr. Weeks, several FDOT employees , and a state

SenatorÔs aides met Mr. Majka on site to discuss the proposed modifications.

Mr. Majka presented a PowerPoint and argued that the driveway could not

be modified because it was grandfathered. At that time, there were no

parking spots with painted lines or a fence perpendicular to the front of the

building; vehicles simply parked diagonally or parallel to SR 80 in that area .

12. Over the next few months, FDOT proposed several options for

driveway widths betw een 30 and 53 feet, relocating the driveway to the east

side of the Miller parcel, creating a second driveway on the Majka parcels,

and others. Petitioners rejected each of them.

13. In January 2019, after jurisdiction in the prior case was relinquished

fo r failing to properly serve the Miller Estate , FDOT served its Amended

Notice. FDOT now sought to modify the driveway to improve safety and

operations on SR 80 as part of a sidewalk project . FDOT proposed a non -

standard driveway width of 53 feet. Petitione rs objected and requested a

hearing, which began the instant case.

14. At some point between July 2018 and April 2019, and while on notice

of FDOTÔs intent to modify the driveway, Petitioners made changes to the

paved lot in front of the building. They add ed lined parking spaces

perpendicular to the front of the building and a fence extending beyond the

new parking spots that divided the two business operations . The following

photograph taken in April 2019 depicts these changes:

Petitioners apparently ha d not obtained a permit to add the parking spaces ,

which may not have even been possible because the spaces are so close to the

property line that vehicles would have to use FDOTÔs right - of - way Ð i.e. , a

large portion of the paved lot between the bottom of t he parking spaces and

the top of the shared use path , as shown in the diagram in paragraph 17

below Ð in order to back out of the parking spaces and exit the property.

Notwithstanding, FDOT attempted to design subsequent proposals with

minimal impacts to tho se parking spaces to appease Petitioners and their

existing business operations.

15. In May 2019, FDOT Southwest District Secretary L.K. Nandam met

with Mr. Majka and his professional engineer , Mr. Trebilcock, to discuss

PetitionersÔ concerns with the Amen ded Notice , which were outlined in an

A ccess Connection Report (Ñ ACRÒ) prepared by Mr. Trebilcock in April 2019.

The ACR focused on the two business operations and on site circulation

problems that allegedly would exist due to the size of the trucks using the

driveway. To alleviate those problems , the ACR proposed retaining the

existing 98 feet of pavement, but utilizing a 45 - foot - wide, double - yellow - lined

area to limit the operational width of the driveway to 53 feet. The meeting

resulted in additional pro posals by FDOT and another phone call between

Secretary Nandam, Mr. Majka, and Mr. Trebilcock.

16. FDOT created another proposal that sought to address PetitionersÔ

concerns and use information they provided as to the size of the trucks . Based

on Petition ersÔ request for all of the engineers to meet, FDOT facilitated a

meeting at its Southwest District office with Mr. Majka, Mr. Trebilcock,

several FDOT employees, Ms. Ratican, and her supervisor . Because the latest

proposal did not address all of their con cerns, Petitioners rejected it.

17. In August 2019, FDOT served a Second Amended Notice, on which the

final hearing proceeded. As corrected, it proposes the following design:

18. FDOT seeks to modify the driveway to improve safety and operations

on SR 80 as part of a 10 - foot - wide shared use path project. The decision to

revert back to a shared use path was made by the MPO at a public meeting.

1 9 . FDOT proposes a non - standard driveway width of 53 feet, which is

about 15 to 20 feet wider than a standard design for this portion of SR 80 and

larger than any other modified driveway within the Project. A mountable,

five - inch - tall type E curb outlines a triangular concrete island on the right

side of the driveway, which larger trucks can slowly drive over to maneuver

on site. A non - mountable, six - inch - tall type F curb extends from the concrete

island to the property line, discouraging vehicles from driving over it and

crossing the shared use path. FDOT also moved the shared use path closer to

SR 80 in this pr oposal to accommodate the trucks that Petitioners claimed

visited the property frequently and granted Petitioners an 11 - foot area to

circulate vehicles within FDOTÔs right - of - way, which minimizes interference

with PetitionersÔ newly - created, lined parking spaces.

20 . Based on the weight of the credible evidence, FDOTÔs proposed

modifications are necessary to improve the safety and operational

characteristics of SR 80. The existing driveway is hazardous to pedestrians

and bicyclists using the shared use pat h. It is as wide as an eight - lane

highway and contains no barrier to protect those crossing it. Vehicles can

enter and exit the driveway at high speeds and at multiple angles, which

creates numerous conflict points and confusion for pedestrians and bicycli sts

who have little time to react.

2 1 . By reducing the driveway width to 53 feet and utilizing mountable and

non - mountable curbs, FDOT has reduced the speed with which vehicles can

enter and exit the property, prevented vehicles from driving through the

s hared use path beyond the driveway, limited conflict points, and lessened

the risk of confusion for pedestrians and bicyclists. A safety report prepared

by AIM, which was signed and sealed by Ms. Ratican, conducted a crash

assessment along the Project corr idor for the prior five years . It revealed 750

crashes, seven of which involved pedestrians and bicyclists. Although no

crashes occurred at this driveway, the report found FDOTÔs design would

reduce the risk of crashes by 70 percent, decrease the time it t akes

pedestrians and bicyclists to cross the driv eway by 38 percent, and improve

their awareness of vehicles using the driveway. And, though FDOT is

allowing a driveway that is wider than standard, the design will reduce the

risk a ssociated therewith and e nhance pedestrian safety through the use of

curbs.

22. Petitioners presented no credible evidence to suggest that FDOTÔs

proposed design would not improve safety or the operational characteristics

of SR 80. Indeed, Mr. Trebilcock offered no specific testi mony on this subject .

2 3 . Petitioners instead focused on how FDOTÔs proposal purportedly failed

to provide them with reasonable access. But, they conceded in pleadings that

FDOTÔs design arguably constituted reasonable access and they presented no

credibl e evidence disputing the reasonableness of FDOTÔs proposed reduction

in the width of the driveway to 53 feet. Petitioners will maintain the same

number of access connections and the evidence showed that the trucks that

Petitioners claim frequent the site c an safely enter and exit the property from

either direction on SR 80. The modifications simply will neither impact the

ability of vehicles to enter and exit the property safely n or affect roadway

traffic patterns.

2 4 . Nevertheless, Mr. Trebilcock opined th at reasonable access will be

lacking because FDOTÔs design will cause multiple problems on site.

Specifically, trucks must drive over mountable curbs, through existing

parking spaces and fences, and over pervious surfaces, which could creat e

permitting iss ues. The weight of the evidence established otherwise.

2 5 . It is true that FDOTÔs design may cause trucks to have to maneuver

on site differently than before. But, that is expected given the reduction in

the width of the driveway. The potential issues iden tified by Mr. Trebilcock

do not prevent access, but rather create reasonable limitations that would

only arise (if at all) once the vehicles are on site.

2 6 . FDOT also took into account information pr ovided by Petitioners as to

the types of trucks that re gularly visit the property . FDOT used auto - turn

software to demonstrate how the trucks could safely enter and exit the

property and maneuver on site . FDOTÔs witnesses explained that the auto -

turn exhibits illustrate one way that the vehicles could maneuver on site and

that additional maneuvering could be performed to avoid the parking spots,

fences, and pervious surfaces.

2 7 . The weight of the credible evidence also undermined testimony as to

the purported problems that FDOTÔs design will cause on site. As to

interference with the lined parking spaces, Petitioners created the very

problems about which they are complaining because they installed them with

knowledge of the Project, including FDOTÔs intent to reduce the width of the

driveway . Additionally, pho tographs introduced by Petitioners into evidence

show that JPM Ventures already uses the pervious surface along the right

side of the Miller parcel to park vehicles it has for sale Ð the same pervious

surface that Mr. Trebilcock testified could create permit ting issues if vehicles

had to traverse over it to maneuver on site.

2 8 . Mr. Trebilcock also testified extensively as to two alternative designs

that he believed were equally safe, but avoided any issues on site. First, he

proposed the following design th at retained the original 98 feet of pavement,

but utilized a double - yellow - lined area to reduce the operational width of the

driveway to 53 feet:

2 9 . Second, Mr. Trebilcock proposed the following design that essentially

retai ned the original 98 feet of pavement, but used a truck apron with a

three - inch tall, RA mountable curb to reduce the operational width of the

driveway to 53 feet :

Mr. Trebilcock testified that this design aligned with the recom mendation in

the AIM safety report to use a truck apron.

30 . Mr. Trebilcock acknowledged that vehicles could drive over either the

double - yellow - lined paved area or the truck apron and RA curb. But, he

opined that both were just as safe as FDOTÔs design be cause they created

separation between the driveway and the shared use path and forced vehicles

to reduce their speed. Because the vehicles could make similar movements to

enter and exit the property as they could with the existing driveway, the

alleged on - site problems he identified would be avoided .

31 . However, Ms. Ratican credibly explained why these two designs were

not as safe. She believed the first design provided less protection because

there was no physical separation between the driveway and the shared use

path except for the painted lines, which could be driven over without slowing

down. She believed the second design was safer than the first, but still

provided less protection because vehicles could drive over the three - inch RA

curb more easily and at a faster speed than the five - inch type E curb in

FDOTÔs design. Further, d espite the fact that the conclusion section of

FDOTÔs safety assessment report recommended a truck apron , she confirmed

that the design exhibits included within the report and attached to the

Second Amended Notice clearly use a type E curb. She confirmed that FDOT

never proposed a truck apron for this driveway.

3 2 . In sum , the weight of the credible evidence showed that PetitionersÔ

existing driveway is unsafe and poses a saf ety risk for pedestrians and

bicyclists using the shared use path. FDOTÔs proposal is a safe design that

substantially reduces that risk consistent with the operational characteristics

of SR 80, and continues to provide Petitioners with reasonable access.

Although Petitioners prefer their alternative designs, they pose a greater

safety risk to users of the shared use path.

3 3 . Petitioners also challenge the proposed modifications based on alleged

procedural failures. 4 However, the evidence was to the contra ry.

4 Petitioners also have repeatedly argued that the Project as a whole should not occur, that

this case was p rematurely brought because the P roject lacks federal approval and/or f unding,

that FDOT failed to comply with the National Environmental Policy Act (ÑNEPAÒ), and that

FDOT submitted a different drive way design to the S F WMD to obtain an environmental

resource p ermit for the P roject, among other arguments. Because jurisdiction in this case is

limited to determining if FDOTÔs proposed driveway modifications are consistent with the

design and safety standards under Florida law and provide Petitioners with reasonable

access, arguments as to why the Project is ill - advised and wheth er it will ever be funded or

approved by federal or other governmental agencies are not addressed herein .

3 4 . Petitioners questioned the validity of the exhibits attached to the

Second Amended Notice because they we re not signed and sea led by a

professional engineer. Ms. Ratican and her design team at AIM prepared the

exhibits on FDOTÔs behalf. Ms. Ratica n acknowledged that the y were not

signed and sealed by her or another engineer of record , but that was because

they were preliminary in nature. She confirmed that the final plans would be

signed and sealed once this case was resolved.

3 5 . Petitioners also argued that FDOT failed to hold a public hearing in

violation of section 335.199. Throughout the ProjectÔs development, the MPO

and FDOT worked together. The MPO and other local government entities

have held numerous public meetings , at which FDOT employee s attended .

Mr. Majka has attended many of them, too. In fact, he has made over 30

presentations to the various entities about both the Project and the proposed

modifications to PetitionersÔ driveway. The MPO also received substantial

public input and appr oved revisio ns to the Project based thereon . FDOT has

conferred with Petitioners multiple times and adjusted its proposed

modifications based on the input received. The weight of the credible evidence

established that FDOT received substantial input about the Project generally

from the publicÔs involvement at the MPO and about PetitionersÔ driveway

specifically from the multiple meetings with Mr. Majka and his engineer.

3 6 . Lastly, Petitioners have repeatedly argued that FDOT acted in bad

faith in seeking to modify their driveway and , as such, should be sanctioned.

3 7 . Contrary to PetitionersÔ argument, there is no credible evidence to find

that FDOTÔs pleadings, positions, or other actions in this case were made in

bad faith or for an improper purpose, as required by section 120.569(2)(e).

Mr. Trebilcock testified that he did not believe FDOT acted in bad faith or for

an improper purpose with any of its proposals. Although he believed FDOT

initially failed to understand the business operations on site and t he process

could have gone better, he testified that FDOTÔs proposals improved after it

received more information and further input from him and Mr. Majka.

3 8 . The weight of the credible evidence established that FDOT made

extraordinary efforts to take Pe titionersÔ concerns into account and revised its

proposed modifications numerous times in a good faith effort to accommodate

their individual needs. FDOT employees m et on site with Mr. Majka twice

and at FDOTÔs office once . FDOT employees engaged in multip le

conversations with Mr. Majka by telephone and e - mail. The district secretary

had two meetings with Mr. Majka and his engineer , in person and over the

phone. FDOT Ôs propos ed modifications provide for a driveway that is

significantly wider than any other within the Project corridor and provides

for an 11 - foot area within FDOTÔs right - of - way to assist Petitioners with

circulation on their property Ð an accommodation only one other owner

received because he agreed to two driveways on his property, which

Petiti oners rejected when offered. FDOT not only treated Petitioners fairly,

but accommodated them more than the other property owners.

C ONCLUSIONS OF L AW

3 9 . DOAH has jurisdiction over the parties and the subject matter of this

cause. §§ 120.569, 120.57(1), an d 335.182, Fla. Stat .

40. FDOT, as the party asserting the affirmative of the issue, has the

burden to prove by a preponderance of the evidence that the driveway may be

modified as proposed in the Second Amended Notice. Young v. Dep Ô t of Cmty.

Aff. , 625 So . 2d 831, 833 - 34 (Fla. 1993); Dep Ô t of Transp. v. J.W.C. Co. , 396 So.

2d 778, 788 (Fla. 1st DCA 1981).

4 1 . FDOT is the state agency with the power Ñ[t]o establish, control, and

prohibit points of ingress to, and egress from, the State Highway System È

as n ecessary to ensure the safe, efficient, and effective maintenance and

operation of such facilities.Ò £ 334.044(14), Fla. Stat.

4 2 . Section 335.181(2) provides that it is the policy of the Legislature that:

(a) Every owner of property which abuts 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

department. 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 Ô s right

and interest in a safe and efficient highway system.

This paragraph does not authorize 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.

Property owners are encouraged to implement the

use of joint access where legally available .

4 3 . ÑÓ Reasonable Access Ô means the minimum number of connections,

direct or indirect, necessary to provide safe and efficient ingress and egress to

the State Highway System based on Section 335.18, F.S., the Access

Management Classification, projected connection and roadway traffic

volumes, and the type and intensity of the land use. Ò Fla. Admin. Co de R. 14 -

96.002(25). Ñ ÓConnectionÔ means driveways, streets, turnouts, or other means

of providing for the right of reasonable access to o r from the State Highway

System . Ò £ 335.182(3)(a), Fla. Stat.

4 4 . Driveways on state roads must be permitted or grandf athered , or they

are subject to closure . Fla . Admin. Code R. 14 - 96.011 (3) . A n unpermitted

driveway is grandfathered if it was in existence prior to July 1, 1988, and has

not been discontinued for a period of one year or more . Id. at 14 - 96.011(3)(a).

A use is discontinued Ñ when there has been a cessation of trips to the

property, except for trips to maintain or market the property associated with

that use Ò or Ñw here the business located on the property has been out of

service for a period of one year or more . Ò Fla. Admin. Code R. 14 - 96.005(c)3.

4 5 . FDOT has adopted rules governing the modification of unpermitted

driveways. Rule 14 - 96.015 provides, in relevant part, as follows:

When existing connections are modified by a

Department project, access will be prov ided to

abutting properties, subject to reasonable

regulation as referred to in Section 335.181(2)(b),

F.S. To the maximum extent feasible, this new

access will be consistent with adopted Department

connection standards.

(1) Corridors will be examined dur ing the

preliminary engineering and design phases to

determine if existing connections, median openings,

and signals spacing and design standards are in

conformance, or can be brought into conformance,

with adopted Department standards.

(2) When a permitt ed or grandfathered connection is

modified as part of a Department construction

project, and not due to a significant change, no

additional permit shall be required.

(3) Where connections are to be modified as part of

a Department contruction [ ] [ sic] pro ject, and the

Department is not planning to acquire any portion

of the property for the project, the Department will

provide notice and opportunity for an

administrative proceeding pursuant to Rule 14 -

96.0011, F.A.C., and Chapter 120, F.S. For

purposes of paragraph 14 - 96.011(1)(d), F.A.C.,

construction plans for a Department project signed,

sealed, and dated by a Professional Engineer

registered in the State of Florida shall substantiate

a connection's non - conformance with Department

standards or potential safety or operational

problem, and a separate engineering study shall

not be required.

(Emphasis added.) The emphasized language makes clear that, contrary to

PetitionersÔ argument, the fact that a driveway is grandfathered does not

mean that it cannot be modified by the Project.

4 6 . Pursuant to rule 14 - 96.011(4)(c), if FDOT acts to modify a driveway, it

Ñshall offer an opportunity to meet on site with the property owner or

designated represe ntative È [and] take into consideration the following:

1. Do cuments, reports, or studies obtained by the

property owner or lessee and provided to the

Department.

2. Alternative solutions proposed by the property

owner.

4 7 . FDOT may modify grandfathered driveways pursuant to the following

standards set forth in rule 14 - 96.011(4)(b):

The Department will modify a connection if such

modification is determined to be necessary because

the connection would jeopardize the safety of the

public or have a negative impact on the operational

characteristics of the state highway . The problem

may be substantiated by an engineering study

signed, sealed, and dated by a professional engineer

registered in the State of Florida. Such engineering

study shall consider the following:

1. Analysis of accidents or operational analysi s

directly involving the connection or similar

connections, or a traffic conflicts analysis of the

site.

2. Analysis of the impact modification of the

connection will have on maintenance or safety on

the public road system.

3. Analysis of the impact modi fication of the

connection 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.

4 8 . On the other hand, if significant changes have occurred on the

property, FDOT requires the owner of a grandfathered driveway to obtain a

permit . Fla. Admin. Code R. 14 - 96.011(4) (a) . A significant change Ñ means a

change in the use of the property, including land, structures or facilities, or

an exp ansion of the size of the structures or facilities causing an increase in

the trip generation of the property exceeding 25 percent more trip generation

(either peak hour or daily) and exceeding 100 vehicles per day more than the

existing use. Ò § 335.182 (3) (b), Fla. Stat.

4 9 . Rule 14 - 96.011(5) provides the following notification process for

modifying a grandfathered connection:

(a) The Department shall give written notice to the

property owner, with a copy to the occupant, for a

grandfathered connection if significant changes

have occurred or if the connection is found to cause

a safety or operational problem (as specified in this

rule chapter). The notice will identify the specific

information regarding the safety or operational

problem and request that the problem be corrected

or that a written agreement on a schedule for the

correction be approved by the Department within

30 days of receipt of the notice.

1. If the reason for the modification is due to

significant change the notice will state the basis of

the Department Ô s determination and require the

filing of a permit application by a specified date.

Where the Department Ô s requirement to file an

application has become final and no timely

application has been filed, the Department will

take immediate acti on to modify the connection in

accordance with the notice at the owner Ô s expense.

2. If the reason for the modification is a safety or

operational problem, the notice will state the basis

of the Department Ô s determination and describe the

changes necessar y to reduce the hazard or correct

the situation.

50 . Here, FDOT seeks to modify PetitionersÔ unpermitted, 98 - foot - wide

driveway for safety and operational reasons due to the Project along SR 80.

51. Based on the Findings of Fact, PetitionersÔ driveway i s grandfathered.

There is no dispute that the driveway existed on July 1, 1988, and the weight

of the credible evidence confirmed that the driveway remains unchanged and

has been used continuously since at least 1988 .

5 2 . FDOT argues that the driveway lost its grandfather status because

the property underwent significant changes when Superior Sheds began

using the Majka parcels to store their sheds and a paved pathway connecting

the Majka parcels to the driveway on the Miller parcel was added . However,

rule s 14 - 96.011 and 14 - 96.005(2) provide that the grandfather status of a

driveway is lost if the property is abandoned or if use is discontinued for a

year or more. If significant changes occur, FDOT is directed to require the

owner to apply for a permit to m odify the grandfathered connection.

§ 335.187(1), Fla. Stat.; Fla. Admin. Code R. 14 - 96.011(4)(a), (5)(a)1.

5 3 . Here , the Second Amended Notice sought to modify the driveway

based on safety concerns resulting from the Project; FDOT did not direct

Petition ers to apply for a permit, as required if significant changes have

occurred. Even if significant changes were an appropriate consideration here,

the weight of the credible evidence did not establish a change in the use of

the property or an expansion that Ñ caus [ed] an increase in the trip generation

of the property È exceeding 100 vehicles per day more than the existing use. Ò

§ 335.182(3)(b), Fla. Stat.

5 4 . Based on the Findings of Fact, FDOT proved by a preponderance of

the evidence that the modification o f Petitioners Ô driveway will improve

safety and the operational characteristics on SR 80, and will provide

Petitioners with reasonable access .

5 5 . Petitioners do not actually dispute that determination. They have

conceded that the Second Amended Notice at least arguably constitute s

reasonable access . Instead, they challenge FDOTÔs ability to modify the

driveway because: (1) FDOT failed to attach plans signed and sealed by an

engineer to the Second Amended Notice; (2) FDOT failed to meet on site with

Petitio ners, as required by rule 14 - 96.011(4)(c); (3) FDOT failed to hold a

public hearing, as required by section 335.199; and (4) FDOTÔs proposed

modifications will cr eate problems on site , which constitute a regulatory

taking that could be avoided by approving one of their engineerÔs two

alternative proposals.

5 6 . Petitioners have not cited, and the undersigned has not identified, any

p rovision in chapter 335 or the Florida Administrative Code that required

FDOT to attach plans to its Second Amended Notice tha t were signed and

sealed by an engineer. R ule s 14 - 96.011 (4) and 14 - 96.015(3) allow FDOT to

substantiate the safety problem justifying the modification with a study

signed and sealed by a professional engineer, which FDOT did in this case,

but they do not r equire that the plans attached to the noti ce be signed and

sealed. And, though Florida Administrative Code Rule 61G15 - 23.001(1)

requires engineers to sign and seal final plans and precludes them from

signing and sealing preliminary plans without so indicat ing, the rule do es

not require engineers to sign and seal preliminary plans like those attached

to the Second Amended Notice.

5 7 . Based on the Findings of Fact, FDOT complied with the requirement

in rule 14 - 96.011(4)(c) to meet on site with Petitioners. FDOT representatives

met twice on site with Mr. Majka after issuing the Notice in December 2017,

and numerous other times at the FDOT office, via telephone , and by e - mail

after issuing both the Amended Notice and the Second Amended Notice. The

district sec retary met in person and via telephone with Mr. Majka and

Mr. Trebilcock to discuss the Amended Notice and, based on those

discussions, FDOT served the Second Amended Notice. All of these meetings

included discussions of FDOTÔs proposals and PetitionersÔ s ite - specific needs.

Though the efforts to reach an agreed settlement were unsuccessful, they

demonstrate that FDOT complied with the requirement to meet on site and

to consider PetitionersÔ input. And, even if FDOT had been required to meet

on site again a fter serving the Amended Notice and the Second Amended

Notice, the evidence clearly established that Petitioners suffered no prejudice

given the extraordinary efforts FDOT made to accommodate their individual

needs.

5 8 . Based on the Findings of Fact, FDOT did not violate section 335.199

and, even if it did, no prejudice resulted to Petitioners.

5 9 . Section 335.199, entitled ÑTransportation projects modifying access to

adjacent property,Ò applies Ñ[w]henever [FDOT] proposes any project on the

State Highwa y System which will È have the effect of closing or modifying

an existing access to an abutting property owner .Ò Id. at § 335.199(1). If

applicable, FDOT Ñshall hold at least one public hearing in the jurisdiction

where the project is located and receive p ublic input to determine how the

project will affect access to businesses and the po tential economic impact of

the P roject on the local business community .Ò Id. at § 335.199(3).

60 . Based on the text of the statute, it applies if FDOT Ñproposes any

project Ò that will Ñhave the effect of closing or modifying an existing access to

an abutting property owner.Ò Id. at § 335.199(1) . 5 Here, however, the MPO

proposed the project and is working with FDOT to make it a reality, which

alone calls the provisionÔs appli cability into question.

5 FDOT argues that this section only applies to projects involving medians . However, the

statutory language c onfirms that it applies to FDOT - proposed projects that Ñ will divide a

state highway, erect median barriers modifying currently available vehicle turning

movements, or have the effect of closing or modifying an existing access to an abutting

property owner.Ò £ 335.199(1), Fla. Stat. (emphase s adde d).

61 . Moreover, the undisputed evidence confirmed that the MPO has held

multiple public meetings on the Project ( at which Mr. Majka often has been

in attendance ) , sought and received public input on the Project ( including

multiple pr esentations by Mr. Majka ) , and has worked in tandem with FDOT

on the Project. Petitioners also have met with FDOT employees numerous

times to voice their concerns about the Project and to offer their alternatives

to the proposed modifications, just as requ ired by rule 14 - 96.011(4)(c). Thus,

even assuming section 335.199 applied to this County - proposed Project,

Petitioners failed to establish any prejudice resultin g from FDOTÔs failure to

strictly follow all of the procedures set forth in the statute .

6 2 . Co ntrary to PetitionersÔ argument, Ñreasonable accessÒ does not

require FDOT to consider any and all on - site circulation problems or other

on - site issues, unless they adversely impact the ability of vehicles to safely

enter and exit the property. Fla. Admin. Code R. 14 - 96.002(25). Based on the

Findings of Fact, FDOTÔs proposed modifications safely accommodate the

vehicles that use PetitionersÔ driveway . Although Petitioners prefer their

designs, the weight of the credible evidence established that Petitioners Ô

designs were not as safe as FDOTÔs design for users of the shared use path.

Even if the evidence supported PetitionersÔ argument that they may have to

cure issues on site or, worse yet, be put out of business ( a determination

unsupported by the evidenc e , as explained in the Findings of Fact ), the

potential redress for that type of economic injury, if any, lies in another

forum.

6 3 . In sum, FDOT met the dictates of the law by identifying a safety and

operational concern with PetitionersÔ driveway . FDOT co nsidered their site -

specific needs and alternative de signs, and ultimately proceeded with its

design because it alleviated the safety concerns consistent with the

operational characteristics of SR 80, while maintaining reasonable access for

Petitioners .

6 4 . Lastly, Petitioners have argued throughout this proceeding that FDOT

has engaged in an improper purpose and acted in bad faith. PetitionersÔ

primary arguments are that FDOT brought this litigation prematurely and in

bad faith, refused to resolve the cas e amicably without the need for a hearing,

and purportedly cost Petitioners thousands of dollars in engineering and

other fees in having to defend against the initial Notice, Amended Notice,

Second Amended Notice, and the numerous informal proposals that F DOT

offered during the pendency of this case in an effort to amicably resolve it.

6 5 . Section 120.569(2)(e) provides as follows:

(e) All pleadings, motions, or other papers filed in

the proceeding must be signed by the party, the

party Ô s attorney, or t he party Ô s qualified

representative. The signature constitutes a

certificate that the person has read the pleading,

motion, or other paper and that, based upon

reasonable inquiry, it is not interposed for any

improper purposes, such as to harass or to caus e

unnecessary delay, or for frivolous purpose or

needless increase in the cost of litigation. If a

pleading, motion, or other paper is signed in

violation of these requirements, the presiding

officer shall impose upon the person who signed it,

the represen ted party, or both, an appropriate

sanction, which may include an order to pay the

other party or parties the amount of reasonable

expenses incurred because of the filing of the

pleading, motion, or other paper, including a

reasonable attorney Ô s fee.

6 6 . Based on the Findings of Fact, FDOT has not filed any pleading,

motion, or other paper in this case for an improper or frivolous purpose that

would support the imposition of sanctions against it. PetitionersÔ engineer

testified that he did not believe FDO T engaged in an improper purpose or

acted in bad faith. PetitionersÔ allegations about FDOTÔs actions in other

cases, even if true, are insufficient under section 120.569(2)(e) because they

do not involve a pleading filed in this case. PetitionersÔ allegat ions that FDOT

prematurely pushed Petitioners to an administrative hearing are belied by

the record and the evidence. PetitionersÔ allegations that FDOTÔs numerous

proposals cost them thousands of dollars in engineering fees ignores that

those proposals we re made in an effort to accommodate PetitionersÔ needs to

try to reach an amicable resolution , aside from lacking any supporting

evidence . Simply put, FDOT engaged in no sanctionable misconduct in this

case and PetitionersÔ attempt to prove otherwise faile d.

R ECOMMENDATION

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

R ECOMMENDED that the Department of Transportation enter a final order

approving the proposed modifications to PetitionersÔ driveway connection as

outlined in the Secon d Amended Notice.

D ONE A ND E NTERED this 15th day of January , 2021 , in Tallahassee, Leon

County, Florida.

S

A NDREW D. M ANKO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 3239 9 - 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 15th day of January , 2021 .

C OPIES F URNISHED :

John Majka

18700 Old Bayshore Road

Fort Myers, Florida 33917

(eSe rved)

David Tropin, Assistant General Counsel

Florida Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399

(eServed)

Austin M. Hensel, Assistant General Counsel

Florida Department of Transportation

605 Suwannee St reet , Mail Station 58

Tallahassee, Florida 32399

(eServed)

Amber Greene, Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0450

(eServed)

Kevin J. Thibault, P. E., Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 57

Tallahassee, Florida 32399 - 0450

(eServed)

Sean Gellis, General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Stat ion 58

Tallahassee, Florida 32399 - 0450

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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 f iled with the agency that will issue the Final Order in this

case.