STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GOLD COAST RANCHES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 78-125

) DIVISION OF FLORIDA LAND SALES ) AND CONDOMINIUMS, DEPARTMENT OF ) BUSINESS REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, on February 21, 1978, at Tallahassee, Florida, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: L. M. Taylor, Esquire

Post Office Box 14577

North Palm Beach, Florida 33408

For Respondent: Lawrence D. Winson, Esquire

725 South Bronough Street

210 Johns Building Tallahassee, Florida 32304

ISSUE PRESENTED

Whether Petitioner should be granted an exemption under Section 478.221(3), Florida Statutes, from the provisions of the Florida Uniform Land Sales Practices Law, Chapter 478, Florida Statutes.

By stipulation dated February 14, 1978, the parties agreed that the Division of Administrative Hearings take jurisdiction in the matter under Section 120.57(1), in the absence of disputed issues of material fact. The parties also agreed to waive the notice requirements under Chapter 120.

The parties stipulated to the facts of the case (Exhibit 4), and to the admission in evidence of Petitioner's application and supporting documents (Composite Exhibit 1), a letter of Respondent acknowledging receipt of the Claim of Exemption dated July 15, 1977, (Exhibit 2), and Respondent's notice to Petitioner, dated September 19, 1977, that the Claim of Exemption was rejected (Exhibit 3). Petitioner submitted an answer filed by the Respondent as Defendant in civil judicial proceedings based on its denial of the exemption claim in the Circuit Court of Leon County, Case No. 77-220, which was rejected by the Hearing Officer as irrelevant to the proceedings in view of the accepted Stipulation of Facts. (Appellate Exhibit 1)

FINDINGS OF FACT

The Stipulation of Facts is as follows:

1. On July 14, 1977, Petitioner submitted to the Respondent and the Director thereto, a claim of exemption as required by Florida Statute 478.221(3); and claiming compliance with the provisions thereunder.

   
   

2. Pursuant to the discretionary authority as provided for in Section 478.221(3), Florida Statutes, the Director of the Division of Florida Land Sales and Condominiums, by letter dated September 19, 1977, informed Petitioner that its claim for exemption was denied. Said letter is attached hereto and incorporated herein by reference as exhibit 1.

   
   

3. The substance of said letter indicated that the Director, pursuant to his discretionary authority, provided for in Section 478.221(3), Florida Statutes, was not satisfied "that all necessary conditions of the exemption are present, i.e., in particular that the property is usable for the purpose for which it is offered."

   
   

4. Said denial was based upon a letter received from the Chairman of the Board of County Commissioners of the County of Martin, State of Florida, dated August 8, 1977, and objecting to any exemption on the grounds that:

   
   

   1. "Gold Coast Ranches has not applied to Martin County for plat approval as required in our subdivision regulations," and;

   2. "Gold Coast Ranches, Inc., has not applied for road opening permits as required by Martin County ordinances."

      
      

5. Said letter from the County of Martin, also indicated that since the parcels created by Gold Coast Ranches, Inc., were smaller than 20 acres, they were subject to the subdivision regulations of the County. A copy of said August 8, 1977, letter from the Chairman of the Board of County Commissioners, for the County of Martin, State of Florida, is attached hereto and incorporated herein by reference as Exhibit 2.

   
   

6. The roads proposed by Gold Coast Ranches, Inc., are to be of a private nature.

   
   

7. The subdivision in question is not to be platted, but lots are to be sold pursuant to a metes and bounds description in excess of 5 acres.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Florida Uniform Land Sales Practices Law, Chapter 478, Florida Statutes, requires subdividers to register subdivided lands with the Respondent prior to sale thereof and to comply with other pertinent requirements of the chapter unless exempted therefrom under Section 478.221.

   
   

9. Section 478.221(3) provides as follows:

   
   

   478.221 Exemptions.--

   1. The division director may also grant additional exemptions after the division has had demonstrated to its satisfaction that the subdivider has qualified for an order of exemption in those cases involving offers or dispositions of interests in sub- divided lands where:

      1. At all times during the life of the agreements to purchase, the subdivider has clear title to such subdivided land;

      2. The subdivider is at all times prepared to convey clear title to the purchaser and has completed all improvements promised, if any;

      3. The land is useful for the purpose for which it is offered; and

      4. The purchaser has personally inspected the property to be purchased prior to the execution of the agreement and has so certi- fied in writing.

   
   

10. As set forth in the Stipulation of Facts herein, Petitioner's claim of exemption under subsection 478.221(3) was rejected by Respondent for failing to demonstrate to the division director's satisfaction that "the land is useful for the purpose for which it is offered." This decision was based on the representation of the Chairman, Board of County Commission, Martin County, Florida, that Petitioner had not applied to the county for plat approval or for road opening permits, as required in county ordinances and subdivision regulations. Petitioner contends that pertinent statutes and court decisions either invalidate or render the county requirements inapplicable, and that therefore Respondent's director was unjustified in denying the exemption request. Respondent, on the other hand, avers that it does not have the authority to determine the validity of a county ordinance, but must assume such validity until a court of competent jurisdiction declares it to be invalid.

    
    

11. It is Petitioner's responsibility to demonstrate to Respondent's satisfaction that it qualifies for an order of exemption before the division director may exercise his discretionary authority in that regard. In this case, the director has not been satisfied that Petitioner qualifies under Section 478.221(3)(c) that the land is "useful for the purpose for which it is offered." The documentary evidence shows that Petitioner intends to sell parcels of land at not less than five acres each to be used for ranching, agricultural and residential purposes. No issue has been raised as to the suitability of the land in question for such use. Neither is it contested that Petitioner would act in violation of Martin County ordinances if he proceeded to sell the land without first obtaining plat approval and road opening permits required thereunder. Assuming arguendo that Petitioner's contentions concerning the invalidity of such ordinances are correct, they should be presented in an appropriate judicial forum for resolution. Respondent has neither the power nor the responsibility to make such determinations as to existing county law. Indeed, the entire tenor of Section 478.121 dealing with applications for registration of subdivided lands requires the applicant to show compliance with local ordinances prior to registration. If Respondent placed its seal of approval on sales by Petitioner under circumstances that could involve violation of local law, thus embroiling purchasers of the land in any ensuing county prospective action against the seller, the purpose of Chapter 478 would be defeated. Neither the public interest nor the interest of prospective

purchasers would be protected under such circumstances. Accordingly, it is concluded that Petitioner failed to demonstrate that the land in question presently is useful for the purpose for which it would be offered and that Respondent's division director acted properly in declining to exercise his discretionary exemption authority.

RECOMMENDATION

That Respondent deny Petitioner's request for exemption pursuant to Section 478.221(3), Florida Statutes.

Done and Entered this 16th day of March, 1978, in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Lawrence D. Winson, Esquire 725 South Bronough

210 Johns Building Tallahassee, Florida 32304

L. M. Taylor, Esquire Post Office Box 14577

North Palm Beach, Florida 33408

Docket for Case No: 78-000125

Orders for Case No: 78-000125