STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 85-4152

)

LOREDA DEVELOPMENT, INC., )

d/b/a LAKE SUZY, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case in Arcadia, Florida on February 20, 1986, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented by:

For Petitioner: Thomas L. Barnhart, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

For Respondent: David W. Shepard, President

Loreda Development, Inc. 910 Kings Highway

Lake Suzy, Florida 33821

At the hearing, George Solana, County Engineer for DeSoto County, and Eugene E. Waldron, Jr., DeSoto County Administrator, testified for Petitioner and David W. Shepard, President of Loreda Development, Inc., testified on behalf of Respondent.

Petitioner introduced four exhibits and Respondent introduced two. No transcript of the hearing has been filed.

The parties were allowed to submit posthearing proposed findings of fact and a ruling on each timely filed proposed finding is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. David W. Shepard is President of Loreda Development, Inc., which has developed Lake Suzy Estates on approximately 160 acres in the southwestern portion of DeSoto County, bordered by Kings Highway. Lake Suzy includes approximately 245 single family lots, 100 of which are sold, with a 42 acre man-made lake. High density and commercial areas are also designated within Lake Suzy.

   
   

2. Development of Lake Suzy began in 1972 and is still underway.

   
   

3. There are approximately 2 1/2 to 3 miles of asphalt-top roads within Lake Suzy. Construction of these roads began in 1974 and was completed in 1984.

   
   

4. On or about September 26, 1985, Petitioner issued a Notice to Show Cause charging that, "Respondent has failed to construct the completed roads and drainage improvements in accordance with DeSoto County specifications, in violation of Section 498.033(2), F.S."

   
   

5. The County Engineer for DeSoto County, George Solana, testified that roads and drainage improvements within Lake Suzy do not meet DeSoto County specifications, and Eugene E. Waldron, Jr., County Administrator, testified that the county has not accepted the roads or drainage improvements in Lake Susy for maintenance.

   
   

6. In September, 1982, Shepard met with Solana and was informed of several conditions he had to meet to bring Lake Suzy's roads and drainage improvements into conformance with county specifications. Shepard then applied for a permit on September 16, 1982, which was issued on November 1, 1982, subject to conditions enumerated by Solana in a letter dated September 8, 1982.

   
   

7. In March, 1985, Solana reviewed the roads and drainage improvements in Lake Suzy and found that most of the deficiencies and conditions noted in 1982 remained. Solana categorized these remaining deficiencies in a letter to the County Administrator, Waldron, dated March 28, 1985 and revised April 5, 1985, as follows:

   
   

   1. Drainage easements

   2. Cross-sections

   3. Materials and quality control

   4. Existing construction

   5. Inlet grates and steel end sections

   6. Street and traffic control signs

   7. Grassing

   8. Certificate of satisfactory completion

   9. Other deficiencies

      
      

      At the time of the hearing on February 20, 1986, only the drainage easement deficiencies had been corrected in accordance with DeSoto County specifications.

      
      

8. Shepard testified he was fully aware of Solana's conditions in 1982 and the remaining deficiencies noted in 1985. Further, he had tried to correct the deficiencies and meet these conditions for compliance with DeSoto County specifications. He does not dispute that the deficiencies noted by Solana as still existing in 1985 would have to be corrected to comply with the county public works manual.

   
   

9. The Order of Registration for Lake Suzy, issued by Petitioner on June 4, 1973, includes a Public Offering Statement which states that roads will be installed to the specification of DeSoto County and will be maintained by the county. As revised on October 21, 1980, the Public Offering Statement includes the same statement about road improvements in Lake Suzy. Respondent has failed to comply with this provision in its Public Offering Statement.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

11. Section 498.033(2), Florida Statutes, provides:

    
    

    After an order of registration has been issued pursuant to this chapter, the registrant shall comply with all obligations of the registrant contained in the purchase contract, offering statement, and registration statement.

    
    

12. The evidence in the record establishes that Respondent has not complied with its obligation, stated in its Public Offering Statement, to install roads within Lake Suzy in accordance with DeSoto County specifications. This failure has resulted in the County's refusal to accept these roads for maintenance. Through a meeting in 1982 with the County Engineer, George Solana, and an application for permit which incorporated and conditioned its issuance on compliance with conditions enumerated by Solana in a letter dated September 8, 1982, as well as through a subsequent review and letter by Solana in 1985, Respondent was notified of deficiencies in roads and associated

    drainage improvements in Lake Suzy. Respondent did make an effort to correct some of the deficiencies and to meet county specifications, but the roads and associated improvements still fall short of meeting all specifications. In this manner, Respondent has failed to comply with the Public Offering Statement in violation of Section 498.033(2), supra.

    
    

13. When a violation of Chapter 498, Florida Statutes, has occurred, Petitioner has the authority to suspend or revoke a registration, impose civil penalties, or issue cease and desist orders which may-require such affirmative action as in Petitioner's judgment will carry out the purpose of Chapter 498. Sections 498.049 and 498.051, Florida Statutes.

RECOMMENDATION

Based upon the foregoing, it is recommended that Petitioner issue a Final Order which requires Respondent to comply with Section 498.033(2), Florida Statutes, within one year by bringing roadways within Lake Suzy into compliance with DeSoto County specifications and by requesting that DeSoto County accept said roads in their road maintenance system, and further providing that failure to comply with said Final Order within the one year period shall result in a one-year suspension of Respondent's registration and a civil penalty in the amount of $10,000.

DONE and ENTERED this 14th day of March, 1986, at Tallahassee, Florida.

DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1986.

COPIES FURNISHED:

Thomas L. Barnhart, Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

David W. Shepard, President Loreda Development, Inc.

910 Kings Highway

Lake Suzy, Florida 33821

James Kearney, Director Division of Florida Land Sales

Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32301

Richard B. Burroughs, Jr., Secretary Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

APPENDIX

Rulings on Petitioner's Proposed Findings of Fact:

weight of the evidence supports Petitioner's position after considering all evidence presented by Respondent.

8 Adopted in part in Finding of Fact 1. Rulings on Respondent's Proposed Findings of Fact:

1-3 Rejected after considering all evidence presented. Respondent's position is not based on competent substantial evidence.

Docket for Case No: 85-004152

Orders for Case No: 85-004152