STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GENEROSA T. SANTOS and ROSE W. ) MILAN (WHITE PALACE), )

)

Petitioners, )

)

vs. ) Case No. 97-1108

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

A hearing was held in this case on April 16, 1997, in Clearwater, Florida, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Oscar D. Santos Qualified Representative 1430 Palmetto Street

Clearwater, Florida 34615

For Respondent: Leslie K. Dougall-Sides, Esquire

City of Clearwater Post Office Box 4748

Clearwater, Florida 34618-4748 STATEMENT OF THE ISSUE

The issue for consideration in this case is whether Petitioners should be granted approval by the City of Clearwater of their request for expansion of a six-bed group home facility, located at 1430 Palmetto Street in Clearwater, to eight beds.

PRELIMINARY MATTERS

On December 15, 1996, Petitioner, Generosa T. Santos, applied to the City of Clearwater for a conditional use permit to expand a Level I group care facility at her property located at 1430 Palmetto Street in Clearwater to eight beds. The request was heard by the city's Planning and Zoning Board on February 4, 1997, and was denied. Petitioners appealed from that action and this hearing ensued.

At the hearing, Petitioner presented the testimony of Oscar D. Santos, husband of Generosa T. Santos, and introduced Petitioner's

Exhibit One. Respondent, City of Clearwater presented the testimony of Sandra E. Glatthorn, a planning administrator for the City, and requested that the undersigned officially recognize sections 35.11, 36.033, 40.101-.106, 41.021.053 and 41.201,

Clearwater City Code. An electronic transcription of that portion of the Planning and Zoning Board meeting pertinent to this appeal was also presented and reviewed. Public comment from Thelma D. Pope and Donald C. Pope was also heard.

A transcript of the proceedings was furnished. Subsequent to the receipt thereof by the undersigned, counsel for the City submitted Proposed Findings of Fact which were considered in the preparation of this Final Order.

FINDINGS OF FACT

1. Petitioners, Generosa T. Santos and Rose W. Milam, operate the White Palace, an assisted living facility, in a residence owned by Petitioner Milam, located at 1430 Palmetto Street in Clearwater. The facility is currently licensed for six residents and has been in operation for several years.

   
   

2. The property in question is a single family residence located in an area zoned RS 8, (residential urban), on the north, east and west, and recreational/open space on the south. In actuality, all parcels, including the property in question, except for the golf course on the south, are occupied by single family residences.

   
   

3. On December 15, 1996, Ms. Santos applied to the City's Planning and Zoning Board for a conditional use permit to expand the existing six bed Level I Group Care Facility to a maximum capacity of eight residents. The Petitioners' request was considered by the Board at its public meeting held on February 4, 1997. Prior to that time, the Petitioners' application was reviewed by Sandra E. Glatthorn, a planning administrator for the City who determined that the property, a single family residence, has been utilized since 1983 as an assisted living facility for six adults. In 1985, the facility was permitted for eight residents, but for two years thereafter, the facility did not operate as such and that permit lapsed. In March 1994, Ms. Santos requested zoning approval for six clients, which was approved.

   
   

4. After her review of the application in issue, Ms. Glatthorn prepared a staff report which supported the request. This report was based on the matters submitted with the application. Her review indicated that the intended use for which the application was submitted appeared to be compatible with the

   neighborhood and the zoning requirements, but at the meeting of the Board held on February 4, 1997, several neighbors came forward to present evidence that the proposed use, based on demonstrated conditions, was not compatible with but had a negative impact on surrounding properties.

5. An RS 8 zoning category is generally limited to single family residences or to family care facilities for up to six clients. Once the projected client population exceeds six residents, the category becomes Level I Group Care. Clients in either case can be elderly, physically or mentally handicapped, or non-dangerously mentally ill. Criminal or dangerous clients are not allowed within either category. Distance requirements between the residence in issue and surrounding properties are not in issue here.

   
   

6. On reconsideration of this application, after the Board meeting, the planning staff now recommends denial. At the Board meeting, several neighbors expressed their opposition to the approval of the requested permit. They cited what they considered to be incidents of a nature inconsistent with the quiet enjoyment of their property, including aberrant and disconcerting behavior by residents of the existing facility which made them uncomfortable and precluded them from a worry-free occupancy of their property. Residents of the facility were seen to wander the neighborhood, to verbally abuse neighbors and shout out obscenities, to seek access to neighboring properties and to occasion a police response to complaints by neighbors.

   
   

7. Mr. Santos opined that the neighborhood opposition to the increase in the number of beds is based on an opinion held that Petitioners are not capable of running the facility and on the Petitioners as a family. He rejects the contention by some neighbors that his children, who occupy the house along with their parents and the clients, are not being brought up in a good environment. This is not in issue. The decision to operate the home as an assisted living concept was not a spur of the moment decision by the Petitioners. They researched the possibility thoroughly before deciding to operate it.

   
   

8. Mr. Santos asserts that the neighbors claim the residents at the facility are abandoned, but this is not so. The residents have families who visit them and who take the residents for off- facility visits. In addition, he claims, the residents are not violent. Before admission to the facility, potential residents are screened to insure they are not violent or dangerous. He contends he would not expose his family, which lives in the facility, to dangerous residents.

   
   

9. The staff of the facility is made up of members of the Santos family. Any clients who created trouble at the facility have been removed from it at Mr. Santos' instigation. Though residents are not restricted to the facility grounds, if there is a problem with a resident, that resident is removed from the home in an effort to satisfy the neighbors. Though Mr. Santos believes he has a good relationship with most of the neighbors, he cannot seem to get through to the Popes. Ms. Santos and Ms. Milam are willing to work with the neighbors to alleviate their anxieties regarding

   the facility and, if that is what it takes to do so, will agree to limit the occupancy of the facility only to elderly clients.

   
   

10. Only Mr. and Mrs. Pope appeared at the instant hearing. Both expressed substantial objection to the expansion of the facility. Their concerns are based on the fact that residents of the facility have come to their home next door and banged on the door seeking entrance; have screamed obscenities at them while they were in their back yard; and on the report that the owners will move out if the increase in resident authorization is approved and bring in other people to care for the residents.

    
    

11. Neither Mr. nor Mrs. Pope have ever been in the facility. It appears, also, that on only one occasion did residents come to their home to seek entry. Mr. Pope admits to being quick to anger and to being prejudiced against Orientals. He served in the South Pacific during World War II. Mr. And Mrs. Santos are Orientals. Neither the Popes nor their neighbors who appeared at the Board's February 4 meeting want the facility in their residential community. Most of them have spent their entire lives working towards providing a comfortable and secure home for their retirement and they feel that the insertion of a group home, with the attendant additional activity, would be incompatible with the quiet enjoyment of their property and would adversely affect their property values, which make up a large portion of their financial worth.

    
    

12. On the other hand, representatives of Directions For Mental Health, Inc., an agency devoted to the placement of disabled adults, primarily the mentally ill, consider the White Palace a much needed resource. They recommend the bed increase sought be granted.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. A level I Group Care facility is, according to Section 35.11, Clearwater Code of Ordinances: a dwelling unit licensed to serve clients of the state Department of Health and Rehabilitative Services (now Department of Children and Families) and providing a living environment for seven to fourteen related or unrelated residents who operate as the functional equivalent of a family, including such supervision and care by supportive staff as may be necessary to meet the physical, emotional and social needs of the residents. As used in this definition, "resident" means the same as defined by Florida Statutes, s. 419.001, as created by Chapter 89-372, Laws of Florida, and includes an aged person, a physically disabled or handicapped person, a developmentally disabled person, a non-dangerous mentally ill person, or a child, all as defined by law.

15. Petitioners bear the burden to show that the decision of the Board cannot be sustained by the evidence before the Board and the Administrative Law Judge, or that the decision of the Board departs from the essential requirements of the law. Clearwater Code of Ordinances, Section 36.065(6)(b).

    
    

16. The First District Court of Appeals has determined that it is not the function of an appellate administrative body to re- weigh the evidence submitted to the decision-making body below. O'Neill v. Pallot, 257 So. 2d 59 (Flat 1St DCA 1972). In these proceedings, the Division of Administrative Hearings reviews the Board's decision in an appellate capacity but also takes evidence de novo. See Sec. 36.036(3), Clearwater Code of Ordinances.

    
    

17. Section 41.052, Clearwater Code of Ordinances, provides the general standards for conditional use permits, and at subsection (7) provides:

    
    

    The use shall be consistent with the community character of the properties surrounding the use. The criteria in this subsection shall be utilized to determine whether the use satisfies this standard:

    
    

    1. Whether the use is compatible with the surrounding natural environment;

       
       

    2. Whether The use will have a substantial detrimental effect on the property values of the properties surrounding the conditional use;

       
       

    3. Whether the use will be compatible with the surrounding uses as measured by building setbacks, open space, hours of operation, building and site appearance, architectural design and other factors which may be determined appropriate to assess the compatibility of uses:

       
       

    4. Whether the traffic generated by the use is of a type or volume similar to traffic generated by the surrounding uses.

       
       

18. In addition, Section 41.053(13), relating to supplementary standards of the City permits Level 1 facilities in single-family districts subject to all of the following:

    1. The use shall comply with all terms contained in section 41.302.

       
       

    2. Accessory uses shall be limited to those normal and incidental to residential dwelling units.

    3. The use shall be reasonably compatible with the surrounding neighborhood as measured by building size, location and state of repair.

       
       

    4. The site shall be able to accommodate required parking, ancillary service and outdoor activity areas appropriate to the use and in manner which is compatible with the surrounding properties.

       
       

    5. Proper supervision shall be provided to ensure neighborhood compatibility.

       
       

    6. If located within a single family residential 8 district, the use shall be located on property having conforming frontage on a minor or major arterial street.

       
       

    7. The use shall comply with all of the general standards contained in section 41.052.

    
    

19. The evidence presented to the Board by the Petitioner appears to meet most of the criteria in both the general and special categories. However, it also establishes that a single family residence would have to accommodate both the overhead staff and, if approved, up to eight residents. This large number of adults in a normal sized residence can be expected to create some parking problems even if none of the residents drive. It is reasonable to expect that periodically they will be visited by friends and family who will need a place to park while they are there. This can be expected to create congestion.

    
    

20. Further, the residents of this group home will not be the routine senior citizens. If past experience is anything of a predictor of the future, it is reasonable to expect that at least some of the residents will not remain inside the home at all times and may wander the neighborhood. The experiences of neighbors who have gone on record in this matter are a good predictor of what may be expected in the future.

    
    

21. The neighborhood in question is described as a residential neighborhood of reasonably up-scale homes, the value of which represents a significant portion of the net worth of their owners. The residence in question is a commercial operation. The Board found, and it is reasonable to expect, that the thirty-three percent increase in residents of the existing home, with a relative increase in the problems attendant thereto, would have a substantial detrimental effect on the property values of the surrounding residential properties, and Petitioners, notwithstanding their obviously sincere promises to do all they can to prevent that, have not shown that they can reasonably do so.

22. Taken together, the evidence does not show that the decision of the Board was incorrect or departed from the essential requirements of the law.

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

ORDERED THAT the appeal of Generosa T. Santos and Rose W. Milam of the decision of the City of Clearwater's Planning and Zoning Board denying their application for a conditional use permit expanding the capacity of property located at 1430 Palmetto Street, in the City of Clearwater, to an eight bed facility, is hereby DENIED and the Board's decision is affirmed.

DONE AND ENTERED this 5th day of June, 1997, in Tallahassee, Florida.

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1997.

COPIES FURNISHED:

Generosa T. Santos Oscar Santos

Rose W. Milam

1430 Palmetto Street

Clearwater, Florida 34615

Leslie K. Dougall-Sides, Esquire City of Clearwater

Post office Box 4748 Clearwater, Florida 34618-4748

Cynthia E. Godeau City Clerk

City of Clearwater Post Office Box 4748

Clearwater, Florida 34618-4748

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 97-001108

Orders for Case No: 97-001108