Findings Of Fact Upon consideration of the pleadings and the evidence adduced at the hearing, the following pertinent facts are found: Prior to 1974, the subject land, consisting of approximately 150 acres, was zoned and classified as agricultural land and the agricultural assessment was about $300.00 per acre. In November of 1973, petitioner Kings Point Housing Corp. purchased the land for $7,125.00 per acre. This land is located immediately adjacent to acreage upon which Kings Point operates a large housing development. At the time of this purchase and for some years prior to that time, the land in question had been under lease and used for cattle grazing. The present lessee was petitioner K. D. Eatmon. The lease was entered into in February of 1971 for the purpose of cattle grazing and provided for a term of five years, with either party having the option to terminate the lease upon ninety days prior written notice. For at least the previous twenty years, the land had never been used for anything other than a cattle ranch. On January 1, 1974, the land was being used for agricultural purposes; to wit: cattle grazing. At some time during 1974, petitioner Kings Point petitioned for a zoning change of the subject land. This petition was denied. Petitioners timely filed their application for agricultural classification of the land for purposes of ad valorem taxation. The property appraiser of Palm Beach County denied the application on the ground that the land had been purchased by Kings Point at a price three or more times the agricultural assessment placed on the land. Petitioners appealed this denial to the BTA. After a hearing, the BTA found that the appraiser's presumption of correctness had been overcome and that petitioners were entitled to an agricultural classification of the property. As grounds for this decision, the BTA recited the facts that "petitioner is currently using and was using on January 1, 1974, the subject property for bona fide agricultural purposes" and the "property by mandate of the Board of County Commissioners for Palm Beach County can be used for nothing other than agricultural purposes for a minimum of one year." The BTA notified the respondent Department of Revenue of the change in classification and assessment pursuant to Florida Status 193.122. The respondent's staff recommended that the BTA's action be invalidated on the ground that the evidence presented was insufficient to overcome the property appraiser's presumption of correctness. The petitioners requested a hearing to review the staff recommendation, the Executive Director of the Department of Revenue requested the Division of Administrative Hearings to conduct the hearing and the undersigned was assigned as the hearing officer. The property appraiser of Palm Beach County was joined as a party-respondent. Due to the fact that a court reporter was not present at the hearing, the parties stipulated that their respective legal positions would be reduced to writing by the submission of memoranda to the hearing officer. To date, no such memorandum has been received from petitioners.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the action of the Palm Beach County Board of Tax Adjustment in granting petitioners' land an agricultural classification for the tax year 1974 be validated and upheld. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 12th day of March 1976. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March 1976. COPIES FURNISHED: Mr. J. Ed Straughn Executive Director Department of Revenue The Capitol Tallahassee, Florida 32304 Robert M. Schwartz, Esquire 7000 Atlantic Avenue Delray Beach, Florida 33446 William C. Sprott 315 Third Street, Suite 101 West Palm Beach, Florida Robert Lee Shapiro Levy, Plisco, Perry, Reiter and Shapiro, P.A. 120 North Country Road Palm Beach, Florida 33480
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the factual stipulations of the parties, the following relevant facts are found: Petitioner Pahokee Farms, Inc., is a Florida corporation which, since 1960, has been a lessee of state- owned agricultural lands in the Everglades Agricultural Area (EAA) in Palm Beach County. Its present lease expires December 31, 1985. Leases of state-owned lands within the EAA are presently governed by existing Rule 16Q-15.07(3), Florida Administrative Code This Rule provides that the Board of Trustees of the Internal Improvement Trust Fund (Board) may offer to lease lands in the EAA "by negotiation or competitive bidding." The actual practice and policy for extending leases in the EAA has, in fact, been one of negotiation rather than competitive bidding. Land has generally been released to existing leaseholders through a process of negotiation, providing the existing leaseholder paid its rent in a timely manner, properly cared for the land and was willing to pay an increased rental fee based on the current appraisal of the land. In June of 1982, Pahokee Farms, Inc., requested two five-year extensions of its agricultural lease in the EAA. The matter was deferred from the October 18, 1983, meeting of the Board of Trustees and rescheduled for the November 1, 1983, meeting. At the November 1, 1983, meeting of the Governor and Cabinet, sitting as the Board of Trustees, several members of the Board, as well as the Executive Director of the Department of Natural Resources, expressed an interest in reexamining the policy regarding agricultural leases in the EAA. For this reason, as well as the fact that several members of the Board were not present, the agenda item regarding the Pahokee Farms lease extension was deferred again to the November 17, 1983, meeting. At the November 17th meeting, the Board of Trustees directed the DNR staff, in consultation with the State Lands Management Committee, to formulate "policy recommendations" for the leasing of state-owned lands in the EAA for submission to the Board in February of 1984. The Board voted to establish its policy at that time and to then apply that policy to Pahokee Farm's request for extensions of its lease. As a result of the Board of Trustee's directions to develop policy recommendations, DNR, through the Division of State Lands, prepared a report to the Governor and Cabinet on policies for leasing state-owned lands in the EAA The report, dated March 20, 1984, set forth four options for leasing such lands, but ultimately recommended a competitive bid process through the request for proposals for leases. The report, after being deferred from the March 20, 1984, meeting, was agenda for the April 19, 1984, meeting of the Board of Trustees. The agenda item recommends "acceptance of the report and approval of recommendations." At the April 19, 1984, meeting of the Governor and Cabinet, sitting as the Board of Trustees, there was extensive discussion as to what the State's policy should be with respect to state-owned lands in the EAA. After directing the staff to develop a specific plan of action, with the Board's approval, to sell or exchange state-owned lands leased for agricultural purpose in order to acquire other valuable lands, the Board then turned to the leasing issue Governor Graham offered an amendment to the DNR report's recommended option of competitive bidding through the use of requests for proposals. The Governor's amendment to the DNR's recommendation was a two-step bidding process, calling for an initial qualification of bidders procedure and then the bid itself to be based upon both appraised value and a percentage of profits from the parcel leased. The qualified applicant offering the highest payment to the State was to be awarded the lease. Vacating lessees were to be compensated by the new lessee for ratoon or other crops based on an appraisal performed by an independent appraiser. The Governor's amendment also deleted the DNR's recommendation to provide a first right to renegotiate with existing lessees whose lease expires within four years. Prior to the Board's adoption of the Governor's amendment on April 19, 1984, a question was raised as to whether this "amendment" should he promulgated as a rule and subject to the Adinistrative Procedure Act. Governor Graham responded: "...Well, what we're doing, Mr. -- we're accepting a report. That's what we're doing at this point. We're not in a rulemaking posture." (DNR's Exhibit 9, page 209, lines 8-11). Attorney General Smith remarked that the staff would have to "do their developing toward inventing a rule here. That will have to come back through the process." (DNR's Exhibit 9, page 205, lines 16-18). Mr. Smith reiterates that "We routinely develop the policy direction and the staff goes out and makes that into a rule and comes back to us through that process, and I would contemplate that that would be done here." (DNR's Exhibit 9, page 206, lines 1-4). Governor Graham again expressed the opinion that what the Board was doing was, under its agenda item, "accepting the report which has been amended." (DNR's Exhibit 9, page 207, lines 5 and 6). Mr. Turlington stated: "...when we're voting this, we're just voting, you know, to kind of indicate to people how we're heading, and that we can handle things in a flexible, legal manner in the days ahead in order to take care of legal entanglements that some may care to inject at some future point, and I just want to be on record to make that clear..." (DNR's Exhibit 9, page 208, lines 6-12). The DNR staff thereafter drafted and the DNR Executive Director directed publication of what appears in the March 1, 1985, edition of the Florida Administrative Weekly as "proposed rules" 16Q-15.01 and 16Q-15.07. The published material differs in some respects from the Governor's amendment approved by the Board. For example, where the approved amendment provides that the participation rent factor be based upon a "percentage of the profits," the DNR's published material requires that the participation rent factor be "2 percent of the gross income." The compensation to vacating lessees for ratoon or other residual crops under the Governor's amendment was to be based upon an appraisal by an independent appraiser. DNR's published material requires compensation based upon "the remaining portion of unamortized planting costs." The published material also provides for a discretionary exemption from the qualification procedure for parcels less than 100 acres or where the annual rental value is estimated to be less than $10,000. The Board's amendment contains no such exemption. The two DNR persons most involved with the preparation and drafting of the published "proposed rules" each felt that the Governor's amendment adopted by the Board of Trustees was a policy statement direction and that it was their duty to develop a rule based upon that direction. Each felt that they were charged with the responsibility of drafting a rule and bringing it back to the Governor and Cabinet for their concurrence, their approval and their adoption. Mr. MacFarland, Director of the Division of State Lands, referred to certain portions of the published material, at least where it is different than the Board's amendment, as a "staff recommendation." (Transcript, Vol. III, page 89, line 19; also see page 27, line 25). Mr. Merriam, the Assistant Chief of the Bureau of State Lands Management, refers to the published material as a "draft rule." (Transcript, Vol. I, page 172, line 20). The material published in the Florida Administrative Weekly on March 1, 1985, has never been presented to the Governor and Cabinet sitting as the Board of Trustees. While the published notice did state that a hearing would be held by the Department of Natural Resources and the Board of Trustees on March 19, 1985, this meeting never occurred.
The Issue The issue is whether the small scale development amendment adopted by the County by Ordinance No. 99-15 on May 11, 1999, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this land use dispute, Petitioners, Thomas G. Wiley, G. Anthony Rish, Samuel F. Slaughter, III, and Louise L. Slaughter (Petitioners), have challenged a small scale development amendment adopted by Respondent, Sumter County (County), on the ground that the amendment involves more than 10 acres, and it therefore violates the statutory requirement that such an amendment involve "10 acres or fewer." Petitioners own property adjacent to, or near, the subject property, and they submitted comments to the County during the adoption of the amendment. Thus, they are affected persons and have standing to bring this action. The challenged amendment was adopted by the County by Ordinance No. 99-15 on May 11, 1999. Under the statutory scheme in place, there was no review of the amendment by the Department of Community Affairs, and the challenge by Petitioners was filed directly with the Division of Administrative Hearings. If the proposed amendment is found in compliance, the land use on approximately 10 acres of land owned by Intervenor, Hi-Tech Metals, Inc. (Hi-Tech), will be changed from agricultural to commercial. Hi-Tech submitted both written and oral comments to the County during the review and adoption process and thus has standing to participate in this action. A description of the affected area The subject property lies in Sumter County on the southwestern corner of the intersection of U. S. Highway 301 (U. S. 301), a principal arterial highway, and County Road 472 (CR 472), a minor collector road which dead ends at U. S. 301 from the east. After CR 472 intersects with U. S. 301, that road continues in a westerly direction, but is designated as County Road 216 (CR 216), a local road which also dead ends at U. S. 301 from the west. The intersection is located approximately two miles north of the City of Wildwood (City) and less than two miles south of the unincorporated Town of Oxford. The property affected by the amendment is an L-shaped, 10-acre tract of land cut out of a larger "parent parcel," presumably to satisfy the statutory requirement that a small scale development amendment be "10 acres or fewer." The parent parcel was once a platted subdivision known as Wildwood Terrace but was apparently never developed. If the amendment is approved, the remainder of the parent parcel will continue as pasture land and retain its current agricultural land use designation. Objections to the amendment In their initial petition, Petitioners contended that the land being reclassified exceeds 10 acres in size; that the amendment fails to discourage urban sprawl; that the amendment does not cluster highway commercial development in depth along an intersection of an arterial and collector road; that no need assessment was performed by the County before it adopted the amendment; that no need for the amendment exists; that there were no data and analysis to support the amendment; that the amendment fails to protect agricultural land as required by the comprehensive plan; and that the amendment does not meet the review criteria contained in Rule 9J-5.006(5), Florida Administrative Code. Although most of those issues were litigated at the hearing, in a paper filed on December 27, 1999, Petitioners indicated that they now object to the amendment only on the ground that "the amendment involves a use of more than ten (10) acres." Is the property 10 acres or less? Section 163.3187(1)(c)1., Florida Statutes, requires that the property subject to a small scale development amendment be "10 acres or fewer." Testifying on this disputed issue was Douglas Hunt (Hunt), a licensed professional surveyor and mapper. At the direction of the owner, Hunt prepared a "description sketch" of the property (as opposed to a survey) received in evidence as Petitioners' Exhibit 11. The sketch was based on a previous boundary survey made in 1994. Hunt's task was to depict a tract of land which met, but did not exceed, the 10-acre threshold. Since a 60-foot strip of land originally platted as a road (but never dedicated to public use) divided the eastern part of the property which adjoined U. S. 301, Hunt designated two tracts of land out of the parent parcel, the first 8 acres and the other 2.01 acres. The larger tract of land runs north and south directly on U. S. 301 and comes fairly close to being a rectangle. Its four sides are 351.60, 1000.15, 345.11, and 1000.18 feet, respectively. This equates to 8.00 acres. The smaller tract of land to the west of the platted road is a perfect rectangle with sides of 250, 350, 350, and 250 feet, respectively. In order for Hunt to have arrived at a mathematical "certainty" of 2 acres on the smaller tract, he would have been required to use a measurement of around 249 feet and a fraction, rather than 250 feet, on two sides of the tract. So that "it would be a clean parcel as far as numbers [are] concerned," and unlike the larger parcel on which he used fractions, Hunt elected to use the larger, but even, dimensions of 250 feet on two sides, rather than the smaller number with a fraction. This resulted in a total acreage for the smaller tract of 2.007 acres, or 10.007 acres counting both parcels. In the surveying profession, unless no other specific standards control, measurements of land are generally carried out to two decimal places. Therefore, Hunt rounded off the 10.007 acres to 10.01 acres. This measurement exceeds the statutory threshold of "10 acres or fewer." The County and Hi-Tech contend, however, that the excessive acreage is de minimus and should not defeat the amendment. Indeed, they point out that the subject property exceeds 10 acres by only 309 square feet. According to Hunt, "generally speaking" he considers his sketch to be a 10-acre tract, and that using general guidelines, he would not consider a tract to exceed 10 acres unless it was more than 10.49 acres, in which event he would round it to a higher number. At the same time, however, he recognized that a client, contract, or "agency's code" could require more precision than his general rule of thumb. In this case, the statutory definition controls, and it requires that the land be "10 acres or fewer." Therefore, the amendment exceeds the statutory threshold.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order finding the plan amendment not in compliance. DONE AND ENTERED this 10th day of January, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER , Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of January 2000. COPIES FURNISHED: Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 2105 Tallahassee, Florida 32399-0011 Jimmy D. Crawford, Esquire Hovis, Boyette & Crawford, P.A. Post Office Box 120848 Clermont, Florida 34712-0848 Felix M. Adams, Esquire 138 Bushnell Plaza, Suite 201 Bushnell, Florida 33513-6122 Terry T. Neal, Esquire Terry T. Neal, P.A. Post Office Box 490327 Leesburg, Florida 34749-0327 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325A Tallahassee, Florida 32399-2100 Carol A. Licko, General Counsel Office of the Governor The Capitol, Room 209 Tallahassee, Florida 32399-0001
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding the Petitioners, Patrick G. Sullivan and George Walter, as individuals, owned the property in question, having purchased it in 1983 which consisted of six acres being used for bona fide agricultural purposes and two acres for commercial purposes, for a total of eight acres. At all times material to this proceeding, the Petitioners leased the property to Gulf Breeze Landscaping, Inc., a corporation whose stock was held in its entirety by the Petitioners. Starting in July 1985 through December 1986 the monthly rental (lease) payment to the Petitioners was $1,916.11 for the eight acres. Starting January 1987 through December 1988 the monthly rental (lease) payment to the Petitioners was $3,000.00 for the eight acres. At all times material to this proceeding, the Petitioners were not registered as taxpayers with the Department, and neither collected any sales tax from Gulf Breeze Landscaping, Inc. for the rental of the property in question nor remitted any sales tax to the Department for the rental of the property in question. The Department's audit was for the period July 1985 through December 1988. The Department's Tax Warrant Worksheet dated January 11, 1989 indicated that the estimated sales tax due on the rental of the property in question for the audit period to be $8,400.00 with $2,100.00 in penalties and $840.00 in interest added for a combined total of $11,340.00. A Clerk's filing fee of $12.00 was added bringing the grand total to $11,352.00. On January 12, 1989 the Department issued a Notice of Assessment and Jeopardy Finding informing the Petitioners of the delinquent sales tax for the audit period. On January 31, 1989 the Petitioners protested the assessment, including the penalty and interest. After some delay, for which the Department assumed responsibility, the Department issued a Notice of Reconsideration on July 2, 1991 which calculated the tax due for the audit period to be $5,769.54 with a $288.48 penalty and interest of $1,032.04 for a total amount of $7,090.06. Along with the Notice of Reconsideration the Department included a Closing Agreement wherein it would be settled for a total amount of $7,090.06 with no interest accruing from January 12, 1989 until payment of the assessment because of the Department's excessive delay in handling the Petitioners' protest. The Petitioners did not execute the Closing Agreement, contending that the rental payments for the use of the six acres being used for bona fide agricultural purposes should have been exempt from the imposition of sales tax under Section 212.031, Florida Statutes. At this point, the Petitioners had presented no evidence that the six acres had been granted agricultural classification pursuant to Section 198.461, Florida Statutes during the audit period. On July 3, 1991, due to the Petitioners' failure to execute the Closing Agreement, the tax assessed began to accrue interest at the statutory rate. For the years 1984 through 1988 the Petitioners neither applied for agricultural classification for the property in question nor did the Property Appraiser of Sarasota County classify the property in question as agricultural pursuant to Section 193.461, Florida Statutes. The sales tax as calculated by the Department for the audit period of July 1985 through December 1988 in the amount of $5,769.54 is mathematically correct as is the interest in the amount of $1,032.04 calculated by the Department. The Department having agreed to compromise the penalty from $1,307.34 to $288.48 due to its excessive delay in acting on the petition, there was no evidence to show that the penalty of $288.48 was excessive, or that the Department acted in an arbitrary or capricious manner in arriving at the amount of the penalty. In fact, the Petitioners do not dispute the calculation of the assessment but only that portion of the assessment contributable to the six acres on the theory that any rental payment for the six acres is exempt from the imposition of sales tax due to the property being used for a bona fide agricultural purpose. In this regard, the Petitioners, at the time of objecting to the Notice of Reconsideration and filing a petition requesting a hearing, paid $1,442.39 tax, $255.01 interest and the total penalty of $288.48. This partial payment of $1,985.88 reduced the tax owed to $4,327.15, and the interest owed to $777.03 as of July 3, 1991 and the penalty to zero.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly recommended that the Department enter a Final Order finding Petitioners to owe sales tax on the rental payments for the property in question for the audit period from July 1985 through December 1988 in the amount of $4,327.15 plus interest amount of $777.03 for a total amount of $5,104.18. The $4,327.15 in tax shall accrue interest at the statutory rate beginning July 3, 1991 until paid. RECOMMENDED this 16th day of December, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-4854 The following constitutes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioners No proposed findings of fact submitted by Petitioners. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Not material or relevant to this proceeding. 2. Adopted in Finding of Fact 1. 3. - 7. Adopted in substance as modified 14. in Finding of Fact 8. Not material or relevant to this proceeding. 9. - 11. Adopted in substance as modified in Finding of Fact 1. 12. - 13. Adopted in substance as modified in Findings of Fact 3 and 4, respectively. 14. - 18. Adopted in substance as modified in Findings of Fact 10, 11, 12, 13 and 15. 19. - 21. Not material or relevant to this proceeding. 22. Adopted in substance as modified in Finding of Fact 6. 23. - 24. Not material or relevant. 25. Adopted in substance as modified 14. in Finding of Fact Not material or relevant to this proceeding. Adopted in substance as modified in Findings of Fact and 15. Adopted in substance as modified in Findings of Fact and 13. COPIES FURNISHED: Vicki Weber, General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 J. Thomas Herndon, Exec. Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 George Walter 1200 North Indian Avenue Englewood, FL 34223 Ralph R. Jaeger, Esquire Department of Legal Affairs Tax Section, Capitol Bldg. Tallahassee, FL 32399-1050
Findings Of Fact The Applicants acquired in 1960 for approximately $40,000 a 38 acre parcel of real property located adjacent to Governors Creek just outside the corporate limits of the City of Green Cove Springs in Clay County, Florida. The applicants created an unrecorded subdivision by subdividing the parcel into lots approximately one-half acre in size in accordance with a map dated July 19, 1961 which shows 50 numbered lots, access roads to these lots, and three parcels designated as not being included in the subdivision. The map of the subdivision was never recorded in the office of the Clerk of the Court of Clay County, but the tract has been referred to variously as the Bradley-Triplett Subdivision and Governor's Creek Subdivision. The Applicants began to develop the tract in 1961 for the purpose of selling the lots therein as single family home sites. Their activities included clearing and grading all the roads shown on the map and installing storm drainage structures. Shortly after the initial work was done, the Applicants approached the County Supervisor of Roads, James Knowles, and the County undertook maintenance of the roads. At the time development began, Clay County had no subdivision regulations, and there was no requirement to record the plat of the subdivision. A map of the subdivision was given to the County at the time it began to maintain the roads in 1961. Sales of lots in the subdivision began in 1961, and several lots were sold in the subdivision over the next few years. However, sales efforts were discontinued in 1965 because of the poor market. At the request of the Applicants, the County ceased to maintain a portion of the roads in 1975 in an effort to prevent dumping of garbage in the area. Initially, the subdivision was zoned agricultural. In June 1976, Mr. Bradley appeared before the Clay County Zoning Commission and requested the zoning of 30 acres of the tract be changed from BB to RB which permitted one single family dwelling per one-half acre. This request was granted. In June 1976, Mr. Bradley wrote Mr. John Bowles, Public Works Director of Clay County, requesting permission to install water lines within the graded road rights-of-way as shown on a map submitted by the Applicants which depicted all the lots which are the subject of the instant Petition for vested rights. This permission was granted by Bowles, and the Applicants paid $8,000 for the installation of water lines and fire hydrants in the subdivision. Water service is provided by the City of Green Cover Springs. In August 1976, the Applicants presented to the County a Warranty Deed for the roads shown in the Map. The County accepted the roads and agreed to continue to maintain the roads if certain improvements were made. Subsequently, the Applicants worked on making the improvements requested by the County, and the County continued to maintain the roads. The subdivision has appeared on maps used by various County departments for many years. In June 1978, Mr. Bradley appeared before the Clay County Planning, Zoning and Building Commission and requested that the remainder of the subdivision be re-zoned from agricultural to RB. This request was granted. In September 1978, the Public Works Department of Clay County requested the Applicants perform additional work on the road network in the subdivision to include creating a 20 foot drainage easement, construction of a drainage ditch, installation of street signs, and other improvements regarding grading and drainage. The drainage easement was granted to the County, and the drainage ditch was apparently constructed together with some of the other requested improvements; however, not all of the requested improvements were completed to the County's satisfaction. In March 1980, Mr. Bradley wrote Mr. Bowles a letter granting the County access to the roads within the subdivision for the purpose of maintaining them. In 1983, the County adopted new standards for the acceptance of roads not located within platted subdivisions. At this time, the Applicants became concerned about the status of the roads, and appeared before the County Commission. In November 1983, they contacted Mr. Bowles regarding their concerns. The status of County-requested improvements was a subject of continuing correspondence between the County and the Applicants. As a result thereof, the Applicants again undertook to satisfy the County regarding the list of requested improvements to the roads, and expended additional money on these improvements. The Applicants have spent over the years $20,000 on the roads, $15,000 on the water system and fire hydrants, and $4,000 on the drainage system within the subdivision. In 1984, the County Commission determined that it would not accept responsibility for maintenance of the roads, but that it would not re-convey title to the roads to the Applicants. The County has not altered its position since that determination. There are 50 numbered lots in the subdivision, and three unnumbered outparcels, some of which have been subsequently subdivided by sales. The unnumbered outparcel located in the northeast corner of the subdivision will be designated in this order as the unnumbered northeast parcel. The remaining unnumbered lots will be designated in this order as Lots A through G, which are located as follows: Lot A, located to the west of Lot 33; Lot B, located to the north of Lot A; Lot C, located to the north of Lot B; Lot C, located to the north of Lot B; Lot D, located to the north of Lot C; Lot E, located to the north of Lot D; Lot F, located to the north of Lot E, and Lot G, located to the north of Lot F. The County concedes there are 19 lots of record in the subdivision: Lots numbered lots 1, 8, 9, 10, 11, 12, 13, 33, 34, 35, 36, 37, 40, 41, 42 and 43 plus the lots designated above as Lots A, D and F. The Hearing Officer includes Lot E as one of the recorded lots because it was subdivided from Lots D and F, which the County recognizes as lots of record, after the parcel from which the three lots were created was sold as one lot. Lots 1, 8, 9, 10, 11, 12, 13, 33, 34, 35, 36, 37, 40, 41, 42, 43, and unnumbered Lots A, D, E, and F meet the Plan's criteria for development, and are not at issue in these proceedings. The Plan requires that over 70 percent of the total number of lots in a subdivision created between 1959 and 1970 be sold for the remaining lots to statutorily vest. The Applicants' subdivision does not meet the criteria in the Plan for statutory vesting because the requisite percentage of lots have not been sold. The lots at issue in the Applicant's request for equitable vesting are the remaining numbered lots ( 2, 3, 4, 5, 6, 7, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 38, 39, 44, 45, 46, 47, 48, 49, and 50), the unnumbered northeasterly parcel, and the lots designated in this order as Lots B, C, and G. On January 23, 1992, the Board of County Commissioners of Clay County formally adopted the 2001 Comprehensive Plan pursuant to and in compliance with Chapter 163, Part II, Florida Statutes. On November 23, 1993, the zoning of the subdivision was administratively changed to AR-2 which permits the building of single family residences at a density of one per five acres. None of the lots at issue are five acres in size and qualify for further development. A total of 12 homes have been built in the subdivision, each having an average size of 1,800 square feet and occupying lots approximately 1/2 acre in size. The existing layout of the roads does not permit consolidation of the unsold existing lots into five acre lots. Even if they could be consolidated, the increased costs of a five acre lot would dictate the construction of a house larger than 1,800 square feet. In sum, enforcement of the current plan's provisions will prevent any further development of a valuable piece of property conveniently located adjacent to the City of Green Cove Springs in a subdivision which has been recognized and considered in the County's development plans and maps for thirty years.
Findings Of Fact Petitioner, Hillside Sod Farms, Inc., is a producer of agricultural products, grass sod. Respondent, S. J . Harper Landscaping Enterprises, Inc., is a dealer of such products in the normal course of its landscaping business activity. Petitioner generally deals on a cash basis with customers, unless the customer is licensed by the Department of Agriculture and Consumer Services for the sale of agricultural products. Customers who are licensed may maintain an open account status with Petitioner. Respondent is licensed by the Department. The Respondent has maintained an open account with Petitioner since 1986. Petitioner sold Respondent grass sod by the truck load for various projects, and was given an invoice therefor. Under the terms of the account, payment was due in full the week following receipt of the sod. On November 21, 1988, including invoice number 12284, Respondent's account balance was $2,098.80. On November 25, 1988, the account balance was $3,129.12. On December 12, 1988, Respondent paid on the account the sum of $2,594.88, leaving a balance due, owing and unpaid of $534.24. Respondent's alleged that in early November, 1988 several trucks loads that were accepted by Respondent were short of sod by approximately eight pallets (each pallet contains 400 square feet of sod) Simon J. Harper, Respondent'S president, reported this fact to Petitioner's foreman, Larry Poole, at night after the work day. He did not reject the trucks with the lesser amount of sod on them, but accepted them. Respondent did not file a complaint or objection to the billing, verbally or in writing, to an officer in the Petitioner's company, although he had dealt with the company for years. Respondent estimated the amount of sod it believed they had been shorted and sent a check for the unpaid balance, less the charges for shorted sod. The amount withheld was the sum of $534.24.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered requiring Respondent to pay to the Petitioner the sum of $534.24. DONE AND ENTERED this 31st day of January, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1990. COPIES FURNISHED: Avery P. Wisdom Vice President Hillside Sod Farms, Inc. 1620 East State Road 46 Geneva, FL 32732 Simon J. Harper President S. J. Harper Landscaping Enterprises, Inc. 205 Zenith Point Geneva, FL 32732 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Affairs Mayo Building Tallahassee, FL 32399-0800 Ben H. Pridgeon, Jr. Chief Bureau of License and Bond Department of Agriculture and Consumer Affairs Mayo Building Tallahassee, FL 32399-0800 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, FL 32399-0810 Mallory Horne General Counsel 515 Mayo Building Tallahassee, FL 32399-0800
Conclusions THIS CAUSE, arising under Florida’s “Agricultural License and Bond Law” (Sections 604.15-604.34), Florida Statutes, came before the Commissioner of Agriculture of the State of Florida for consideration and final agency action. On October 21, 2008, the Petitioner, Ricky A. Branch, III, a producer of agricultural products as defined by Section 604.15(9), Florida Statutes, timely filed an administrative claim pursuant to Section 604.21, Florida Statutes, to collect $31,296.18 for eggplants they sold to Respondent, a licensed dealer in agricultural products. Respondent’s license for the time in question was supported by a surety bond required by Section 604.20, Florida Statutes, written by Fidelity and Deposit Company of Maryland in the amount of $100,000. On January 7, 2009, a Notice of Filing of ‘an Amended Claim was mailed to Respondent and Co-Respondent. On January 27, 2009, the Respondent filed an ANSWER OF RESPONDENT with attachments wherein they denied the claim as being valid, admitted no indebtedness and requested a hearing. Therefore, this matter was referred to the Division of Administrative Hearings (DOAH) for an administrative hearing in accordance with the provisions of Section 120.57(1), Florida Statutes. An administrative hearing was scheduled in this matter for April 17, 2009. Attached to the NOTICE OF HEARING was an ORDER OF PRE-HEARING INSTRUCTIONS with instructions for the parties to follow prior to and at the hearing. On March 30, 2009, the Respondent filed a ' MOTION TO CONTINUE FINAL HEARING. The Administrative Law Judge (“Judge”) issued an ORDER GRANTING CONTINUANCE (“Order”) on April 3, 2009. In the Judge’s Order, he asked the parties to confer and advise him on the status of the matter among other things. An ORDER RE-SCHEDULING. HEARING was issued on April 16, 2009 and a new hearing date was set for June 9, 2009. Prior to the hearing, on June 5, 2009, the Respondent filed a RESPONDENT’S MOTION TO DISMISS claiming their efforts to contact the Claimant have been futile. Additionally, Respondent asserts that Claimant failed to comply with the ORDER GRANTING CONTINUANCE, the ORDER RE-SCHEDULING HEARING and the ORDER OF PRE-HEARING INSTRUCTIONS issued by DOAH. For the aforesaid reasons, the Respondent feels the Claimant’s claim should be denied and the claim dismissed with prejudice. On June 16, 2009, the Judge issued a RECOMMENDED ORDER OF DISMISSAL, a copy of which is attached hereto as EXHIBIT “A”, to which neither party filed written exceptions with this Department. . Upon the consideration of the foregoing and being otherwise fully advised in the premises, it is ORDERED: Based on the fact that the Claimant failed to appear at the final hearing with DOAH on June 9, 2009 and failed to meet his burden of proof in presenting evidence in support of his claim, the Department adopts the Judge’s RECOMMENDED ORDER OF DISMISSAL. The Department hereby dismisses the captioned claim and the file is closed without further action. Any party to these proceedings adversely affected by this Final Order is entitled to seek review of this Final Order pursuant to Section 120.68, Florida Statutes (2002) and Rule 9.110, Florida Rules of Appellate Procedure (2003). Review proceedings must be instituted by filing a petition or notice of appeal with the Agency Clerk, 5" Floor, Mayo Building, Tallahassee, FL 32399-0800. A copy of the petition for review or notice of appeal, accompanied by the filing fees prescribed by law must also be filed with the appropriate District Court of Appeal within thirty (30) days of the date this Final Ondet yas filed with the Agency Clerk. DONE AND ORDERED this77_ day of , 2009. ES H. BRONSON TERRY/L. RHODES Assi Commissioner of Agriculture Ke Filed with Agency Clerk this? _ day of , 2009. (pL Vb AM Agency Clerk COPIES FURNISHED TO: Judge Daniel Manry Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Certified Receipt No. 7160 3901 9848 2604 4626) Mr. Gary Wishnatzki, Registered Agent Wishnatzki, Inc., d/b/a Wishnatzki Farms 100 Stearn Avenue Plant City, FL 33566 (Certified Receipt No. 7160 3901 9848 2605 1259) Mr. Ricky A. Branch, IIT Post Office Box 42 Webster, FL 33597 (Certified Receipt No. 7160 3901 9848 2605 1266) Ms. Kathy Alves, Claims Specialist Fidelity & Deposit Company of Maryland Post Office Box 87 , Baltimore, MD 21203-0087 (Certified Receipt No. 7160 3901 9848 2605 1273) (Claim No. 6380046897) Thomas F. Munro, Esquire FOLEY & LARDNER LLP 100 North Tampa Street, Suite 2700 Tampa, FL 33602 (Certified Receipt No. 7160 3901 9848 2605 1280) . Mr. Bedford Wilder General Counsel Staff Mayo Building, M-11 Tallahassee, Florida 32399-0800 Ms. Stephenie Butscher and Mr. Mark Moritz, Field Representatives
The Issue The issue to be determined in this case is the amount of reasonable attorney’s fees to be paid to the Department of Economic Opportunity (“DEO”) by Respondents.
Findings Of Fact Ms. Thomas and Mr. Shine were the agency attorneys who worked on the appeal. Ms. Thomas reviewed the record on appeal, reviewed the papers filed in the appellate court, filed a notice of appearance, researched legal issues associated with the agency’s Notice of Limited Joinder in Answer Brief, and discussed the case with other attorneys. Ms. Thomas spent seven hours working on the case. Mr. Shine reviewed the record on appeal, reviewed the papers filed in the appellate court, filed a notice of appearance, researched legal issues associated with the agency’s answer brief, and discussed the case with other attorneys. Mr. Shine spent six hours working on the case. Ms. Thomas and Mr. Shine did not file a brief or participate in oral argument. DEO is demanding payment of $3,900 as the total of its reasonable attorney’s fees, which was computed by multiplying 13 hours by an hourly rate of $300. As discussed in the Conclusions of Law, the criteria listed in Rule 4-1.5 of the Rules Regulating the Florida Bar must be used to determine the reasonable attorney’s fees in this case. Rule 4-1.5(b)(1)A The criterion in Rule 4-1.5(b)(1)A is “the time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the legal service properly.” The legal work was not complex, but it required specialized skill in land use law. DEO claims the standing issue in the case on appeal was complex. To the contrary, the First District Court of Appeal awarded attorney’s fees to the appellees because the court determined that appellants and their counsel knew or should have known that no material facts provided a basis for Respondent’s standing. Likewise, the agency’s counsel knew or should have known. The evidence presented did not show that the labor of both Ms. Thomas and Mr. Shine was required. Their work was, in large part, redundant. Furthermore, Ms. Thomas had only a vague recollection of much of her work. The work of Mr. Shine, alone, would have been sufficient to accomplish the agency’s purposes and efforts in the appeal. Rule 4-1.5(b)(1)B The criterion in Rule 4-1.5(b)(1)B is “the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer.” There was no evidence presented regarding this criterion to be considered in determining reasonable fees. Rule 4-1.5(b)(1)C The criterion in Rule 4-1.5(b)(1)C is “the fee, or rate of fee, customarily charged in the locality for legal services of similar nature.” DEO presented the testimony of Joseph Goldstein, a land use lawyer who practices in the Miami offices of the law firm of Holland and Knight. It was Mr. Goldstein’s opinion that the customary hourly rate in the Tallahassee area at the relevant time was $300.1/ Respondents did not present expert testimony to refute Mr. Goldstein’s opinion. There is no other evidence in the record regarding a reasonable hourly rate. Rule 4-1.5(b)(1)D The criterion in Rule 4-1.5(b)(1)D is “the significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained.” The case on appeal had moderate significance and the responsibility involved was moderate. The results obtained were not unusual. The novelty in the appellate case was the award of attorney’s fees, but the agency attorneys had nothing to do with the award. In fact, they opposed the award. Rule 4-1.5(b)(1)E The criterion in Rule 4-1.5(b)(1)E is “the time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional time demands or requests of the attorney by the client.” There was no evidence presented regarding this criterion that should be considered in determining reasonable fees. Rule 4-1.5(b)(1)F The criterion in Rule 4-1.5(b)(1)F is “the nature and length of the professional relationship with the client.” There was no evidence presented regarding this criterion to be considered in determining reasonable fees. Rule 4-1.5(b)(1)G The criterion in Rule 4-1.5(b)(1)G is “the experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency of the effort reflected in the actual providing of such service.” The agency lawyers had specialized skill in land use law, but the case did not require unusual diligence or effort. Rule 4-1.5(b)(1)H The criterion in Rule 4-1.5(b)(1)H is “whether the fee is fixed or contingent, and, if fixed as to amount or rate, whether the client’s ability to pay rested to any significant degree on the outcome of the representation.” The fee was fixed because it was based on fixed salaries, but it did not rest on the outcome of the appeal.
