The Issue The issue is whether appellant's application for a conditional use permit should be approved.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: Appellant, Nostimo, Inc. (appellant, applicant or Nostimo), is the owner of Lots 8, 9, 10 and 11, Block 8, Revised Plat of Clearwater Beach Subdivision, located at 32 Bay Esplanade, Clearwater Beach, Florida. The property is subject to the land use requirements codified in the City of Clearwater Code of Ordinances (code or city code). By application filed on April 25, 1989 appellant sought the issuance of a conditional use permit from appellee, City of Clearwater (City or appellee). If approved, the permit would authorize the sale of beer and wine for off-premises consumption by a Pick Kwik Food Store to be constructed on the property under a lease agreement between appellant and Pick Kwik, Inc. Appellant's property is properly zoned for a retail establishment (CB or Beach Commerical), and it needs no further zoning permits from the City in order to convert the existing structures on the property to a convenience store. Indeed, appellant has already received approval for the construction and operation of the store. However, under subsection 137.024(b) of the city code, appellant is required to obtain a conditional use permit because it intends to engage in the sale of packaged beer and wine for off-premises consumption. In order to obtain such a permit the applicant must satisfy a number of criteria embodied in the code. The parties have stipulated that, with the exception of one standard, all other relevant criteria have been met. The disputed standard requires that "the use shall be compatible with the surrounding area and not impose an excessive burden or have a substantial negative impact on surrounding or adjacent uses or on community facilities or services." It is noted that appellant must secure the necessary land use permit from the City before it can obtain the alcoholic beverage license from the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. The application was considered by the Clearwater Planning and Zoning Board (Board) on June 13, 1989 and denied by a 5-0 vote with one member abstaining. As a basis for the denial, the Board adopted a staff report that concluded that "due to the beach area being saturated with this use (sale of alcoholic beverages), public nuisances requiring police action are taxing community services." It further concluded that the proliferation of this activity "has a substantial negative impact on surrounding or adjacent uses or on community facilities and services, specifically police services in handling nuisances related to alcoholic beverage establishments." Members of the public who testified in opposition to the application expressed concern over increased traffic in the area, the glare of lights from a 24 hours per day establishment, and potential problems arising from customers who will consume the beer and wine during the evening hours. In addition, two letters in opposition to the application were considered by the Board. Finally, besides a presentation by applicant's attorney, two witnesses appeared on behalf of the applicant and established that Pick Wick, Inc. provides security services at its stores, if needed, and training for employees to prevent the sale of alcoholic beverages to minors. The subject property is located on the western side of the intersection of Bay Esplanade and Mandalay Avenue in Clearwater Beach, an elongated strip of land to the west of the mainland portion of the City and separated from the mainland by Clearwater Harbor. Mandalay Avenue runs north and south through the heart of Clearwater Beach and is a principal traffic artery in that part of the community. The avenue narrows from four to two lanes just south of where the store is to be located. Bay Esplanade is a much shorter street and runs in an east-west direction between the Gulf of Mexico and Clearwater Harbor. In general terms, the property is surrounded by mixed uses and include a 7-11 convenience store immediately across the street to the east, motels and rental apartments, a restaurant, retail businesses and resort facilities, residences, public areas and a city fire station. Maps received in evidence more definitively depict the nature of the uses surrounding Nostimo's property. In addition to a number of commercial establishments within the immediate area, there are also tennis courts, a parking area, community boat ramp, soccer field, playground and public park. Finally, the area is replete with apartments, rental units and condominiums, including some directly behind the proposed establishment. Although there are presently no active businesses located on the subject property, the premises were once occupied by a hotel, apartments, hot dog shop and a small lounge that offered both on and off premises consumption of alcohol. The applicant contends that the proposed use is compatible with both the property's former use and the present surrounding area, particularly since a 7-11 convenience store directly across the street has been in business selling beer and wine for the last twenty-five years, and there are several restaurants or motels within a block that sell alcoholic beverages. The applicant added that, in all, there are approximately fifty-three active alcoholic beverage licenses within two miles of the proposed convenience store. At both the Board hearing and final hearing in this cause, the City Police Department offered testimony in opposition to the issuance of the requested permit. According to the uncontradicted testimony of Lt. Frank Palumbo, who is the Clearwater Beach police department district commander, additional noise, vandalism, traffic congestion and congregation of younger people are expected if the permit is issued. This opinion was based upon his law enforcement experience with other convenience stores on the Beach side that sell beer and wine, including another Pick Wick convenience store. Further, Mandalay Avenue is an important north-south traffic artery in Clearwater Beach, and there are no alternative streets for residents and visitors to use to avoid the traffic build-up that will occur around the store. Lieutenant Palumbo disputed the assertion that the lounge that once occupied a portion of the subject property generated substantial numbers of customers and associated traffic and that the new enterprise is actually a downgrade in use. He pointed out that the former lounge was very small, and a congregation of four or five customers at any one time was a "large crowd." In contrast, the police officer distinguished that situation from the proposed store where the sale of beer and wine around the clock is expected to generate larger volumes of traffic and customers, particularly during the evening hours. Finally, it has been Lt. Palumbo's experience that convenience stores that sell beer and wine attract the younger crowd, including minors, during the late hours of the night, and they create noise and sanitation problems for the adjacent property owners. The witness concluded that all of these factors collectively would have a negative impact on "community services" by placing a greater demand on police resources. This testimony was echoed by a city planner who gave deposition testimony in this cause. The nexus between the sale of alcoholic beverages and increased traffic and noise was corroborated by Daniel Baker, the manager of another Pick Wick store and a former employee of the 7-11 store across the street, who recalled that when beer sales stopped at that store at midnight, the noise and traffic also came to a halt. In this regard, it is noted the proposed store will operate twenty-four hours per day. To the above extent, then, the proposed use is incompatible with the requirements of section 137.011(d)(6). Two other witnesses testified at final hearing in opposition to the application. One, who is a member of a church that lies a block from the proposed store, pointed out without contradiction that a playground sits next to the church and is used by area young people, many of whom use bicycles as their means of transportation. She was concerned that if more traffic is generated by the store, it would make access to the playground more hazardous and discourage the children from using the facility. The second member of the public is concerned that the store will be incompatible with the surrounding area. This is because much of the neighboring area is made up of public areas, apartments, rental units or condominiums, and he contended an establishment selling alcoholic beverages would be inconsistent with those uses.
The Issue The issue to be determined is whether Respondent violated section 475.25(1)(b) & (c), Florida Statutes (2007), as alleged in the Administrative Complaint and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with regulating the practice of real estate pursuant to section 20.165 and chapters 455 and 475, Florida Statutes. At all times material to this Administrative Complaint, Respondent was licensed as a real estate broker associate in the State of Florida, having been issued license number 3057283. At all times material to this Administrative Complaint, Respondent was licensed with Re/Max Professionals, Inc., a real estate corporation. At the time of hearing, Respondent was licensed with Access Realty of North Florida, Inc., a licensed real estate corporation. Respondent's address of record is 757 West Duval Street, Lake City, Florida 32055. At all times material to the Administrative Complaint, Respondent was the listing agent for a property known as 831 South West 5th Street, Live Oak, Florida (5th Street property). On March 4, 2008, Respondent listed the property as having a Commercial Intensive (CI) zoning. At the time of the listing, zoning classifications for property in Live Oak were not available on line, and could only be obtained by calling for the information. At the present time, George Curtis is employed by the City of Live Oak and handles inquiries regarding zoning for properties in the City of Live Oak. He does not recall receiving a telephone call from Respondent regarding the zoning classification for the 5th Street property. However, at the time of Respondent's inquiry, Mr. Curtis was just starting his employment with the city, and did not yet have an office. Inquiries were at that time directed to the City Clerk's office. Mr. Curtis could not state that no call was received by that office, or, if received, what information was given. The listing for the property states at the bottom, "[t]his information is deemed reliable, but is not guaranteed." Respondent listed the property zoning as CI after calling to inquire regarding the appropriate zoning for the property. While she testified that her call was to the Suwannee County office as opposed to the City of Live Oak, it is found that the call must have been made to the City, given the telephone call described below. The property described in the listing is not zoned CI, but rather Commercial Neighborhood (CN). In Live Oak, CI zoning is the most intense zoning district, and is limited to major arterial roads in the city. It is intended to meet the needs of a regional population. CN zoning is intended to provide for commercial use on a more limited scale, in terms of the size of the building that can be placed and the types of uses. It is intended to meet the needs of a neighborhood area. A funeral home would not be a permitted use for property zoned CN. It would require a zoning change. A funeral home would be permitted on a property zoned as commercial general (CG). The CG category is between CI and CN. In September 2008, Respondent contacted the City of Live Oak and was referred to George Curtis about the possible use of the property on SE 5th Street as a daycare. During their telephone conversation, he told her that in order to operate a daycare on the property, the owner would need to receive a special exception to the zoning requirements. He obtained her e- mail address and sent her an e-mail with attachments regarding obtaining special exceptions. Respondent believed, based upon their conversation, that the same would be true for any business to be located on the property. Mr. Curtis does not recall telling Respondent at that time that the property was not zoned as CI. On October 16, 2008, Respondent sent the following e- mail to Mr. Curtis: Hi George, the contract for a day care on 831 SW 5th Street, Live Oak (lots 14, 15, 16, Block E, Hildreth) fell through. I now have a pending contract but the buyers want to use the property for a funeral home. Do you see any problem with this? Anne The e-mail was sent at 5:01 p.m. At 5:22 p.m., Mr. Curtis sent the following reply: Hello Anne: I believe this property was Neighborhood Commercial between Green and Ammons on the south side of 5th. C-N does not have any allowances for a Funeral Home, even as a Special Exception. A petition could be proposed to the City Council for Residential- Office or Office Zoning that does allow for the Funeral Home (with also a Special Exception) but other criteria would have to be evaluated to be sure that parting and buffering requirements could be met after any zoning change took place--which is also a process that is not guaranteed but a possibility--there is no way to predict whether the rezoning and the special exception would be approved. This would probably be a 4-6 month process start to finish plus the associated fees to try. Funeral Homes are allowed by right in General Commercial Zoning but you have to front a major street (129/90/51, etc. to get considered for that zoning…) Hope this helps -- wish I had better news… Respondent claims that she never received this e-mail, and that she never deleted it from her computer. She testified that when she did not receive a response, she called the zoning office and was told that a special exception would be required for a funeral home. She passed this information on to Mr. Wright. On October 17, 2008, Russell Wright made an offer to purchase the property on S.W. 5th Street for $45,000. The contract (Petitioner's Exhibit 3) has been reduced and copied several times, and as a result, is illegible in most respects. However, it can be ascertained that the contract was made on October 17, 2008, and signed by the sellers on October 22, 2008. The contract specified that closing was to take place October 31, 2008, which it did. The contract also specified that the Buyers would pay $5,000 down, and the Sellers would finance the remainder at 8 percent, with payments of $485.31. As part of the closing, the Buyers and Sellers signed an Affidavit of Buyer and Seller Regarding Contract Compliance, which stated "all of the contingencies and conditions set forth in the contract (and all addendums thereto) between the Seller and Buyer have been satisfied, performed or waived by the Buyer and the Seller " Because of the condition of Petitioner's Exhibit 3, it cannot be determined whether the form contract made any representations regarding zoning and who was responsible for determining the appropriate zoning for the property. On October 23, 2008, Respondent sent an e-mail to Russell Wright with attachments labeled "Petition for Special Exemption," "How the Future Land Use Plan Map - Brochure," and "Sec. 12.2 Special Exceptions." The message in the e-mail reads: Hi Russ, here's the contact person who deals with the zoning in Live Oak, and the forms for filing. I received 1 of the forms back from you, the As Is Rider but I still need the corrected Lead based paint disclosure that I sent with the AS Rider in yesterday's fax. Please complete this form and fact back to me. The Seller's [sic] are going to close at 9:00 am on Friday 31st, please let me know as soon as possible a time that would be convient [sic] for you and your wife to attend. Regards, Anne. Mr. Wright acknowledged receiving an e-mail, but not the documents. He sent Respondent the other documents required for closing. After the closing, he called her and stated that he could not locate the paperwork related to special exceptions, and on November 3, 2008, she mailed it to him. With the paperwork was the following note: Dear Russell and Marcus: I have enclosed the paperwork for the Special exception. If you have any questions you may call George Curtis at 386-362-2276. Mr. Curtis is the development manager for the City of Live Oak. Regards, Anne Mr. Wright began making renovations on the property in order to open a funeral home. In July 2009, he began the process of getting his city occupational license. He could not obtain the license because the property was not zoned for his intended use. At that point, Mr. Wright contacted city officials, including George Curtis and the Mayor of Live Oak. Mr. Curtis advised Mr. Wright that he had sent an e-mail to Respondent advising her that a funeral home could not be operated on the property with its present zoning. Mr. Wright wrote to Respondent, demanding that she compensate him for the fact that he could not open the funeral home without a zoning change. The letter stated in pertinent part: The Mayor of Live Oak and Mr. George Curtis has informed me that I can apply for a zoning change so that My Wife and I can open our business. But it will cost $750.00 to file the initial papers. And that is NOT a guarantee. To date with the down payment and monthly payments and renovation cost, your dealings have cost us $25,000 plus pain and suffering and embarrassment. And we have property that we can't use for the intention it was purchased. Ms. Hurst, we are allowing you and your firm to settle this matter out of court. Ms. Hurst we will settle this matter for the amount of $50,000.00 which is damages plus pain and suffering. If you and ReMax Professionals, Inc., are not willing to settle with us out of Court, we will retain the Attorney with whom my Wife and I have consulted. . . . It is clear from the evidence that Mr. Wright chose to believe that he could open a funeral home on the property without any further administrative action either to change the zoning or to obtain a Special Exception for its intended use. Neither belief is consistent with the credible evidence that Respondent sent him information regarding Special Exemptions and the process to obtain them. All of the information given to him is consistent with his need to follow up with the City's zoning department, which he did not do. Based on the more persuasive evidence presented in this classic, "he-said, she-said" case, it is found that Respondent did not receive the October 17, 2008 e-mail from George Curtis, but believed that a Special Exemption would be required to operate a funeral home on the property, and that she supplied information to Mr. Wright to that effect. Mr. Wright's claim that Respondent represented that the property could be used as a funeral home with no further action is rejected.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing Count One in the Administrative Complaint; finding a violation of section 475.25(1)(c), as alleged in Count Two; imposing a reprimand and fining Respondent $250.00. DONE AND ENTERED this 8th day of June, 2011, in Tallahassee, Leon County, Florida. S Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 2011. COPIES FURNISHED: William Haley, Esquire Brannon, Brown, Haley, Robinson & Bullock, P.A. Post Office Box 1029 Lake City, Florida 32056-1029 Joseph A. Solla, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Thomas W. O’Bryant, Jr., Director Division of Real Estate 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Planning Commission deviated from essential requirements of law in denying Appellant's application for a special use permit to operate a car rental agency at 2576 Harn Boulevard, Clearwater, Florida.
Findings Of Fact Manual Kastrenakes, d/b/a Pinellas Rent-A-Car, Appellant, purchased the property which is the subject of this appeal in 1989. Prior to this purchase, the property was the site of a Farm Store, which has been vacated. Appellant also owns a filling station in the vicinity of this property which is legally operated and is in compliance with all zoning requirements. The property is zoned CH (highway commercial). Within Highway Commercial Districts, outdoor retail sales, displays and/or storage are permitted as conditional uses. Section 135.129(11), City of Clearwater Land Development Code. Objections to the granting of this conditional use permit come from residents of multifamily residential buildings adjacent to and west of the property in issue. Many of those residents are retired and/or infirm and contend they will be disturbed by the operation of a rental car business "in their back yard." To counter some of these objections, Appellant agreed to conditions being imposed on this permit limiting hours of operation, lighting, paving, buffer zones, and parking. Protestants also contend that operating the business would depreciate the value of their property, but no credible evidence was presented to support this position. Appellant has further agreed that disabled or wrecked vehicles will not be stored on this property, and only fully operable rental automobiles will be stored and/or displayed on this property.
Findings Of Fact Respondent Jorge L. Cabrera owns a parcel of land on Plantation Key some 2.73 acres in size. It is adjacent to U.S. Highway 1 and was previously zoned BU-2, a medium business district zoning classification. Respondent Cabrera filed his rezoning petition seeking a rezoning to BU-3Y, which would have permitted, among other uses, a cement plant, a petroleum storage and distribution facility, warehouse facilities, the repair and storage of construction equipment, an asphalt plant, or industrial parks. He initially informed the Zoning Department of Monroe County, in conjunction with his application for rezoning, that he intended to use the subject site as a storage area for construction equipment. The Respondent's property is located in a predominantly business area. Immediately across the highway is the State of Florida Highway Patrol Station, through which all trucks passing through the Florida Keys must stop for weighing. The property adjacent to the Respondent's property has a mixture of uses, including a gas tank storage area, a church, a bakery, a trucking company immediately adjacent to the property, heavy equipment storage and a radio transmission tower. To the rear of the property is a parcel owned by Howard Bonebrake consisting predominantly of mangrove wetlands. Howard Bonebrake appeared before the Zoning Board at its April 22, 1982, hearing in Key West, as did representatives of the Upper Keys Association and other residents in the Upper Keys Association and other residents in the Upper Keys and the vicinity of the subject site, in opposition to the proposed rezoning. The Department of Community Affairs is the state land planning agency designated by Chapter 380, Florida Statutes, to undertake statewide comprehensive planning. This project lies within Monroe County, Florida, which is the local government agency which issued the development order respecting the proposed development. On April 19, 1982, at a meeting held in Marathon, Florida, the Board of County Commissioners of Monroe County discussed the Zoning Board meeting which was scheduled for April 22, 1982. The minutes of the County Commission meeting reflected that the following action was taken under the category "Reports and Recommendations of Board Members": A motion was made by Commissioner Blair and seconded by Commissioner Harvey instructing the Zoning Board to Continue the meeting scheduled for April 22, 1982, to the Upper Keys consistent with the Board's policy of holding meetings in the areas affected. Roll call vote was taken and carried unanimously. No copy of a resolution embodying this Commission action has been placed into evidence. On April 22, 1982, the Zoning Board held a public hearing in Key West, Florida. Among the items on the agenda was Respondent Cabrera's rezoning application. Zoning Board Member Dagny Johnson sought to have that rezoning petition continued. A member of the Monroe County Commission, Jerry Hernandez, appeared before the Zoning Board at that hearing and advised the Board that it was the intent of the County Commissioners in that April 19 motion to allow the Zoning Board to decide whether the rezoning application by Cabrera was a "controversial issue" or not. He further advised the Zoning Board that it was the Board of County Commissioners' policy to hold hearings in the area of zoning impact or change when controversial issues were involved. He further advised the Board that the County Commission did not seek to dictate a decision on the location of the public hearing to the Zoning Board, but that that was a decision the Zoning Board must make itself. The chairman of the Zoning Board then stated that he had received no instruction from the County Commission to continue the hearing. Zoning Board Member Johnson then moved to have the Zoning Board hear zoning cases in the area in which the pertinent property is located. That motion failed for lack of a second. The Zoning Board's resolution granting Respondent Cabrera the requested rezoning was appealed to the Monroe County Board of County Commissioners, which affirmed the Zoning Board's decision on August 9, 1982. A motion for rehearing was denied by the County Commission on August 23, 1982. Among the arguments advanced in the appeal to the County Commission and in the rehearing were that the Zoning Board had violated its procedural rules and the County Commission's instructions by hearing the rezoning petition in Key West instead of at the property site on Plantation Key. In spite of the fact that the hearing was conducted in Key West, the adjoining landowner and others in the above association who opposed the rezoning applications had notice of and were in attendance at the rezoning hearing. Under Monroe County's Major Development Ordinance, adopted by reference as Rule 27F-9.17, Florida Administrative Code, parcels of land of five acres or more involved in a zoning application are considered to be major developments, and their developers are required to submit extensive environmental and public service impact statements. The Zoning Board and its staff also have discretionary authority to declare a project slightly smaller than five acres to be a major development and entitled to such detailed survey and study if the anticipated use is likely to be environmentally damaging, or if the projects meet certain other specific major development criteria. Monroe County's Chief Planner, Dr. Jeffery Doyle, testifying on behalf of Petitioner, established that no project under three acres had ever been considered by the Zoning Board or its staff to be a major development, nor has any concrete batching plant in Monroe County been declared to be a major development by the Zoning Board or its staff in the past. Concrete batching plants are different, in terms of environmental impacts, from large cement-producing plants, which pose substantial environmental considerations due to their release of substantial dust and particulate pollutants. Such is not the case with the relatively small concrete batching plant involved in this rezoning application and order. Although there was some speculation regarding large amounts of water which a concrete batching plant might use, water being relatively scarce in the Keys, no potential environmental damage posed by the rezoning and the resultant construction or installation of the concrete batching plant was shown. It was not demonstrated at the hearing before the Zoning Board, nor the Hearing Officer, that this project meets any criteria for being characterized as a "major development." Although a witness for the Petitioner, former County Commissioner Curtis Blair, stated that it was his belief that Monroe County had a policy of hearing zoning applications in the area where the property to be rezoned is located, he was unable to recall any actual adoption of such a policy. He acknowledged that no such rules of procedure for locations of Zoning Board hearings had been placed of record by the County Commission or the Zoning Board and admitted no such rules of procedure for hearing locations had been adopted. Rather, specific requests have been made from time to time of the Zoning Board on specific zoning matters regarding locating the hearings related thereto near the site of the property at issue. The purpose of this supposed "policy" would be to allow citizens most affected by a zoning change to appear and testify regarding it. Representatives of the Upper Keys Citizens Association and the neighbor, Mr. Bonebrake, all of whom oppose the project, were present at the hearing in this instance, however, and testified before the Zoning Board despite the fact that the venue of the hearing was in Key West. At the time the County Commission passed its April 19, 1982, motion regarding the request of the Zoning Board to hold the hearing in Plantation Key, the public notice of the Zoning Board hearing had already been promulgated and published and notices had already been sent to the adjacent property owners. Further, the Zoning Board's agenda had already been promulgated and published. Mr. Blair admitted that the April 19, 1982, motion was never incorporated in a resolution of the Board of County Commissioners. Former Zoning Board Member Dagny Johnson, testifying for the Petitioner, was of the belief that the Zoning Board had a policy to hold meetings in the affected locality, but could not establish the source of any such policy. She admitted that her view of that policy was in the minority and that the other four Zoning Board members did not agree with her that such a policy existed. Although she was certain that all major development projects which were the subject of zoning hearings were heard in the area affected, she could not recall that all other zoning change matters were heard in the affected locality and, in fact, recalled a number of cases where zoning applications were duly agendaed and noticed to the public involving projects outside the locality where the Zoning Board hearing was conducted. Both witnesses Johnson and Doyle for the Petitioner conceded that the applicant's statement of his intended use of the subject property to be rezoned has "no significance" and that the zoning applicant's intended use is not required to be advertised to the public. Rather, the proposed zone change is the subject of public notice. The applicant, once having secured BU-3Y zoning, could erect whatever structure or perform whatever use that zoning permitted, regardless of the use he may have initially proposed in the zoning application. The applicant's intended use could change; and once the property is rezoned, the property can be put to whatever use the applicant and owner chooses, provided it is within the authorized uses of the new zoning. Respondent Cabrera in this instance informed the Zoning Board at the hearing of his ultimate intended use, that is, the erection of a concrete batching plant. This was before his application was finally considered and voted upon. He informed the neighboring landowners personally of the intended use of the property prior to the Zoning Board hearing. Those neighboring landowners were in attendance at the hearing and were given an opportunity to oppose his application. At the Zoning Board hearing of April 22, 1982, Ms. Johnson made a motion calling for the Board to affirm the existence of a policy requiring all zoning changes to be heard in the portion of the Florida Keys where the properties which are the subject of the zoning applications are located. This motion was rejected by the Board, and thus at that point the Zoning Board had not affirmed the existence of such a definite policy. There is no dispute that there is no written rule or policy of the Zoning Board requiring zoning matters to be heard in the locality of the property which is the subject of a zoning application. Further, the Zoning Board's agendas do not show any consistent pattern that such hearings are conducted in the venue of the subject property; rather, some rezoning applications were agendaed in the locality of the property involved, and some were agendaed outside of the area involved in zoning or rezoning applications. It was not shown that the Zoning Board's agendas uniformly set rezoning applications for hearing in the area of impact. Thus, it was not established that any such policy existed in April, 1982, the time period pertinent hereto.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED: That the Petition of the Department of Community Affairs be DENIED. DONE AND ENTERED this 20th day of December, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1983. COPIES FURNISHED: Eric Taylor, Esquire Barry F. Chiles, Esquire Assistant Attorneys General Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301 Mr. John T. Herndon Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, Florida 32301 James T. Hendrick, Esquire Albury, Morgan & Hendrick, P.A. 317 Whitehead Street Key West, Florida 33040 E. Baxter Lemmond, Esquire Assistant County Attorney Monroe County 310 Fleming Street Key West, Florida 33040 C. Laurence Keesey, Esquire Department of Community Affairs 2571 Executive Center Circle, East Tallahassee, Florida 32301 The Honorable George Dolezal Box 1029, Duck Key Marathon, Florida 33050 The Honorable Bob Graham Governor The Capitol Tallahassee, Florida 32301 The Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 The Honorable Jim Smith Attorney General The Capitol Tallahassee, Florida 32301 The Honorable Bill Gunter Insurance Commissioner and Treasurer The Capitol Tallahassee, Florida 32301 The Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 The Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 The Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32301
The Issue This is an appeal from Resolution No. P60-99 of the Monroe County Planning Commission ("Planning Commission"), in which the Planning Commission approved the decision of the Monroe County Planning Department ("Planning Department") denying two applications for building permits submitted by the Appellants, Robert and Ruth Stoky ("the Stokys"). One application requested a building permit to reconstruct a screened porch and to build an elevated deck in the rear of the Señor Frijoles/Cactus Jack's restaurants, which are located at 103900 Overseas Highway, Key Largo, Florida; this application was assigned building permit number 99-3-857 ("permit number 99-3-857"). The second application requested a building permit to reconstruct a trellis as a separate structure associated with the Sundowner restaurant, also located at 103900 Overseas Highway, Key Largo, Florida; this application was assigned building permit number 99-3-858 ("permit number 99-3-858"). The instant appeal was forwarded by the Planning Commission to the Division of Administrative Hearings pursuant to Article XIV, Monroe County Code, the Hearing Officer Appellate Article, and Monroe County ("the County") has appeared as Appellee in this case. In their Initial Brief, the Stokys abandoned their appeal of the decision of the Planning Commission approving the Planning Department's denial of their application for permit number 99-3-858; therefore, the ultimate issue presented in this appeal is whether the Planning Commission's Resolution No. P60-99 should be affirmed, reversed, or modified with respect to the its decision approving the Planning Department's denial of the Stokys' application for permit number 99-3-857.
The Issue DOAH Case No. 89-3902, the Barona and Carrow Complaints Whether Respondent violated Florida Statutes Section 489.129(1)(d), by willfully or deliberately disregarding and violating the applicable building codes or laws of the state or of any municipalities or counties thereof. Whether Respondent violated Florida Statutes Section 489.129(1)(m), by being guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 90-1900, the Grantz, Victor, Beckett, Maffetonne, and Wolfe Complaints Whether Respondent violated Sections 489.129(1)(m), (j), and 489.105(4), and 489.119, Florida Statutes, by being guilty of gross negligence, incompetence, and/or misconduct. Whether Respondent violated Sections 489.129(1)(h), (m), (j), and 489.119, and 489.105(4), Florida Statutes, by being guilty of financial mismanagement or misconduct. Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilful or deliberate violation or disregard of applicable local building codes and laws. Whether Respondent violated Sections 489.129(1)(m), (j), 489.119, and 489.105(4), Florida Statutes, by failing to properly supervise contracting activities he was responsible for as qualifying agent, which supervisory deficiency also reflected gross negligence, incompetence, or misconduct Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Sections 489.129(1)(m), and (j), Florida Statutes, by giving a guarantee on a job to a consumer and thereafter failing to reasonably honor said guarantee in violation of Florida Statutes. DOAH Case No. 90-1901, the Klokow Complaint Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipalities or counties thereof. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being guilty of fraud or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 90-1902, the Meister Complaint Whether the Respondent violated Section 489.129(1)(n), Florida Statutes, by failure to obtain a permit. DOAH Case No. 91-7493, the Antonelli Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 91-7951, the Insurance, Palomba, Romanello and Marin Complaints The Insurance Complaint Whether Respondent violated Section 489.129(1)(c), Florida Statutes, by violating Section 455.227(1)(a), Florida Statutes, by making misleading, deceptive, untrue, or fraudulent representations in the practice of his profession. Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipalities or counties thereof. Whether Respondent violated Section 489.129(1)(c), Florida Statutes, by violating Section 455.227(1)(b), Florida Statutes, by intentionally violating a Board rule. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Palomba Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Romanello Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Marin Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 92-0370, the Pappadoulis Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing financial misconduct. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by committing gross negligence, incompetence and misconduct in the practice of contracting.
Findings Of Fact Pre-Hearing Admissions 3/ Admissions Applicable to All Cases Respondent is currently licensed as a contractor by the Florida Construction Industry Licensing Board. Respondent's current license number from the Florida Construction Industry Licensing Board is CG C040139. Respondent is licensed by the Florida Construction Industry Licensing Board as a certified general contractor. Respondent holds Florida Certified Roofing License No. CC-042792. Respondent is the qualifying agent for Tropical Home Industries, Inc. As qualifying agent for Tropical Home Industries, Inc., Respondent is responsible for all work performed. DOAH Case No. 89-3902 Respondent was licensed as set forth in items 1, 2, 3 and 4 above at the time of the job alleged in the Administrative Complaint. Exhibit "A", attached to the Request for Admissions 4/ is a true and correct copy of the contract between Sarah S. Carrow and the firm Respondent qualified at the time the contract was executed. As a qualifier for Tropical Home Industries, Inc., Respondent was responsible in his capacity as a certified general and roofing contractor for all work performed by Tropical Home Industries, Inc., pursuant to its contract with Sarah S. Carrow. Pursuant to the contract between Sarah S. Carrow and Tropical Home Industries, Inc., all work under said contract was to be completed in three (3) to six (6) weeks. Respondent, acting through Tropical Home Industries, Inc., failed to complete all work under the contract with Sarah S. Carrow within six (6) weeks after work was commenced. Respondent, acting through Tropical Home Industries, Inc., failed to obtain a final inspection of the work under the contract with Sarah S. Carrow prior to the building permit's expiration date. Broward County, Florida, has adopted the South Florida Building Code as its local ordinance governing residential construction. Respondent's failure to obtain a timely final inspection of the work performed pursuant to the contract between Tropical Home Industries, Inc., and Sarah S. Carrow is a violation of Section 305.2 of the South Florida Building Code. Section 1405.1 of the South Florida Building Code requires installation of either a window or vent fan in each bathroom. Section 3407.9(a) of the South Florida Building Code requires that flashing be installed on plumbing vent pipes which are installed through the roof. Any problems or deficiencies in the work performed by Tropical Home Industries, Inc., pursuant to its contract with Sarah S. Carrow were caused by employees and/or subcontractors of Tropical Home Industries, Inc. DOAH Case Nos. 89-3902, 90-1900, 90-1901, and 90-1902 DOAH Case No. 89-3902 The Baronas' house is located at 1251 Westchester Drive East, West Palm Beach, Florida 33417. Respondent contracted with the Baronas as the qualifying agent of Tropical Home Industries, Inc. The Baronas' house is located within Palm Beach County. Palm Beach County is the appropriate Building Department under which all inspections were to have been performed. DOAH Case No. 90-1901 On or about December 5, 1988, Respondent contracted with Mel Klokow, acting for Linda Klokow ("Klokow"), for the renovation of a screen porch with a roof to her home. Respondent contracted with Klokow as a qualifying agent of Tropical Home Industries, Inc. Permit No. 88-8085 was issued by the local building department. The work at the Klokow residence did not pass final inspection. DOAH Case No. 90-1902 In December of 1987, Respondent contracted to close in a screen porch for Janet Meister ("Meister"). Respondent contracted with Meister as the qualifying agent for Tropical Home Industries, Inc. Respondent failed to obtain a permit for the work performed at the Meister's. Respondent's failure to obtain a permit for the Meister job violated local building codes and Section 489.129(1)(n), Florida Statutes. DOAH Case No. 90-1900 The Grantz home is located at 10878 Granite Street, Boca Raton, Florida. The approximate amount of the contract price with the Grantz was $1,890.00. Respondent contracted for the Grantz job as a qualifying agent of Tropical Home Industries, Inc. Respondent began work at the Grantz residence on or about May 10, 1989. The work at the Grantz residence failed final inspection on July 12, 1989. Respondent wilfully violated applicable local building codes and laws on the Grantz project. Respondent wilfully disregarded local building codes and laws in connection with the Grantz project. Respondent deliberately violated applicable local building codes and laws in connection with the Grantz project. Respondent deliberately disregarded applicable local building codes and laws in connection with the Grantz project. On or about April 12, 1989, and April 17, 1989, Respondent contracted with Stephen Victor ("Victor") to install sliding glass doors at his home. The Victor residence is located at 9768 Majorca Place, Boca Raton, Florida. The contract price with Victor was $3,293.00. Respondent contracted with Victor as a qualifying agent of Tropical Home Industries, Inc. Victor paid a total deposit of $670.00 to Respondent. Respondent never began work at the Victor residence. On or about April 17, 1989, Respondent contracted with Vinton Beckett ("Beckett") to install windows at her home. The Beckett residence is located at 2501 N.W. 41st Avenue, Unit 302, Lauderhill, Florida. The contract price with Beckett was $1,684.00. Respondent contracted with Beckett as a qualifying agent of Tropical Home Industries, Inc. On or about October 29, 1988, Respondent contracted with Thomas and Sherry Maffetonne (the "Maffetonnes") to construct a patio enclosure at their home. The Maffetonne's residence is located at 22980 Old Inlet Bridge Drive, Boca Raton, Florida. The contract price for the work to be performed at the Maffetonnes was $4,350.00. Respondent contracted with the Maffetonnes as a qualifying agent for Tropical Home Industries, Inc. A five-year warranty on materials was given by Respondent for the work to be performed at the Maffetonne's. A one-year warranty on labor was given by Respondent for the work performed at the Maffetonne's. On or about June 6, 1989, Respondent contracted with Mr. and Mrs. Morton Wolfe (the "Wolfes") to install windows at their home. The Wolfe's residence is located at 7267 Huntington Lane, #204, Delray Beach, Florida. Respondent contracted with the Wolfes as the qualifying agent of Tropical Home Industries, Inc. Respondent failed to obtain a timely permit or call for required inspections at the Wolfe residence. DOAH Case No. 91-7951 On June 21, 1990, Tropical's general liability insurance coverage (policy number 891006GL327), produced by Steven Adams and Associates, Inc., (hereinafter "Adams and Associates") and afforded by Guardian P & C Insurance Company, expired. On July 17, 1990, Tropical issued a check to Adams and Associates in the amount of $2,475.00 to obtain general liability and workers' compensation insurance. Upon receipt of the check, Adams and Associates issued a Certificate of Insurance to the Davie (Florida) Building Department indicating that Tropical had general liability (policy number GL 235810) and workers' compensation insurance in force through July 17, 1991. After said Certificate of Insurance was issued, Tropical stopped payment on the check issued to Adams and Associates. Tropical failed to issue an additional check or remit payment of any kind, resulting in both the general liability and workers' compensation insurance being canceled, effective July17, 1990. In September of 1990, a Certificate of Insurance was submitted to the Davie Building Department indicating that Tropical had general liability insurance in effect from September21, 1990, until September 21, 1991. Said certificate had been altered in that the issue, effective, and expiration dates had been updated to reflect that the policy coverage was current and in force. The policy listed on the certificate (number 891006GL327, produced by Adams and Associates with coverage being afforded by Guardian P & C Insurance Company) expired on June21,1990, and was never renewed or kept in force after that date. The Davie Building Department had no other certificates or records indicating that Tropical had insurance coverage. Between July 17, 1990, and April 8, 1991, Tropical obtained five (5) building permits from the Davie Building Department. At no time during the aforementioned period did Tropical have general liability insurance, thereby violating Section 302.1(b) of the South Florida Building Code which requires that building permit applicants be qualified in accordance with PartI of Chapter 489, Florida Statutes. Licensees are required to maintain public liability insurance at all times as provided by rules promulgated pursuant to Part I of Chapter 489, Florida Statutes. Construction Industry Licensing Board records indicate that Tropical has general liability insurance coverage through Equity Insurance (hereinafter "Equity") of Hollywood, Florida. Effective June 8, 1988, Tropical's insurance with Equity was canceled. On February 20, 1991, Tropical entered into an agreement with Michael and Margaret Palomba (hereinafter "Palombas") to perform enclosure and remodeling work at the Palombas' residence located at 130 North East 5th Court, Ft. Lauderdale, Florida 33334. The approximate contract price was $11,978.00. On March 13, 1991, Tropical received a $2,994.50 deposit from the Palombas. On March 25, 1991, Tropical obtained a permit for the project from the Broward County Building Department. Subsequent to receiving the permit, Tropical removed an interior closet from the area that was to be remodeled. Subsequent to receiving the permit, Tropical removed interior plaster from the area that was to be remodeled. Subsequent to receiving the permit, Tropical removed exterior doors from the area that was to be remodeled. Tropical then stopped work stating that rotten wood had been discovered, and requested an additional $2,800.00 to continue with and complete the project. Tropical refused to perform any additional work without the Palombas agreeing to the added cost. Tropical failed to continue with the project pursuant to the original agreement. Tropical refused to continue with the project pursuant to the original agreement. Tropical failed to return any monies to the Palombas. In May 1991, the Palombas hired a second contractor, Dan Sturgeon, to complete the project for $13,830.00. On or about July 11, 1990, Tropical entered into an agreement with Don Romanello (hereinafter "Romanello") to construct a screen room on an existing slab at Romanello's residence located in Boca Raton, Florida. The contract price was $9,500.00. Tropical received $4,800.00 in payments from Romanello, but failed to obtain a permit or perform any work pursuant to the agreement. Tropical has failed to return any portion of Romanello's payments. Tropical refused to communicate with Romanello. Based on the preceding, Tropical committed misconduct in the practice of contracting. On or about June 23, 1990, Tropical entered into an agreement with Marcelina Marin (hereinafter "Marin") to construct a screen room at Marin's residence located in Broward County, Florida, for $4,021.00. Tropical received a $2,000.00 deposit from Marin at the time the agreement was entered into. Tropical failed to perform any work under the terms of the agreement. Tropical has failed to return Marin's deposit. Tropical has refused to return Marin's deposit. Based on the preceding, Tropical committed misconduct in the practice of contracting. DOAH Case No. 91-7493 On July 2, 1988, Respondent contracted with Anthony Antonelli ("Antonelli") to construct an aluminum roof over the patio and gutters of his residence at 9303 Laurel Green Drive, Boynton Beach, Florida. The price of the contract was $2,016.00. Antonelli paid a deposit of $500.00 to Tropical Home Industries. Respondent informed Antonelli that he would not be able to perform the work at the contracted price. Respondent never performed any work at the Antonelli's home. Respondent canceled the contract with Antonelli. Respondent failed to return the deposit paid by Antonelli to Tropical Home Industries. Testimony at Final Hearing Facts Applicable to All Cases Respondent is, and has been at all times hereto, a certified general and roofing contractor in the State of Florida, having been issued license number CG C040139 and CC 2042792. For all contracts and jobs referenced in all of the administrative complaints in these consolidated cases, Respondent acted through the contracting business with which he was associated and for which he was responsible in his capacity as a licensed contractor. DOAH Case No. 89-3902, The Barona and Carrow Complaints Respondent contracted with Rhonda Barona to build an addition to her home at 1251 Westchester Dr. East., West Palm Beach, Florida, for approximately $5,124. The work performed at the Barona residence took an unreasonable amount of time to complete. The permit issued to perform the work at the Barona residence was canceled and Respondent failed to obtain a final inspection. Respondent contracted with Sarah Carrow to build an addition at her home located at 1421 N. 70th Avenue, Hollywood, Florida, for approximately $14,460.60. Respondent allowed the permit to expire and failed to obtain required inspections at the Carrow residence. Respondent failed to fully comply with applicable local codes by failing to install a window or vent fan in the bathroom. DOAH Case No. 90-1900, The Grantz, Victor, Beckett, Maffetonne and Wolfe Complaints On or about March 31, 1989, Respondent contracted with John and Lori Grantz to install windows at 10878 Granite Street, Boca Raton, Florida, for the amount of $1,890.00. Work at the Grantz residence began on or about May 10, 1989. At the time work began, no permit had been obtained. A late permit was obtained on June 15, 1989, in violation of local codes. The work performed by Respondent at the Grantz residence failed final inspection on July 12, 1989, because the structure was not constructed as for the intended use. The windows which were installed were designed as a temporary structure, removable in cases of severe weather and not as a permanent enclosure. On or about April 12, 1989, and April 17, 1989, Respondent contracted with Stephen Victor ("Victor") to install sliding glass doors and windows at 9768 Majorca Place, Boca Raton, Florida, for the total amount of $3,293.00. Victor paid Tropical a total deposit of $670.00, but work never began. On or about April 17, 1989, Respondent contracted with Vinton Beckett ("Beckett") to install windows at 2501 N.W. 41st St., Unit 808, Lauderhill, Florida, in the amount of $1,684. A five-year warranty on materials and a one-year warranty on labor were provided to Beckett by Tropical. Respondent failed to obtain a timely permit or call for required inspections in violation of local law. Respondent failed to correct defects and deficiencies in the work performed at the Beckett residence in a reasonable amount of time. On or about October 29, 1988, Respondent contracted with Thomas and Sharee Maffetonne to construct a patio enclosure at 22980 Old Inlet Bridge Drive, Boca Raton, Florida, for the amount of $4,350.00. A five-year warranty on materials and a one-year warranty on labor were given. Respondent failed to correct defects and deficiencies in the work on the Maffetonne residence in a reasonable amount of time. On or about June 6, 1989, Respondent contracted with Morton Wolfe to install windows at 7267 Huntington Lane, #204, Delray Beach, Florida, for the amount of $1,668.13. Respondent failed to obtain a timely permit or call for required inspections at the Wolfe residence in violation of local codes. DOAH Case No. 90-1901 The Klokow Complaint On or about December 5, 1989, Respondent contracted with Mel Klokow, acting for Linda Klokow, for the construction of a screen porch with a roof to her home at 5292 N.E. 10th Terr., Ft. Lauderdale, Florida, for the sum of $4,473.00. Permit number 88-8085 was issued by the local building department. The work performed at the Klokow residence initially failed to pass the final inspection, and the Respondent failed to return to correct the code violations in a reasonable amount of time. DOAH Case Number 90-1902 The Meister Complaint In December of 1987, Respondent contracted to close in a screen porch for Janet Meister. Respondent failed to obtain a permit for the work performed, which is a violation of local building codes. DOAH Case Number 91-7493 The Antonelli Complaint On July 2, 1988, Respondent contracted with Anthony Antonelli ("Antonelli") to construct an aluminum roof over the patio and gutters at his residence at 9303 Laurel Green Drive, Boynton Beach, Florida. The price of the contract for the work to be performed at the Antonelli residence was $2,016.00. Antonelli remitted a deposit of $500 to the Respondent. Respondent informed Antonelli that he would not be able to perform said job for the contracted price and no work ever began. Respondent canceled the contract with Antonelli and failed to return the deposit to Antonelli. DOAH Case Number 91-7951 The Insurance, Palomba, Romanello and Marin Complaints On June 21, 1990, Tropical's general liability insurance coverage, policy number (891006GL327), produced by Stephen Adams & Associates, Inc., ("Adams & Associates") and afforded by Guardian Property & Casualty Company, expired. On July 17, 1990, Tropical issued a check to Adams & Associates in the amount of $2,475.00 to obtain and/or renew general liability and workers' compensation insurance. Upon receipt of the check, Adams & Associates issued a certificate of insurance to the Davie Building Department in Davie, Florida, indicating that Tropical had general liability (policy number 235810) and workers compensation insurance in force through July 17, 1991. After said certificate of insurance was issued, Tropical stopped payment on the check issued to Adams & Associates. Tropical failed to issue an additional check or remit payment of any kind resulting in the general liability and workers compensation insurance being canceled, effective July 17, 1990. In about September 1990, a certificate of insurance was submitted to the Davie Building Department indicating that Tropical had general liability insurance in effect from September 21, 1990, until September 21, 1991. Said certificate had been altered in that the issue, effective and expiration dates had been updated to reflect that the policy coverage was current and in force. The policy listed on the certificate (number 891006GL327), produced by Adams & Associates and afforded by Guardian Property & Casualty Company, expired on June 21, 1990, and was never renewed or kept in force after that date. The Davie Building Department has no other certificates or records indicating that Tropical has insurance coverage. Between July 17, 1990, and April 8, 1991, Tropical obtained five (5) building permits from the Davie Building Department. At no time during the aforementioned period did Tropical have general liability insurance thereby violating Section 302.1(b) of the South Florida Building Code which requires that building permit applicants be qualified in accordance with Part I of Chapter 489, Florida Statutes. Licensees are required to maintain public liability insurance at all times as provided by rules promulgated pursuant to Part I of Chapter 489, Florida Statutes. Construction Industry Licensing Board ("CILB") records indicate that Tropical has general liability insurance coverage through Equity Insurance Company ("Equity") of Hollywood, Florida. Effective June 8, 1988, Tropical's insurance with Equity was canceled. On February 20, 1991, Tropical entered into an agreement with Michael and Margaret Palomba (the "Palombas") to perform enclosure and remodeling work at the Palomba's residence located at 130 N.E. 5th Ct., Ft. Lauderdale, Florida 33334. The approximate contract price was $11,978.00. On March 13, 1991, Tropical received a $2,994.50 deposit from the Palombas. On March 25, 1991, Tropical obtained a permit for the project from the Broward County Building Department. Subsequent to receiving the permit, Tropical removed an interior closet and exterior doors from the area that was to be remodeled. Tropical then stopped work stating that rotten wood had been discovered, and requested an additional $2,800.00 to continue with and complete the project. Tropical refused to perform any additional work without the Palombas agreeing to the added cost. Tropical failed or refused to continue with the project pursuant to the original agreement and failed to return any monies to the Palombas. In May, 1991, the Palombas hired a second contractor, Dan Sturgeon, to complete the project for $13,000.00. 156. Based on the foregoing, Tropical committed misconduct in the practice of contracting. On or about July 11, 1990, Tropical entered into an agreement with Don and Norma Romanello (the "Romanellos") to construct a screened room on an existing slab at the Romanello's residence located in Boca Raton, Florida. The contract price was $9,500. Tropical received a $4,800.00 payment from the Romanellos but failed to perform any work pursuant to the agreement. Tropical has failed or refused to return any portion of the Romanellos payments and has refused to communicate with the Romanellos. Based on the preceding, Tropical committed misconduct in the practice of contracting. On or about June 23, 1990, Tropical entered into an agreement with Marcelina Marin to construct a screened room at Marin's residence located in Broward County, Florida for $4,021.00 Tropical received a $2,000.00 deposit at the time the agreement was entered into. Tropical failed to perform any work under the terms of the agreement, and has failed or refused to return Marin's deposit. Based on the preceding, Tropical committed misconduct in the practice of contracting. DOAH Case Number 92-0370 The Pappadoulis Complaint On or about February 11, 1990, the Respondent contracted with John Pappadoulis ("Pappadoulis") to remodel a Florida room for the agreed upon amount of $11,448.00 at his residence located at 983 Southwest 31st Street, Fort Lauderdale, Florida. Respondent received a deposit of $648.00, but never obtained a permit nor began work. The Respondent failed or refused to return Pappadoulis' deposit. John Pappadoulis has since passed away. Aggravating and Mitigating Circumstances Monetary Damages Several of the customers in these cases suffered monetary damages. The Baronas had to hire an attorney to deal with the Respondent. The Baronas also incurred additional costs in the work they performed to complete the contract. John and Lori Grantz also suffered monetary damages due to their dealings with the Respondent. The work at the Grantz residence was never completed by the Respondent. The Respondent filed a lien on the Grantz property and also filed a lawsuit to receive the full amount of the contract price. The Grantz had to hire an attorney to obtain legal advice and to defend the lawsuit. The Grantz prevailed in that lawsuit and a judgment was entered requiring the Respondent to refund the $500.00 cash deposit. The Grantz also spent at least $150.00 on attorney fees. The deposit money was never returned and none of their costs were ever reimbursed by the Respondent. Steven Victor also sustained monetary damages in his dealings with the Respondent. Victor paid the Respondent $670.00 as a deposit. No work was ever performed. After requesting the return of his deposit money and failing to receive it, Victor filed a civil action against the Respondent. Judgment was entered in favor of Victor, but the judgment was never paid. The Maffetonnes also sustained monetary damages in their dealings with the Respondent. The Respondent agreed to refund a portion of the contract money to the Maffetonnes due to a problem with the carpet he installed incorrectly, but failed to ever refund any money. The Maffetonnes therefore paid for goods which were defective, and never received a compensatory credit. Klokow also sustained monetary damages in his dealings with the Respondent Because of continuing roof problems, Klokow had to hire an independent roofing expert to inspect the roof and prepare a report. Mr. and Mrs. Palomba also sustained monetary damage due to their dealings with the Respondent. When the Respondent abandoned the Palomba job, the Palombas were forced to hire a second contractor at a higher contract price. The Respondent's actions also caused monetary damages to Antonelli, Pappadoulis, Marin, and Romanello. In each case, the homeowner paid a deposit to the Respondent, and the Respondent failed to ever perform work or return any of the deposit money. The Antonellis paid $500.00, Pappadoulis paid $648.00, Marin paid $2,000.00, and Romanello paid $4,800.00. Actual Job-Site Violations of Building Codes or Conditions Exhibiting Gross Negligence, Incompetence, or Misconduct by the Licensee Several of the jobs involved in these cases had actual job site violations of building codes or conditions which exhibited gross negligence, incompetence, or misconduct by the Respondent which had not been resolved as of the date of the formal hearing. At the Barona residence, the framing inspection failed twice before finally being passed a third time; the lath inspection failed three times before finally passing on the fourth time; and the final inspection failed and was never satisfactorily completed by the Respondent. At the Carrow residence, the Respondent failed to install a window or vent fan in the bathroom of the room addition which he installed. In addition to the building code violation, the work performed was incompetent as the structure installed leaked for many months. Further, the original permit expired prior to a final inspection ever being obtained. At the Grantz residence, the Respondent exhibited incompetence and misconduct by installing windows that he knew or should have known were unsuitable for the purposes specified by the customer. Severity of the Offense The large number of violations established in these cases indicates that the Respondent is a serious threat to the public. These violations establish that the Respondent had a pattern of failing to conduct any meaningful supervision of work in progress. And perhaps most serious of all is his frequent act of soliciting deposits for projects he apparently had no intention of even beginning, much less finishing. This latter practice borders on constituting some form of larceny. Danger to the Public The Respondent is a danger to the public in two ways. First, he is a financial threat to the public, most significantly by his practice of taking deposits for jobs he apparently did not intend to perform. Second, he is a threat to public safety, because the work he performs is often done in a haphazard, careless manner. The Number of Repetitions of Offenses As is obvious from the findings of fact and conclusions of law in this Recommended Order, the Respondent is guilty of numerous repeated offenses which occurred over a period of approximately three years. The Respondent's numerous offenses are indicative of an attitude of contempt or disregard for the requirements of the applicable rules and statutes. Number of Complaints Against Respondent The charges in these cases are based on fifteen separate customer complaints to the Department of Professional Regulation regarding the Respondent. Further, the Palm Beach County Construction Industry Licensing Board received four complaints from homeowners regarding the Respondent 5/ and the Broward County Consumer Affairs Department received twenty-nine complaints regarding the Respondent. 6/ Such a large number of complaints indicates that the Respondent's shortcomings were not isolated events, but represent a recurring problem. The Length of Time the Licensee Has Practiced The Respondent was first licensed as a state general contractor in 1987. He obtained his roofing contractor license shortly thereafter. The Respondent's licenses were placed under emergency suspension in August of 1991. Damage to the Customers The damages, monetary and otherwise, suffered by the Respondent's customers has already been addressed. In addition, all of the Respondent's customers mentioned in the findings of fact suffered a great deal of aggravation, stress, and frustration in dealing with the Respondent. Penalty and Deterrent Effect In these cases, the proof submitted demonstrates that no penalties short of revocation of the Respondent's licenses and imposition of the maximum amount of fines will act as a deterrent to the Respondent and others and as appropriate punishment for the many violations established by the record in these cases. Efforts at Rehabilitation There is no persuasive evidence in the record of these cases that the Respondent has become, or is likely to become, rehabilitated. To the contrary, the greater weight of the evidence is to the effect that the Respondent is unwilling or unable to conform his conduct to the requirements of the statutes and rules governing the practice of contracting.
Recommendation Based upon the foregoing findings of fact and conclusions of law, IT IS RECOMMENDED: That the Respondent be found guilty of all of the violations charged in each Administrative Complaint and Amended Administrative Complaint as noted in the conclusions of law, and that the Respondent be disciplined as follows: The Respondent be required to pay an administrative fine in the amount of $5,000.00 for each of the twenty-nine counts of violations charged and proved, for a grand total of $145,000.00 in administrative fines; The Respondent's license numbers CG C040139 and CC C042792 be revoked; and The Respondent be required to pay restitution to the following Complainants in the following amounts: Steven Victor - $670.00; John Grantz - $650.00; Don Romanello - $4,800.00; Marcelina Marin - $2,000.00; Anthony Antonelli - $500.00; John Pappadoulis' next of kin - $648.00. All restitution shall earn 12% interest per annum from the date the Complainants paid their deposit to Respondent. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 21st day of October, 1992. MICHAEL M. PARRISH, 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 21st day of October, 1992.
The Issue At the commencement of formal hearing, Petitioner voluntarily dismissed Paragraphs 5 and 7 of the pending Administrative Complaint, and the formal hearing proceeded upon Paragraphs 1-4 and 6 of the Administrative Complaint. The Department of Professional Regulation prosecuted Respondent for one count of the following enumerated alleged violations: Sections 489.129(1)(d), willful or deliberate disregard of building codes; (j), failure in any respect to comply with the Act; (m), fraud, deceit, or gross negligence; and 489.105(4), Florida Statutes, all of which arise out of a single incident.
Findings Of Fact At all times material to the Administrative Complaint, Respondent, Leonardo Sanchez, was licensed by the State of Florida as a certified general contractor holding license numbers CG C004810 and CG CA04810. Robert G. Wolf, Investigator Specialist II with Petitioner, investigated a complaint made by Mirta Garcia against a contractor named Leonardo Sanchez. Ms. Garcia told him she had entered into a contract with a Mr. Sanchez; that she had paid Sanchez a sum of money for an addition to her house; that Sanchez never supplied her a written contract; and that Sanchez pulled a permit for the work and never completed it. Ms. Garcia did not appear and testify at formal hearing and her representations to Mr. Wolf are mere hearsay. They do, however, supplement or explain other competent proof. Mr. Wolf spoke with a Mr. Sanchez who, in Mr. Wolf's words "acknowledged the contractual relationship with the Garcias." (TR-15) Mr. Wolf visited Ms. Garcia's home and determined that a job of construction had been begun there but that interior work had yet to be completed. John Delaney is Assistant Chief Code Enforcement Officer for the Board of Rules and Appeals for the Building and Zoning Department, Dade County. He also visited the Garcia home and on August 18, 1987 it was approximately 80 per cent complete, in his opinion. He presented as a certified business record, a building permit application for an owner "Mirta Garcia" by "Caribean Window" [sic] applied for in the name of Leonardo Sanchez, dated "accepted 12/9/85," and carrying the contractor number CGC004810 and the social security number 109-42- 4859 (P-2). The contractor number and social security number on the application match Respondent's contractor's license and social security number. "Caribbean Window" is one of the entities for which Respondent is the registered qualifying agent. Dade County Ordinance 57-22 establishes that the South Florida Building Code was in effect in Dade County at all times material to this Administrative Complaint. Section 305.2(a) of the South Florida Building Code establishes a mandatory duty for the permit holder to obtain a reinforcing inspection. Mr. Delaney also presented a certified computer printout of a Building Inspection log or record (P-3) showing that no one, including Respondent, had obtained the required reinforcing inspection related to the Garcia job as of the date of the computer inquiry. The computer printout reflects the dates of other inspections and the date and number of the application to which it pertains; it does not clarify when Mr. Delaney made his computer inquiry but a reasonable inference is that it was made the date of his visit to the Garcia home, August 18, 1987. No reason was presented to excuse Respondent as permit holder from obtaining the appropriate inspection.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Section 489.129(1)(d), assessing an administrative fine therefor of $250.00, and dismissing the remaining charges. DONE and RECOMMENDED this 29th day of December, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3445 The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF) pursuant to Section 120.59(2), Florida Statutes. Petitioner's PFOF 1-7 are accepted as modified to reflect the evidence of record. Respondent's PFOF Respondent submitted no proposals. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 G. W. Harrell, Esquire, and Donald Osterhouse, Qualified Representative Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Leonardo Sanchez 12700 Southwest 37 Street Miami, Florida 33175 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant to this proceeding, respondent Ruben S. Ares was a certified general contractor in the State of Florida holding license number CG CO 14769. Sentinel Building Company of Central Florida, Inc. was engaged in the business of building residential homes for sale. It was the practice of Sentinel Building to buy the land, engage the services of a general contractor to obtain a building permit and help in the supervision and consultation on construction and sell the hones built to others. The contractors were paid a fee of between $250 and $500 per residence for obtaining permits and providing consultation and services. The Vice-President of Sentinel Building was responsible for hiring and paying subcontractors and suppliers. Sentinel Building was not a Florida licensed general contractor, nor was it qualified by respondent or other Florida registered or certified licensee to engage in the business or contracting in Florida. Respondent Ares was not an officer, stockholder, member of the board of directors or employee of Sentinel Building Company. In 1980, respondent entered into an agreement with Sentinel Building to act as the general contractor for the con- struction of at least four residences. His responsibilities were to supervise the construction of the hones and obtain all necessary permits, including the original building permit and the final certificate of occupancy. The responsibility for engaging subcontractors and ordering and purchasing materials and supplies remained with Sentinel Building Company. Respondent was paid a fixed fee of $350 per house. During the period of time in which four residences in Seminole County were constructed, respondent held another full time job with a building company for which he worked 43 to 44 hours per week. His activity with Sentinel Building consisted of obtaining permits and periodic checks on the construction work. According to respondent, his inspections on construction activity occurred once every three to ten days and consumed approximately too to four hours of respondent's time per week. In 1980 and 1981, respondent applied for and obtained building permits for four single-family residences in Delmar Estates, Seminole County. The applications and permits listed Sentinel Building as the owner of the property and respondent Ruben S. Ares as the contractor. At least one of the four homes was under a contract of sale prior to construction. Three of the four purchasers were under the impression that the homes were built by Sentinel Building. None of the three had ever met respondent Ares, nor were they aware that he was the general contractor.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found guilty of violating Section 489.129(1)(e) and (f), Florida Statutes, that an administrative fine in the amount of $1500 be imposed against respondent and that the remaining charges of the Administrative Complaint be dismissed. Respectfully submitted and entered this 22nd day of June, 1984, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1984. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Aldo Icardi, Esquire P.O. Box 879 990 Lewis Drive Winter Park, Florida 32790 James Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact Respondent owns eight signs on SR 60 which are located in areas not zoned commercial or industrial and for which he has not applied for permits. In addition the sign located 5.83 miles east of US 27 and the sign 15.72 miles west of Osceola County line are too close to existing signs to be permitted. Respondent obtained county permits to erect the signs hut was unaware of the requirement that he obtain a permit from DOT for such signs. Some six months ago Respondent was advised by county officials that he needed zoning changes for the locations of his signs. He has made application for zoning changes and his petition for zoning changes is on the agenda of the County Commission for 8 August 1978. Respondent stipulated that in the event he failed to obtain the zoning changes he would remove his signs; and, in the event he obtained the zoning changes, he would apply for permits and adjust the position of the two signs which are presently too close to other signs.
Findings Of Fact At all times material hereto, Respondent has been a registered residential contractor having been issued license number RR 0040275. In approximately 1980, Respondent entered into a contract to erect a screen room for a Mr. Lewis. Under the terms of the contract, Respondent was to obtain the necessary building permit. After the contract had been signed, Respondent's grandfather died, and Respondent therefore went to New Jersey. He left the permit application with his qualifying agent to sign and process through the building department. When Respondent returned from New Jersey approximately 30 to 35 days later, he went to the Lewis job site and found the project almost completed. Respondent did not check to ascertain if the permit had been obtained, but rather completed the screen room himself. Lewis subsequently contacted Respondent to say that he had received a notice of violation from the building department for erecting a screen room without a permit. Respondent contacted the building department and advised that it was not Lewis's fault, but rather that it was Respondent's responsibility to pull the permit. Respondent was charged with unlawfully erecting a screen room without a permit; he appeared in court and pled guilty; and he paid a $250 fine pursuant to the adjudication of guilt entered on April 20, 1981, in the County Court in and for Dade County, Florida, in Case No. 81-50438. On June 24, 1981, Respondent submitted to the Construction Industry Licensing Board a Contractor's Registration application. On that application, Respondent answered in the negative the following question: "Has any person named in (i) below ever been convicted of any offense in this state or elsewhere other than traffic violations?" At the time Respondent gave that answer, he believed it to be true. He understood the question to call for information on criminal acts and did not comprehend the "screen room" charge to have been criminal conduct. Since Respondent answered that question in the negative, his application for registration was processed in accordance with normal procedures. Had Respondent answered that question in the affirmative, his application would not have gone through normal processing but rather would have been presented to the Construction Industry Licensing Board for the Board's determination of whether to approve the application based upon a consideration of the facts. On November 22, 1982, Respondent contracted with Naomi Blanton to construct an addition to Blanton's home located in the City of Miami, in Dade County, Florida, for a contract price of $11,250. When Respondent had first met with Blanton several months earlier, he had told her he could guarantee completion of the project within 45 days. No contract was entered into at that time, however, since Blanton had not obtained the financing she needed in order to construct an addition. When the contract was signed on November 22, Respondent told Blanton he would start the job when he finished the Chamber of Commerce building he was con structing but that he was starting a 12-unit duplex project around Christmas and would not be able to guarantee any 45-day completion deadline. Accordingly, when the contract was signed, no completion date was included in the terms of that written contract, since Respondent did not know when he could guarantee completion. The Blanton contract written by Respondent specifically provided that Respondent would obtain the building permit. On December 22 and 23, 1982, two of Respondent's employees arrived at the Blanton job site, dug a trench, knocked down the utility room, and moved Mrs. Blanton's washing machine. No further work was done until January 1983. Since Respondent knew that he was required to obtain the building permit before commencing any construction work, Respondent submitted his plans and permit application to the City of Miami Building Department. After the plans had been there about a week, he was advised that his plans would not be accepted unless they were drawn by an architect, although that is not required by the South Florida Building Code. After attempting several more times to obtain approval from the City of Miami Building Department, Respondent hired an architect to redraw the plans and secure the building permit. By this time, Respondent found himself unable to concentrate on operating his business efficiently, since he was preoccupied with spending time with his father who was dying of cancer. Also by this time, Blanton had commenced telephone calls to Respondent on an almost daily basis as late as 11:00 p.m. at his office, at his home, at his mother's home, and at his father's home. Respondent offered to return Blanton's deposit, but she refused to cancel the contract and threatened Respondent that she would sue him if he did not comply with that contract. Respondent commenced working on the Blanton job, although no permit had yet been obtained. The contract on the Blanton job called for payments at certain stages of the construction. By January 27, 1983, Respondent had completed a sufficient amount of the work under the contract so that Blanton had paid him a total of $8,270 in accordance with the draw schedule contained in the contract. Respondent ceased working on January 27, 1983, and advised Blanton and her attorney that he would do no further work until he could obtain the building permit, which he had still not been able to obtain. Although he told them his work stoppage was due to his continued inability to obtain the permit, he also stopped work due to his father's illness and his continued inability to get along with Mrs. Blanton. A delay occurred with the plans being redrawn by the architect Respondent hired to obtain the Blanton building permit, since the architect needed information from Blanton and she was out of town. After Blanton returned, the architect made unsuccessful attempts to obtain the building permit. Respondent and his architect were finally able to speak to one of the top personnel in the City of Miami Building Department about the problems they were experiencing in obtaining a building permit, and, at about the same time, Blanton contacted that same individual to complain that Respondent had no permit. On May 4, 1983, the building department finally accepted the second permit application together with the plans drawn by the architect, and the building permit was issued on May 4, 1983. No work was performed on the Blanton job between January 27, 1983, when Blanton paid Respondent the draw to which he was entitled by that date, and May 4, 1983, when the building permit was finally issued by the City of Miami. Respondent immediately resumed work and quickly completed the next stage of construction called for under the Blanton contract. Upon completing that next stage, he requested his next draw payment; however, Blanton decided not to pay Respondent for the work completed and had her attorney advise Respondent not to return to the job site. Blanton then had a friend of her son come to Miami from Wisconsin to complete the addition to her home. At all times material hereto, Respondent held a certificate of competency issued by Metropolitan Dade County.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of violating Section 489.129(1)(d), Florida Statutes, by willfully and deliberately violating Section 301(a) of the South Florida Building Code; imposing an administrative fine against Respondent in the amount of $2,000 to be paid by a date certain; and dismissing the remaining charges contained in the Administrative Complaint, as amended, against Respondent. DONE and RECOMMENDED this 13th day of April, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 1984. COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Joseph F. Scioli, Jr. 246 North Krome Avenue Florida City, Florida 33034 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
