The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Action and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Natural James Supper Club Catering, located at 4322 North State Road 7, Lauderdale Lakes, Florida, held a catering license issued by DABT. The license number is number BEV 1616571, Series 13CT. This license authorized Natural James Supper Club Catering to provide catering services at its premise's location. Natural James Supper Club Catering is subject to the regulatory jurisdiction of DABT as a result of having been issued such a license by DABT. At all times material hereto, the sole owner of Natural James Supper Club Catering was Larnieve Uter. On March 24, 2003, having received a complaint that Natural James Supper Club Catering was selling alcoholic beverages in a manner not permitted by its license, DABT initiated an investigation. On March 24, 2003, Captain Patrick Roberts and special agents of DABT entered the premises of Natural James Supper Club Catering. Accompanied by the husband of Mrs. Uter, Glasford Uter, Captain Roberts and the other agents observed alcoholic beverages that had been used at a prior catering event being stored at Natural James Supper Club Catering; observed alcoholic beverages at Natural James Supper Club Catering that did not have excise tax stamps on them; and observed for sale a bottle of an alcoholic beverage that had been refilled with an unknown spirituous beverage. As to the storing of alcoholic beverages, according to Captain Roberts, the license held by Natural James Supper Club Catering prohibits it from storing alcoholic beverages that were used in a prior catering event. Instead, Natural James Supper Club must return the alcoholic beverages to the vendor from whom they were purchased. Further, Natural James Supper Club must possess a contract between it and the vendor; however, no such contract was presented to Captain Roberts or any of the other agents. DABT seized the alcoholic beverages and took pictures of them. DABT seized 191 bottles of wine, 118 containers of spirits, and 959 containers of beer (cans and bottles).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco enter a final order: Finding Uter Investment Corp., d/b/a Natural James Supper Club Catering in violation of Section 561.29(1)(a), Florida Statutes (2001), through violating Sections 562.12(1), 562.01, and 565.11, Florida Statutes (2001). Imposing a fine of $2,500 and excise tax upon Uter Investment Corp., d/b/a Natural James Supper Club Catering. Suspending, for a 20-day period, the license of Uter Investment Corp., d/b/a Natural James Supper Club Catering. Imposing a forfeiture of the seized alcoholic beverages. DONE AND ENTERED this 4th day of August 2004, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 4th day of August, 2004.
Findings Of Fact Respondent, Woodland, is made up of property owners in Woodland Lakes subdivision, an area abutting on Woodland Bayou, situated off Pensacola Bay in Santa Rosa County, Florida. Petitioner, Margaret B. Miller, owns property directly across the channel which forms the entrance to Woodland Bayou and which is the proposed location for the bulkhead and riprap forming the subject matter of this dispute. Mrs. Miller and her late husband purchased their property, which is not located in Woodland Lakes subdivision, in 1957. Their lot is located on Pensacola Bay and at the time she and her husband purchased the property, they were looking for an area that had the special characteristics of this lot she now owns. It included big trees, a gentle slope to the Bay, and a view out over Pensacola Bay across a sandy peninsula which extended out into the bay a considerable distance and which they owned. At the time they made their purchase, Woodland Bayou opened into Pensacola Bay at the East End but the opening near Mrs. Miller's property was obstructed by a sandy beach. The extent of channel blocking and obstruction caused by this sandy beach was the subject of a lawsuit between the Millers, the Woodland Lake Property Owners Association, and the State of Florida 1n June, 1972. The substance of that suit was concerned with ownership of the land which extended out from the Miller property into Pensacola Bay over which certain of the parties desired to cut a channel from Woodland Bayou into Pensacola Bay. There was substantial conflict in the testimony at the time as to whether there was a natural channel existing across the Miller property prior to 1957-1958 or not, or, in the alternative, whether the Millers filled in an existing channel thereby blocking reasonable entrance to Woodland Bayou. The answer to that question is irrelevant to the issue in this hearing. However, a judgment of the Circuit Court entered on June 13, 1972, awarded to the Millers title to property which extended out across the currently existing channel dredged subsequent to that time by the Respondent, Woodland, to a point into Pensacola Bay. The decision of the court also awarded to the Trustees of the Internal Improvement Fund a section of property directly west of the northern tip of the Miller property consisting of a strip approximately 40 feet wide and a maximum of76 feet long lying approximately perpendicular to the currently-existing channel and through which it was envisioned the channel would be dredged from the entrance of Woodland Bayou out to Pensacola Bay. By so doing, the canal would have made a left turn coming out of the bayou into Pensacola Bay but the Miller's property, which was not then split by the canal, would be left intact. According to Mr. Hunsley, the dredging completed after the entry of the final judgment in the Quiet Title suit was not done consistent with the dictates of that judgment. Instead, the channel was cut straight out from the bayou across the Miller property, and so it remains to this day. He contends, however, that historically, the channel existed in this very spot and that the Millers as well as other property owners in the area at the time, closed the channel off by dredging and filling at their own expense some time in 1957 and 1958. Regardless of the history regarding the genesis of the channel, however, the fact remains that the channel now exists in a straight line from Woodland Bayou to Pensacola Bay across the Miller property and has so since 1972 when it was dredged subsequent to the lawsuit. The channel, being a tidal channel and subject to sand drift caused by wind and wave action, tends to become clogged with sand on a periodic basis. Because of the increased clogging currently experienced, sometime prior to September 9, 1983, the officers of Woodland circulated a petition to secure the permission of all the neighbors in the subdivision to construct a bulkhead on the Woodland side of the channel across from and up channel from the Miller property. This petition, which at the time did not include riprap, was approved by all property owners in the subdivision except for 2 and was then forwarded to the Gulf Breeze City Council to allow the Council to assess costs in the amount of approximately $600.00 per property owner against the property owners in the event DER approved the permit to construct the bulkhead. Mrs. Miller was not solicited to sign the Petition nor will she be assessed any of the costs of construction of the bulkhead if approved since she is not a property owner in the subdivision in question. The petition was circulated, according to Mr. Kettenring, who has lived in the area for several years, because of the increasing sedimentation. To his knowledge, the channel was last dredged in 1982 and 1983. Prior to that time, during the period 1979-1981, he recalls at least three fish kills in the bayou but none since the dredging was accomplished. The residents of Woodland and the surrounding owners are all on septic tanks. There is no city sewage service to this area and every year there is a change in the clarity of the water in Woodland Bayou in the summer. During warmer weather, as the temperature increases, the water becomes cloudy and full of algae. However, after dredging was accomplished and the channel was opened further both in width and in depth, the water quality improved considerably. Mr. Kettenring has seen patterns of sand drifting from the point into the channel. The area has changed considerably in that the point has scalloped out into the channel blocking it. As a result, the bayou, which is at the mainland source of the channel, is currently somewhat brackish. Access of boat owners to the bayou has become impaired. On September 9, 1983, the application submitted by Woodland was received by DER, and a determination was made that the proposed project lay in Class III waters of the State, the standards for which are outlined in Rule 17-3.121, Florida Administrative Code. Shortly thereafter on September 28, 1983, DER notified Woodland that the application was incomplete in that the application fee had not been submitted, aerial photographs of the area were required, and a consent for the use of State-owned land was necessary. In addition, it was determined that Woodland needed to provide detailed plans for compliance with State water quality standards as well as a hydrographic survey. All requirements were subsequently met except for the survey. The application originally called for an additional 300 foot bulkhead to the east of the area in question here and the hydrographic survey referred to that bulkhead. Subsequent to the filing of the application, however, that bulkhead portion of the project was deleted and when that was done, the need for the hydrographic survey was obviated. Since all other shortcomings in the application had been corrected, the project was then reviewed by Mr. Hambrick who recommended the installation of riprap in front of the remaining bulkhead and grass, and on December 20, 1984, DER published an intent to issue for the project. The project in question is a 150 feet long bulkhead fronted with 35 cubic yards of riprap at the toe. The bulkhead will be located at the entrance channel of Woodland bayou across from Petitioner's property. Mr. Hambrick, who initially reviewed the application for DER and who signed off on it in December, 1984, visited the site in question on at least 2 or 3 occasions in relation to the application and because Mrs. York, Miller's neighbor, also had an application for a bulkhead pending. He looked at the property and determined that the amended application did not call for riprap. However, because the new law requires riprap in front of seawalls, he recommended that the riprap be installed here where there is no grass. In other words, according to Mr. Hambrick, riprap will be placed flush against the bulkhead where no sea grasses exist but will curve out in front of the sea grasses where there is grass at the foot of the bulkhead which will proceed behind the grassed area. The purpose of using riprap is to dissipate wave energy. Riprap will diminish the effect of the wave and its adverse effect on Petitioner's property. Mr. Hambrick is of the opinion that installing the bulkhead and riprap would not cause or increase damage to Petitioner's property and based on the criteria he used in analyzing the project, he feels that it is in the public interest. The factors he used in his consideration of this project include: that an erosion problem exists in the area, that bulkheading and riprapping would reduce the need for dredging, that there is a history of fish kills in the area, that maintaining a channel would help flush out the bayou, and homeowners on the bayou would have access to Pensacola Bay and their interests constituted a part of the public interest. Since the revised application was completed in October, 1984, it therefore had to comply with the criteria outlined in the new water quality bill which are two-fold in general application. These are: that the project will have no adverse effects on water quality of Woodland Bayou but would likely improve it through the increased flushing of the bayou as a result of maintaininq the channel, and that a need for dredging would be reduced since the channel will not shoal in as much. According to Mr. Hambrick, at the present time there is a collapsing and sluffing off of soil along the channel, which has increased since his prior visit in November, 1984. In his analysis of the project, he considered the effects that the project would have on the public interest, water quality, wildlife and fish in the area, and the historical and archeological aspects of the area. In his opinion, riprap would provide a habitat for marine wildlife which is a plus factor and would help to maintain a shallow shore environment. It would help to maintain a stand of marsh grass that is presently in the area and which is being covered with sand coming from the eroding point. In his opinion, there would be no adverse effect on the archaeological aspects of the area nor is there any indication of any adverse effect on the public interest, including Mrs. Miller. He also considers there would be no adverse effect on marine productivity which, in his opinion, would very likely improve as a result of the project. In his opinion, overall the project will maintain and even enhance the public interest considerations in the area and there would be no damage to the marine bottom by the installation of the riprap. Since the bulkhead will be fronted by riprap, it is not considered a vertical seawall which would be prohibited by the statute as it is currently constituted. Mr. Hambrick is quite certain in his opinion that since Mrs. Miller's property is already bulkheaded and riprapped, there would be no further erosion of her property. Consequently, there would be no adverse ecological effect notwithstanding the fact that Mrs. Miller contends that keeping the channel open would be a continuing trespass to her property. She also contends that when she put in her bulkhead, now at water's edge, it was designed as a retaining wall and was located in sand some substantial distance from the water. When the channel was cut across her land, the beach from the channel to the "retaining wall" eroded and when it appeared the wall would be undercut as well, she put in the riprap. All of this would be perpetuated by the construction of Woodland's project which would keep the channel open and keep it naturally closing as she believes it would do if left alone. In short, Mr. Hambrick's analysis of the situation including his personal visits to the site lead him to conclude that the project will not: harm water quality in the area, increase the number of boats using the channel, influence the speed of boats that use the channel, or increase erosion of Petitioner's property. This opinion is supported by that of Dr. Echternacht, a hydrographic engineer who is also convinced that construction of the proposed bulkhead and riprap would not cause any erosion to Petitioner's property. In fact, the riprap in front of the bulkhead will act to absorb wave energy and since it cannot be placed in a vertical manner, it reduces that amount of reflected energy. The bulkhead and riprap as proposed here would reduce the amount of soil infusion into the channel and thereby the amount of dredging needed. The technical aspects of the proposal were also considered by Mr. Fancher, the dredge and fill supervisor for DER in the Northwest District. When he reviewed the application, including Mr. Hambrick's proposal for riprap, he concurred with it. In order to appropriately receive a permit, applicants must show that the application conforms to both water quality and public interest standards. After his review of the entire project, Mr. Fancher concluded that this project would not adversely affect water quality standards and would not adversely affect but in fact might promote public interest considerations. When the Florida Legislature passed its new water quality bill in October, 1983, it prohibited the construction of most vertical seawalls. In Mr. Fancher's opinion, what is proposed here is not a vertical seawall and there is no evidence submitted by Petitioner to refute this. In fact, there was no evidence presented by Petitioner, save her own testimony which does not serve to overcome the expert opinions to the contrary, that the proposed project fails to meet the tests set out under the laws of this State.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that the Respondent, Woodland Lake Property Owners, Inc.'s permit to construct a bulkhead be issued as modified. RECOMMENDED this 11th day of October, 1985, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 Administrative Hearings this 11th day of October, 1985. COPIES FURNISHED: Kenneth G. Oertel, Esq. Oertel and Hoffman 2700 Blair Stone Road Suite C Tallahassee, Florida 32301 J. B. Murphy, Esq. 506 S. Palafox Street Pensacola, Florida 32501 Brad Thomas, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Rd. Tallahassee, Florida 32301
The Issue Whether petitioner should rescind its approval of prospectus amendments contained in amended prospectuses petitioner accepted for filing on June 23, 1988?
Findings Of Fact Respondent (Water Oak) manages a mobile home park in Lake County known as Water Oak Country Club Estates (the park). The previous owner envisioned phased development of an eventual total of 1,479 lots, and so stated in the original or "P" prospectus filed with petitioner's Bureau of Mobile Homes (the Bureau). The "P" prospectus contemplated a 587-lot "Golfside Villas" section when phase II of the park was developed. The "P" prospectus disclosed plans to build a separate recreational complex for Golfside Villas, leaving the main recreational complex for the exclusive use of other park residents. But the "P" prospectus stated: Water Oak Estate Mobile Home Park has a clubhouse, swimming pool, tennis courts and a shuffleboard center, which will be available for use by the park residents. The maximum number of lots that will use these shared facilities at the present time is 1,479, which is the total number of lots within the park. The Golfside Villas Section will use these facilities until November 1, 1987, at which time they will use their own facilities, and will no longer use Water Oak Estate facilities except by invitation from the Water Oak Residents' Association, or the Park Management. After Water Oak, Ltd. acquired the park, respondent or its agent filed an amended prospectus ("P86") with the Bureau. The "P86" prospectus differed from the "P" prospectus only to the extent required by the 1986 amendments to Chapter 723, Florida Statutes (1989), and did not alter disclosures regarding recreational facilities. A third Water Oak prospectus ("P2"), preserved the Golfside Villas concept and the idea of a separate recreational complex. As filed with the Bureau, however, the P2 prospectus stated: The recreational and other common areas discussed above are completed and available for use by the residents. The maximum number of home sites that are presently entitled to use these facilities is 590. FUTURE IMPROVEMENTS-- Water Oak Country Club Estates will build an additional clubhouse, a swimming pool, and a shuffleboard center, which will be for and in the Golfside Villas Section. Management may increase or decrease the size or modify the use of any of the shared facilities to serve the changing needs of the community, as determined by management. Petitioner's Exhibit No. 4, p. 7. In due course, the Bureau approved all three prospectuses, "P", "P86" and "P2", one after another. In approving prospectuses "P86" and "P2", the Bureau implicitly deemed them consistent with earlier approved prospectus(es). Because of considerations not pertinent here, Water Oak decided to abandon the idea of a discrete Golfside Villas section with its own exclusive recreational complex. Instead, it proposed, in developing phase II, to build the recreational complex contemplated in prospectuses "P", "P86" and "P2" (the original prospectuses) but to make both the phase II recreational complex and the original complex available to all residents of the park. Accordingly, Water Oak proposed amendments to the original prospectuses outlining its revised plans, and on April 16, 1988, filed them with the Bureau. Water Oak's cover letter explained: More specifically, a new clubhouse, heated swimming pool and shuffle board center open to all park residents will soon be available for use and so information concerning those facilities has been moved from the "Future Improvements" sections of these documents to the "Recreational and Other Common Areas" section. The proposed amendments are designed to make the "RECREATIONAL AND COMMON FACILITIES" section of all these prospectuses identical, and thus the existing versions of that section are deleted in their entirety in each prospectus and the new language substituted. . . . One other point is relevant to your consideration in this matter. The original owner of Water Oak Country Club Estates intended to designate a section of the park as the "Golfside Villas." However, no such section was ever developed ant the current owner has decided not to develop that section as such. Therefore, the Golfside Villas section of the park will not be created. Thus, all references to the Golfside Villas are now proposed to be deleted from all of the prospectuses in use in the park. No homeowner has leased a lot in an area designated as "the Golfside Villas," nor has any resident received any lease or other notification stating that his lot is in an area known as the Golfside Villas. Petitioner's Exhibit No. 3 (Emphasis in original.) Bureau personnel reviewed the amendments and approved the applications. Respondent's Exhibits Nos. 4 and After the approval, Water Oak gave prospective lessees amended P2 prospectuses, and entered into 60 or more leases with new residents to whom they had furnished amended prospectuses. Petitioner's Exhibit No. 7, a printed map of the park that is not part of any prospectus, labels a shaded portion in the northeast as "GOLFSIDE VILLAS AREA." Margerie Monski received a copy of the map on August 4, 1987, (T.411) before she and her husband leased a lot depicted on the unshaded portion of the map, in phase I. Respondent leased lot No. 2472 to Mr. and Mrs. Edward Reposa on April 4, 1988. T. 445; Petitioner's Exhibit No. 11. When respondent filed proposed prospectus amendments two days later, it had leased no other lot within the shaded area on Petitioner's Exhibit No. 7. Respondent leased lot No. 2510 to Mr. and Mrs. Alador Kurucz on April 20, 1988, and lot No. 2519 to Mr. and Mrs. Lloyd W. Wunder on June 8, 1988. Petitioner's Exhibits Nos. 12 and 13. Lots Nos. 2472, 2510 and 2519 all lie within the part of the park represented by the shaded area on Petitioner's Exhibit No. 7. But, as far as the evidence showed, none of the three lots' lessees has ever seen Petitioner's Exhibit No. 7 or any other map of the park on which Golfside Villas was depicted as a discrete section. No prospectus ever indicated that lots had been or were being leased in Golfside Villas. Unbeknownst to Water Oak, Mel Bishop Enterprises, Inc., the predecessor in interest who initially continued as park manager for Water Oak, filed a map similar to Petitioner's Exhibit No. 7 with the Bureau on October 27, 1987 (a prerequisite to its lawful use as advertising.) Petitioner's Exhibit No. 6. Lots depicted in the shaded area number far fewer than the 587 mentioned in the original prospectuses. The three original prospectuses, "P", "P86" and "P2", contain maps of phase I only. Front, back, left side and right side lot dimensions are listed for phase I, lot by lot. With respect to Golfside Villa lot dimensions, only the following appears: Front Left Side 1-587 - - - - 56 90 Petitioner's Exhibit No. 4. On April 6, 1988, respondent's principals were under the impression that no specific area within the park had ever been officially designated as Golfside Villas. Nothing in any of the materials they reviewed when respondent acquired the park located Golfside Villas at a particular spot on the land reserved for development in phase II. Testifying at hearing, petitioner's personnel conceded that respondent had no intention to mislead the Bureau with regard to any fact material to approval or acceptance of respondent's prospectus amendments. Nor did the evidence show that the fact that the respondent leased three lots depicted within the shaded area on Petitioner's Exhibit No. 7 would have been material in the Bureau's original decision to approve respondent's prospectus amendments.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss its notice and order of rejection. DONE AND ENTERED this 21st day of November, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II 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 November, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 7, 8, 9, 11, 12, 13, 14, 16, 17, 18, 26, 30, 31, 32, 35, 37, 38, 41, 45 and 49 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 6, the pertinent part of the letter is quoted. Petitioner's proposed findings of fact Nos. 10, 15, 28, 33, 34, 39, 40, 42 and 50 pertain to immaterial matters. With respect to petitioner's proposed finding of fact No. 19, 24, 27, 43 and 44, no prospectus located a "Golfside Villas section of the park" at any specific place. Petitioner's proposed findings of fact Nos. 20, 21, 22, 23, 25 and 47 pertain to subordinate matters. With respect to petitioner's proposed finding of fact No. 29, Mr. Stoppa made the allegation, but no prospectus located a "Golfside Villas section of the park" at any specific place. With respect to petitioner's proposed finding of fact No. 36, only two such leases were proven. With respect to petitioner's proposed finding of fact No. 46, see paragraph 10 of the findings of fact. With respect to petitioner's proposed finding of fact No. 48, it was not clear from the evidence what the basis was. Respondent's proposed findings of fact Nos. 1, 2, 3, 5, 6, 7, 8, 9, 11, 12, 21 22, 24, 28, 29, 30, 31, 34, 35, 37, 38, 42, 43, 44 and 45 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 4, the number was 587. Respondent's proposed findings of fact Nos. 10, 25 and 39 pertain to immaterial matters. Respondent's proposed findings of fact Nos. 13, 14, 15, 16, 17, 18, 19, 20, 26, 27, 32, 33, 36 and 41 pertain to subordinate matters. With respect to respondent's proposed finding of fact No. 23, it is not clear what petitioner's policy was at any given time. With respect to respondent's proposed finding of fact No. 40, petitioner failed to prove its materiality. Copies furnished: Debra Roberts, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32301 Daniel C. Brown, Esquire Katz, Kutter, Haigler, Alderman Davis, Marks & Rutledge, P.A. 215 South Monroe Street First Florida Bank Bldg., Suite 400 Tallahassee, FL 32301 E. James Kearney, Director Department of Business Regulation Florida Land Sales, Condominiums, and Mobile Homes 725 South Bronough Street Tallahassee, FL 32399-1000 General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000
The Issue Whether the Comprehensive Plan Amendment to the Village of Wellington Comprehensive Plan, adopted by Ordinance No. 2001-11, is "in compliance" as defined in and required by the "Local Government Planning and Land Development Regulation Act," Chapter 163, Part II, Florida Statutes, and whether the Plan Amendment is supported by adequate data and analysis as required by Chapter 163, Part II, Florida Statutes, and Rule 9J-5, Florida Administrative Code.
Findings Of Fact The Parties Palm Beach Polo Holdings, Inc. Polo is a Florida corporation and the owner of real property within the Wellington Country Place Planned Unit Development (PUD), which is located within the Equestrian Preserve of the Village of Wellington, Florida. Polo is a developer of the Wellington Country Place PUD, significant portions of which remain undeveloped. Specifically, the Wellington Country Place PUD is about 30 to 35 percent built-out. Among Polo's real estate holdings in the Village of Wellington is a 17.9-acre parcel of undeveloped, commercially designated land, which is located on South Shore Boulevard at or near the intersection with Green Shores Boulevard. Glen F. Straub and Michael H. Nelson appeared at the final hearing as the corporate representatives of Polo. Mr. Nelson lives in Wellington and is employed by Effective Solutions, Inc., which provides a number of services to Polo, including management services, land use services, and lobbying services. In his lobbying capacity, Mr. Nelson has on numerous occasions advocated Polo's position before the Village. Mr. Nelson and Mr. Straub spoke in opposition to the Amendment at the October 23, 2001, meeting of the Wellington Village Council. Mr. Nelson testified at the October 23, 2001, meeting, in support of the four-laning of the two roadway segments which will remain two-lane roads under the Amendment. Mr. Nelson's objections were made in his capacity as a resident of Wellington and "as an effected [sic] resident from Basin A." The minutes of the October 23, 2001, Wellington Village Council meeting, which were introduced into evidence by Polo to establish its standing, state that "Mr. Straub stated that he was concerned with limiting traffic on South Shore Boulevard. He felt that the Council should consider 4- laning that road." Mr. Nelson also stated: ". . . the Council needed to consider ways to help circulate traffic for residents of Basin A. He felt that there would be a need in the future to 4-lane South Shore and Lake Worth Road." Polo's Amended Petition alleges that "[r]ather than improving these road segments by four laning them - the road segments are currently two lane - the Village through the current amendment seeks to lower the LOS to E and add more trips." Mr. Straub testified that a four-lane road might be an alternative. In part, he was concerned that the Village Council did not examine the effect of "build-out" in the area and the impact on traffic and resulting "gridlock" in the area. Mr. Straub views the Amendment (which he says is inconsistent with the Plan) as a "Band-Aid" to fix an ongoing traffic problem. Mr. Straub believes the traffic analysis supplied to the Village Council was performed hastily, incomplete, and inadequate. The Village of Wellington. The Village is a municipality of the State of Florida, with the duty and responsibility under Chapter 163, Part II, Florida Statutes, to adopt a comprehensive plan and comprehensive plan amendments. The Village is located in the western portion of Palm Beach County and became incorporated in 1995 and operational on March 28, 1996, with the seating of the first Village Council. Following incorporation, the Village adopted its first Comprehensive Plan in 1999. Department of Community Affairs. The Department is the state land planning agency and has the authority to administer and enforce the Local Government Planning and Land Development Regulation Act (Act), Chapter 163, Part II, Florida Statutes. Among the responsibilities of the Department under the Act is the duty to review plan amendments and determine if the comprehensive plans and plan amendments are in compliance with the Act. Village Review and Adoption of the Amendment The Village Equestrian Preserve Committee was created to review all decisions affecting the Equestrian Preserve prior to the full review by the Village Council. On April 11 and 26, 2001, the Village Equestrian Preserve Committee considered several options for the designated roadways, including the proposed Amendment. On May 9, 2001, the Village Equestrian Preserve Committee voted to recommend approval of the Amendment. On June 7, 2001, the Village Planning, Zoning, and Adjustment Board, sitting as the Local Planning Agency, recommended approval of the Amendment. The Village planning staff recommended approval of the Amendment. On October 23, 2001, the Village adopted the Amendment by Ordinance No. 2001-11. Department Review of the Amendment The Village submitted the adopted Ordinance No. 2001- 11, the Staff Report, and other supporting documents to the Department for review on October 31, 2001. After a review of the adopted Amendment, on December 13, 2001, the Department sent a letter to the Village, informing the Village that the Amendment was "in compliance" as that term is defined in Subsection 163.3184(1)(b), Florida Statutes. The Department issued its Notice of Intent to find the Amendment "in compliance" pursuant to Sections 163.3184 and 163.3189, Florida Statutes. This notice was published in the Palm Beach Post on December 17, 2001. The Existing Village Comprehensive Plan The Village's Comprehensive Plan was adopted in 1999, by Ordinance No. 99-01. Subsequently, the existing Comprehensive Plan was reviewed by the Department and found to be "in compliance" with the Act. The Transportation Element of the existing Village Plan contains the following Goal, Objective, and Policy: Goal 1.0 Provide a transportation system that meets the needs of the Village of Wellington and the larger community of which the Village is a part while maintaining a high quality of life for Village residents and businesses. Objective 1.1 Motorized and non-motorized transportation system: Achieve a safe, convenient, and efficient motorized and non-motorized transportation system consisting of arterial, collector and local street and roads; pedestrian ways; bicycle ways and equestrian trails which provide: acceptable levels of service; 2) alternative routes of travel for major traffic flows; and 3) minimal vehicular intrusion into residential neighborhoods. This objective shall be made measurable by implementing policies. [9J-5.007(3)(b)(1)] Policy 1.1.1. provides, in part, LOS standards for streets and roads in the Village. All Village arterial and collector streets and all Village local streets and roads have a Level of Service (LOS) D and all Village rural collector streets have a LOS E. By definition in the Plan, "Rural Collector" and "Rural Local Roads and Streets" shall be designed to maximize safety and minimize traffic speeds in the Equestrian Preserve Area. They shall be no more than two lanes, except for turn lanes, in the case of "Rural Collector" roads. The Transportation Element includes the "Future Transportation Map." This map's legend identifies the various types of roadways within the Village, which are graphically depicted on the map. Some of the roadways have different classifications for discrete roadway segments. The Plan includes an optional section entitled "Equestrian Preservation Element," which is designed to preserve the Village's equestrian community. The data and analysis for this Plan Element provides: (1) a history, overview, and assessment of the Village's equestrian industry; (2) an assessment of the potential threats and opportunities affecting that industry; and (3) actions which may be taken to further the preservation and integration of the equestrian industry and rural lifestyle into the fabric of the growing community. The Equestrian Preservation Element supplements other provisions of the Plan which relate to the Equestrian Preserve area. It is not the sole portion of the Plan which applies to that area. The Equestrian Preservation Element was placed in the Plan to protect the unique character of the Equestrian Preserve area. It identifies the equestrian uses that are found there and seeks to preserve the rural lifestyle that is found in the equestrian area. The Equestrian Preservation Element includes data and analysis, Goals, Objectives, and Policies (GOPs), and a Future Equestrian Circulation Map, which includes roads and equestrian trails. Unlike this map and the GOPs, the data and analysis are not adopted portions of the Plan. The Equestrian Preservation Element of the existing Plan contains the following Goal, Objective, and Policies: Goal 1.0 The goal of this element is to ensure the preservation and protection of the neighborhoods which comprise this area, the equestrian industry and the rural lifestyles which exist in the Equestrian Preserve. Objective 1.3 The Village shall control traffic volume, speed and type within the Equestrian Preserve to limit the negative impacts of high volume, high speed and through traffic on the Equestrian Preserve. This objective shall be made measurable by its implementing policies and by limiting vehicular speed on rural roads, installation of signage, road design features, implementation of capital improvement projects and other actions of the Village Council. Policy 1.3.1 Within one year of the effective date of this plan, the Village will develop a traffic-calming plan for all roadways in the Equestrian Preserve. This plan shall: Minimize traffic through the area by considering alternative routes around the area; Provide for safe equestrian crossings at all identified points of vehicular and equestrian conflict. Particular attention shall be paid to the intersection of South Shore and Pierson Road and Lake Worth Road and South Shore Boulevard and generally along Pierson Road; Provide for a reduction in speed through the installation of traffic circles, speed humps, four-way stop signs or other traffic calming measures as deemed appropriate by the Village Engineer. Policy 1.3.3 Roadways within the Equestrian Preserve shall be maintained as two-lane facilities. Adopted levels of service for these roadways shall be Level of Service E. As noted, the Equestrian Preservation Element gives special planning treatment to the Village's equestrian preserve area to protect its equestrian nature and rural lifestyle. The Element protects the Equestrian Preserve by controlling the impacts of traffic. It treats traffic and roadways inside the Equestrian Preserve differently from that outside the Preserve. It seeks to limit through-traffic in the Equestrian Preserve by reducing speeds and level of service, and requiring traffic signage and calming measures in the Preserve. The Element also establishes an Equestrian Committee to review and make recommendations regarding development proposals in the Preserve. The Amendment On October 23, 2001, the Village Council adopted Ordinance No. 2001-11, which approves certain amendments to the Plan. The Ordinance adopted various changes to the Transportation and Capital Improvements Elements related to the creation and implementation of a new roadway classification, "Rural Arterial." The Transportation Element Policy 1.1.1 establishes LOS standards for roadways depicted on the Future Transportation Map, identifies corresponding criteria for each roadway, and defines roadway classifications and qualifying criteria. Prior to the Amendment, "[a]ll Village arterial and collector streets" and "[a]ll Village rural collector streets," had an LOS of D and E, respectively. (The Future Transportation Map shows the types of roadways and the segment classifications for each of the various roadways within the Village.) The Amendment amends the Transportation Element Policy 1.1.1 of the Plan to create the new Village roadway classification of "Rural Arterial" and to adopt an LOS standard of "E" for all Village Rural Arterial roads and describes these roads as follows: These roads shall be designed to maximize safety and minimize traffic speeds in the Equestrian Preserve Area. They shall be no more than two lanes, except for turn lanes. Rural Arterial Roads shall be paved and shall be designed and marked in a manner to limit vehicular speeds. Transportation Element Policy 1.5.2 is amended and adopts right-of-way widths for roadways based on their classification in Policy 1.1.1. Under Policy 1.5.2, all public roads, except local streets, must have right-of-way widths of 120 feet. The Amendment provides a right-of-way width of 120 feet for Rural Arterial roads "to allow comfortable separation between vehicles and horses." The Amendment also amends the Transportation Element to designate two roadway segments within the Village as Rural Arterial on the Future Transportation Map. These re- designated roadway segments are South Shore Boulevard from Pierson Road to Lake Worth Road, and Lake Worth Road from 120th Street West to South Shore Boulevard (the roadway segments). The roadway segments are located in the Wellington Country Place PUD and the Equestrian Preserve. The Capital Improvements Element (CIE) Policy 1.2.1 mirrors Transportation Policy 1.1.1 to a large extent by reiterating the same LOS standards. CIE Policy 1.2.1 identifies criteria for various roadways, as does Transportation Policy 1.1.1. With respect to arterial and collector streets, pre-Amendment CIE Policy 1.2.1 described the qualifying criteria as "[u]ntil such time and at such locations as signalized intersections exceed 2.49 per mile." The Amendment deletes this description. CIE Policy 1.2.1 also was amended to delete the description of Village Rural Arterial roads as having "2.49 or fewer intersections per mile." Under the Amendment, this Policy refers to all Village Rural Arterial roads as having an LOS standard of E with no mention of signalization or intersections or other qualifying criteria. The Amendment also amends the CIE to include funding for the improvement of the two re-designated roadway segments in the five-year capital improvements schedule in the CIE. The two roadway segments are to be reconstructed as two-lane roadways with a median and turn lanes. The term "rural" in the context of the Village's roadway classifications refers to a roadway lying within the Equestrian Preserve. It is not used to describe the nature of the roadway's surroundings. See endnote 2. Polo's Amended Petition Polo alleges that the Amendment is not "in compliance" because it is internally inconsistent with Transportation Element Goal 1.0 and Objective 1.1, and Equestrian Element Objective 1.3 of the Village Comprehensive Plan. Polo also alleges that the Amendment is inconsistent with the Wellington Country Place Planned Unit Development (Wellington PUD), which is, according to Polo, incorporated into the Village Comprehensive Plan and contemplates that the two road segments in question will be four-laned. Further, Polo alleges that the Amendment is not supported by adequate data and analysis as required by Section 163.3177(6),(8), and (10), Florida Statutes, and Rule 9J-5.005(2), Florida Administrative Code. In the Joint Prehearing Stipulation, Polo clarified and stated with particularity that its claim of inadequate date and analysis relates to three deficiencies in the Pinder- Troutman traffic analysis relied upon by the Village. Specifically, Polo contended that the Pinder-Troutman traffic analysis is deficient because it (1) used only a one-day traffic count as opposed to three days; (2) failed to properly account for future growth; and (3) did not include a safety analysis. See Findings of Fact 60-74. The Affected Roadways The two roadway segments directly affected by the Amendment are (1) South Shore Boulevard from Pierson Road to Lake Worth Road; and (2) Lake Worth Road from 120th Street to South Shore Boulevard. The two roadway segments are located in the Equestrian Preserve of the Village. Currently, the two roadway segments are two-lane undivided roads. They are designated on the Future Transportation Map of the existing Village Comprehensive Plan as two-lane collector roads with an LOS D. Internal Consistency Polo contends that the Amendment is inconsistent with the following Plan provisions: (1) Transportation Element Goal 1.0; (2) Transportation Element Objective 1.1; and (3) Equestrian Preserve Element Objective 1.3. The existing Village Comprehensive Plan was adopted in 1999, and subsequently reviewed and determined to be "in compliance" by the Department. The Department’s final determination of compliance included a determination that the provisions of the Village's original Comprehensive Plan were internally consistent and supported by adequate date and analysis. In determining the internal consistency of the Amendment with existing provisions of the Comprehensive Plan, each Comprehensive Plan Goal and its umbrella Objectives and Policies must be read and considered together. It is not appropriate to read and interpret an individual Policy in isolation. Maintaining the high quality of the equestrian lifestyle for the Equestrian Preserve Area is a major goal for the Village. Transportation Policy 1.1.19 recognizes the unique character of the Equestrian Preserve Area, and the need to preserve it, by requiring the Village to "implement its system of streets and roads in coordination with the system of equestrian trials and other equestrian facilities set forth in the Goals, Objectives and Policies of the Equestrian Element." Limiting the speed for through-traffic and discouraging cut-through traffic is consistent with Goal 1.0 and Objective 1.1 of the Transportation Element. The Amendment accomplishes this by limiting the Rural Arterial roads to two lanes, and adding medians and turn lanes to those roadways. Such traffic limitations are required by the Equestrian Preservation Element. In that Element's data and analysis section, it is stated that the Village will adopt an LOS of E for roads within the Equestrian Preserve Area in order to protect that area from increasing speeds by widening the rural collector roads to four lanes. Policy 1.3.3 of the Equestrian Preservation Element addresses this concern and provides that roadways within the Equestrian Preserve shall be maintained as two-lane facilities with adopted LOS E. This Policy was found to be internally consistent with Transportation Goal 1.0 and Objective 1.1 and Equestrian Preservation Element Objective 1.3 when the existing Village Plan was found to be "in compliance." Policy 1.3.1 of the Equestrian Preservation Element does not distinguish between classifications of roadways. The Village interprets Policy 1.3.3 to apply to all classes of roadways within the Equestrian Preserve regardless of classifications. The Village's planning expert, Mr. Schofield, testified that, in his opinion, this interpretation is reasonable. Mr. Basehart, Polo's planning expert, testified that Policy 1.3.3 of the Equestrian Preservation Element was intended to address only local roads and collectors because the original Plan did not provide for rural arterials, and that the Village had always intended that the two roadway segments be four-laned. However, the Transportation Element's Future Transportation Map of the existing Village Plan depicts the two roadway segments as two-lane facilities consistent with Policy 1.3.3 of the Equestrian Element. Adopting an LOS standard of E for the newly created Rural Arterial roads and limiting those roadways to two lanes is consistent with Transportation Element Goal 1.0 and Objective 1.0. By continuing to require Equestrian Policy 1.3.3's two-lane requirement and LOS of E for future roads within the Equestrian Preserve Area, the Amendment is consistent with that Policy. Data and Analysis: The Pinder-Troutman Traffic Analysis As noted herein, Polo raised three issues related to the Amendment's data and analysis. Each of those issues relates to the sufficiency of a report prepared by traffic consultants and relied on by the Village as data and analysis to support the Amendment. The March 2001 report is referred to herein as the "Pinder-Troutman Report." The validity of the data, as collected, is not in dispute. Polo's traffic engineer, Mr. Rennebaum, accepted the accuracy of the count data in reaching his conclusions. Prior to the adoption of the Amendment, the Village was experiencing traffic capacity problems with the two roadway segments. The Village asked Pinder-Troutman whether the traffic volume and growth in the area justified a Plan change. To address the problems, in January 2001, the Village retained Pinder-Troutman Consulting, Inc. (Pinder-Troutman) to do a traffic analysis of the two roadway segments and to make recommendations for solving the problem. Pinder-Troutman performed the analysis and submitted an initial report on February 6, 2001, and a final report on March 1, 2001, i.e., the Pinder-Troutman Report. In the February 6, 2001, report, Ms. Troutman, the author of this report, noted that the roadways for the Equestrian area are limited to two lanes with a LOS of E and that in accordance with the Village's adopted Transportation Element, this roadway cross section and LOS correlate to an adopted peak hour directional service volume of 900. (This service volume was derived from the Florida Department of Transportation (FDOT) 1995 LOS Manual, Table 5-1, for Urbanized Area arterials.) Directional volumes were derived from count data and annual average conditions examined. Because of the limited count data available for the roadway links in question, peak season factors and historic growth rates were developed, based on available count data for area roadways. An historic growth rate of 4.73 percent was applied. One conclusion reached was that the adopted two-lane LOS E service volume of 900 was projected to be exceeded in one year for Lake Worth Road. In the February 6, 2001, report, Pinder-Troutman concluded that "in order to ensure operation at adopted LOS D standards, in the near future the inclusion of a four-lane cross-section in the equestrian area is recommended." The February report discussed one option for creating additional capacity on the roadway segments. Thereafter, the Village requested Pinder-Troutman to consider, in part, whether the Plan’s classification of the road segments was appropriate. The February and later March studies followed the same methodology, examining growth and the traffic along the corridor. (The February study was attached to the March study.) The March 1, 2001, Pinder-Troutman Report considered various alternatives for improving service volumes to the South Shore Boulevard and Lake Worth Road segments. Turn lanes and medians were specifically evaluated, both of which are design features which increase safety. Traffic data was collected along the corridor, and morning and afternoon intersection turning movement counts were conducted at four locations. Twenty-four hour count data collected by the Village and Palm Beach County were also utilized. The FDOT 1998 LOS Handbook was also utilized to examine the potential for creating additional capacity with the construction of auxiliary turn lanes. A two-tier analysis was performed which included consideration of the appropriateness of utilizing "the category" for "unsignalized uninterrupted flow" for the roadway segments. Based upon observations of the roadway segments, Ms. Troutman testified that there was a minimal amount of traffic entering and exiting the driveways on the roadway segments and that the fixed traffic signals only existed at the ends of the roadway segments. In her judgment, this meant that the flow of traffic was uninterrupted, notwithstanding the placement of a flashing signal at the intersection of South Shore Boulevard and Lake Worth Road (which Ms. Troutman treated as "a fully functional signal"), which is a mile from the traffic signal at the intersection of South Shore Boulevard and Pierson Road, and a traffic signal (flashing yellow signal) at the fire station, which flashes only during emergencies, and is not considered "as a fully-operational signal." See Findings of Fact 70-74. Based on its traffic study and analysis, Pinder- Troutman concluded that LOS D could be maintained on the two roadway segments for at least five years without widening to four lanes1 if the new roadway category of "Rural Arterial" and service volumes for these segments are adopted and a median with turn lanes is provided.2 In the Joint Prehearing Stipulation, Polo alleged that there are three specific deficiencies in the Pinder- Troutman Report’s data and analysis. Specifically, Polo alleged that the Report was inadequate because it: (1) utilized one day of data instead of three; (2) did not properly account for future growth; and (3) did not include a safety analysis. Regarding the traffic counts, using a one-day traffic count does not invalidate the traffic analysis. For traffic studies like the Pinder-Troutman Report, a one-day traffic count is the standard procedure approved by Palm Beach County and the FDOT. The FDOT requires three days of counts only when variables or characteristics of a roadway are being changed, and no variables are being changed in the Pinder- Troutman report. Polo's expert, Mr. Rennebaum, stated that the Pinder-Troutman Report did not change any variables. Further, Mr. Rennebaum testified that he also typically uses a one-day traffic count, and that a one-day traffic count is professionally acceptable. Mr. Rennebaum did not collect any new data on or perform an independent analysis of the roadway segments. However, although Mr. Rennebaum accepted the count data as accurate, he was critical of the use of a one-day count versus a three-day count because, according to Mr. Rennebaum, FDOT "typically requires three day counts." Pinder-Troutman took traffic counts in the middle of the week at peak hours. It is professionally accepted standard practice to conduct traffic studies during the middle of the week rather than on weekends. Pinder-Troutman used the best available data in its traffic analysis. In its traffic analysis, Pinder-Troutman used a future annual growth rate of 4.73 percent. This rate was based on the historical growth rate of the areas adjacent to the South Shore Boulevard and Lake Worth Road segments. This rate was conservative because there has actually been negative growth in the area. The growth rate Ms. Troutman used was professionally acceptable. The historic growth rate was based on information provided by Palm Beach County. There was no historic data available for the two roadway segments. Only recently have Palm Beach County and the Village begun to collect data for the two roadway segments in dispute. The growth rate took into consideration future development that had been approved by development orders, including the Village of Wellington Mall and the Mento property. As the growth rate utilized in the study already projected future growth and it did not appear that those developments would add to those anticipated impacts, the Mall and Mento developments were not specifically added to the projected 4.73 percent growth rate. The methodology used in developing the historic growth rate is professionally acceptable. Polo did not offer persuasive evidence that the growth rate used in the Pinder-Troutman Report was inaccurate or inadequate. Polo's traffic expert, Mr. Rennebaum, had not conducted a growth rate analysis to determine if Pinder- Troutman's growth rate was correct, and had not formed an opinion on the growth rate. Regarding safety issues, the Pinder-Troutman Report did not expressly discuss safety because the report was a capacity analysis. Experts for both the Village and Polo testified that safety is primarily a design feature, more appropriately considered and addressed at the design stage of a roadway. However, the Pinder-Troutman Report does include safety as a consideration; it considered and evaluated turn lanes and medians, in conjunction with two-lane roads, which are safety features. Mr. Rennebaum agreed that turn lanes and medians are relevant safety considerations. Although Polo did not identify it as an issue in the Joint Prehearing Stipulation, Mr. Rennebaum opined that the un-signalized uninterrupted flow analysis used by Pinder- Troutman for the two road segments was inappropriate. The issue is at least the subject of fair debate. According to Mr. Rennebaum, Pinder-Troutman inappropriately treated the two road segments as a freeway because the uninterrupted flow analysis only applies to freeways and un-signalized sections of rural highways and because the roadway segments are not un-signalized segments. However, Ms. Troutman testified that the FDOT manual provides that both arterials and freeways may be analyzed under the un- signalized uninterrupted flow category. Pinder-Troutman treated the two roadway segments as an arterial for purposes of the uninterrupted flow analysis which is provided for in the FDOT manual. See Finding of Fact 58. The rural arterial classification of the two roadway segments is appropriate. The term "rural" is used to indicate that the roads are located in the Equestrian Preserve which is the "rural" area of the Village. The arterial classification is appropriate because the two roadways currently function as arterials and will continue to do so after implementation of the Amendment. See endnote 2. The weight of the evidence indicated that the two roadway segments currently function as arterials and will continue to operate as arterials if the Amendment is implemented. As noted by Ms. Troutman: "The change in classification does not change how the roadway operates. It's already operating as an arterial today. It's already operating at an uninterrupted. All we're doing is changing the classification to make it consistent with how it operates. It will not change how the road operates." It is professionally acceptable to use the uninterrupted flow analysis on the two roadway segments. Litigation Costs and Attorney's Fees Should Not Be Assessed Against Polo Polo raised a reasonable dispute regarding the traffic analyses prepared by Pinder-Troutman. For the most part, experts supported Polo's positions, but their testimony and other evidence were not sufficient to overcome the statutory burden. Polo did not prove that the Amendment is not "in compliance." Nevertheless, on this record, it can not be concluded that Polo participated in this proceeding for an improper purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Amendment adopted by the Village of Wellington in Ordinance No. 2001-011 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rules promulgated thereunder, and further, that the Department not award attorney's fees and costs against Polo. DONE AND ENTERED this 29th day of October, 2002, in Tallahassee, Leon County, Florida. ___________________________________ CHARLES A. STAMPELOS 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 29th day of October, 2002.
The Issue Whether Respondent's beverage license should be suspended or revoked, or a civil penalty assessed, for alleged violations of Sections 562.13(3)(a)(1), and 561.20(7)(a)(3), 562.23, Florida Statutes and Rule 7A-3.19(2), Florida Administrative Code, pursuant to Section 561.29, Florida Statutes, as set forth in Notice to Show Cause issued by Petitioner.
Findings Of Fact The Florida Voluntary Roadside Improvement Association (Association) was incorporated in 1951 as a nonprofit corporation under the laws of the State of Florida by the Circuit Court of Leon County. The general objects of the Association as set forth in its certificate of incorporation are to develop and carry out a program of voluntary mutual cooperation among businesses occupying lands adjoining highways of Florida, highway users, and others concerning highway utilization. Petitioner has issued beverage licenses to the Association in several business names since 1969 at several locations in Tallahassee. In November, 1974, a Series 11-C beverage license (club license) was issued to the Association in the name of 1221 Club located at 1221 Alabama Street, Tallahassee, Florida. The license was in effect at the time of the alleged violations set forth in Petitioner's Notice to Show Cause and is presently held by the licensee. (Petitioner's Exhibits 1, 2, Testimony of Schoenfeld) The Association has rented space in a building owned by Willie Bennett at 1221 Alabama Street for several years. When he first purchased the building some seven years ago, it was rented to Alberta Walker who was then operating a place of business known as the Psychedelic Shack under a beverage license issued by Petitioner. In October, 1974, on a plea of nolo contendere, she was sentenced to eight months in the Leon County Jail by the County Court of Leon County for a violation of the State Beverage Law and another offense. Her beverage license was cancelled in May, 1974. City utilities for 1221 Alabama Street have been supplied under a contract with Walker in the name of Psychedelic Shack since 1970. (Petitioner's Exhibits 6, 10, 12, Testimony of Bennett, Schoenfeld, Connell, Walker) On June 3, 1977, Petitioner's beverage officer, Gary E. Sams, took a paid informant, Nathan Jones, to the vicinity of the 1221 Club and instructed him to enter the premises and attempt to become a member of the club and purchase alcoholic beverages there. Some 20 minutes later, Jones came out of the club and had a membership card. On several later occasions during the month of July, 1977, Jones purchased beer and vodka at the club from Walker who was tending the bar. Although Jones relied on a recent memorandum prepared by Sams to recall the precise dates of the beverage sales by Walker, his testimony concerning the incidents is deemed credible. (Testimony of Sams, Jones, Simmons, Respondent's Exhibit 1) On July 14, 1977, Sams observed Walker go to the door of the club, insert a key and enter the premises. On July 18, he observed Walker take a key from her purse, give it to Theodore Simmons, who thereafter unlocked the door. On July 19, Sams served a subpoena duces tecum upon Walker at the club premises for cancelled checks and bank statements of her personal checking account during the period January through June, 1977. She expressed no objection to turning over the required documents and did so that day. Theodore Simmons, the president of the Association, voluntarily turned over checks from the Association banking account in the Second National Bank of Tallahassee, which were variously dated in May and June of 1977. Upon comparison of the two sets of checks, a handwriting expert employed by the Florida Department of Criminal Law Enforcement found that Walker had written many of the words and figures appearing on the face of the checks, but had not signed them. (Petitioner's Exhibits 7-9, Testimony of Sams, Deposition of McCarthy (Petitioner's Exhibit 13) The bylaws of the Association provide that the membership committee inquires into the eligibility of applicants and submits findings to the board of directors who then vote on membership. The bylaws further provide that the treasurer of the organization shall have charge of the funds and deposit all monies in Association bank accounts, make disbursements, and maintain the books. In fact, two former treasurers of the Association resigned from their duties because they were given no functions to perform and never saw any books of the Association or handled any of its monies. Both individuals had become members of the Association by paying a $1.00 membership and were unaware as to whether any vote had ever been taken on their membership. Although at one time, the Association contemplated creating recreational facilities across the street from its premises, all that was accomplished was a clearing of land. Several times, the membership was solicited for funds to assist families of deceased members. The primary function of the club was social in nature. (Petitioner's Exhibit 3, Testimony of Dixie, Allen) Both Theodore Simmons and Alberta Walker testified at the hearing. Simmons was president of the Association from 1975 until a few months ago. Walker has been a member since May of 1975. During the period that Simmons was president, the Association had officers but not a board of directors. The club did not have a paid manager or employee. The practice was for Simmons to make sales of beverages and snacks during the hours of operation, and sign checks prepared by Walker for payment of rent, supplies and other Association expenses. Although Walker was not a paid employee, she possessed keys to the establishment, kept the books, handled the monies and made the periodic deposits in the club bank accounts. Simmons was aware that Walker had been convicted of a beverage violation and testified that "I didn't start the club until she came out of jail." Although Simmons wasn't paid for his work at the club, if he needed money, he would routinely take some from the club receipts. Walker testified that Simmons was her "boy friend" for five years and that she spent a lot of time at the 1221 Club to be with him and because she was unemployed. She testified that she kept the books of the Association because Beverage Officer Sams had said in 1975 that it was all right to "work there" due to the fact that her criminal conviction had been for a misdemeanor; but that he told her in August, 1977, that a 1976 state law prohibited her working as a bartender, although she could continue to keep the books. At the hearing, Sams conceded that he had informed Walker that she could continue to maintain the books of the Association. Walker claimed that the reason the utilities for the premises remained in her name was that it would cost $300 to transfer the account to the 1221 Club. Her claimed reason for making the club bank deposits was that Simmons had no motor vehicle and that the bank was located on the route to her home. She admitted selling alcoholic beverages as a consequence of Sams telling her that she could work at the club. The reason she had a key to the premises was that the one used during her operation of the Psychedelic Shack still opened the lock on the door of the premises. Her reason for filling out checks for Simmons to sign was that he was nervous and a poor speller. (Testimony of Simmons, Walker, Sams)
Recommendation It is recommended that Petitioner impose a civil penalty against Respondent, Florida Voluntary Roadside Improvement Association, in the amount of $100, pursuant to the authority granted under Section 561.29(1)(e) and (4), Florida Statutes, for violation of Rule 7A-3.19(2), Florida Administrative Code. DONE and entered this 21st day of February, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Francis Bayley, Esquire Department of Business Regulation The Johns Building 725 South Bronough Tallahassee, Florida 32304 W. R. Phillips, Esquire Post Office Box 594 Carrabelle, Florida 32322 Charles A. Nuzum, Director Division of Beverage Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304
Findings Of Fact Central Florida Clubs Number 2 was the holder of the State of Florida Alcoholic Beverage License-Number 58-696 for the period October 1, 1976 through September 30, 1977. DABT seeks to assess a civil penalty against Central Florida Clubs Number 2 or to suspend or revoke its beverage license on the grounds that nine (9) violations of Section 847.011, Florida Statutes, occurred on the premises of the Central Florida Clubs Number 2 on May 11, 1977. On that date, dance routines involving topless female dancers touching male customers in a sexually suggestive manner occurred on the premises. No evidence was introduced purporting to establish that any of the dancers were agents or employees of Central Florida Clubs Number 2. Accordingly, it is found as a matter of fact that the dancers were not agents or employees of Central Florida Clubs Number 2. No evidence was introduced purporting to demonstrate whether to the average person applying contemporary community standards, the dominant theme of the material, taken as a whole, appealed to prurient interest. Accordingly, it is found as a matter of fact that to the average person applying contemporary community standards, the dominant theme of the material presented at the Booby Trap taken as a whole did not appeal to prurient interest. No evidence was introduced purporting to establish that David Lee Feller was an agent or employee of Central Florida Clubs Number 2., Accordingly, it is found as matter of fact that David Lee Feller was not an agent or an employee of Central Florida Clubs Number 2.
Findings Of Fact 1. Petitioner is a corporation not for profit organized under Florida law in December of 1981, to "operate a supper club and lounge and to promote the culinary arts in Panama City, Florida, and the affording of facilities to members of the club for the enjoyment of same." Respondent's Exhibit No. 1. David McCurdy, John Diamond and Lorette Chance signed the articles of incorporation. The articles of incorporation specify that membership "shall consist of persons over the age of nineteen (19) years who shall be admitted on the majority vote of the directors of the corporation." Respondent's Exhibit No. The bylaws provide simply that "[n]ew members must be spons[o]red by a member in good standing . . . ." Respondent's Exhibit No. 2. For the first year of its existence, The Back Door Lounge and Supper Club, Inc. (the supper club) was operated solely for its members' enjoyment, on the premises of what had been the Chat 'N' Chew, a beer bar Mr. and Mrs. McCurdy had operated. Membership dues are $20.00 annually, and the supper club is open from six in the evening till six in the morning. Weekly there are covered dish suppers, and several members attested to learning about spices in connection with these suppers. Organization as a private club also discouraged "rowdyism . . . [like that to be found in some] other lounges within the P. C. area." Respondent's Exhibit No. 4 (Goss letter of 16 March 1984). In seeking to establish a private club, Mr. and Mrs. McCurdy have acted in good faith at all times and in keeping with their understanding of the legal advice they received. When Jerrold Hill, a sergeant with the Division of Alcoholic Beverages and Tobacco, was in the supper club in late 1983, he saw no difference between what was going on then and what he had earlier seen in the Chat 'N' Chew. In December of 1983, petitioner applied for the license at issue here. Eleven months earlier, there had been discussions with the local chapter of the American Cancer Society about donating money made on the suppers to the Society. On March 16, 1984, the day after one of respondent's investigators visited the supper club, petitioner gave the American Cancer Society a check for $500.00.
Recommendation It is, accordingly, RECOMMENDED: That respondent deny petitioner's application for licensure. DONE and ENTERED this 5th day of September, 1984, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1984. COPIES FURNISHED: Sandra P. Stockwell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. David A. McCurdy Back Door Lounge & Supper Club 4130 West Highway 98 Panama City, Florida 32405 Gary Rutledge, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Petitioner is the state agency charged with the enforcement of the provisions of Part VIII of Chapter 468, Florida Statutes, and of Chapter 61B-55, Florida Administrative Code. At all times material to this proceeding Respondent, Robert Rosen, was licensed as a community association manager and held license number 3371 issued by Petitioner. At the time of the formal hearing, Respondent had been performing community association management services for approximately fifteen years. Respondent has had extensive participation in community association management education and training activities and was, at all times pertinent hereto, aware of the duties imposed on community association managers by statute and by rule. Part VIII of Chapter 468, consisting of Sections 468.431 - 468.437, Florida Statutes, pertain to the regulation and licensure of Community Association Management. Section 468.431, Florida Statutes, provides the following definitions pertinent to this proceeding: "Community association management" means any of the following practices requiring substantial specialized knowledge, judgment, and managerial skill when done for remuneration and for the public and when the association or associations served contain more than 50 units or have an annual budget or budgets in excess of $100,000: controlling or disbursing funds of a community association, preparing budgets or other financial documents for a community association, assisting in the noticing or conduct of community association meetings, and coordinating maintenance for the residential development and other day-to-day services involved with the operation of a community association. A person who performs clerical or ministerial functions under the direct supervision of a licensed manager or who is charged only with performing the maintenance of a community association and who does not assist in any of the management services described in this subsection is not required to be licensed under this part. "Community association manager" means a person who is licensed pursuant to this part to perform community association management services. A person performing community association management services to one or more associations containing more than 50 units or having an annual budget or budgets in excess of $100,000 must possess a community association manager's license. Licenses to act as a community association manager are issued by Petitioner to individual persons. Licenses are not issued to corporations. An individual who is a community association manager within the meaning of Section 468.431(3), Florida Statutes, is required by the provisions of Section 468.432(1), Florida Statutes, to be licensed by the Petitioner, as follows: A person shall not manage or hold himself out to the public as being able to manage a community association in this state unless he is licensed by the department in accordance with the provisions of this part. . . . Corporations that provide community association management services through licensed employees merely have to register with the Petitioner pursuant to Section 468.432(2), Florida Statutes, which provides, in pertinent part, as follows: Nothing in this part prohibits a corporation, partnership, trust, association, or other like organization from engaging in the business of community association management without being licensed if it employs licensed natural persons in the direct provision of community association services. Such corporation, partnership, trust, association, or other organization shall also file with the department a statement on a form approved by the department that it submits itself to the rules of the department and the provisions of this part which the department deems applicable. Petitioner has rule making authority pursuant to the provisions of Section 468.433(3), Florida Statutes. Petitioner has the authority to enforce its rules and statutes pursuant to the provisions of Section 468.436, Florida Statutes. Pursuant to its rule making authority, Petitioner has enacted Rule 61B- 55.007, Florida Administrative Code, which provides, in pertinent part, as follows: Standards of Professional Conduct. All licensees and registrants shall adhere to the following provisions and standards of professional conduct, and such provisions and standards shall be deemed automatically incorporated, as duties of all licensees and registrants, into any written or oral agreement for the rendition of community association management services, the violation of which shall constitute gross misconduct or gross negligence. Definitions. As used in this rule, the following definitions apply: The word "control" means the authority to direct or prevent the actions of another person or entity pursuant to law, contract, subcontract or employment relationship with a community association, its board of directors, any committee thereof or any member of any board or committee. "Licensee" means a person licensed pursuant to section 468.432(1), Florida Statutes. "Registrant" means an entity registered pursuant to section 468.432(2), Florida Statutes. The word "funds" as used in this rule includes money and negotiable instruments including checks, notes and securities. * * * (6) Records. (a) A licensee or registrant shall not withhold possession of any books, records, accounts, funds, or other property of a community association when requested by the community association to deliver the same to the association upon reasonable notice. It shall be presumed that reasonable notice shall extend no later than 7 business days after receipt of a written request from the association. The provisions of this rule apply regardless of any contractual or other dispute between the licensee and the community association, or between the registrant and the community association. It shall be considered gross misconduct, as provided by Section 468.436(2), Florida Statutes, for a licensee or registrant to violate the provisions of this subsection. The purpose of the community association manager licensing and regulation statute is to protect the public in general, and community association members in particular. Its primary goal is to ensure that managers who receive licenses from the state are trustworthy and have some degree of professional competence. Rosen Management Service, Inc., is a corporation that is not a party to this proceeding. Robert Rosen, in addition to being a licensed community association manager, is the president of Rosen Management Service, Inc. Throughout this proceeding, Robert Rosen acted through his corporation in providing community association management services to the associations involved in this proceeding. Prior to the termination of the management agreements between Rosen Management Service, Inc., and the six associations involved in this proceeding, Robert Rosen was a member of and an ex officio officer of each association. At all times pertinent to this proceeding, Rosen Management Service, Inc., employed licensed community association managers in addition to Robert Rosen. There was no evidence that any licensed community association manager employed by Rosen Management Service, Inc., other than Robert Rosen provided services to the six associations that are involved in this proceeding. At all times pertinent to this proceeding, Robert Rosen controlled the management of Rosen Management Service, Inc. The six separate community associations involved in this proceeding are located in Dade County, Florida. Rosen Management Service, Inc., began providing community association management services to each of these associations on January 1, 1991. The services provided to each association by Rosen Management Service, Inc., included the management and control of each association's finances. Those six associations are: Moors Master Maintenance Association, Inc. Moors Town Villas Maintenance Association, Inc. Moors Garden Homes Maintenance Association, Inc. Moors Pointe Condominium Association, Inc. Moors Village Homes Maintenance Association, Inc. Moors Patio Homes Maintenance Association, Inc. At issue in this proceeding are certain bank accounts that were opened in the Dadeland branch office of Southeast Bank by Rosen Management Service, Inc. Southeast Bank was acquired by First Union National Bank of Florida in 1992 after intervention by the Federal Deposit Insurance Corporation. The subject accounts became accounts in the Dadeland branch of the First Union National Bank after the acquisition. At the time these accounts were opened, Robert Rosen was a member of and ex officio officer of each association and had the authorization of each association to open each account in the manner in which it was opened. Moors Master Maintenance Association, Inc. The Moors Master Maintenance Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Master Maintenance Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-690008, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Moors Master Maintenance Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account. On October 8, 1991, the Moors Master Maintenance Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. On October 9, 1991, the attorneys representing the Moors Master Maintenance Association, Inc., notified Robert Rosen, as president of Rosen Management Service, Inc., that it had terminated the contract and demanded a return of the Association's books and records. This letter also stated: ". . . effective immediately no additional checks are to be written by you on any of the accounts at (sic) the Association." The Moors Master Maintenance Association, Inc., caused its attorneys to write a letter to Southeast Bank dated October 10, 1991, concerning account #018-690008 which stated, in pertinent part, as follows: . . . At a meeting of the Board of Directors held on Tuesday, October 8, 1991, the Board voted to terminate its management agent, Rosen Management Service, Inc. Accordingly, please be advised that effective immediately, no further activity with respect to the above referenced account is to be initiated by Rosen Management Service, Inc. and/or Robert Rosen. The Moors Master Maintenance Association, Inc., wrote to Southeast Bank a letter dated November 19, 1991, which stated, in pertinent part, as follows: This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 8, 1991, the Board of Directors of the Moors Master Maintenance Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991. Rosen Management is no longer an agent of the above mentioned association. Please transfer all monies in the Associations' account #018-690008 to the new account we opened . . . On November 19, 1991, the president of the Moors Master Maintenance Association advised the Southeast Bank that it had opened a new account and requested that the funds in account #018-690008 be transferred to the new account. Moors Town Villas Maintenance Association, Inc. The Moors Town Villas Maintenance Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Town Villas Maintenance Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-690024, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Moors Town Villa Homes Maintenance Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account. On October 22, 1991, the Moors Town Villas Maintenance Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. By letter dated November 13, 1991, the association advised Robert Rosen, as president of Rosen Management Service, Inc., that all records, documents, files, contracts, and invoices belonging to the association should be turned over to the new management company. The Moors Town Villas Maintenance Association, Inc., wrote to Southeast Bank a letter dated November 21, 1991, which stated, in pertinent part, as follows: This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 22, 1991, the Board of Directors of the Moors Town Villas Maintenance Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991. Rosen Management is no longer an agent of the above mentioned association. Please transfer all monies in the Associations' account #018-690024 to the new account we opened . . . Moors Garden Homes Maintenance Association, Inc. The Moors Garden Homes Maintenance Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Garden Homes Maintenance Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-689992, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Garden Homes of the Moors Maintenance Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account. On October 24, 1991, the Moors Garden Homes Maintenance Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. By letter dated November 7, 1991, the association advised Robert Rosen, as president of Rosen Management Service, Inc., that all records, documents, files, contracts, and invoices belonging to the association should be turned over to the new management company. The Moors Garden Homes Maintenance Association, Inc., wrote to Southeast Bank a letter dated November 21, 1991, which stated, in pertinent part, as follows: This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 24, 1991, the Board of Directors of the Moors Garden Homes Maintenance Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991. Rosen Management is no longer an agent of the above mentioned association. Please transfer all monies in the Associations' account #018-689992 to the new account we opened . . . Moors Pointe Condominium Association, Inc. The Moors Pointe Condominium Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Pointe Condominium Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-689984, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Moors Pointe Condominium Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account. On October 24, 1991, the Moors Pointe Condominium Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. The letter terminating the management agreement was dated October 31, 1991, and advised Robert Rosen, as president of Rosen Management Service, Inc., that all books and records for the association should be turned over to the new management company. The Moors Pointe Condominium Association, Inc., wrote to Southeast Bank a letter dated November 21, 1991, which stated, in pertinent part, as follows: This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 25, 1991, the Board of Directors of the Moors Pointe Condominium Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991. Rosen Management is no longer an agent of the above mentioned association. Please transfer all monies in the Associations' account #018-689984 to the new account we opened . . . Moors Village Homes Maintenance Association, Inc. The Moors Village Homes Maintenance Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Village Homes Maintenance Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-690032, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Moors Village Homes Maintenance Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account. On October 24, 1991, the Moors Village Homes Maintenance Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. The Moors Village Homes Maintenance Association, Inc., wrote to Southeast Bank a letter dated November 21, 1991, which stated, in pertinent part, as follows: This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 25, 1991, the Board of Directors of the Moors Village Homes Maintenance Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991. Rosen Management is no longer an agent of the above mentioned association. Please transfer all monies in the Associations' account #018-690032 to the new account we opened . . . Moors Patio Homes Maintenance Association, Inc. The Moors Patio Homes Maintenance Association, Inc., and Rosen Management Service, Inc., entered into a management agreement that was effective January 1, 1991. By that agreement, Rosen Management Service, Inc., agreed to provide community association management services to the Moors Patio Homes Maintenance Association, Inc. The agreement provided for the termination of the agreement by either party with or without cause upon sixty days written notice. The agreement was executed by Robert Rosen as president of Rosen Management Service, Inc. On January 9, 1991, Robert Rosen caused an interest bearing checking account, account #018-690016, to be opened at the Dadeland branch of the Southeast Bank. The owner information was completed as follows: "Rosen Management Service, Inc., as agent for The Moors Patio Homes Maintenance Association, Inc." Robert Rosen was the only person authorized to sign on this account. The operating funds of the association were deposited into that account. On October 22, 1991, the Moors Patio Homes Maintenance Association, Inc., voted to terminate the management agreement with Rosen Management Service, Inc., and notified Robert Rosen of that action. The letter terminating the management agreement was dated October 31, 1991, and advised Robert Rosen, as president of Rosen Management Service, Inc., that all books and records of the association should be turned over to the new management company. The Moors Patio Homes Maintenance Association, Inc., wrote to Southeast Bank a letter dated November 21, 1991, which stated, in pertinent part, as follows: This letter is to inform you that at a Board of Directors meeting held on Tuesday, October 22, 1991, the Board of Directors of the Moors Patio Homes Maintenance Association terminated their contract with Rosen Management. This refers to the contract that went into effect January 1, 1991. Rosen Management is no longer an agent of the above mentioned association. Please transfer all monies in the Associations' account #018-690016 to the new account we opened . . . The Collateral Litigation. In November 1991, Rosen Management Service, Inc., (plaintiff) brought suit against the Moors Master Maintenance Association, Inc., (defendant) in circuit court seeking compensatory damages in the amount of $927,553.24 and punitive damages in the minimum amount of $2,782,659.70. That proceeding was pending at the time of the formal hearing held in the instant proceeding. In December 1991, the six associations (plaintiffs) sued Rosen Management Service, Inc., and Robert Rosen (defendants) in circuit court seeking temporary and permanent injunctive relief requiring the defendants to turn over the books and records of the plaintiffs. On December 19, 1991, a special master was appointed in this circuit court proceeding. The special master was ordered to take possession of the books and records of the six associations, including the six bank accounts. The attorney for the defendants in that circuit court proceeding consented to the transfer of the control of the six bank accounts to the special master. Before the transfer could be effectuated, the circuit court proceeding was voluntarily dismissed by the plaintiffs. Consequently, the special master never took possession of the funds in these bank accounts. Robert Rosen was aware that the special master never took possession of these bank accounts. On or about March 31, 1993, a separate proceeding was filed in circuit court by the six associations (plaintiffs) against Rosen Management Service, Inc. That proceeding was pending at the time of the formal hearing held in the instant proceeding. The Manager of the Bank. In reaction to the letters from the six Moors associations and their attorneys, Diego Rodriguez, the manager of the Dadeland branch of the Southeast Bank, advised Mr. Rosen that he no longer had any authority over the account and that the bank would not take any instructions from him. This information was conveyed to Mr. Rosen by Mr. Rodriguez in October 1991, in April 1992, and on September 3, 1992. On September 3, 1992, Mr. Rodriguez wrote a letter to Sharon Malloy, Assistant Bureau Chief for Petitioner's Bureau of Condominiums. That letter corroborates the Respondent's testimony as to information provided to him by Mr. Rodriguez. That letter stated, in pertinent part, as follows: "All went fine [with the six accounts] until October 1991, when we received a certified letter from the Law Firm of Becker & Poliakoff stating that they represented the six Moors Associations, and instructed this banking center to remove Mr. Robert Rosen as an authorized signer on the six accounts. The letter further stated that this bank could no longer accept any instructions what- so-ever from Rosen and not to discuss any of these accounts with him. Ms. Malloy, our branch has done just that. We informed Mr. Rosen that he no longer had any control, custody, jurisdiction, or any other authority on these accounts. That was in October 1991, and we've told that to Mr. Rosen on at least a dozen occasions since then, including April 1992 when we confirmed this in writing to Mr. Rosen, and again today, September 3, 1992. We specifically told Mr. Rosen that in view of these circumstances, we would require a Court Order before we could accept any instructions from anyone as to these accounts. Your staff must have misinterpreted my letter of April 1992, which clearly stated that Mr. Rosen has been removed as a signer on these accounts. This doesn't mean he just can't sign; it means that he has no control, no custody, no jurisdiction, no power of any kind on these accounts. These accounts have each been coded so as not to allow Mr. Rosen either access to the funds or information on these accounts. This Bank will not take any instructions from him!!! (Emphasis in the original.) The Attorneys for the Bank. Southeast Bank, and later First Union Bank, asserted the position that it could not transfer the funds or otherwise release the funds in the six accounts without the written consent of a duly authorized representative of Rosen Management Service, Inc. On May 12, 1992, Steve Gillman, the attorney for First Union Bank advised the attorneys for the associations in writing that the transfer of the bank accounts established by Rosen Management Service, Inc., could be transferred to the new bank accounts established by the associations if an authorized representative of Rosen Management Service, Inc., as the account party executed an appropriate transfer request. On May 13, 1992, the attorneys for the associations forwarded to the attorney for the Respondent a copy of the May 12, 1992, letter from the bank's attorney. Enclosed with that letter was a simple, single page authorization form by which Robert Rosen, on behalf of Rosen Management Service, Inc., could consent to the transfer of the funds in the six association bank accounts to new bank accounts controlled by the associations. Robert Rosen received a copy of this letter and the enclosures. This letter of May 13, 1992, provided, in pertinent part, as follows: . . . As you can see an appropriate transfer request from your clients is all that is required to return the funds to their beneficial owners. Pursuant to the foregoing, we make final demand upon your clients to provide authorization to the bank to transfer the funds on deposit beneficially owned by the respective Moors associations to the new accounts at First Union/Southeast already established for the purpose of facilitating such a transfer. Toward this end, I have enclosed an authorization for your clients to sign forthwith. Robert Rosen knew that the six associations were unable to withdraw the funds from the six bank accounts because of the repeated demands of the associations. Prior to the position asserted by the bank as reflected by Mr. Gillman's letter of May 1992, there was some confusion as to what Respondent could or should do to transfer these accounts. This situation was exacerbated by the collateral litigation filed by Rosen Management Service, Inc., and by the associations, the voluntary dismissal of the suit by the associations after the special master had been appointed, and by the erroneous advice given by Mr. Rodriguez. Notwithstanding the position asserted by Mr. Rodriguez, Mr. Rosen knew after he received copies of the letters from Mr. Gillman, that his authorization was all that was required to transfer the funds from the old accounts to the new accounts. Robert Rosen failed to execute that simple authorization form until August 18, 1993, thereby blocking access by the associations to their funds in these bank accounts. There was a meeting on July 1, 1992, involving the Respondent, his attorney and attorneys and representatives of the six associations. During that meeting, Respondent was again asked to sign the consent form necessary to transfer the funds in the six accounts at issue in this proceeding to accounts controlled by the respective associations. Despite repeated demands for him to do so, Respondent did not sign the consent form that he knew was required to transfer the funds in the six bank accounts to the respective associations until August 1993. As a result of Robert Rosen's failure to sign the consent form in his capacity of President of Rosen Management Service, Inc., or to instruct some other qualified representative of Rosen Management Service, Inc., sign the form, these six associations were deprived of access to their funds until August 1993. Robert Rosen testified that he delivered an executed copy of this form to the First Union Bank Dadeland branch office shortly after he received it in May 1992. This self-serving testimony lacks credibility and is rejected as being contrary to the clear and convincing evidence that he did not execute the consent form until the first day of the formal hearing. On August 18, 1993, the first day of the formal hearing that was held in this proceeding, Robert Rosen signed the one-page document that authorized the transfer of all six association bank accounts to the respective associations. This authorization form was the same one-page document that had been forwarded to Respondent's counsel, and subsequently to Respondent, on May 13, 1992. Respondent had been repeatedly asked to execute this authorization form. On August 19, 1993, the funds that had been in account #018-690008 were transferred to a new account of the Moors Master Maintenance Association, Inc. The balance in the account at the time of the transfer was approximately $108,000.00. On August 19, 1993, the funds that had been in account #018-690024 were transferred to a new account of the Moors Town Villas Maintenance Association. The balance in the account at the time of the transfer was in excess of $100,000. On August 19, 1993, the funds that had been in account #018-689992 were transferred to a new account of the Moors Garden Homes Maintenance Association. The balance in the account at the time of the transfer was in excess of $100,000. On August 19, 1993, the funds that had been in account #018-689984 were transferred to a new account of the Moors Pointe Condominium Association The balance in the account at the time of the transfer was approximately $40,000. On August 19, 1993, the funds that had been in account #018-690032 were transferred to a new account of the Moors Village Homes Maintenance Association. The balance in the account at the time of the transfer was approximately $41,000. On August 19, 1993, the funds that had been in account #018-690016 were transferred to a new account of the Moors Patio Homes Maintenance Association, Inc. The balance in the account at the time of the transfer was approximately $75,000. Robert Rosen did not turn over and did not cause his corporation to turn over the funds of the six associations to those associations within seven business days of a written request to do so. Robert Rosen did not execute and did not cause his corporation to execute the written authorization form that was required to transfer the funds to the six associations within seven business days of a written request to do so. Because the six associations did not have access to their funds during the approximately two years that this matter was in dispute, the associations had to impose special assessments on their members, had to delay paying bills, and had to use reserve funds for operating bills. The associations also incurred attorneys' fees in attempting to secure the return of their funds. Robert Rosen has not been previously disciplined by the Petitioner. At all times pertinent to this proceeding, the funds were in interest bearing accounts. All funds in the six association accounts, including accrued interest, were turned over to the respective associations on August 19, 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the licensure of Robert Rosen as a community association manager be revoked. DONE AND ORDERED this 1st day of February 1994 in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 1st day of February 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-0344 The following rulings are made on the proposed findings of fact submitted by Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 24, 25, 28, 29, 31, 32, 33, 43 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 22, 30, 34, 35, 36, 37, 38, 39, 40, 41, 42, 44, 45, 46, 47, 48, 49, 50 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 23 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 26 and 27 are adopted in part by the Recommended Order. The proposed findings in the last sentence of each paragraph are rejected as being argument as to the interpretation of written documents and unnecessary to the conclusions reached. The proposed findings of fact in paragraph 36 are adopted in part by the Recommended Order, and are subordinate in part to the findings made. The proposed findings of fact in paragraphs 51, 52, 53, 54 are subordinate to the conclusions reached. The following rulings are made on the proposed findings of fact submitted by Respondent. The following references are to paragraphs 1-14 contained in Respondent's Proposed Recommended Order in the section styled "General Findings of Fact and Conclusions of Law." The conclusions in paragraph 1 are rejected as being unnecessary as findings of fact and as being contrary to the conclusions reached. The proposed findings of fact and conclusions in paragraphs 2, 7, and 10 are rejected as being contrary to the conclusions reached or as being contrary to the conclusions reached. Findings of fact are made in the Recommended Order as to how the respective bank accounts were opened. The proposed findings of fact in paragraph 3 are adopted to the extent that the proposed findings are consistent with the findings made. The remainder of paragraph 3 is rejected as being contrary to the conclusions reached or to the findings made. The proposed findings of fact in paragraph 4 are adopted in material part by the Recommended Order or are subordinate to the findings made. Paragraph 5 consists of argument that is inappropriate as findings of fact. The proposed findings of fact in paragraph 6 are adopted in material part by the Recommended Order or are subordinate to the findings made. Paragraphs 7, 8 and 9 consist of argument or conclusions that are rejected as being contrary to the conclusions reached or to the findings made. The proposed findings of fact in paragraph 10 are adopted in part by the Recommended Order by the findings that Rosen Management Service, Inc., authorized the transfer of the funds to the special master. The proposed findings are otherwise rejected as being contrary to the findings made. Findings are made in the Recommended Order as to contacts Respondent made with the bank. The proposed findings of fact in paragraphs 11 and 12 are adopted to the extent the proposed findings are consistent with the findings made, but are otherwise rejected as being unnecessary to the conclusions reached since it was not established that Respondent's inquiries were directed toward returning the funds to the associations. The reference to December 1990 is unnecessary to the conclusions reached and apparently a misreading of the letter sent by Mr. Rodriguez to Ms. Malloy dated September 3, 1992. Findings are made in the Recommended Order pertaining to the collateral litigation. The proposed findings of fact in paragraph 13 are adopted to the extent the proposed findings are consistent with the findings made, but are otherwise rejected as being contrary to the greater weight of the evidence or as being contrary to the conclusions reached. The remainder of paragraph 13 consists of argument that is rejected as being contrary to the conclusions reached or as being unnecessary to the conclusions reached. Paragraph 14 consists of argument that is rejected as unnecessary as findings of fact and, in part, contrary to the conclusions reached. The following references are to paragraphs 1-15 contained in Respondent's Proposed Recommended Order in the section styled "Findings of Fact and Conclusions of Law on Termination of Agency Issue and Other Issues Relating to Charges." The proposed findings of fact in paragraphs 1, 2, 5 are adopted in material part by the Recommended Order. Paragraph 3 consists of argument or conclusions that are unnecessary as findings of fact. Paragraph 4 consists of argument or conclusions that are contrary to the findings or to the conclusions reached. The proposed findings of fact in paragraphs 6 and 7 are adopted in part by the Recommended Order or are subordinate to the findings made. The proposed findings of fact in paragraphs 6 and 7 are rejected to the extent they are inconsistent with the findings made in the Recommended Order. The proposed findings of fact in paragraph 8 are adopted in part by the Recommended Order. The remainder of paragraph 8 consists of argument that is unnecessary as findings of fact. Paragraph 9 consists of argument that is unnecessary as findings of fact. The proposed findings of fact in paragraph 10 are subordinate to the findings made. The proposed findings of fact in paragraph 11 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 12 are adopted in part by the Recommended Order. The remainder of paragraph 12 is rejected as being unnecessary to the findings made and to the conclusions reached. The proposed findings of fact contained in paragraphs 13 and 14 are either adopted by the Recommended Order or are subordinate to the findings made. The remainder of both paragraphs consists of argument that is inappropriate to incorporate as findings of fact. The proposed findings of fact in Paragraph 15-1 are adopted in material part by the Recommended Order. The remainder of paragraph of paragraph 15 is rejected as being predicated on self-serving testimony that lacks credibility and is contrary to the clear and convincing evidence presented by Petitioner. COPIES FURNISHED: Jeanne M. L. Player, Esquire Department of Business and Professional Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Franklin D. Kreutzer, Esquire 3041 Northwest 7th Street, Suite 100 Miami, Florida 33125 Henry M. Solares, Director Division of Florida Land Sales, Condominiums and Mobile Homes 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
