Conclusions The Director, Division of Hotels and Restaurants, Department of Business and Professional Regulation (the Division), after consideration of the complete record of this case on file with the Division, enters this Final Order. 1. on May 20, 2013, the Department issued an Administrative Complaint, a copy of which is attached as Exhibit win, 2. On October 1, 2013, a hearing in this cause was held before the Honorable Suzanne Van Wyk, Administrative Law Judge, Division of Administrative Hearings. 3. On December 11, 2013, the Honorable Suzanne Van Wyk issued a Recommended Order, a copy of which is attached as Exhibit "2". The Statement of the Issues, Preliminary Statement, Filed January 6, 2014 1:49 PM Division of Administrative Hearings Findings of Fact, Conclusions of Law, and Recommendation contained in the Recommended Order are hereby adopted in toto and incorporated herein by reference. Based upon the foregoing, and being otherwise fully advised in the premises it is, hereby ORDERED that: for Respondent's violations of Section 509, Florida Statutes, and/or the rules promulgated thereto the following penalty is imposed: 1. Respondent shall pay a fine in the amount of $1,200.00, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within thirty (30) calendar days of the date this Order is filed with the Agency Clerk. 2. This Final Order shall become effective on the date of filing with the Agency Clerk. DONE AND ORDERED this BF aay of Pece hi , 2075. Rie Oi fon Disnew 5. Werpglle Diann S. Wo¥zalla, Director Department of Business and Professional Regulation Division of Hotels and Restaurants 1940 North Monroe Street Tallahassee, Florida 32399-1015
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by Rules 9.110 and 9.190, Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Department of Business and Professional Regulation, Attn: Ronda L. Bryan, Agency Clerk, 1940 North Monroe Street, Suite 92, Tallahassee, Florida 32399-2202 and a second copy, accompanied by the filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Florida Appellate District where the party resides. The Notice of Appeal must be filed within thirty (30) days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Certified U.S. Mail to Holland Apartments, c/o Cindy Holland, 162 Rainbow Drive, Fort Walton Beach, Florida 32548; by regular U.S. Mail to the Honorable Suzanne Van _ Wyk, Administrative Law Judge, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060; and by hand delivery to Marc Drexler, Chief Attorney, Division of Hotels and Restaurants, Department of Business and Professional Regulations, 1940 North Monroe Street, Tallahassee, Florida 32399-2202, this CG day of Sanuary , 20\4_ Prtccln MN Nihbe For Putreln~M, Division of Hotels and Restaurants : “Certified: Article: Number, ; ; 7446 008 S111 5516 1783
The Issue The issue in this case is whether the Gilchrist County comprehensive plan and subsequent remedial amendments are "in compliance" pursuant to Chapter 163, Part II, Florida Statutes.
Findings Of Fact PARTIES Intervenors Craig Hennis, Jim Moore, and Jean Wonser own property in Gilchrist County, Florida, which is located in or near the area known as the Waccasassa Flats. Hennis, Moore, and Wonser submitted oral and written comments during the review and adoption proceedings. Hennis, Moore, and Wonser are "affected persons" as defined in Section 163.3184(1)(a), Florida Statutes. Gilchrist County Gilchrist County is a local government required to adopt a comprehensive plan pursuant to Chapter 163, Part II, Florida Statutes The County is situated in North Central Florida. The County is bordered on the east by Alachua County; on the south by Levy County; on the west by Dixie and Lafayette Counties; and on the north by Suwannee and Columbia Counties. The County seat is the incorporated City of Trenton. The County contains many areas of natural resources including the Santa Fe River in the north, the Suwannee River in the west, numerous fresh water springs, and the Waccasassa Flats. Department The Department is the state land planning agency charged with the responsibility of reviewing local government comprehensive plans pursuant to Chapter 163, Part II, Florida Statutes. Waccasassa Flats The Intervenors' challenge concerns the level of protection afforded the Waccasassa Flats (Flats). The Flats are approximately 56,000 acres in size in Gilchrist County and act as the source of the Waccasassa River, whose headwaters are located in Levy County. The Flats extend from northern Gilchrist County through Levy County to the Gulf of Mexico. The Flats are situated on a high limestone formation between two sand ridges. The Flats are a mosaic of uplands, wetlands, and sandhills composed primarily of commercial pine plantations, hardwood swamps, isolated strands of cypress domes, and shrubs and brush. Approximately 31,000 acres are forested uplands and forested flatwoods; 24,000 acres, forested wetlands and non-forested wetlands; and 1,000 acres, non- forested uplands. The water table in the Flats is generally near or above the surface, and is linked to a surficial aquifer, not the Floridan Aquifer, which is much deeper. The Flats act as a low to moderate water recharge area by collecting water, then slowly releasing it to surrounding areas. The Flats are not unlike many parts of North Central Florida, including northern Columbia County, eastern Alachua County, parts of Baker and Levy Counties, Nassau County, Lafayette County, eastern Hamilton County, western Madison County, Taylor County, and Dixie County. Within Gilchrist County, the Flats are privately owned and historically have been logged in large part by commercial silviculture companies. This activity continues today. A network of logging roads and fire lines have been cut through the Flats. Silviculture activities such as the clearcutting of large tracts of timber, replanting with non-native species of pine, and creating a monoculture pine forest, have degraded the ecosystem, fragmented wildlife habitat, and negatively impacted some species of wildlife and native vegetative communities in the Flats. For example, throughout most of the Flats native longleaf pine communities no longer exist. Many of the native hardwood hammocks have been cut to increase the land available for pine planting and harvesting. In addition, native cypress trees have been cut. While the Flats still function as a natural system, they are not a pristine system because of these past and current silviculture activities. The Division of Forestry in the Florida Department of Agriculture and Consumer Services recommended that 56,050 acres of the Flats be acquired by the State of Florida through the Conservation and Recreation Lands (CARL) program. The Flats have been on the CARL acquisition list since 1988: they were ranked ninth on the list in 1988 and thirty-third in 1993. WACCASASSA FLATS/DENSITY Intervenors assert that the Plan fails to adequately preserve and restore the natural resources associated with the Flats. Specifically, Intervenors claim that a density of one dwelling unit per 160 acres in the area designated Silviculture/Agriculture (S/A) on the County's FLUM does not preserve wildlife, wildlife habitat, native vegetative communities, and groundwater quality, nor restore wetlands in the Flats. Policy I.2.2 of the Plan establishes the densities in the S/A land use category at no more than one dwelling unit per 160 acres and no more than one development unit per 80 acres. The policy defines development units as: [] structures commonly associated with row crops, pasture, hunting or silviculture activities such as barns, outbuildings and sheds, vehicle storage, small mill operations, and small office structures. . . The density established under Policy I.2.2 is a low density. By requiring at least 160 acres before one residence can be built, development in the S/A category is discouraged and directed to other areas of the County where higher densities are permitted. The following uses and activities are established by Policy I.2.2 for lands classified as S/A: Lands classified in Silviculture/Agriculture shall be lands which are predominantly used for silviculture activities conducted in accordance with Policy V.2.16, limited agricultural uses as described below, dwelling units, development units, archery ranges, rifle, shotgun and pistol ranges, and hunting and fishing camps and uses customarily accessory and clearly incidental and subordinate to such uses. Policy I.2.2 describes the limited agricultural activities permitted in the S/A land use classification: Within the Silviculture/Agriculture land use classification, intensive agriculture uses shall be prohibited. Grazing of livestock on pasture lands shall be allowed and row crops planted on a rotational basis between the harvesting of timber and planting of trees as part of silviculture activities shall also be allowed. Row crop activity shall be limited to areas containing soils within hydrological Groups A and B as identified in Soil Survey of the County (U.S. Soil Conservation Service, September 1992) and shall maintain a 50-foot natural buffer around all wetlands. The Plan conserves and protects wetlands. In addition to restricting row crops to drier soils and requiring buffers between row crops and all wetlands (as described above), Policy I.2.2 provides: [] ditching or any other activity which would modify the natural hydrology and environmental character of Silviculture/Agriculture areas shall be prohibited, provided however, that trench irrigation shall be allowed in areas containing soils within hydrological Groups A and B as identified in Soil Survey of the County (U.S. Soil Conservation Service, September 1992) for row crops within Silviculture/Agriculture areas so long as such trench irrigation practices do not result in the conversion of wetlands to uplands. To further protect wetlands, Policy V.2.4 requires a 35-foot natural buffer around all wetlands, within which agricultural and residential uses are prohibited. Additionally, Policy V.2.8 prohibits development which alters the natural functions of wetlands where all structures can be clustered on the non- wetland portion of the site. Where that option does not exist, Policy V.2.8 permits only minimal residential development activity and establishes other limitations on development, including the requirement that walking paths and driveways to residences use permeable fill and allow the uninterrupted flow of water. Wetlands are also protected by Policy V.2.16, which requires silviculture activities to follow the best management practices established in the 1993 Florida Department of Agriculture's "Silviculture Best Management Practices." These identified policies in the Plan conserve and protect wetlands in the Flats. Intervenors assert that development at the rate of one dwelling unit per 160 acres will "fragment" wildlife habitat in the Flats and thereby negatively affect wildlife associated with the Flats. The Flats is not a particularly significant habitat for threatened or endangered species, species of special concern, or rare species. The best available existing data shows that the habitat in the Flats is not used by many, if any, of these types of species. Development at the low density allowed in the S/A land use classification will not adversely impact either the habitat or the wildlife which might use that habitat. Some species may be positively impacted by the limited development activities allowed in the Flats under the Plan. While wading birds at times forage for food in the Flats, development at the low density allowed in the S/A land use category, with the various wetlands protection policies in the Plan, will not adversely affect utilization of the Flats by these bird populations. An individual animal may be negatively impacted by limited development of one dwelling unit per 160 acres, but the wildlife population as a whole will suffer no adverse impacts. Moreover, development at this density could cause less severe fragmentation and fewer negative impacts than are caused by current silviculture practices which have been utilized in the Flats for decades. Policy V.2.8, relating to residential development in wetlands, limits clearing or removal of native vegetation and provides some protection to the Flats. Such clearing or removal may not exceed more than one-half acre per five acres. Requirements of Policy V.3.4 that the County cooperate with other governmental entities, research and interest groups to conserve and protect unique vegetative communities within the County, affords protection to wildlife, wildlife habitat, and native vegetative communities. Also, Policies V.3.4, V.4.1, and V.4.2 require the County to cooperate with the Florida Game and Freshwater Fish Commission in monitoring and inventorying wildlife and wildlife habitats, including cooperating in the application, and compliance with, all federal and state regulations pertaining to endangered and rare species. Policy V.4.3 also requires consultation with the Florida Game and Fresh Water Fish Commission prior to the issuance of a development order where there is an indication that such issuance would result in an adverse impact to any endangered or rare species. The low density permitted in the Flats, in conjunction with wetlands protection and other identified policies in the Plan, will conserve and protect wildlife, wildlife habitat, and existing native vegetative communities, and maintain the overall integrity of the natural resources in the Flats. Intervenors assert that placement of septic tanks within the Flats have the potential to contaminate the underlying groundwater. Contamination from a septic tank from a residential development at a rate of one dwelling unit per 160 acres will have no significant impact on groundwater quality. Scientific studies show that any adverse impact of effluent from a septic tank system, or even a malfunctioning septic tank, is dissipated within 50 feet. As a result, the placement of septic tanks in the Flats at the designated density required by the Plan will not adversely impact the groundwater quality. In addition to the Plan's protection of groundwater quality as a result of the maximum density in the S/A land use classification of one dwelling unit per 160 acres and one development unit per 80 acres, protection also results from the previously-identified policies relating to wetlands protection. A comprehensive approach to conserving and protecting the natural resources associated with the Flats has been established by the County through all the above-referenced policies. The Plan relies on the low density established for the S/A land use classification, as well as various planning controls. These controls limit the type and extent of uses allowed in the S/A land use classification and protect wetlands, and require cooperation with other governmental entities to ensure the conservation and protection of wildlife, wildlife habitat, native vegetative communities, and groundwater quality in the Flats. BOUNDARY DESIGNATIONS FOR SILVICULTURE/AGRICULTURE AND AGRICULTURE-5 LAND USE CLASSIFICATIONS Intervenors assert that the County's designation of the S/A and Agriculture-5 (Ag-5) land use classifications are inappropriate and do not follow the boundaries of the Flats. Although the Flats are approximately 56,000 acres in Gilchrist County, there is no definitive boundary for the Flats. Prior to the 1991 adoption of the County's comprehensive plan, the Flats were zoned Preservation-1 (P-1). The lands zoned P-1 prior to 1991 now are classified by the Plan as S/A. The size of the S/A category is slightly larger than the P-1 zone. The subject of boundaries of the Flats was addressed in Gilchrist Timber Company v. Gilchrist County, Florida, Case No. 88-156-CA (Eighth Judicial Circuit, August 21, 1989). In that case, the circuit court determined that the County did a "commendable and legally defensible task in following section lines, quarter section lines and existing uses in setting the boundaries [of the P-1 zoning category]. These lines must be somewhere and those made in this case are quite reasonable." Much of the land surrounding the Flats was zoned General Flood Plain-1 (GFP-1) or General Flood Plain-2 (GFP-2) prior to the 1991 Plan adoption; the vast majority of that land now is classified by the Plan as Ag-5. In determining the boundaries of the S/A and Ag-5 land use classifications for the FLUM in the adopted Plan, the County reviewed its zoning map, conducted site visits, and utilized updated maps and information prepared by state, federal, and regional agencies. These maps included the Federal Emergency Management Agency's Flood Insurance Rate Map (1988); the U.S. Fish and Wildlife Service's National Wetlands Reconnaissance Survey (1981); the U.S. Department of Agriculture Soil Conservation Service's Soil Associations map (1991); and the Florida Sinkhole Research Institute's Potential for Groundwater Pollution of the Floridan Aquifer (1988). This information was the best available data and analysis which existed at the time the Plan and remedial amendments were adopted. These maps depict the boundary of the resources within the Flats, but cannot be used to definitely establish the boundaries of the Flats. Policy I.2.2 establishes the density for the Ag-5 land use classification as one dwelling unit per 40 acres. This is a low density which discourages development in the Ag-5 category, and directs development to other areas of the County which have higher densities. The density in this land use classification thereby serves to limit negative impacts from development to surrounding areas, including the Flats. As a buffer between the Flats and surrounding agriculture lands, the Ag-5 areas protect natural resources in the Flats from the potential adverse impacts of agricultural activities and higher densities and intensities of development permitted outside the Flats. Buffering in this way is a professionally-accepted planning tool for protecting natural resources. The natural resources associated with the Flats will receive adequate protection through the Plan policies referenced earlier, regardless of whether they fall within the S/A or Ag-5 land use classification. The data and analysis used by the County to delineate the boundaries of the S/A and Ag-5 land use classifications was the best available existing data, was relevant and appropriate. The Plan's classification of certain lands as S/A and Ag-5 was reasonable and based on sound planning principles. NEEDS ASSESSMENT Intervenors allege that the future population projections in the Plan do not demonstrate a need for additional density in the Flats in order to meet the future residential needs of Gilchrist County. Pursuant to Plan Policy I.2.2, a density of one dwelling unit per 160 acres in the S/A land use category would allow a maximum of 232 dwelling units to be built in the Flats. Under Plan Policy I.2.2, the current density allowed in Ag-5 is one dwelling unit per 40 acres. A comparison of the adopted FLUM with the prior zoning map reveals that over 5,000 acres are designated Ag-5 which were formerly zoned GFP-2 prior to the Plan's adoption. Under the old GFP-2 zoning category, a maximum of 5,000 dwelling units could have been built. Under the current Ag-5 land use classification, no more than 160 dwelling units could be built. Through the Plan's adoption, the densities established for the combined S/A and Ag-5 land use classifications result in an overall reduction in density allowed in the Flats and surrounding areas. Moreover, the densities permitted in these areas do not result in adverse impacts to natural resources in the Flats. The County's designation of densities in the S/A and Ag-5 land use classifications is reasonable and appropriate and based on data and analysis in the Plan.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department of Community Affairs enter a Final Order finding the Gilchrist County Comprehensive Plan as subsequently amended to be "in compliance." DONE AND ENTERED this 23rd day of May, 1995, in Tallahassee, Leon County, Florida. DON W. DAVIS, 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 23rd day of May, 1995.
The Issue The issue for disposition is whether Central Florida Wetlands Society's petition in case number 91-6871 should be dismissed as requested by Kirkman Orlando Partners, LP (KOP). More specifically, it must be determined whether the Heritage Florida Jewish News is a "newspaper of general circulation", and, if so, whether any circumstances exist that would excuse the Society's failure to file its petition within the 21-day period specified in a notice published in that newspaper. BACKGROUND MATTERS As stipulated by the parties, the evidence in this proceeding has been presented primarily by affidavits. Michael Mingea testified on behalf of the Central Florida Wetlands Society, but his testimony was generally argument with regard to the Society's position and restatements of matters presented in his petition and letters. His testimony has been considered, with the affidavits filed by the remaining parties and his letters, furnished to the other parties, have been considered with the remaining parties' briefs and memoranda. A separate order is being entered this same day with regard to the City of Orlando's motion for extension of time to file petition and Kirkman Orlando Partners LP's motion to dismiss or strike, in DOAH case number 91-8017.
Findings Of Fact On September 13, 1991, Kirkman Orlando Partners LP (KOP) and the Florida Department of Environmental Regulation (DER) entered into a consent order with regard to an enforcement action by the agency involving dredging and filling of wetlands in Orlando, Orange County, Florida. The consent order includes this requirement: 14. Respondent shall publish the following notice in a newspaper of general circulation in Orange County, Florida. The notice shall be published one time only within 10 days after execution of the Consent Order by the Department. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION NOTICE OF PROPOSED AGENCY ACTION The Department of Environmental Regulation gives notice of agency action of entering into a Consent Order with KIRKMAN ORLANDO PARTNERS LP, a/k/a KIRKMAN ORLANDO PARTNERS LTD., pursuant to Rule 17-103.110(3), Florida Administrative Code. The Consent Order addresses the dredging and filling of certain wetlands without a required permit in Sections 6 and 7 of Orange County generally east of Kirkman Road and north of L.B. McLeod Road. The Consent Order is available for public inspection during normal business hours, 8:00 to 5:00 p.m., Monday through Friday except legal holidays, at the Department of Environmental Regulation, Central District Office, 3319 Maguire Boulevard, Suite 232, Orlando, Florida 32803. Persons whose substantial interests are affected by the above proposed agency action have a right to petition for an administrative determination (hearing) on the proposed action. The Petition must contain the information set forth below and must be filed (received) in the Department's Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400, within 21 days of receipt of this notice. A copy of the Petition must also be mailed at the time of filing to the (persons named) above at the address indicated. Failure to file a petition within the 21 days constitutes a waiver of any right such person has to an administrative determination (hearing) pursuant to Section 120.57, F.S. The petition shall contain the following information: The name, address, and telephone number of each petitioner; the Department's identification number and the county in which the subject matter or activity is located; A statement of how and when each petitioner received notice of the Department's action or proposed action; (c) A statement of how each petitioner's substantial interests are affected by the Department's action or proposed action; (d) A statement of the material facts disputed by petitioner, if any; (e) A statement of facts which petition contends warrant reversal or modification of the Department's action or proposed action; and (g) A statement of the relief sought by petitioner stating precisely the action petitioner wants the Department to take with respect to the Department's action or proposed action. If a petition is filed, the administrative hearing process is designed to formulate agency action. Accordingly, the Department's final action may be different from the position taken by it in this Notice. Persons whose substantial interest will be affected by any decision of the Department with regard to the subject agency (proposed) action have the right to petition to become a party to the proceeding. The petition must conform to the requirements specified above and be filed (received) within 21 days of receipt of this notice in the Office of General Counsel at the above address of the Department. Failure to petition within the allowed time frame constitutes a waiver of any right such person has to request a hearing under Section 120.57, F.S., and to participate as a party to this proceeding. Any subsequent intervention will only be at the approval of the presiding officer upon motion filed. A party who is adversely affected by this Final Order is entitled to Judicial Review pursuant to Section 120.68, F.S. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The Notice of Appeal must be filed within 30 days of rendition of the Order to be reviewed. Respondent shall provide proof of publication to the Department within fourteen days of publication. (Consent order filed at DOAH 10/29/91. emphasis added) The required notice was published in the September 20, 1991 edition of Heritage Florida Jewish News (Heritage). The filing deadline was, therefore, Friday, October 11, 1991, 21 days after the notice was published. As reflected above, the notice clearly provides that filing means "received" by the agency and that failure to file constitutes a waiver of right to an administrative hearing. On September 25, 1991, Doug MacLaughlin, Esquire, Counsel for DER, sent a letter to Randall Denker, Esquire stating: Enclosed as you requested is a copy of the Consent Order as referenced above. Also enclosed is a copy of the public notice published on September 20, 1991, in the Heritage Florida Jewish News, also enclosed. Note that the published public notice allows affected parties 21 days from September 20 to petition for a hearing. Assuming that this is considered adequate public notice, this 21 day newspaper deadline would apply to any of your clients interested in this matter. (letter filed at DOAH 1/7/92) Ms. Denker represents Central Florida Wetlands Society (CFWS) in a civil proceeding related to the activities that are the subject of the consent order. CFWS received actual notice of the proposed agency action. As stated in Michael Mingea's letter to the hearing officer filed at DOAH on January 6, 1992: ...[W]e feel the decision regarding your ruling on the acceptability of the Heritage Jewish News is unnecessary because the Society received actual notice of proposed agency action from DER's attorney, Mr. MacLaughlin, stating that we had a certain number of days to submit a Petition for an Administrative Hearing and we submitted a Petition within that time-frame. Therefore, we feel that DER's letter of actual notice supersedes any published notice in the Heritage Jewish News. A petition for formal administrative proceeding, signed and verified by Michael Mingea, President, CFWS, was filed (received) by the DER Office of General Counsel on October 14, 1991. The City of Orlando filed a motion for extension of time to file petition on November 12, 1991. DER's Central District Office in Orlando, the office responsible for administration of the consent order, has taken the position that Heritage is not a newspaper of general circulation. George Gionis, Program Administrator for the Water Management Division in DER's Central District Office has informed KOP of his concern, but no one from DER has insisted or suggested that the notice should be republished in another newspaper in order to comply with the consent order. The Heritage has been published weekly for more than 15 years on a continuous basis. It has a circulation of approximately 3000 on a regular basis, up to approximately 7000 for certain issues. The population of Orange County is approximately 701,000. The newspaper is entered as second class mailing at the post offices in both Orange and Seminole Counties. It contains at least 25% of its words in the English language. The four issues filed at the Division of Administrative Hearings, and included as evidence in this proceeding, are dated February 1, 1991; May 10, 1991; June 21, 1991; and September 20, 1991. All of the words in those issues are in English. Substantially less than 50% of the newspaper is devoted to classified advertisements. The classifieds include legal notices from the Ninth (Orange County) and Eighteenth (Seminole County) Judicial Circuits. Legal notices by the Florida Department of Professional Regulation (DPR) are also found in the classified section. (See February 1, 1991 edition containing notices of action by DPR's Board of Funeral Directors and Embalmers, Board of Construction, and Board of Cosmetology.) Even though the newspaper is not sold at any of the three newsstands listed in the yellow pages of the Orlando telephone book, it is offered for sale to the public generally. The newspaper is available for purchase by the public through subscription and at the Jewish Community Center in Maitland and the newspaper office in Fern Park. It is available to the public at the Orlando and Maitland public libraries. The newspaper's masthead recites: HERITAGE Florida Jewish News (ISN 0199-0721) is published weekly for $22.26 ($21 plus $1.26 Fla. sales tax) per year to Florida addresses ($25 for the rest of the U.S.) by HERITAGE Central Florida Jewish News, Inc., 207 O'Brien Road, Suite 101, Fern Park, FL 32730. Second-class postage paid at Fern Park and additional mailing offices. The Heritage customarily contains information of a public character or of interest or value to the general public and residents and property owners in Orange and Seminole Counties. The four editions referenced above include a 12-page fashion section, a 20- page health and fitness section, short articles on central Florida businesses, and articles on elder care and child care. Most of the news articles, local, national and international, relate to Israel or to issues involving Jewish people. For example, the lead headline in the February 1, 1991, edition reads, "Iraqi Missile Attacks have left thousands of Israelis homeless". Another article in that edition reports on U.S. Representative Jim Bacchus' commendation of Israel on the floor of the House. As the attention of the general public was riveted to events in the Persian Gulf in early 1991, it is likely that the same or similar articles appeared in newspapers throughout the state and county. Examples of front page headlines from other editions include, "Israelis racing against the clock to get remaining Jews out of Ethiopia"; "Congress urged to press Syria to let its 4,000 Jews emigrate"; "Federation allocates $81,377 to local agencies from 100 Days Combined Jewish Appeal Campaign"; and "Ethiopians adjust to new lifestyle".
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Department enter its Final Order dismissing the petition of Central Florida Wetlands Society as untimely. DONE and RECOMMENDED this 24th day of January, 1992, in Tallahassee, Leon County, Florida. MARY CLARK, 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 24th day of January, 1992. COPIES FURNISHED: Douglas H. MacLaughlin, Esquire Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Charles Tunnicliff, Esquire Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0740 Debra Braga, Esquire City of Orlando 400 S. Orange Avenue Orlando, FL 32801 Michael Mingea Central Florida Wetlands Society P.O. Box 690218 Orlando, FL 32896 Nicholas A. Pope, Esquire Lowndes, Drosdick, et al. 215 N. Eola Drive Orlando, FL 32801 P. Hugh Trees, Esquire Robert T. Rosen, Esquire 1051 Winderley Place Maitland, FL 32751 Carol Browner, Secretary Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The Respondents have all been charged with multiple violations of Chapter 48, Florida Statutes. The specific violations charged raise the following issues: Whether the Respondents violated Section 489.023(1), Florida Statutes, by offering, disposing, or participating in the offer or disposition of subdivided lands located in Dade and Osceola Counties, Florida, without a valid order of registration from the Division of Florida Land Sales, Condominiums and Mobile Homes. Whether the Respondents violated Section 498.023(2), Florida Statutes, by disposing or participating in the disposition of subdivided lands located in Dade and Osceola Counties, Florida, without furnishing each purchaser with a public offering statement, approved by the Division of Florida Land Sales, Condominiums and Mobile Homes, prior to the purchase. Whether the Respondents violated Section 498.023(3), Florida Statutes, by disposing or participating in the disposition of subdivided lands principally offered by long distance telephone solicitation without furnishing the prospective purchaser with a copy of a synopsis or summary of the sales script, approved by the Division of Florida Land Sales, Condominiums and Mobile Homes prior to the execution of the sales agreement Whether Melvin Lewis, Larry Burton Lewis, Virginia G. Young, or Julio Bercowicz are jointly and severally liable with one or more of the other Respondents for the foregoing violations because of materially participating in the offer or disposition of subdivided lands located in Florida, which offers or dispositions were made in violation of Chapter 498, Florida Statutes, and involved fraud, deception, false pretenses, misrepresentation, or false advertising. Underlying all of the foregoing issues is the issue of whether the activities of the Respondents alleged in the several Notices To Show Cause constitute a "common promotional plan" within the meaning of Rule 7D-1.003(3), Florida Administrative Code.
Findings Of Fact At all times material to these cases, Melvin Lewis and Fay Lewis were and are husband and wife. Larry Burton Lewis ("Larry Lewis") and Cindy Morales are their son and daughter. During the period June 11, 1984, through March 16, 1987 (and perhaps later), Helen Lewis was married to Larry Lewis. Julio Bercowicz is the brother of Helen Lewis. From 1980 through 1987, Virginia Young was employed by Melvin Lewis as a secretary. South Florida Properties, Inc., was a Florida corporation created on April 26, 1977, for purposes which included selling real property located in section 21, township 54 south, range 37 east, Dade County, Florida, comprising 48 lots known as South Florida Properties. West Miami Estates, Inc., is an active Florida corporation created on July 20, 1978, for purposes which included selling the following real property: approximately 40 acres in the southeast 1/4 of the northwest 1/4 of section 19, approximately 10 acres in the northeast 1/4 of the southeast 1/4 of the southeast 1/4 of section 33, and approximately 21.25 acres in the northwest 1/4 of the northeast 1/4 of section 34, all in township 55 south, range 37 east, Dade County, Florida, comprising 48 lots known as West Miami Estates. Miami Kendall Estates, Inc., is an active Florida corporation created on October 12, 1979, for purposes which included selling approximately 60 acres in both the southwest 1/4 and the southern 1/2 of the northwest 1/4, of the southwest 1/4 of section 17, township 54 south, range 38 east, and approximately 10 acres in the east 1/2 of the east 1/2 of the southeast 1/4 of the southeast 1/4 of section 35, township 55 south, range 37 east, Dade County, Florida, comprising 48 lots known as Miami Kendall Estates. Randy Landes was the original incorporator, director, and president of Miami Kendall Estates, Inc. Miami Kendall West Inc., was a Florida corporation created on April 15, 1980, for purposes which included selling approximately 10 acres in the south 1/2 of the south 1/2 of the southwest 1/4 of section 32, township 54 south, range 38 east, and approximately 40 acres in the northeast 1/4 and approximately 20 acres in the west 1/2 of the southwest 1/4, both in the southwest 1/4 of section 34, township 55 south, range 37 east, section 34, Dade County, Florida, comprising 46 lots known as Miami Kendall West. Gateway Acres, Inc., is an active Florida corporation created on February 9, 1984, for purposes which included selling approximately 60 acres located in the western 1/2 of the southeast 1/4 of section 16, township 25 south, range 27 east, Osceola County, Florida, comprising 48 lots, numbered 27 through 39 and 42 through 76, known as Gateway Acres. Maingate Acres, Inc., is an active Florida corporation created on June 11, 1984, for purposes which included selling approximately 35 acres located in the western 1/2 of the southeast 1/4 and in the northeastern 1/4 of the southwest 1/4 of section 16, township 25 south, range 27 east, Osceola County, Florida, comprising 28 lots, numbered 1 through 26, 40, and 41, known as Maingate Acres. Central Florida Estates, Inc., is an active Florida corporation created on November 4, 1985, for purposes which included selling approximately 60 acres located in the southern 3/4 of the south 1/2 of the northeast 1/4 of section 19, township 25 south, range 27 east, Osceola County, Florida, comprising 48 lots known as Central Florida Estates. Mid-Florida Acres, Inc., is an active Florida corporation created on December 18, 1985, for purposes which included selling approximately 60 acres located in the north 1/2 of the northeast 1/4 of section 19, township 25 south, range 27 east, Osceola County, Florida, comprising 48 lots known as Mid-Florida Acres. Melvin Lewis controlled or participated in the formation, operation, or business of South Florida Properties, Inc., West Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., Maingate Acres, Inc., M and L Management, Inc., and Central Florida Estates, Inc., as follows: Melvin Lewis was a subscriber to the formation of South Florida Properties, Inc., Gateway Acres, Inc., and M and L Management, Inc., and participated in the formation of Central Florida Estates, Inc. Melvin Lewis is and has been the sole shareholder of Gateway Acres, Inc., since 1984, of Maingate Acres, Inc., since 1986, and of Miami Kendall Estates, Inc., and Central Florida Estates, Inc., since 1988. Melvin Lewis was the president of South Florida Properties, Inc., from 1977 through 1983; the president and a director of Miami Kendall Estates, Inc., from 1988 to the present; the president of Gateway Acres, Inc., from 1984 to present; the president of M and L Management, Inc., from 1985 to the present; the president and a director of Maingate Acres, Inc., from 1987 to the present; and the president and a director of Central Florida Estates Inc., from 1988 to the present. Melvin Lewis has been the registered agent for Gateway Acres, Inc., from 1984; for Maingate Acres, Inc., from 1986; for M and L Management, Inc., from 1985; and for Central Florida Estates, Inc., from 1988. Melvin Lewis executed the following checks, drawn on the indicated bank accounts, to pay the necessary filing fees to the Florida Secretary of State for the incorporation of the indicated corporations: Gateway Acres, Inc., paid by check number 161, and Maingate Acres, Inc., paid by check number 186, both drawn on the account of Melvin Lewis Licensed Real Estate Broker, account number 0104101960, with the Executive National Bank. M and L Management, Inc., paid by check number 50 drawn on the account of Gateway Acres, Inc., account number 0104105354, Executive National Bank. Central Florida Estates, Inc., paid by check number 2333 drawn on the account of Melvin Lewis and Fay Lewis, account number 0107205147, Executive National Bank. Melvin Lewis participated in dividing into lots for resale those parcels known as Miami Kendall Estates, Gateway Acres, Maingate Acres, and Central Florida Estates. Melvin Lewis directed and controlled the sale of lots in Miami Kendall Estates, Gateway Acres, and Maingate Acres. He further directed and controlled the sale of lots in Central Florida Estates as the real estate broker for Central Florida Estates, Inc. Melvin Lewis was authorized to execute agreements for deed as an agent for west Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., and Maingate Acres, Inc. As an authorized agent for each corporation, he executed at least two agreements for deed for west Miami Estates, Inc. (November 6, 1978 and August 15, 1979), one each for Miami Kendall Estates, Inc. (January 12, 1980), and Miami Kendall West, Inc. (January 28, 1981), four for Gateway Acres, Inc. (September 12, 26, 30 and October 5, 1984), and three for Maingate Acres, Inc. (September 7, 10, 14, 1984). As a notary public commissioned by the State of Florida, Melvin Lewis notarized the signature of Cindy Morales on six agreements for deed for Miami Kendall west, Inc. (dated from March 22 through September 21, 1982), and on one agreement for deed for Central Florida Estates, Inc. (January 28, 1986). He also notarized the signature of Fay Lewis on forty agreements for deed for Gateway Acres, Inc. (dated from April 23, 1984, through August 8, 1985), and on twenty agreements for deed for Maingate Acres, Inc. (dated from July 8 through October 31, 1984). He also notarized the agreement for deed, dated November 11, 1984, between Maingate Acres Inc., and Irma Jean DeWitt and/or Jean M. Hutchens for Maingate Acres lot 11. Melvin Lewis also notarized the corporate execution for deeds conveying lots to purchasers from West Miami Estates, Inc., Miami Kendall Estates, Inc., and Miami Kendall West, Inc. Larry Lewis controlled or participated in the formation, operation, or business of South Florida Properties, Inc., West Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., Maingate Acres, Inc., Central Florida Estates, Inc., and Mid-Florida Acres, Inc. as follows: Larry Lewis was a subscriber in the formation of West Miami Estates, Inc., and South Florida Properties, Inc., and participated in the formation of Central Florida Estates, Inc. Larry Lewis was president and a director of West Miami Estates, Inc., from 1979 through 1984, and from 1987 to the present; an officer of South Florida Properties, Inc., from 1977 to 1979; and the president of Mid-Florida Acres; Inc., from 1987 to the present. Larry Lewis has been the sole shareholder of West Miami Estates, Inc., since 1978 and the sole shareholder of Mid-Florida Acres, Inc., since 1986. Larry Lewis participated in dividing into lots for resale those parcels known as West Miami Estates and Mid-Florida Acres. From the inception of West Miami Estates, Inc., and of Mid-Florida Acres, Inc., Larry Lewis has controlled the daily operations and sale of lots by each corporation. Purchasers for lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid- Florida Acres were solicited by Larry Lewis using long distance telephone calls. Fay Lewis controlled or participated in the formation, operation or business of South Florida Properties, Inc., West Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., and Maingate Acres, Inc., as follows: Fay Lewis was a subscriber to the formation of South Florida Properties, Inc., and Miami Kendall West, Inc. Fay Lewis was the president and a director of Miami Kendall West, Inc., from its inception in 1980 until its dissolution in 1988. As president of West Miami Estates, Inc., Fay Lewis executed the warranty deed conveying lot 35A of West Miami Estates to Troy Johnson. From April 30, 1984, to August 12, 1985, Fay Lewis executed at least forty agreements for deed on behalf of Gateway Acres, Inc.; thirty-eight as corporate secretary and two as an agent for the corporation. From July 17 to November 19, 1984, Fay Lewis executed at least twenty agreements for deed on behalf of Maingate Acres, Inc.; eighteen as corporate secretary and two as an agent for the corporation. Fay Lewis executed two separate warranty deeds conveying lots in Miami Kendall Estates as a witness to the execution by the president of Miami Kendall Estates, Inc. Cindy Morales participated in the operation or business of Miami Kendall Estates, Inc., Miami Kendall West, Inc., and Central Florida Estates, Inc., as follows: From April 29 to September 28, 1982, Cindy Morales executed six agreements for deed as an authorized agent for Miami Kendall West, Inc. From January 21 to February 27, 1986, Cindy Morales executed fifteen agreements for deed as an authorized agent for Central Florida Estates, Inc. Cindy Morales also executed two separate warranty deeds conveying lots in Miami Kendall Estates as a witness to the execution by the president of Miami Kendall Estates, Inc. In 1985, Virginia Young participated in the formation of Central Florida Estates, Inc., and was listed as the sole subscriber, president, and registered agent. She participated in the daily operations of the corporation, including the filing of annual reports with the Florida Secretary of State. In 1987, she resigned her positions with Central Florida Estates, Inc., and transferred the corporation to Melvin Lewis. Saundra Bonduel ("Bonduel"), who was Melvin Lewis' accountant, was an officer in South Florida Properties, Inc., West Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., Maingate Acres, Inc., M and L Management, Inc., and Central Florida Estates, Inc., as follows: Bonduel was a vice president of South Florida Properties, Inc., from 1978 to 1983; of West Miami Estates, Inc., from 1979 to the present; of Miami Kendall West, Inc., from 1981 to 1987; of Gateway Acres, Inc., and Maingate Acres, Inc., from 1985 to the present; of M and L Management, Inc., from 1987 to the present, and of Miami Kendall Estates, Inc.; and Central Florida Estates, Inc., from 1988 to the present. Bonduel was a director and the corporate secretary of Miami Kendall Estates, Inc., from 1980 to 1988. In the foregoing capacities, Bonduel executed the annual reports filed with the Florida Secretary of State for each corporation as follows: South Florida Properties, Inc. (1978-1983); West Miami Estates, Inc. (1979-1989); Miami Kendall Estates, Inc. (1980, 1982-1989); Miami Kendall West, Inc. (1982- 1987); Gateway Acres, Inc., and Maingate Acres, Inc. (1985-1989); M and L Management, Inc. (1987-1988); and Central Florida Estates, Inc. (1988-1989). South Florida Properties, Inc., West Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., Maingate Acres, Inc., M and L Management, Inc., Central Florida Estates, Inc., and Mid- Florida Acres, Inc. have shared common offices and telephones, as follows: All of the corporations are or have been located at 633 N.E. 167th Street, North Miami Beach, Florida 33162, as follows: South Florida Properties, Inc.: Suite 519 (1978); Suite 1020 (1979); Suite 810 (1980-1983) West Miami Estates, Inc.: Suite 1020 (1979); Suite 810 (1980 to the present) Miami Kendall Estates, Inc., and Miami Kendall West, Inc.: Suite 810 (1981 to the present). Gateway Acres, Inc., and Maingate Acres, Inc.: Suite 810 (1985 to the present) M and L Management, Inc.: Suite 810 (1987 to the present). Mid-Florida Acres, Inc.: Suite 810 (1986 to the present). Central Florida Estates, Inc.: Suite 810 (1988 to the present). 2114 N.E. 182nd Street, North Miami Beach, Florida, was the personal address for Larry Lewis from 1979 through 1984; the personal address of Randy L. Landes, incorporator of Miami Kendall Estates, Inc., from 1979 through 1984; the personal address of Helen Lewis from 1984 through 1986; the corporate address of Miami Kendall Estates, Inc., in 1979 and 1980; and the corporate address of Maingate Acres, Inc., in 1984. 4927 S.W. 139th Court, Miami, Florida 33175 was the corporate address for Gateway Acres, Inc., in 1984 and for M and L Management, Inc., in 1985 and 1986. (305) 652-8523 was the telephone number given for the officer executing each of the annual reports listed below for the following corporations: West Miami Estates, Inc., and Miami (Kendall Estates, Inc. (1980-present); South Florida Properties, Inc. (1980-1983); Miami Kendall West, Inc. (1981-1987); Gateway Acres, Inc., and Maingate Acres, Inc. (1985-present); M and L Management, Inc. (1986-present); Central Florida Estates, Inc. (1988-present); Mid-Florida Acres, Inc. (1986). Mel Lewis, Larry Lewis, and Fay Lewis are authorized signers for the following corporate bank accounts with Executive National Bank, Miami, Dade County, Florida; each account opened on the indicated date: Miami Kendall West, Inc., Account Number 010-410-176-6-06, opened on October 12, 1982; Miami Kendall Estates, Inc., Account Number 010-410-179-0-06, opened on October 12, 1982; West Miami Estates, Inc., Account Number 010-410-177-4-06, opened on October 12, 1982. West Dade Acres, Inc., Account Number 010- 410-178-2-06, opened on October 12, 1982, with Cindy Morales listed as an additional signer; Gateway Acres, Inc., Account Number 101- 010-410-5354-06, opened on July 12, 1984; Maingate Acres, Inc., Account Number 010- 410-6350-06, opened on June 25, 1984. Mel Lewis, Larry Lewis, and Fay Lewis were the authorized signers for Skylake State Bank, Account Number 102-007-6, opened July 28, 1978, for West Miami Estates, Inc. Mel Lewis and Larry Lewis were the authorized signers for the bank account of South Florida Properties, Inc., at Skylake State Bank, Account Number 101-526-9. Julio Bercowicz executed agreements for deed as an authorized agent of Mid-Florida Acres, Inc. Julio Bercowicz was the original incorporator of Mid- Florida Acres, Inc., and was, at one time, the sole stockholder. He was president of Mid-Florida Acres, Inc., until at least March 17, 1986. The properties offered as West Miami Estates, Miami Kendall Estates, and Miami Kendall West share certain characteristics. All are located in the portion of the Everglades lying east of the Everglades National park. The parcels are typical Everglades wetland: primarily sawgrass prairie with occasional hardwood hammocks on slightly elevated areas and subject to seasonal flooding. Several of the small parcels comprising West Miami Estates, Miami Kendall Estates, and Miami Kendall West are located close together. One of the parcels sold as West Miami Estates and two of those sold as Miami Kendall West; are located within the one square mile of section 34, township 55 south, range 37 east, Dade County, Florida. A second parcel of West Miami Estates and the smaller parcel of Miami Kendall Estates are located in sections 33 and 35, respectively, township 55 south, range 37 east, on either side of the foregoing section 34. The parcels sold as Gateway Acres and Maingate Acres are contiguous and were formed from the single large parcel conveyed by Sand Hills Corporation to Melvin M. Lewis Licensed Real Estate Broker, Inc., on March 30, 1984. The single parcel was divided into a total of seventy-six consecutively-numbered lots; lots 1-26, 40, and 41 were then apportioned to Maingate Acres and lots 27- 39 and 42-76 to Gateway Acres. On more than one occasion, when a lot in Gateway Acres or Maingate Acres was deeded, Melvin Lewis, individually, would convey the lot by warranty deed to the applicable corporation for nominal consideration (as shown by the documentary stamps affixed to each document). If the lot was in those apportioned to Gateway Acres, Inc., he would then execute a second warranty deed as corporate president, on the same date and before the same witnesses and notary, conveying the lot to the purchaser for substantial consideration. If the lot was in Maingate Acres, the warranty deed conveying the lot to the purchaser would be executed on the same day. Fay Lewis witnessed, and Mel Lewis witnessed and notarized, the execution of at least one warranty deed by Helen Lewis as president of Maingate Acres, Inc. Those parcels sold as Central Florida Estates and Mid-Florida Acres were created from a single 140-acre parcel, acquired by M and L Management, Inc., on January 6, 1986, from David Alan Siegel and Betti L. Siegel, comprising almost the entire northeast 1/4 of section 19, township 25 south, range 27 east, Osceola County, Florida. On the same date, Melvin Lewis, as president of M and L Management, Inc., executed a warranty deed conveying to Kissimmee Hills, Inc., a 20-acre strip 2,640 feet long and 330 feet wide. This conveyance divided the single parcel conveyed by the Siegels into northern and southern portions. On January 7, 1986, Melvin Lewis, as president of M and L Management, Inc., executed a warranty deed conveying to Central Florida Estates, Inc., the remaining portion of the original parcel to the immediate south of the strip of property conveyed to Kissimmee Hills, Inc. Cindy Morales and Fay Lewis executed the deed as witnesses to the signature of Melvin Lewis. Mid-Florida Acres is comprised of the northern 60 acres remaining after 60 acres were conveyed to Central Florida Estates, Inc., and 20 acres to Kissimmee Hills, Inc. Identical or substantially identical form contracts were used to sell lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, and Central Florida Estates. The form of the contracts was also similar to the types of contracts used by many other people in the business of selling undeveloped real estate in Florida. Each sale was made by executing an unrecorded agreement for deed which reserved to the seller both the title and possession of the property until payment under the contract was complete. The use of agreements for deed is not an unusual practice in the business of selling undeveloped real estate in Florida. Purchasers of lots in South Florida Properties exchanged their lots for lots in Miami Kendall Estates, Miami Kendall West, West Dade Acres, or West Miami Estates. Melvin Lewis solicited people who had purchased lots from South Florida Properties, Inc., to exchange their lots for ones in West Miami Estates, Miami Kendall Estates, Miami Kendall West, or West Dade Acres. He subsequently sent letters to each of such purchasers verifying their discussions and providing the documents necessary for the exchange of lots. Casimir T. Brudzinski purchased lot 94-B in South Florida Properties by an agreement for deed executed by Melvin Lewis as president of South Florida Properties, Inc. After being solicited by Melvin Lewis to exchange his lot, Mr. Brudzinski agreed to exchange his lot for lot 7WD in West Dade Acres. Delbert D. Oldenburg purchased lot 126-D, South Florida Properties, by an agreement for deed executed by Melvin Lewis as president of South Florida Properties, Inc. After being solicited by Melvin Lewis to exchange his lot, Mr. Oldenburg agreed to exchange his lot for lot 43WDA in West Dade Acres, which exchange agreement was countersigned by Melvin Lewis. Ralph J. and Beryl G. Hanchin purchased lots 100A and 100B in South Florida Properties, making monthly payments to South Florida Properties, Inc. The Hanchins continued to make payments after October 1982, which payments were credited toward the purchase of lots 55A and 55B in Miami Kendall Estates. The following sales were made in each indicated parcel: at least 19 in West Miami Estates, 22 in Miami Kendall Estates, 19 in Miami Kendall West, 44 in Gateway Acres, (lots 38, 53, 67, 71 appear to have been resold due to purchaser default or refund), 24 in Maingate Acres, at least 15 in Central Florida Estates, and at least 43 in Mid-Florida Acres. None of the lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid- Florida Acres were sold as part of a reservation program approved by the Division pursuant to Section 498.024, Florida Statutes. West Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., Maingate Acres, Inc., Central Florida Estates, Inc., and Mid-Florida Acres, Inc., are neither governments nor governmental agencies. The lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres, were not offered as cemetery lots or interests in cemetery lots. The offer or disposition of lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres was not registered with either the Florida Department of Banking and Finance or the United States Securities and Exchange Commission. Each offer or disposition of a lot in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres was for the actual sale of real property and not for the sale of a debt secured by a mortgage on real property. The sale price for each separate lot sold in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres did not exceed 50,000.00. The lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres were each offered or sold without any residential or commercial buildings. The lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres were each offered or sold without any obligation of the seller to construct a residential or commercial building thereof for the purchaser. No plat or series of plats describing each lot in South Florida Properties, West Dade Acres, West Miami Estates, Miami Kendall Estates, or Miami Kendall West, was recorded or accepted for recordation in the official records of Dade County, Florida, prior to any lot sales. No plat or series of plats describing each lot in Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres, was recorded or accepted for recordation in the official records of Osceola County, Florida, prior to any lot sales. The Division did not issue any order exempting West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres from the registration requirements of Chapter 498, Florida Statutes, prior to any lot sale or other disposition being made. The Division has not issued a valid order of registration for lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres pursuant to Chapter 498, Florida Statutes. No purchaser of a lot in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres received a current public offering statement which had been approved by the Division. No purchaser of a lot in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres received a synopsis or summary, approved by the Division, of the sales script used in conjunction with the long distance telephone solicitation of the lot purchaser. The Division has not approved a public offering statement for West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres. The Division has not approved a synopsis or summary of any long distance telephone solicitation sales script for West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres. Both Melvin Lewis and Larry Lewis were familiar with the subdivided land registration requirements of Chapter 493, Florida Statutes. West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres were each created to hold less than 50 lots in an attempt to avoid the registration requirements of Chapter 498. The physical characteristics of the parcels of land offered and sold by the Respondents made those parcels unacceptable for registration under Chapter 498. Rodney A. Lein purchased lot 73 in Miami Kendall West on July 13, 1980, after a telephone call from Larry Lewis in which Larry Lewis offered Mr. Lein "income property" on land slated for development. In the conversation, Larry Lewis guaranteed he could resell the land at a profit within 3 to 4years. After the call, but before the purchase, Mr. Lein traveled to Miami to inspect the property. Larry Lewis took him to the end of west Kendall Drive in Dade County, Florida. Larry Lewis said the property offered was some 2 1/2 to 3 miles to the west of the pavement's end, but that Kendall Drive would be extended out past the property. Larry Lewis further said that as the urban area developed, the city would pay for extending such services as roads and water utilities to the property. Thomas Bezelik purchased lot 54 D, Miami Kendall Estates in January 1980 after a telephone solicitation in which the caller said the property would be a good investment and possibly purchased for industrial use. Bezelik was told an aerospace business was located close to the property he was being offered and was a potential purchaser of the site. Bezelik is still paying for the property. Robert Welch was solicited by telephone to purchase a lot in Central Florida Estates and was told the subdivision had been improved with paved streets and all utilities such as electricity, gas, telephone service, water, and sidewalks. He was further told the property would definitely appreciate in value. On the basis of this and other telephone conversations with the solicitor, Mr. Welch purchased lot 28 in Central Florida Estates. He subsequently spoke with Virginia Young by telephone, who identified herself as the president of Central Florida Estates, Inc., and affirmed the statements that had been made in soliciting him to purchase the property. She also stated Welch could redivide his 1 1/4-acre parcel into 4 lots. Eileen O. Gometz, together with her husband, since deceased, purchased a lot in West Miami Estates as a result of a telephone conversation with Larry Lewis. Larry Lewis said the property was suitable for building and would be developed within 3 to 4 years from purchase. Larry Lewis told her the property was close to a large commercial company but that the actual property itself would be home sites. At no time was she advised of the actual zoning or any rezoning of the property. Paul J. Matrullo purchased a lot in Gateway Acres after a telephone call from Larry Lewis in which Lewis assured him the property was good quality, "buildable land." Prior to his purchase, Mr. Matrullo visited the general area of the property with Larry Lewis. During the physical inspection, Lewis stated the land would be developed for residential housing or the State of Florida would purchase the property to develop a highway. Lewis further stated the property had been purchased by himself and his father, and the land was of such quality that it would double or triple in value within 12 months to 2 years. Larry Lewis gave no information specifically describing the zoning of the property. Primarily based on Lewis' representation that the property would double or triple in value within a 2-year period, Mr. Matrullo purchased lot 56 in Gateway Acres. He is currently paying for the property. William Somerset purchased lot 17 in Maingate Acres after receiving a telephone solicitation. He was told the intent of the offering was not to develop the land but to hold it as an investment for approximately 1 1/2 years and then sell it to developers. He purchased lot 17 because he was told the property would be quickly resold at a profit within "...perhaps a year and a half." He is still paying for the property. Similar sales methods were utilized in the marketing of the lots in all of the subject subdivisions. For example, solicitations for sales were made by telephone and prospective purchasers were told that they should purchase for investment purposes. Much of the land offered for sale by the Respondents was a poor investment at any price. The uses to which the property in sections 16 and 19, township 25 south, range 27 east in Osceola County, Florida, may be put are primarily agricultural. The minimum lot area is five acres and the density for residential development is one residence per five-acre lot. The purchasers of lots in Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres would not be permitted to build a separate structure on their individual lots; a minimum of four contiguous lots would have to be merged in order to create a parcel on which one residence could be built. The property purchased from Sand Hills Corporation and resold as Gateway Acres and Maingate Acres is entirely contained within the "Davenport Creek Swamp." The property is low, poorly drained, wet Florida swampland subject to periodic flooding. The single parcel sold as Central Florida Estates and Mid-Florida Acres, and in part conveyed to Kissimmee Hills, Inc., contains three distinct types of property. Roughly 45 percent of the tract is a "typical central Florida grass pond." During periods of dry weather portions of the pond dry up, but the property is subject to periodic flooding during the year. The second portion of the property is a "transitional zone" between the actual grass pond and potentially more usable land. The transitional property is low and poorly drained, again subject to occasional flooding. The smallest portion of the property, primarily found in the northern portion sold as Mid-Florida Acres, is sufficiently elevated and dry. No clear public access exists to either Gateway Acres or Maingate Acres. Access is obtained either by four-wheel drive vehicle or by foot. In soliciting purchasers for either Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres, Larry Lewis stated the offered real property was located in an area undergoing rapid growth and development. In fact, none of the parcels sold as West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres have been developed. Nor has West Kendall Drive in Miami, Florida, been extended westward to Lot 73, Miami Kendall West. Neither South Florida Properties, Inc., nor Melvin Lewis explained to the previous purchasers of South Florida Properties that the reason that they were being offered an exchange of their property was because South Florida Properties had been deeded back to the original mortgage holder in lieu of foreclosure. The lots offered for sale by the Respondents in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres were all offered as part of a common promotional plan by Melvin Lewis and Larry Lewis, with the assistance of a few of their relatives, friends, and employees. In his various capacities described in paragraph 11 of these Findings of Fact, Melvin Lewis participated in the disposition of 143 lots of subdivided lands in Florida. In his various capacities described in paragraph 12 of these Findings of Fact, Larry Lewis participated in the disposition of 186 lots of subdivided lands in Florida. In her capacities described in paragraph 15 of these Findings of Fact, Virginia Young participated in the disposition of 15 lots of subdivided lands in Florida. In his capacities described in paragraph 19 of these Findings of Fact, Julio Bercowicz participate in the disposition of at least 2 lots of subdivided lands in Florida.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the Division of Florida "Land Sales, Condominiums and Mobile Homes enter a final order in this case to the following effect: Finding each Respondent in these consolidated cases guilty of the violations charged in the respective Notices to Show Cause and Amended Notices to Show Cause. Melvin Lewis shall be ordered to pay to the Division civil penalties totaling One Million Four Hundred Forty Thousand Dollars ($1,440,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 143 dispositions of lots in which he participated. Larry Lewis shall be ordered to pay to the Division civil penalties totaling One Million Eight Hundred Seventy Thousand Dollars ($1,870,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 186 dispositions of lots in which he participated. Virginia Young shall be ordered to pay to the Division civil penalties totaling One Hundred Sixty Thousand 43 Dollars ($160,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 15 dispositions of lots in which she participated. Julio Bercowicz shall be ordered to pay to the Division civil penalties totaling Thirty Thousand Dollars ($30,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 2 dispositions of lots in which he participated. West Miami Estates, Inc., shall be ordered to pay to the Division civil penalties totaling Two Hundred Thousand Dollars ($200,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 19 dispositions of lots in which it participated. Miami Kendall Estates, Inc., shall be ordered to pay to the Division civil penalties totaling Two Hundred Thirty Thousand Dollars ($230,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 22 dispositions of lots in which it participated. Gateway Acres, Inc., shall be ordered to pay to the Division civil penalties totaling Four Hundred Fifty Thousand Dollars ($450,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 44 dispositions of lots in which it participated. Maingate Acres, Inc., shall be ordered to pay to the Division civil penalties totaling Two Hundred Fifty Thousand Dollars ($250,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 24 dispositions of lots in which it participated. Central Florida Estates, Inc., shall be ordered to pay to the Division civil penalties totaling One Hundred Sixty Thousand Dollars ($160,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 15 dispositions of lots in which it participated. Mid-Florida Acres, Inc., shall be ordered to pay to the Division civil penalties totaling Four Hundred Forty Thousand Dollars ($440,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 43 dispositions of lots in which it participated. In addition to the civil penalties recited above, West Miami Estates, Inc., Miami Kendall Estates, Inc., Gateway Acres, Inc., Maingate Acres, Inc., Central Florida Estates, Inc., and Mid-Florida Acres, Inc., each shall be ordered to, under the supervision and approval of the Division, offer each purchaser of a lot from each respective corporation, the opportunity to rescind the purchase contact and receive a refund of all principal and interest paid in purchasing the lot. The offers of rescission and refund should be made to each purchaser. The offer to rescind shall be made within 60 days from the rendition of the final order by the Director of the Division. Those purchasers who elect to rescind their contract and receive a refund shall receive their payments no later than 90 days from the date they request their refund. The Division should impose such terms of compensation and require such security as will assure the maximum recovery by those purchasers selecting a refund, including, but not limited to requiring full disclosure of all facts material to the actual lot acquired by each respective purchaser, escrowing funds or posting bonds, or the appointment of a trustee or receiver to supervise the programs of rescission and refund whose fees are to be paid by the Respondents. Melvin Lewis and Larry Lewis shall also be ordered to be jointly and severally liable for the civil penalties and other remedies ordered against West Miami Estates Inc., Miami Kendall Estates, Inc., Gateway Acres, Inc., and Maingate Acres, Inc. Melvin Lewis, Larry Lewis, and Virginia Young shall also be ordered to be jointly and severally liable for the civil penalties and other remedies ordered against Central Florida Estates, Inc. Julio Bercowicz and Larry Lewis shall also be ordered to be jointly and severally liable for the civil penalties and other remedies ordered against Mid-Florida Acres, Inc. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of November 1989. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1989.
The Issue By this action Petitioner seeks to recover costs, expenses and damages associated with state response to an oil spill incident occurring February 26, 1987, within three miles of the Florida shoreline. Respondent's vessel was responsible for that spill. In particular the costs, expenses and damages claimed are related to salaries, per diem allowances, Federal Express charges, beach sand replacement, equipment, use of a cellular phone, and consulting work at the shore and off site. Petitioner also seeks damages for bird mortality resulting from the spill. See Chapter 376, Florida Statutes, and Chapter 16N- 16, Florida Administrative Code.
Findings Of Fact On the evening of February 26, 1987, the motor vessel Fernpassat struck the south jetty at the entrance to the St. Johns River at a location within three miles of the Florida shoreline. In doing so it ruptured the hull and spilled a substantial amount of heavy fuel oil. The type of the oil was No. 5 or 6 Bunker C. A preliminary estimate placed the amount of oil in excess of 100,000 gallons. While the true amount may have been somewhat less, it was a significant spill in that it substantially threatened the public's welfare and the environment and generated wide public interest. Petitioner's exhibit 3 is a map which depicts the basic location where the vessel collided with the jetty with an "X" mark. The area impacted by the discharge ran from roughly Atlantic Beach, Florida, to Guana State Park in St. Augustine, Florida. This is approximately 25 miles of beach front. Beach property over which Petitioner has regulatory and proprietary responsibility had oil deposited upon it. The oil spill killed or injured a number of birds. The event was responded to by the "Federal Region IV Regional Response Team" (RRT). The federal on-scene coordinator (OSC) was Captain Matthew Woods, U.S. Coast Guard. The RRT, through management and control provided by the OSC, took necessary steps to combat the effects of the spill. Respondent immediately accepted responsibility for the cleanup through the use of a consultant and cleanup contractor. Under this arrangement the OSC monitored the contractor's cleanup efforts to make certain that the job was done satisfactorily. Florida officials were part of the RRT. Rule 16N-16.009(21), Florida Administrative Code, calls for personnel from Petitioner; the State of Florida, Department of Environmental Regulation (DER); and the State of Florida, Department of Community Affairs (DCA) to represent state interests as members of the RRT. Each of these agencies participated as members of the RRT. This furthered the legislative intent expressed at Section 376.021(6), Florida Statutes, to support the RRT through implementation of the "Federal Water Pollution Control Act," which is also known as the "Clean Water Act," 33 U.S.C. ss. 1251-1376. By its efforts the RRT promoted the removal of the oil in accordance with a national contingency plan. Pursuant to Section 376.021(6), Florida Statutes, the state is expected to complement applicable provisions within the "Federal Water Pollution Control Act" as well as render the support previously described. Both the support and complementary functions of the state are part of Florida's "Pollutant Spill and Prevention Control Act," Sections 376.011-376.17, 376.19-376.21, Florida Statutes. Chapters 16N-16, Florida Administrative Code, more completely identifies the role played by the state agencies in this instance. This chapter was adopted pursuant to authority set out in Section 376.07, Florida Statutes, which, among other things, empowered Petitioner to make rules which developed and implemented criteria and plans to respond to spills such as the one at issue. In its complementary role the state has established a "State Response Team" (SRT). This organization in defined at Rule 16N-16.009(13), Florida Administrative Code. It is constituted of predesignated state agencies available continually to respond to a major spill. This incident was a major spill or discharge as defined in Rule 16N-16.009(18), Florida Administrative Code. The predesignated state agencies, pursuant to the rule defining the SRT and Section 376.07(2)(e), Florida Statutes, act independently of the federal authorities, although they are expected to cooperate with the federal authorities in the efforts at cleanup. What that meant here is that notwithstanding the concerns which Captain Woods had and the state participation in the RRT through Petitioner, DER and DCA, there was a parallel function by the SRT which had its own mandate. This allowed the SRT to pursue an independent agenda in the spirit of cooperation with the OSC in an attempt to protect the resources over which the state has jurisdiction, including the beach front and birds. Both Captain Woods and the consultant to the spiller, James L. O'Brien, who is a man of considerable credentials in giving advice about oil spill problems, expressed their understanding of the interests which the state might have in carrying out its functions and did not find that reality a hindrance in performing their duties. As a result, even though state employees and equipment and consultants to the state had limited utility for the OSC and the consultant to the spiller in carrying out their duties, it does not follow that claims by the state for reimbursement in categories set out in the statement of issues must fail unless found to support the OSC or spiller's choice in attempts at cleanup. The question is whether the costs, expenses and damages are reasonably related to support for the RRT or complementary of that function through the SRT and owed or expended from the Florida Coastal Protection Trust Fund (Fund) for recoverable items. See Section 376.11, Florida Statutes. Petitioner's exhibit 15 is a copy of the state contingency plan. See Section 376.07(2)(e), Florida Statutes. It identifies the membership of Petitioner, DER and DCA. Other claimants for costs, expenses, and damages who were involved in the response to this incident as predesignated agencies are the Florida Game and Fresh Water Fish Commission (Commission), the State of Florida, Department of Transportation (DOT), and the Attorney General. The state contingency plan explains the operational responsibilities of state agencies when responding to the incident. This is a more specific reference to those responsibilities as envisioned by the general guidelines announced in the "Pollution Spill Prevention and Control Act." Having considered the testimony and exhibits in the context of the state support and complementary role in responding to the spill contemplated by the aforementioned laws, regulations and contingency plans, the costs, expenses and damages sought by the Petitioner are reasonably related to those purposes. Those costs, expenses and damages are detailed in Petitioner's exhibit 16 and summarized in Petitioner's exhibits 8 and 9. With the exception of $15,654.37 in costs and expenses for Petitioner's Executive Office and Division of Law Enforcement and $3,336.16 for salaries for the Commission, DOT and DCA, all claims for expenses and costs have been paid from the Fund. Petitioner wishes to impose the costs, expenses and damages in the state response whether or not claims were disbursed from the Fund. The damage claim associated with future beach re-nourishment by replacement of sand that had been befouled by oil and needed to be removed is a reasonable claim in the amount of $10,222.50. It has been paid from the Fund and is held in the Erosion Control Trust Fund until needed. The on-scene consulting fee of $3,525.00 and the oil spill assessment study fee of $9,880.00 commissioned by Petitioner through Jacksonville University are reasonably related to the Department's role in response to the spill. As Petitioner's exhibit 8 depicts, $30,312.53 has been disbursed from the Fund in costs, expenses and damages reasonably related to the response to the spill. There remains unpaid from the Fund the aforementioned costs and expenses in the amount of $18,990.53 which are reasonably related to the response to the spill. Those latter amounts, although presented for payment from the Fund by the agencies in question, were not paid, based upon some fiscal anomaly. By inference, it does not appear from this record that the Fund owes the agencies for these claims. According to Section 376.13, Florida Statutes, on February 27, 1987, Governor Martinez declared a state of emergency in response to the oil spill. That proclamation was withdrawn on March 25, 1987. The activities for which claims for costs and expenses are advanced transpired in the time frame of the state of emergency declaration. The amount which Respondent has expended in the cleanup effort is $700,000 plus or minus $200,000. None of this money has been paid to satisfy claims for costs, expenses and damages previously described. While it has been found that costs, expenses, and damages are reasonably related to the state's purposes in responding to the spill, not all items are recoverable. They are only recoverable if recognized for recovery by Chapter 376, Florida Statutes, and Chapter 16N-16, Florida Administrative Code, and owed or expended from the Fund. Petitioner's claims in its exhibit 8 in the amount of $12,901.30 and DOT claims for $675.19 in that exhibit qualify for recovery as well as the on-scene consulting fee of $3,525.00. Other claims do not qualify with the exception of a limited recovery for bird mortality. Reasons for this fact finding are set forth in the conclusions of law. Petitioner has disbursed $176,058.00 to the Commission for damages related to alleged bird mortality. This money was disbursed from the Fund. Petitioner now concedes that the amount should be reduced by half. This recognizes that the cost estimate for damages dealt with pairs of birds not single birds. Petitioner now asks for $88,075.00. Two hundred fourteen (214) birds are said to have died as a result of the spill, according to Petitioner. Petitioner seeks damages for each of these birds. The number proven to have been killed by the event and the theory upon which the damage claim is predicated leads to a result which diminishes the claim for reasons to be explained. As with other claims, Section 376.021.(4)(c), Florida Statutes, anticipates the payment of damages from the Fund. Section 376.11(1), Florida Statutes, is in aid of recovery of damages, as is Section 376.11(4)(d), Florida Statutes. However, these claims must be susceptible to proof that readily identifies and explains valuation methods of the birds and recognizes the predicate of establishing the actual number lost in this episode. For the most part, Petitioner has failed in the endeavor. Mark Damian Duda is a wildlife biologist with the Commission. He earned a bachelor of science degree from West Virginia University and received his master's degree in natural resource policy and planning from Yale University, both with honors. He was assigned the task of trying to arrive at an acceptable method for valuing birds that had been killed. His assessment is generally set forth in a report, a copy of which is Respondent's exhibit 3. Having considered a number of options, he reached the decision to employ what he describes as the replacement value method. Quoting from his report concerning this method, he has this to say: Replacement Value Method We believe the replacement value method is the most useful and logical method to determine the value of wildlife lost in the February 27 Jacksonville oil spill. A replacement cost approach can avoid many of the problems involved in attempting to estimate the use of value of biological resources. Under the replacement cost approach, the resource is valued at what it would cost to replace it. If the resource is replaced, the problems of identifying all its uses, the monetary value of these uses, and the users affected by the resource loss are eliminated, except for the period between the initial loss and the replacement. Four Florida institutions were asked to estimate the cost of obtaining specimens of the birds killed in the Jacksonville oil spill, or the price at which they would be willing to sell members of each species. Their estimates are shown in Table 4. One problem with most of these estimates is that they are not true replacements costs; but rather the cost of collecting already existing specimens from the wild and redistributing them to the Jacksonville Area. This does not represent true replacement, since true replacement requires a complete recovery of the species population. This can be most clearly assured by using only captive breeding programs for replacement. However, many of the species in this list probably cannot be bred in captivity. Therefore, true replacement of these species through captive breeding is probably impossible. It is absurd to value them at zero since they cannot be replaced. Therefore, this section presents some calculations on the assumption that they could be redistributed or replaced. Table 1 presents the replacement costs for the birds. The numbers were derived by multiplying the number of dead birds times the average replacement costs given in Table 4. Using this approach, the total replacement costs for the birds estimated to have been killed in the Jacksonville oil spill is $176,058.00. It should be noted that we use a deliberately conservative approach, using body counts only, and thereby underestimating the total mortality. There is an increasing amount of scientific literature indicating that actual body counts appear to significantly underestimate the total mortality resulting from a spill. For example, there have been a variety of experiments that show only 5 percent to 25 percent of the birds that die at sea, wash in or beach themselves on shore. The percent of loons found is probably even lower because of their low buoyancy and wide-ranging distribution. An alternative approach to estimating replacement costs is to estimate the cost of creating new habitat or enhancing existing habitat to support enough nesting pairs of each species to replenish the population. Again, to represent true replacement costs, this should be new or enhances habitat, not just the cost of acquiring already existing habitat. Tables 1 and 4 within Respondent's exhibit 3 are replicated here for convenience as Appendix 2 and Appendix 3, respectively. The numbers of birds shown in Duda's table are not numbers about which he has direct knowledge. They are numbers purportedly obtained from Tim O'Meara and Peter Southall, biologists who work for the Commission who got their information from the Central Region and Northeast Region, respectively. In particular, they allegedly received their information from rehabilitators working in the two regions. Neither biologist testified at hearing, and the exhibits do not satisfactorily establish what involvement the biologists had in a direct inventory of birds, if any, or the other sources of their information which was then given to Duda in preparing his report. The rehabilitators in the Central Region did not testify nor were any exhibits presented which spoke to records kept by those individuals that set out bird deaths in that area. The only person who presented any reliable information concerning bird mortality was Cindy Mosling, rehabilitator in the Northeast Region. Any records which she maintained were not produced at hearing. Nonetheless, she did remember some details concerning bird mortality, and from this testimony 56 common loons, 3 gannets, 1 black skimmer and 2 hooded mergansers are found to have died as a result of the oil spill. The replacement value method by Duda speaks to the fact that his method does not constitute a complete recovery of the species population. Instead, what is shown in Respondent's exhibit 3 is averaging of estimates from Table 4 on costs for collecting existing specimens from the wild and releasing them back to the Jacksonville area after a period as opposed to a captive breeding program. That explanation is not correct, either, because there is no intention to release birds to the wild after raising them or rehabilitating them in captivity in one of the Florida institutions mentioned in Table 4. Moreover, only one of those programs has been relied upon by Petitioner in arriving at a cost estimate. That program is Sea World. As a consequence, the cost analysis in Table 1 related to hooded mergansers is incorrect in that it reflects an average of $150 and not the $200 quoted by Sea world. Again, the prices reflect pairs and not single birds. Robin Friday is the curator from Sea World who supplied cost estimates for pairs in Table 4 to Respondent's exhibit 3. He arrived at his price estimates in a 15 to 20 minute telephone conversation with Duda. To the extent he had no actual experience with price lists reflecting cost of a specie, he assumed that theoretical permits would be issued to collect live birds or eggs in the wild and that he would keep them in a captive environment, hoping they would breed while in captivity. In the latter category, the costs to promote the outcome of breeding in captivity formed his estimate. It can be seen that this departs from Duda's method for valuation. Notwithstanding this fact, Duda relied upon the price quotation by Friday. The main species of birds which Friday has had experience with are waterfowl. Of the species which have been verified as lost in this incident, he had had experience with common loons and hooded mergansers. The hooded merganser is a waterfowl with which he has close experience in breeding, acquisition and disposition. The common loon is a shore bird. In his career he has worked to rehabilitate two or three of those birds. He has had no experience with gannets and black skimmers, which are shore birds. As Friday identified, waterfowl may be sold, shore birds may not. Sale of the shore birds is prohibited by law. His price quotes for the hooded mergansers are from actual experience in sales. His quotations on the other species are matters of conjecture in collecting, housing, feeding and establishing a breeding program for them based upon limited experience in rehabilitating common loons and no experience with gannets and the black skimmer. The price estimate on the hooded merganser of $100 per bird is accepted. The price estimates for common loons, gannets and black skimmers are not. They are too speculative. Jean Benchinol is a curator in Gulf Breeze, Florida, who works for Animal Park, Inc. She testified at hearing. She was presented as a witness who could corroborate the Friday opinion on bird valuation. Her cost estimates may be found as Petitioner's exhibit 14, quotes for single birds. She has had direct involvement with hooded mergansers. She has sold those birds and quoted the price at hearing as being $100. This coincides with the price per bird quoted by Friday. For other birds in her price estimates that cannot be bought and sold and that remain at issue here, that is, common loons, gannets and the black skimmer, she categorized them as capable of surviving in captivity or not. The black skimmers can live in captivity and the common loon and gannet cannot, according to the witness. She had had a common loon in captivity before and noted that it did not do well, being more receptive to northern climes. At hearing her opinion about birds that could not survive in the Florida environment was rejected. In this final analysis, that refers to the common loons and gannets. Likewise, having considered her explanation concerning her valuation for the black skimmer, that opinion is rejected. In rejecting this method, the cross examination at hearing concerning valuation for the royal tern was significant in that it pointed out the inexact and unreliable nature of the method. This method contemplated receiving a live bird in her facility and the costs for medication, housing, feeding and staff time for approximately 60 days. In summary, on the subject of bird mortality, there is no inherent prohibition against valuation; birds do have a value that can be measured in monetary terms. Here the effort to arrive at that understanding fails in the inventory of casualties and method of valuation, with a limited exception. It is also observed that the Respondent had paid the rehabilitators to house, feed and nurse birds back to health that were injured, a similar activity to the theoretical exercise envisioned by Duda, Friday and Benchinol.
Recommendation Based upon the consideration of the facts and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which requires the Respondent to reimburse the Fund in the amount of $17,301.58 and dismisses all other charges against Respondent. DONE and ENTERED this 26th day of July, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, 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 26th day of July, 1990. APPENDIX 1 The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts Paragraphs 1 and 2 are subordinate to facts found. Paragraph 3 is not necessary to the resolution of the dispute. Paragraphs 4 and 5 are subordinate to facts found. The first two sentences of Paragraph 6 are subordinate to facts found. The last two sentences are not necessary to the resolution of the dispute. Paragraph 7 is not necessary to the resolution of the dispute. Paragraph 8 is subordinate to facts found. The first two sentences of Paragraph 9 are subordinate to facts found. While it is agreed that the correspondence from Petitioner to Respondent did not indicate that claims for costs and expenses were only subject to collection if paid from the Florida Coastal Protection Trust Fund, in the administrative forum recoupment of costs, expenses and damages may only be permitted for monies owed or expended from the fund. Paragraphs 10-13 are subordinate to facts found. It is acknowledged as set forth in Paragraph 14 that money was transferred from Coastal Protection Trust Fund to the Erosion Control Trust Fund for future beach renourishment. The more relevant fact is whether the claim for damages of value under the renourishment is legitimate and that determination has been made favoring the Petitioner. The concept of using the funds that are being held for purposes of future renourishment is in keeping with a reasonable disposition of the damage claim. Paragraphs 15-24 are subordinate to facts found. The first sentence to Paragraph 25 is contrary to facts found. The second sentence is subordinate to facts found. The third sentence is an accurate statement of what Table 1 contributes but the findings in that table are rejected in part. The first sentence to Paragraph 26 is subordinate to facts found. The second sentence is accepted in the sense of recognizing that a list was maintained; however, that list was not produced at hearing as an aide in determining the number of birds that were killed. The third sentence is rejected. The fourth and fifth sentences are knowledged and those underlying facts were taken into account in accepting the representations by the witness Mosling concerning the number of birds that died as a result of the oil spill which she could recall. Paragraph 27 is subordinate to facts found. Paragraph 28 is subordinate to facts found. Paragraph 29 is not necessary to the resolution of the dispute. The first sentence to Paragraph 30 is subordinate to facts found. The second sentence is not necessary to the resolution of the dispute. The first sentence to Paragraph 31 is subordinate to facts found. The second sentence is accepted with the exception that certain categories of water fowl are bought and sold in the free market. Concerning the third sentence, while it is acknowledged that curators are the better persons to attempt valuation, they must have sufficient understanding of the varieties on which they are commenting to have their opinions accepted and their methods of analysis of costs must stand scrutiny. This was not achieved in this instance. The last sentence in Paragraph 31 is not accepted in that the replacement value method was not adequately explained and does not allow a ranking of whether it is inexpensive, or cheaper or some where in the middle. Paragraph 32 is subordinate to facts found. The first sentence to Paragraph 33 is subordinate to facts found. The second sentence is subordinate to facts found as it references hooded mergansers. The other references are to species which have not been found to have been lost to the spill. The last sentence is accepted in the sense that the remaining species have limitations placed upon their use by state and federal law which prohibits the buying and selling. Paragraph 34 in its reference to the cost of hooded mergansers is accepted. The balance of the information was not utilized in that the Petitioner failed to demonstrate that other species had been lost to the spill. In Paragraph 35 of the species that testimony was presented about, only the common loon, gannets and black skimmer pertain. While it is acknowledged that the method that the witness Friday used to estimate the value of those species is an accurate portrayal of his efforts, those efforts were rejected as were those of Ms. Benchinol described in Paragraph 36. In Paragraph 36 the explanation of her methods is correct. The methods were not accepted either in support of the testimony by Friday or in her own right. There is no significance to the discussion concerning the brown pelican and inadequate proof was made that the brown pelicans were lost. Respondent's Facts The first sentence to Paragraphs 1 is subordinate to facts found. The last two sentences are not necessary to the resolution of the dispute. As to Paragraph 2, it is acknowledged that Mr. Healey served as the liaison to the RRT and OSC. In the second sentence to that paragraph it is accepted that the state supports the RRT. It also has the function to compliment the RRT and to act independent of the federal response. The first sentence to Paragraph 3 is subordinate to facts found. The second and third sentences are not necessary to the resolution of the dispute. The fourth and fifth sentences are subordinate to facts found. While Paragraph 4 accurately describes the circumstance, this did not deter the state from pursuing its independent function in responding to the spill event. Paragraph 5 accurately portrays the OCS's idea of who was necessary to support the federal response. It does not preclude the activities of other state employees in carrying out their functions. Paragraph 6 is contrary to facts found. Paragraph 7 is a correct statement but does not preclude the state's efforts in its own right at responding to the spill. Paragraph 8 is subordinate to facts found. Paragraph 9 while an accurate portrayal does not preclude the state in its efforts. The same pertains to Paragraph 10. Paragraph 11 is contrary to facts found. Paragraph 12 is subordinate to facts found. Paragraph 13 is contrary to facts found as is Paragraph 14. Paragraph 15 is subordinate to facts found. Paragraph 16 is not relevant. Paragraph 17 is an accurate portrayal of the federal use of the state helicopter but does not preclude request for reimbursement for uses which the state had of that helicopter. Paragraph 18 is subordinate to facts found. The first two sentences within Paragraph 19 are subordinate to facts found. The third and fourth sentences are not relevant to the issue of whether the state was entitled to seek the assistance or Jacksonville University for its own purposes distinct from those of the federal response. The latter sentence is a correct portrayal of the outcome but for reasons different than contemplated by the Respondent. Paragraph 20 is subordinate to facts found. Paragraph 21 is subordinate to facts found. Paragraph 22 is subordinate to facts found in its first two sentences. The third sentence is not accepted beyond the fact that the Department of Interior using a nonconsumptive use technique, whether other federal agencies use that method was not subject to determination from the record. The first three sentences to Paragraph 23 are not necessary to the resolution of the dispute. The fourth sentence is not accepted. The fifth and sixth sentences are subordinate to facts found. As to the seventh sentence, it is not clear that there was the intention of redistributing to the Jacksonville area. The eighth sentence is subordinate to facts found. Paragraph 24 is subordinate to facts found as are Paragraphs 25 and 26. The suggestion of the price for hooded mergansers as set out in Paragraph 27 is not accepted. The lesser scaup was not found to have been lost to the spill. The state price of $100.00 per bird for hooded mergansers is accepted. Paragraphs 28-31 are subordinate to facts found as it pertains to the species that were proven to have been lost. Paragraph 32 is not necessary to the resolution of the dispute. Paragraphs 33 and 34 are subordinate to facts found, with the exception that it has been determined that the number of dead birds which Ms. Mosling can recall involvement with is accepted. Paragraphs 35 through 37 are subordinate to facts found in the species determined to have been lost, with the exception that the actual price for hooded mergansers was $100. COPIES FURNISHED: Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399 Kenneth J. Plante, General Counsel Lynn M. Finnegan, Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399 Robert B. Parrish, Esquire James F. Moody, Jr., Esquire Taylor, Moseley & Joyner 501 West Bay Street Jacksonville, FL 32202
The Issue Whether respondent violated Section 498.023, Florida Statutes, by offering or disposing of an interest in subdivided lands (Pinecrest Estates) without first registering it or delivering a public offering statement to the purchasers and, if so, what penalty should be assessed or affirmative action ordered.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Division enter an order assessing a $10,000 civil penalty against respondent for its violation of Chapter 498 Florida Statutes; requiring respondent to fully disclose the adverse features of the Pinecrest Estates property to each of its prior purchasers, such disclosure to be accomplished in a manner approved by the Division; requiring respondent to offer and make full refunds to its prior purchasers who desire a refund, such refunds to be made in a manner approved by the Division and conditioned only on reconveyance of the land to the respondent or recission of the agreement for deed; and requiring respondent to record in the official records of St. Johns County, Florida, all outstanding agreements for deeds covering lots belonging to prior purchasers who, after disclosure, choose not to request refunds. DONE AND RECOMMENDED this 11th day of January, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 1983.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as a personal view of the premises by the Hearing Officer, the following relevant facts are found: In January of 1975, Central Development Company, as the owner of the Mainland Lot 20, Parkers Haven, and the owner of Parker Island, submitted to the Trustees of the Internal Improvement Fund its application for an easement across the sovereignty land between these properties in King's Bay, Crystal River. An application for a permit from the Department of Environmental Regulation to construct a concrete bridge across this land had previously been submitted. By letter dated March 16, 1977, Edward H. Cederholm with the Department of Natural Resources was notified that the Department of Environmental Regulation had determined that the bridge proposed by the applicant would have no significant adverse effect on water quality. Representatives from the Department of Natural Resources had previously concluded, after a biological and hydrographic assessment, that the bridge in itself would not significantly affect aquatic biological resources nor would it have significant adverse hydrographic effects. The Game and Fresh Water Fish Commission had no objection to the bridge itself, but did express concern over the future development of Parker Island. The request for a right-of-way easement for the bridge construction was a scheduled item for the Trustees' Agenda for April 7, 1977. The Staff of the Department of Natural Resources recommended approval of the easement request, noting that "the executed easement will be provided to the applicant upon affirmative permitting action by D.E.R." The Trustees deferred action on the request until a public hearing pursuant to Florida Statutes Section 253.115 could be conducted by the Department of Natural Resources. The Department of Natural Resources thereafter withdrew its recommendation to the Trustees pending the outcome of the public hearing. That public hearing was conducted in Crystal River on September 9, 1977, by the Department of Natural Resources. Having previously submitted an application to the Department of Environmental Regulation for the installation and maintenance of power poles and lines on and between Banana and Parker Island in Citrus County, Florida Power Corporation submitted an application to the Department of Natural Resources for an easement or other form of consent for the same. Presumably, the public hearing held on September 9, 1977, included this issue as well as the proposed bridge issue. No application has been received by the Department of Natural Resources for the construction and maintenance of a boardwalk by the Banana Island Recreation Association, Inc. The petitioners herein attempted to present evidence that it would not be in the public interest for Department of Natural Resources or the Trustees to grant easements for the bridge, power poles and lines, or boardwalk projects for the reasons that said projects would: present a hazard or serious impediment to navigation in the area; have an adverse effect upon water quality and aquatic resources; endanger an already endangered species - the manatee; and deprive waterfront property owners of their common law riparian rights to an unobstructed view. Additionally, petitioners contend that the applicants and Department of Natural Resources have failed to comply with the provisions of Chapter 253 regarding sales and conveyances of land, the title to which is vested in the Trustees. The Department of Natural Resources forwarded the requests for hearings to the Division of Administrative Hearings, and the undersigned Hearing Officer was duly designated to conduct the hearings. Upon the agreement of all parties, the hearing in this cause was consolidated with the hearings on the Department of Environmental Regulation permit applications for the bridge, the power poles and lines and the boardwalk. The separate recommended orders entered in those cases contain specific findings of fact concerning the evidence presented at the hearing relating to the effect of those projects upon navigation, water quality, aquatic resources, the manatee and riparian rights to an unobstructed view. In summary, it was concluded that the petitioners failed to present sufficient evidence that the public interest in these areas would be harmed by the granting of the Department of Environmental Regulation permits. The reader of this recommended order is specifically referred to the findings of fact and conclusions of law contained in the recommended orders entered in Case Nos. 76- 1102, 76-1103 and 77-849 and 850, all of which are attached hereto.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the Board of Trustees of the Internal Improvement Trust Fund issue to Central Development Company and Florida Power Corporation the required easements or other forms of consent authorizing the proposed usages of sovereignty lands as set forth in their applications for the same. Respectfully submitted and entered this day of September, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida COPIES FURNISHED: Kenneth F. Hoffman, Esquire Post Office Box 1872 Tallahassee, Florida 32302 Alfred W. Clark, Esquire Assistant General Counsel Department of Environmental Regulation 2562 Executive Center Circle, E. Montgomery Building Tallahassee, Florida 32301 Baya Harrison, III, Esquire Post Office Box 391 Tallahassee, Florida 32302 David Gluckman, Esquire 3348 Mahan Drive Tallahassee, Florida 32303 Mr. H. A. Evertz, III Florida Power Corporation Post Office Box 14042 St. Petersburg, Florida 33733 Kent A. Zaiser, Esquire Assistant Department Attorney Department of Natural Resources Crown Building 202 Blount Street Tallahassee, Florida ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF NATURAL RESOURCES TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND STANLEY HARTSON et al., ) ) Petitioner, ) ) vs. ) CASE NO. 77-960 ) DEPARTMENT OF NATURAL RESOURCES, ) et al., ) ) Respondents. ) )
