Findings Of Fact Lior Hason is the owner of Britt's Cafe, a restaurant which occupies property owned by the Petitioner's Stanislaw and Kasimiera Budzinski. On or about December 19, 1995, Harry S. Cline, an attorney for Mr. Hason and the Budzinskis, filed an application for a variance from the City of Clearwater's Development Code, for the purpose of eliminating three required parking spaces from the front of the subject property for the construction of an outdoor cafe at 201 South Gulfview Boulevard. The Code requires one parking space per 200 square feet of gross floor area, and a variance was required to remove three existing parking spaces from the unit's parking space inventory. The matter was brought before the City's Development Code Adjustment Board at its January 11, 1996 meeting. Mr. Cline appeared at the meeting on behalf of the applicant and presented the project. No one else was present to speak in support of or in opposition to the request. However, four letters in opposition from neighboring business owners were submitted. Notwithstanding these objections, the Board determined that the applicant had substantially met all standards for approval listed in the City's Land Development Code; and upon vote of the Board, the application was approved, subject to certain conditions, by a three to two majority. Mr. Hason entered into discussions with City officials to determine what was necessary. Official City reaction was initially favorable. Mr. Hason was advised of the requirements for the project and had plans drawn which called for a deck with a 35 to 36 inch railing with landscaping around it, and with posts and lights. When the plans were submitted to the City officials, the only change suggested was to raise the railing height to 45 inches, which was done, after which the City approved the plans and the permit was granted. The deck was then constructed exactly according to the approved plans. At some time during 1996, Mr. Hason discussed with some City employees putting an awning over the deck. During these discussions, the City employees sent Mr. Hason a copy of Section 41.221(1)(c), Clearwater City Code, which provides for awnings to be removable. Mr. Hason considered the sending of this Code provision to be tantamount to a favorable reply to his inquiry, and, based on that, he finalized his plans for the installation of a removable awning. The proposed awning is designed in such a fashion as to be extendible and retractable on a frame, capable of easily being pulled up against the front of the building like a drapery. With a minimum of further effort, consisting of the removal a several bolts, the entire awning construction can be removed from the frame. Mr. Hason submitted his application for the variance to install the awning on February 2, 1997. In the interim, the City employees with whom Mr. Hason discussed the project changed their position from favoring the project to opposing it. He was ultimately advised in December 1996 or January 1997 that the awning could not be permitted because an awning could not be approved over a deck for which a permit should not have been issued and for which the issuance was a mistake. Though the Board had not yet voted on the application, no information was given to Mr. Hason as to what he could do to make the project approvable. His application, on February 2, 1997, was submitted because, Hason claims, he had been told, by someone not further identified, that applying for a variance for the awning would make everything right. The Variance Staff Report submitted to the Board by the appropriate City employees acknowledged that the frame over which Mr. Hason proposed to put the awning does not meet code because it was constructed within a required setback area from South Gulfview Boulevard, but since the frame was built pursuant to a City-issued permit, consistent with City policy, the City accepted its existence. In its final recommendation to the Board, the staff concluded that notwithstanding the encroachment into the setback area, the project "appears to comply with all standards for approval, provided attention is given to the external appearance of the cafe:" The staff then went on to recommend approval of the project subject to certain conditions, all of which, Mr. Hason accepts and agrees to. Nonetheless, the Board denied the permit by a vote of four to one. Mr. Hason contends that the Board vote was an attempt by the Board to get back at him because of what it perceived as his failure to comply with the conditions placed upon the issuance of the first permit and his alleged misrepresentation of the scope of his project at the time. Mr. Hason, however, categorically denies he has done anything contrary to the dictates of the City. He went back to City officials many times during the construction of the deck to make sure the project was built as required. The majority of the Board members believe, however, that the deck as constructed, goes far beyond the limited structure approved by the granting of the parking space variance in January 1996. This animosity toward the project can be seen from a review of the audio record of the February 13, 1997, Board meeting where, during a colloquy between a Board member and Mr. Hason, it appeared the member was somewhat put out by the entire situation. His analysis indicates a less than complete recollection of the matter, however. Whereas one of the conditions to the issuance of the initial permit was that the area of the outdoor cafe should not be greater than 25 percent of the indoor area of the restaurant, this member pointed out that the 69 outdoor seats were far in excess of 25 percent of the 115 or so indoor seats. This constituted a confusion of seating as opposed to area. No evidence was presented concerning whether Mr. Hason had violated the area constraint. In the main, however, while it appeared that a majority of the Board members were unhappy about the way the project developed, and expressed the opinion that the project did not conform to what they had intended to approve, there was no indication any member s vote was motivated by anything other than a sincere belief in the correctness of his position. There was no indication of any inappropriate or vindictive action by anyone on the Board or its staff. Stephen Sarnoff, a central permitting specialist with the City reviewed the plans for the initial construction and for the current application. As he recalls, the plans for the initial deck construction did not show any support beams, fans, overhead structure or latticework fencing, and the deck, as built, does not conform to the plans as submitted. City Code requirements call for a railing of from 30 to 42 inches high. The current railing of 45 inches does not conform to that standard, and Mr. Sarnoff is not aware of any request from the City that the railing be raised to that height, as Mr. Hason claims. By the same token, while there is no requirement in the ordinance that a deck be of a certain height, anything higher than 12 inches is considered a structure and a waiver is required. This deck was approved for 12 inches. A certificate of occupancy is usually issued for a deck, but in the instant case, such a certificate has not been issued because the deck, as built, is not in compliance with the 1996 approval. If it is brought into compliance, it will be approved. Sarnoff is aware of and familiar with other outdoor restaurant decks built at various locations in the Clearwater area, as indicated by Mr. Hason. Some are not within the CR-28 zone and do not come under the same standards as are applicable here. Others, which must conform to the instant requirements appear to have movable awnings which are acceptable. Still others are in a different zoning district with different set-back requirements, and some were initially denied, but were subsequently approved when they were brought into compliance with the requirements. John Richter, a senior planner for the City, was the individual who prepared the staff report on the instant project and initially recommended approval, contingent upon changes to the external appearance of the facility. He made suggestions and has discussed the project with Hason on his several visits to the property. He did discuss an awning with Hason at some point, but their discussions did not deal with its mobility. All in all, Mr. Richter concluded that the project appears to meet the standard for approval, provided attention is given to the external appearance of the cafe. David S. Shuford, the City's central permitting director and development code administrator indicated that the variance required for the awning, which was an integral part of the structure already built, was not automatically granted with the granting of the permit for the deck structure. Section 42.221, Clearwater City Code, was adopted to promote a more festival atmosphere in some of the outdoor tourist areas. The intent of subsection (l)(c) of that provision was to require the use of moveable items and to design structures that would meet wind requirements and not interfere with pedestrian traffic. The term "moveable" means what it says, and in Shuford's opinion, from the plans he saw, the proposed awning would not be easily moveable on a daily basis. The Clearwater City Code establishes the area in question as one where, once guidelines are developed, they will be adopted and be complied with. Mr. Shuford opines that the current deck, in the rafter area, goes beyond what was proposed at the time the project was submitted for the parking variance and was approved. This is what appears to be the source of the difficulty the Board members have with it. However, if designed to comply with the guidelines, this awning could be approved. He would agree with the conditions outlined in the staff recommendation so far as they relate to painting and architectural matters.
Findings Of Fact In 1984 Lieselotte Wirschint and her husband purchased the subject property located at Lots 14 and 15, Bidwell Oak Wood Additions otherwise identified as 606-608 North Ft. Harrison Avenues, Clearwater, Florida. This purchase was conditioned on their obtaining approval of a special exception for an automotive repair shop on the subject property. The Wirschints intended to relocate their business known as International Automotive, Inc.a Petitioner herein, to the subject property. As of February 6, 1986, ownership of said property is in the name of Petitioner. The subject property is in a "CO" zoning district (general commercial). An automotive service facility is not a permitted use in a "CO" zoned are,; and therefore conditional use approval must be obtained. Petitioner applied for conditional use approval on or about February 11, 1986 and on March 4, 1986 the Planning and Zoning Board disapproved Petitioner's application for conditional use approval. Paula Harvey, Planning Directors recommended disapproval because her review of the application indicated the proposed use would be incompatible with the surrounding neighborhood; traffic engineering concerns about an apparent lack of adequate parking on site, and her concern about noise that would be caused by the proposed use. The neighborhood around the subject property consists of mixed uses. To the west and south are residential uses, to the north there is a similar auto service facility, and across Ft. Harrison Avenue there is an auto tire store. There are also commercial office and special care properties, a funeral home and a school in the surrounding neighborhood. No buffer exists between the residential areas and the subject property. The City of Clearwater requires an auto service facility to have four parking spaces for each service bays plus one parking space for every two employees. The service bays themselves do not count as a parking space. Although a rough sketch of the site was provided to city staff by Peter E. Mangano on behalf of Petitioner, it was not a part of Petitioner's application and was not provided to Paula Harvey or the Planning and Zoning Board. No plans or specifications were formally submitted with this application. In any event, the rough sketch shows only ten parking spaces and three service bays. Petitioner has two employees. With three service bays and two employees, the Petitioner would have to provide thirteen parking spaces to comply with Respondent's parking space requirements. Thus, Petitioner has not demonstrated that its application or supplemental rough sketch provides the required spaces for parking. Petitioner proposes to construct a concrete structure on the subject property, with concrete floor. Air wrenches would be used in the proposed business, and service bay doors will normally be open between 8:00 a.m. and 5:00 p.m., Monday through Fridays when the business would be open. Petitioner obtained a "special exception" in 1984 to operate an auto service facility on this site and an extension was granted until October 25, 1985. However, Petitioner never acted under the "special exception" and it expired prior to this application for conditioned use approval. The current Land Development Code for the City of Clearwater took effect October 13, 1985 and has replaced the category of "special exception" with "conditional use," for which the Petitioner applied on or about February 11, 1986.
The Issue This case concerns the request by the Petitioner, Richard A. Havlock, that he be granted a special exception to construct a storage warehouse on a lot located at 1169 Gould Street. See Sections 131.016(f) and (g), City of Clearwater Building and Zoning Regulations. This area is located in CG-General Business zoning, within the meaning of Sections 131.140 through 131.146, City of Clearwater Building and Zoning Regulations.
Findings Of Fact This case is here presented for decision following a public hearing of January 15, 1981, leading to the denial of the Petitioner's request for special exception as set forth in the Issue Statement of this order. The tape transcript to that meeting may be found as City's Exhibit No. 4, admitted into evidence. The denial of the special exception was by decision of the Board of Adjustment and Appeal on Zoning, City of Clearwater, Florida. On March 25, 1981, a hearing was conducted before the Division of Administrative Hearings to consider the subject of this special exception and this order results from that hearing. On December 22, 1980, the Petitioner applied for a special exception to zoning for purposes of constructing the aforementioned warehouse at 1169 Gould Street, Clearwater, Florida, which is at Lot 5, RH Padgetts Subdivision, Section 15, Township 295, Range 15E. The present zoning for the area in question is CG- Business Purposes, as found in Sections 131.140 through 131.146, City of Clearwater Building and Zoning Regulations. The details of that application may be found in the City's Composite Exhibit No. 3, admitted into evidence, which is a copy of the application and other materials related to the application. A sketch of the lot and proposed building structure may be found as City Exhibit No. 2, admitted into evidence. Some of the prominent features of that plan depict the lot as being 50 feet wide and 150 feet long with the warehouse being 30 feet wide by 120 feet long. The front of the warehouse is 20 feet from the street, the side yard setbacks are shown as 10 feet and the distance to the rear of the lot from the back edge of the proposed warehouse is shown to be 8 feet. The Petitioner proposes to erect a corrugated metal building to serve the warehouse function. There are no plans to construct privacy barriers on the side yards. West of the property in question may be found a single family dwelling, east of the property is a vacant lot, and there is another vacant lot across the street. There is very little vegetation on the lot, to provide buffering. Gould Street, at this point, is 20 feet in width, which is very narrow. The street right-of-way is 30 feet as opposed to the standard 60 foot right-of-way. The area is described as a distressed area and the construction of the warehouse would have little impact on this area as it exists today, but it is intended that the area become high density housing and professional use center in the future pursuant to the Land Use Plan for the City of Clearwater. The warehouse is not compatible with those future plans. The design as presented in its off-street parking features is such that vehicles would be required to back into the public street to obtain egress, a violation of Section 131.218(1), City of Clearwater Building and Zoning Regulations. In addition, there is a problem with parking space No. 2 as depicted, in that the door opens into that parking space and is not in keeping with traffic engineering department standards within the meaning of Section 131.218(2), City of Clearwater Building and Zoning Regulations. (The Petitioner has offered to modify his site plans to comply with the off-street parking.) An associated problem concerns the possibility of loading and unloading of semi-tractor trailers, in that to do so they would block travel on the street. Although the Petitioner indicates that only light and medium duty trucks will be utilized normally, he does concede the possibility of the utilization of the semi-tractor trailer type of vehicle. City's Exhibit No. 1 is a photograph of the lot and the Petitioner's Exhibits Nos. 1 through 21, are photographs of the area in question and the surrounding business area.
The Issue The issues to be determined in this appeal are whether the Appellants have standing to bring this appeal, and (2) whether the development plan application met the applicable criteria for approval under Section 30-3.46 of the City's LDC in light of the standard of review outlined in Section 30-3.57 of the City's LDC.
Findings Of Fact The Property The property consists of approximately 0.50 acres located at 422 Northwest Third Avenue, Gainesville, Florida (the Property). The Property currently has a Residential Low- Density (RL) future land use (FLU) category under the City's Comprehensive Plan. The RL FLU category includes five implementing zoning districts, and the Property is in the Residential Conservation (RC) zoning district. The Property is not located within the boundaries of the Pleasant Street Historic District. Blackwater owns the Property and submitted a minor development plan application, identified as AD-17-00143, for three buildings with six dwelling units and associated parking, stormwater facilities, and utility improvements. The three buildings have two dwelling units each, which is a use allowed by right in the RC zoning district. The use is described in Section 30-4.16 of the City's LDC as "Multi-family, small scale (2-4 units per building)." The Property was conveyed to Blackwater by a warranty deed recorded January 15, 2014. The warranty deed describes parcel 14518-002-000 as the east one-half of lot 7 and all of lots 8 and 9 in the south half of block 27 of "Brush's Addition to Gainesville," according to the Plat recorded in "Plat Book 'A,' Page 88 of the Public Records of Alachua County, Florida." Issues on Appeal The Appellants raised and argued four issues in this appeal. Whether the Property is a parcel or lot that can be developed under the City's LDC. The Appellants argue that the Property is not a "parcel" and also not a "lot" under the City's LDC. The LDC definitions are found in Section 30-2.1 of the City's LDC, which states: Parcel means a unit of land within legally established property lines. Legally established property lines means those lines created by a recorded plat, minor plat or lot split, those units of land recognized as lots formed prior to 1961 as recorded on a map kept by the building division, and those lots recognized by the county code enforcement department at the time of any annexation. Lot means a parcel of land contained within property lines of a specific area, including land within easements and building setback lines of the area, but excluding any land within street right-of-way. The Appellants contend that the Plat of Brush's Addition to Gainesville (the Plat) legally established property lines. The Appellants further contend the definitions mean that only the lots created by the Plat are parcels. In other words, the "unit of land within legally established lines" cannot consist of more than one of the originally platted lots. This is not the City's interpretation of its own LDC. The Property, as described by the warranty deed, is a parcel within the property lines first established on the Plat. As argued by the City and Blackwater during oral argument, the Appellants' interpretation is not reasonable and "could stop all multifamily development in the [C]ity." The City's interpretation of its own LDC is not clearly erroneous and has foundation in reason. Also, approval of the development plan was not an ultra vires act since the City was required to make a decision on the development plan application in accordance with the provisions of its LDC. Whether the Property meets minimum lot width standards under the City's LDC. The Appellants' second argument is that the development plan fails to meet the required minimum lot width standard under Section 30-4.17 of the City's LDC. The Appellants argue that since Lots 8 and 9 on the Plat are each 50 feet wide, then the permitted use should be "single-family," which has a minimum lot width of 35 feet. Based on the above finding, the Property is a parcel or lot that may be developed under the City's LDC. The Property's lot width is 125 feet, which meets the minimum width standard for the proposed "multi-family, small scale (2-4 units per building)" use. Whether the requirements for a masonry wall and Type B landscape buffer apply to the Property and the development plan. Section 30-4.8.D.2.e of the City's LDC provides: A decorative masonry wall (or equivalent material in noise attenuation and visual screening) with a minimum height of six feet and a maximum height of eight feet plus a Type B landscape buffer shall separate multi- family residential development from properties designated single-family residential. The Appellants argue that the development plan should be required to meet this buffer standard because the RC zoning district is residential, and the Property abuts single-family dwellings. Under the LDC provision, the buffer is required to separate multi-family developments from properties "designated single-family residential." The City argues that designations refer to a property's FLU category as designated in the City's Comprehensive Plan. The Appellants argue that "designated single-family residential" simply refers to a single-family dwelling. Policy 4.1.1 of the City's Comprehensive Plan describes certain FLU categories such as Single-Family (SF). Policy 4.1.4 of the City's Comprehensive Plan provides that the City can amend land use "designations" under certain circumstances. Policy 4.2.1 of the City's Comprehensive Plan provides that the City shall adopt regulations that separate uses with performance measures, such as "buffering of adjacent uses by landscape." Based on the language of the City's Comprehensive Plan, it is a reasonable interpretation that use of the term "designated" refers to the FLU category. The Property and the abutting single-family dwellings have the same FLU category designation of RL. Thus, the masonry wall and Type B buffer requirements of Section 30-4.8 of the City's LDC do not apply to this development plan. Whether the Property's development plan meets applicable parking standards under the City's LDC. The Appellants argue that the development plan must provide 13 parking spaces, and it only provides nine parking spaces, which does not meet the parking standards of Sections 30- 7.2 and 30-7.5 of the City's LDC. In addition, the Appellants argue that the parking must be paved because the City's LDC only allows gravel parking areas with ten or fewer parking spaces. Under Section 30-7.5 of the City's LDC, the development plan must provide 13 parking spaces. The development plan provides nine parking spaces on the Property and four on-street spaces approved by the City, for a total of 13 parking spaces. The nine parking spaces on the Property satisfy the requirement of allowing gravel parking areas with ten or fewer parking spaces. Standing Appellants Vanessa Burt and Suzi Rumsey are the only residents who own property within 400 feet of the Property. Appellants Jason Atkins-Tuffs and Lauren Atkins are recent new home buyers in the Pleasant Street Neighborhood. Mr. Atkins-Tuffs is concerned that the development plan would not be a "good fit for our growing historic downtown family neighborhood." Appellant Dotty Faibisy is an almost 20-year resident and is concerned that the development plan "is a poor fit for the Historic Pleasant Street Neighborhood." Appellants John Rehfuss and Caroline Rehfuss are residents since 2013 in the Pleasant Street Historic District and are concerned that the development plan "is going to be a poor fit, both aesthetically and functionally, for our neighborhood." Appellant Tan Silva is a 23-year resident, who lives outside of but "on the edge" of the Pleasant Street Historic District and feels that compatible development should be maintained. Appellant Furman Wallace is an 84-year resident of the Pleasant Street Neighborhood. He is concerned with the character and type of buildings in the Pleasant Street Neighborhood. Appellant Thomas Hawkins was a 12-year resident of the Pleasant Street Neighborhood and is currently building a new home in the neighborhood. Mr. Hawkins is concerned that the development plan does "not compliment the neighborhood's historic architecture" and is not consistent with the City's LDC requirements.
Findings Of Fact Ramchandra Jakhotia and Rashmi Jakhotia, his wife, acquired the King Cole Motel at 401 East Shore Drive, Clearwater, Florida in 1983 and have owned the property since that time. At the time of acquisition and for some time prior thereto the property included a commercial marina with 22 slips. In 1985 the City of Clearwater revised its Development Code effective October 13, 1985 and, incident thereto, effective July 7, 1988, enacted Section 114.05, Live-Aboard Vessels as Ordinance 4597, Clearwater City Code. That enactment provided, in part, that: Prohibited; exceptions: It shall be unlawful for any person to moor any live-aboard vessel at any location within or upon the navigable waters in the City for any period of time in excess of seventy-two (72) hours, except as follows: At a marina facility for which conditional use approval has been obtained, or a marina facility in existence as of October 13, 1985 for which conditional use approval would otherwise be required;... In January 1986 a survey was taken of all marinas within the City of Clearwater to determine the number of live aboard vessels coming within the purview of the revised Development Code. At this survey eight live aboard vessels were occupying berths at the King Cole Motel marina and this was the number determined to be grandfathered for which no conditional use approval would be required. In 1988 King Cole Motel applied for conditional authorization to utilize 14 additional berths for live aboard vessels. This conditional use was approved subject to the applicant installing a pump-out facility and meeting the parking requirements. Although the parking requirements for a commercial marina, i.e., 0.5 parking space per slip, is the same as the parking requirement at marinas for live aboard vessels, the latter generally place a greater demand on parking spaces than does non-live aboard vessels. To change the approved use from commercial marina without live aboards to live aboards is a change in the use and requires conditional use approval. Before conditional use approval can be granted the applicant must comply with all code requirements, such as required parking spaces, at the time of the change in use. At the time Appellant acquired the King Cole Motel the 22 commercial slips were grandfathered as an authorized use without any parking being provided. Accordingly, as a 22-slip commercial marina Appellant did not have to provide parking. When the eight slips used for live aboards were counted in 1986 they too were grandfathered in without the need for parking spaces. However, when Appellant applied in 1988 for authorization to use 14 other slips for live aboard vessels, the code required the applicant to provide seven parking spaces. To his credit Appellant obtained the use of seven parking spaces down the road from the marina but those spaces were not contiguous to Appellants' marina as required by the code. Therefore, Appellants' use of the additional slips for live aboards did not meet the parking requirement in his conditional use approval. In 1992 Appellant applied for a variance of the seven parking spaces required to allow the use of these additional slips by live aboard vessels. This hearing was held before the Development Code Adjustment Board on February 11, 1993 and it is from the denial of this variance that this appeal is taken. The Board denied the variance requested because the Appellant failed to demonstrate that the standards established by Section 45.24 Land Development Code were met. In these proceedings Appellant presented no additional evidence to support the variances requested than was submitted to the Board.
The Issue Whether Somerset Park Condominium Association, Inc.; Wise Property Management, Inc.; and Thomas Kelleher (collectively referred to as Respondents) discriminated against Lusheryl Walden (Ms. Walden or Petitioner), on the basis of Ms. Walden’s disability; and, if so, the relief to which Ms. Walden is entitled.
Findings Of Fact Ms. Walden is a 49-year-old woman. She has a muscle disorder which causes her to need the assistance of a medical walker. She also uses a cane and electronic wheelchair. Ms. Walden lives in a rented condominium unit at Somerset Park Condominiums (Somerset Park), which is located at 2866 Somerset Park Drive, Unit 103, Tampa, Florida. She has lived in unit 103 since March 2018. Unit 103 is privately owned, but is managed, along with the other condominium units at Somerset Park, by Wise Property Management, Inc. Mr. Kelleher is employed by Wise Property Management, Inc., as the property manager for Somerset Park. Somerset Park was created by, and continues to be governed by, a Declaration of Condominium of Somerset Park, A Condominium (Declaration), which instrument was recorded in 2006, in the public records of Hillsborough County, Florida. The Declaration describes parking spaces as follows: (c) Parking Spaces. Parking for the Condominium is part of the Common Elements of the Condominium on the Condominium Property. The parking spaces shown on Exhibit 2 of the Declaration may be assigned to a Unit (which assignment need not be recorded in the public records of the County) by the Developer (for so long as the Developer offers a Unit for sale in the Condominium and thereafter by the Association), whereupon it shall become Limited Common Elements of the Unit to which it is assigned. Any consideration paid for the assignment of the parking spaces shall belong to the Developer. A Unit Owner may assign the Limited Common Element parking space appurtenant to his Unit to another Unit by written instrument delivered to (and to be held by) the Association; provided however that no Unit may be left without one Limited Common Element parking space. Upon making such assignment, the Limited Common Element so assigned shall become an appurtenance to the Unit(s) and shall pass with the title thereto regardless of whether or not specifically referenced in the deed or other instrument of conveyance of the Unit. According to the Declaration, parking spaces at Somerset Park are considered “limited common elements” after they are assigned to a unit. Generally speaking, limited common elements consist of properties, equipment, or structures whose use is reserved to a particular unit to the exclusion of other units. Units at Somerset Park are individually owned. When a unit is sold by Somerset Park, the unit comes with its own parking space, which is considered a limited common element “appurtenant thereto.” Other types of limited common elements include patios, balconies, and terraces, as well as air conditioning compressors and water heaters that are located outside of the condominium unit. When Ms. Walden moved into unit 103 in 2018, she was notified that she was assigned to parking space number 409. Parking space number 409 is the limited common element attached to unit 103. In March 2020, Ms. Walden made a verbal request to Mr. Kelleher to be reassigned a parking space closer to her unit. Mr. Kelleher told Ms. Walden that he could not reassign a parking space, but that she was welcomed to reach out to her neighbors to find someone willing to switch. The Declaration specifically sets forth the means by which an assigned parking space may be reassigned. It provides that a “unit owner may assign the limited common element parking space appurtenant to his unit to another unit by written instrument delivered to [Somerset Park.]” For a parking space assigned to a unit that is still owned by Somerset Park, Somerset Park may reassign such parking space to another unit. Ms. Walden’s assigned parking space—parking space number 409—is four parking spaces away from her unit. Ms. Walden has an informal agreement with the resident assigned to parking space number 408 (which is three spaces away from her unit), who allows her to park in that space. There are six parking spaces closer to Ms. Walden’s unit than her assigned space—three to the left and three to the right of the walkway to her unit. All six parking spaces are assigned as limited common elements to condominium units not owned by Somerset Park. All six are outside the control of Respondents who have no authority to force the owners to switch spaces with Ms. Walden. Ultimate Findings of Fact Petitioner failed to prove that there was any reasonable accommodation Respondents could have given her that would have enabled her to park closer to her unit. Respondents offered a legitimate non-discriminatory reason for denying Petitioner’s request for a parking space closer to her unit. Petitioner failed to prove that Respondents intentionally discriminated against Petitioner because of her disability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. 1 Fairway Villas was vacated through settlement agreement during the pendency of an appeal. 2 Somerset Park has unassigned parking spaces that are not reserved as limited common elements. DONE AND ENTERED this 8th day of March, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Tammy S. Barton, Agency Clerk S JODI-ANN V. LIVINGSTONE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2021. Joseph G. Riopelle, Esquire Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Lusheryl Walden 2866 Somerset Park Drive, #103 Tampa, Florida 33613 Boyd, Richards, Parker and Colonnelli, P.L. 400 North Ashley Drive, Suite 1150 Tampa, Florida 33602 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
Findings Of Fact Based upon the evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made: On December 27, 1993, Universal Outdoor, Inc. ("Universal") entered into a twenty year lease agreement with the Greater Hollywood Jaycees pursuant to which Universal was authorized to erect an outdoor advertising sign on property owned by the Jaycees in the general vicinity of the southwest corner of Hollywood Boulevard and Interstate-95 (the "Site") within the city limits of Hollywood, Florida. The site is located at an extremely busy intersection. A railroad track separates the Site from the Interstate. To the immediate south and west of the Site is a city owned golf course. A building which serves as the Jaycees meeting hall and headquarters is located on the Site. There is a catering business that operates out of the building, at least on a part time basis. The Jaycees acquired the Site from the City of Hollywood on or about December 15, 1965. As best can be determined from the evidence in this case, the Site was owned by the government before it was acquired by the Jaycees. After securing the lease from the Jaycees, Universal applied to the City of Hollywood for a city building permit (the "Building Permit") to construct an outdoor advertising sign on the site. The city issued the requested Building Permit on February 2, 1994. The Hollywood City Commission, as well as the City's Building and Zoning Department, had to approve the issuance of the Building Permit. In deciding to issue the Building Permit, the City Commission and its Building Department apparently concluded that a sign was not inconsistent with the zoning for the Site. On or about February 3, 1994, Universal submitted an application (the "Sign Application") to the Department for a state Outdoor Advertising Sign permit for the Site. The Department denied the Sign Application in a notice dated February 15, 1994 (the "Denial Notice") stating that the Site was "in unpermitable zoning." At some point after the Sign Application was filed with the Department, Universal assigned all of its interest and rights under the lease, the Building Permit and the Sign Application to Hancock. The transfer apparently occurred sometime around the end of February. The circumstances and conditions of the transfer of interest from Universal to Hancock are not entirely clear. The president of Hancock is the brother of one of the principals of Universal. Thus, there is some question whether the transfer was an arms-length deal. At one point during the hearing, Hancock suggested that it never received formal notification of the Department's denial of the Sign Application. However, the evidence is clear that Hancock was aware when it obtained an interest in the Site that a state permit was necessary and that a hearing had been requested in connection with Universal's Sign Application. The building permit obtained from the City of Hollywood was apparently valid for only a limited time. In order to obtain a building permit for a sign, Hancock claims that the City of Hollywood required the permit applicant to make a donation of $20,000 to the Hollywood Boys Club. It is not clear when or whether such a payment was made by either Universal or Hancock. As noted in the Preliminary Statement above, the parties have stipulated that a timely request for an administrative hearing was submitted in connection with the Denial Notice. However, it does not appear that any case involving Universal was referred to DOAH. In any event, it is clear that no hearing was scheduled to be conducted on the denial of the Sign Application prior to the date that the Building Permit was to expire. Faced with the imminent expiration of the Building Permit and convinced that the City had correctly determined that the zoning allowed the sign, Hancock proceeded with construction of the sign beginning in approximately the end of April. An inspector for the Department noticed the sign under construction and issued a Notice of Violation on May 2, 1994 for erecting the sign without an Outdoor Advertising Permit from the Department. Hancock promptly halted all construction activity. At the time the Sign Application was filed with the Department in February, the Site was zoned "OS" by the City of Hollywood. The "OS" designation is a for an "open space district". The "OS" designation for this parcel appears to have been an error since the existing uses are inconsistent with that designation. The Department denied the Sign Application because the Site was not specifically zoned either industrial or commercial. In reaching this determination, the Department did not confer with the City of Hollywood nor did it make any investigation to determine what uses were permitted in the "OS" zoning district. While the City Zoning Code included certain areas specifically designated "commercial" and "industrial," it is not clear that the city intended these terms to coincide with the use of the terms in Chapter 479, Florida Statutes. "Commercial" is defined in the City Zoning Code as "any activity where there is an exchange of goods or services for monetary gain. . ." The "OS" designation allowed a number of uses which arguably fell within this definition, including camp grounds, cemeteries, golf courses, horse farms, riding stables and other similar uses. On or about April 6, 1994, the City of Hollywood passed four ordinances which cumulatively had the effect of repealing the City's prior zoning code and replacing it with a new code. There is some confusion regarding the applicable zoning for the Site under the new Zoning Code. The City's Official Zoning Map reflects that the property was rezoned "GU", which is a government use district. The adjoining golf course, which is publicly owned, is also zoned "GU". The City Planning Department has acknowledged that the "GU" designation is only applicable to government-owned property. Such designation is clearly not applicable to this Site. Furthermore, the default zoning of "RS- 1" (single family residential) is not consistent with the subject property's comprehensive land use plan designation and is inconsistent with the present use of the property. As a result of the ambiguities resulting from the newly passed zoning ordinances, the Site should be treated as unzoned as of April 6, 1994. There is at least one commercial use on the same side of the Interstate within 800 feet of the Site. In addition, there are more than three separate commercial uses within 1600 feet of the Site, each visible from the main traveled way, that are within 1600 feet of each other and within 600 feet of the right of way of the adjacent Interstate. Consequently, the Site qualifies as a "commercial-unzoned" area as defined in Chapter 479, Florida Statutes. Only the City Commission has the power to rezone property and, as of the date of the hearing in this matter, no such action had been taken with respect to the Site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order granting the application for a state Outdoor Advertising Sign permit for the Site. DONE AND ENTERED this 13th day of January 1995 in Tallahassee, Leon County, Florida. J. STEPHEN MENTON 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 13th day of January, 1995.
The Issue The issue is whether Plan Amendment 98-51C adopted by the City of Ocala by Ordinance No. 2869 on August 4, 1998, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this land use dispute, Petitioner, Shady Historic and Scenic Trails Association, Inc. (SHASTA), has challenged the consistency of a plan amendment adopted by Respondent, City of Ocala (City). The amendment changes the land use on certain real property owned by Intervenor, Norbert M. Dorsey, as Bishop of the Diocese of Orlando (Intervenor). By stipulation, the parties have agreed that SHASTA is a not-for-profit corporation whose members include residents of Marion County, Florida (County). Through the testimony of its registered agent, it was established that SHASTA is a "county- wide organization" formed in 1985 because of its concern "about where growth was going," and the potential impact of growth on the "plan." Another witness (Baldwin) made comments to the City at one of its meetings concerning the adoption of the plan. Whether she is a member of SHASTA is not of record, and it can reasonably be inferred that the witness resides and owns property outside of the City. SHASTA's registered agent also presented testimony at hearing, but whether she resides within the City or in the County is unknown. Finally, while SHASTA's registered agent presented argument during her opening statement concerning the organization's standing, she presented no evidence (through sworn testimony or exhibits received in evidence) that any member of the organization who resides, owns property, or owns or operates a business within the City made comments, recommendations, or objections to the City during the course of its review and adoption of the amendment. Therefore, there is insufficient evidence to demonstrate that Petitioner is an affected person within the meaning of the law. The City is a local government located within the County. It is one of five cities in the State designated by the Department of Community Affairs (DCA) as a "sustainable community" under Section 163.3244, Florida Statutes (1999). To this end, the City has entered into a sustainable community designation agreement with the DCA, and thus its plan amendments are not reviewed by the DCA or the regional planning council. Intervenor is an affected person since it owns the property which is the subject of the amendment. The amendment The City adopted plan amendment 98-51C by Ordinance No. 2869 on August 4, 1998. That amendment changed the land use on Intervenor's property from agriculture to public buildings and facilities. Section 1.1.12 of the City's Future Land Use Element specifies that the public buildings and facilities category "includes areas or facilities that serve the general public," such as "government buildings, public grounds, airports, cemeteries, churches and educational facilities." In making its recommendation, the City's Planning Department considered factors such as the type of soil on the property; the absence of known caves, sinkholes, or wetlands on the site; the suitability of the property for development; the property's location in the City's urban service area; the County's land use designation of the property as an urban land use; and the compatibility of the property with the surrounding land uses, including the proximity of the property to adjacent developments of regional impact (DRI), malls, large movie theaters, shopping centers, and other heavy commercial and retail development. In addition, the Planning Department considered the comments of other state and governmental agencies, including the DCA, St. Johns River Water Management District (SJRWMD), and County. The County did not object to the amendment. Based on the foregoing data and analysis, the Planning Department recommended to the City's Planning and Zoning Commission (Commission) that the plan amendment be adopted. The Commission in turn recommended to the City Council that the amendment be approved. That recommendation was accepted by the City on August 4, 1998. The property The subject property consists of 40 acres and was annexed into the City in 1998. It lies within the boundaries of the City at the southeastern corner of the intersection of Southwest 42nd Street and Southwest 27th Avenue. Both roads are two-lane paved roads designated by the County as special scenic roads. This means that the right-of-way on those roadways cannot be widened or altered, and trees cannot be removed in or adjacent to the right-of-way. Prior to annexation, the property had a low-density residential land use designation in the County, and it was zoned agricultural. However, this zoning was inconsistent with the land use designation and a more likely zoning classification under the County comprehensive plan would have been R-1, which permits a maximum of four dwellings per acre. Had the property been assigned a City zoning classification most similar to the County's R-1, it would have received a low-density residential use allowing five residential units per acre. Intervenor purchased the property for the purpose of building a private school on the site. In the County, schools are located in both rural and urban areas. Under the County's land use designation for the property, schools are an allowable use. Before the property was annexed, it was located within what is known as the City's "urban service area." Under an interlocal agreement with the County, the City had the exclusive right to provide water and sewer services to that area and to condition the provision of such services upon annexation. At the time the plan amendment was adopted, the property immediately south of the subject property was being operated as a thoroughbred horse farm known as Glen Hill Farm. Immediately to the north and across Southwest 42nd Street was property with a land use designation of low-density residential allowing five residential units per acre. That property was previously approved as a planned unit development of mixed commercial and residential uses. The adjacent property on the northwest corner of the intersection of Southwest 42nd Street and Southwest 27th Avenue has been developed as a high-density assisted living facility. Immediately behind the assisted living facility are two DRIs. The first includes retail uses (including a shopping center), professional and medical offices, two large apartment complexes (consisting of more than 700 units), and three or four nursing homes or adult living facilities; this DRI would allow a vocational or technical school with approximately 500 students. The second DRI consists of the Paddock Mall, which includes 580,000 square feet of developed retail use and another 173,000 square feet of available but undeveloped use. Across Southwest 27th Avenue to the west is property commonly known as the Red Oak Farm property, which is the subject of another plan amendment challenge by Petitioner in Case No. 98- 4144GM. That amendment allows medium-density residential use. Finally, the property is located within one mile of the fastest growing and most intensively developed property within the City, which lies in and around State Road 200. The objections raised by Petitioner In its Amended Petition filed on November 2, 1998, SHASTA has alleged that the plan amendment is not in compliance for a number of reasons. They include contentions that the property is unsuitable for a private high school in that all of the land slopes to the south where extensive flooding has occurred (paragraph 9); that the site cannot be engineered to prevent flooding or that control surface water flow by retention ponds will leak into the aquifer (paragraph 10); that the site is vulnerable to stormwater pollution (paragraph 11); that the City has inadequate data and analysis to support development regulations for natural resources protection, including sinkholes and floodplains pursuant to the Conservation Element (paragraph 12); that the City has not specified how sinkholes or solution pipes to the aquifer will be protected pursuant to Policies 1.5 and 1.7 of the Conservation Element (paragraph 13); that the City has violated Policy 1.4 of the Conservation Element by not continuing the County land use designations on the property (paragraph 14); that the City has not distributed proposed interlocal agreements for annexation and future land uses as required by Policy 2.8 of the Future Land Use Element (paragraph 15); that the amendment is not in compliance with Goal II of the Future Land Use Element (paragraph 16); that the amendment is not in compliance with Policy 3.5 of the Intergovernmental Coordination Element (paragraph 17); that the amendment is inconsistent with revisions made by the 1998 Legislature concerning school siting in Section 163.3177(6)(a), Florida Statutes (1999)(paragraph 18); that the amendment does not further "the six broad principles of sustainability," as set forth in Section 163.3244(1), Florida Statutes (1999)(paragraph 19); that extending water and sewer lines to the property is unfair to City taxpayers (paragraph 20); that City taxpayers will be forced to pay a higher rate to fund expansion of City services into the area (paragraph 21); and that the school will not be compatible with adult living facilities located northwest of the property (paragraph 24). Allegations not raised until hearing, such as a contention that the amendment would promote urban sprawl, were deemed to be untimely raised and were not considered. Finally, concerns about the specific design of the school, assuming one is built, are not relevant to a determination of whether the amendment is in compliance. As to the allegation in paragraph 18 concerning the amendment's lack of compliance with school siting requirements in Section 163.3177(6)(a), Florida Statutes, that allegation is irrelevant since the new law became effective more than a year after the amendment was adopted. Likewise, the allegation in paragraph 19 has been found to be irrelevant for the reasons stated in the Conclusions of Law, while the allegation in paragraph 16 regarding Goal II of the Future Land Use Element has no relevance to the amendment since it refers to a transportation concurrency exception/urban area redevelopment area, a matter not in issue here. Finally, the allegations in paragraphs 20 and 21 regarding the potential for taxes being raised are not grounds on which to find an amendment not in compliance. The undisputed (and only) evidence shows that there are no sinkholes or known wetlands on the property; that the property did not have a conservation land use under the County's Comprehensive Plan; that the City has entered into an interlocal agreement with the County establishing an urban service area; that the amendment is compatible with surrounding land uses, including adult living facilities; and that the City considered and analyzed all of the data summarized in Findings of Fact 6 and 7 before it adopted the amendment. Therefore, the allegations in paragraphs 12-15, 17, and 24 of the Amended Petition have not been sustained. Still in issue are the allegations in paragraphs 9-11 of the Amended Petition concerning potential flooding and stormwater pollution. They will be discussed below. The property The property was once one of the three largest horse farms in the County. These farms have already been developed or, as is the case here, are in the process of being developed. The entire City, including Intervenor's property, and most of the land in the County, lie within a Karst sensitive area, which features sinkhole and cave systems. Mapped and documented cave systems are found approximately one-half mile to the west- southwest (Briar Cave) of the property and a like distance to the east (Oak Creek Caverns). However, no sinkholes, caves, or wetland systems have been found on the property, and the rules of the SJRWMD pertaining to Karst sensitive areas do not prohibit the construction in question. The tract is part of a high Floridan Aquifer (Aquifer) recharge area which permits very rapid infiltration of surface waters to the Aquifer, and it discharges into a 100-year-old flood plain. However, the property itself is not located in a flood plain. Two basic soils are found on the property. They are the Kendrick soil and Zuber soil. Due to shrinkage or swelling of the clay and "low strength," these types of soil present "slight" or "moderate" construction limitations. Expert testimony confirmed, however, that through good planning and design, or presite removal of the soils, these limitations could be readily overcome. This was also acknowledged by two of Petitioner's witnesses. At the same time, if SJRWMD regulations for construction of water retention areas in Karst sensitive areas are followed, those limitations would be resolved. Typically, the City does not impose specific requirements concerning stormwater retention or groundwater protection at the comprehensive plan stage. Rather, these are normally imposed through the City's land development regulations at the site plan stage of the process. Presumably, at that point, Petitioner will have an opportunity to raise these types of concerns. The City has had experience with other properties having Karst topography and water recharge features similar to the property in question. For example, on the Heathbrook DRI, the City imposed groundwater protection provisions which other local governments throughout the State have used as a model for other developments. To prevent groundwater contamination, the City uses a tool called a DRASTIC Index (Index), which was prepared by the United States Environmental Protection Agency. The Index is used by the City and a host of other regulatory agencies to determine the potential of property for groundwater contamination. According to the Index, the property is less vulnerable to contamination than approximately seventy percent of the rest of the land in the County. City water facilities are available in the right-of-way on the north and west sides of the property, while City sanitary sewer facilities are approximately one-half mile away. If the project goes forward, Intervenor would be required to run sewer lines from the existing sewer facility to the improvements to be located on its property. If stormwater retention facilities are constructed on the property pursuant to City land development regulations, more pre-development water would be retained on the property than would be the case if the property were not developed. In addition, less runoff would be generated from the property if it were developed under the public buildings and facilities land use than would occur if the property was developed under the City land use most comparable to the County's R-1 classification. The potential for flooding Because the property slopes from the north to the south, stormwater run-off naturally flows over the property to the south and east across Glen Hill Farm to a natural low area or pond located on that farm. The evidence shows that in February and March 1998, when unusually heavy rains occurred, substantial flooding occurred on the farm, causing one of its road to be closed for almost two weeks. Intervenor has entered into an agreement with Glen Hill Farm whereby the farm has agreed to allow a portion of stormwater to continue to flow onto its property. Without such an agreement, the City would have required that Intervenor retain all stormwater from a 100-year storm on its property. A stormwater run-off system and a drainage system can be designed on the property to fully satisfy the SJRWMD's Karst sensitive development regulations. Such a system will retain all post-development run-off created by a 100-year storm. Thus, development of the property is unlikely to cause flooding on adjacent properties. Stormwater runoff As noted above, the SJRWMD has promulgated regulations for the design and construction of drainage systems and drainage basins within Karst sensitive areas, which are designed to protect against stormwater run-off contamination of the underlying aquifer. These regulations are more stringent than those that apply to other areas; if adhered to by Intervenor, they will adequately contain and control stormwater run-off and prevent groundwater contamination. In order to develop the property, Intervenor will be required to go through the site plan approval process with the City and to comply with the SJRWMD Karst sensitive regulations. Sufficient testing has been performed on the property to determine that stormwater retention systems may be designed for the property which will avoid unreasonable risk of groundwater contamination. The land use assigned to the property has less potential for detrimental impact upon the environment than would occur had the County permitted development using an R-1 classification, or a similar one by the City upon annexation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the City of Ocala enter a final order finding Plan Amendment 98-51C to be in compliance. DONE AND ENTERED this 28th day of July, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER , Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2000. COPIES FURNISHED: Darlene Weesner, Registered Agent Shady Historic and Scenic Trails Association, Inc. 655 Southwest 80th Street Ocala, Florida 34476 W. James Gooding, III, Esquire Gilligan, King & Gooding, P.A. 7 East Silver Springs Boulevard Suite 500 Ocala, Florida 34470-6659 Bryce W. Ackerman, Esquire Hart & Gray Post Office Box 3310 Ocala, Florida 34478-3310 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325A Tallahassee, Florida 32399-2100
The Issue Pursuant to section 120.56(1)(a), the issues are whether Petitioner and Intervenor are substantially affected by rules requiring that covered insurers report their policyholders' street addresses on Form FHCF-D1A Rev. 05/15 (2015 Data Call), as incorporated by reference in Florida Administrative Code Rule 19-8.029(4)(e), and, if so, whether these rules are an invalid exercise of delegated legislative authority.
Findings Of Fact Insured losses from Hurricane Andrew in 1992 revealed that numerous property and casualty insurers had over-insured certain exposures. After the storm, worldwide insurance capacity contracted, which eliminated an important means by which insurers could address the problem of over-exposure. These conditions forced many insurers to reduce their Florida exposure to preserve their solvency. § 215.555(1)(b), Fla. Stat. (2013). Finding that many insurers were unable or unwilling to maintain the reserves, surplus, and reinsurance sufficient to pay all claims following catastrophic insured losses, § 215.555(1)(d), Fla. Stat., the Legislature in 1993 created FHCF to be administered by SBA. The purpose of FHCF is "to provide a stable and ongoing source of reimbursement to insurers for a portion of their catastrophic losses . . . ." § 215.555(1)(e), Fla. Stat. The Legislature structured FHCF as "a state trust fund under the direction and control of the [SBA to operate] exclusively for the purpose of protecting and advancing the state's interest in maintaining insurance capacity in this state." § 215.555(1)(f), Fla. Stat. To maintain insurance capacity in Florida, each insurer issuing an insurance policy on residential property in Florida is required to enter into a reimbursement contract with FHCF. § 215.555(2)(c) and (4)(a), Fla. Stat. In general, the reimbursement contract provides that, in the event of covered losses, FHCF shall pay a specified reimbursement amount in return for the payment of an annual premium by the insurer. Id. An insurer's covered losses in excess of its non- reimbursable retention amount will be reimbursed at one of three percentages--45%, 75%, or 90%--that the insurer selects for the reimbursement contract year, although reimbursements are subject to a specified maximum payout on all reimbursement contracts in a single contract year. § 215.555(2)(e) and (4)(b)1. and (c)1., Fla. Stat. SBA annually retains an independent actuarial consultant to develop a formula for determining the reimbursement premium to be paid by each insurer to FHCF. § 215.555(5)(a) and (b), Fla. Stat. The formula "shall specify, for each zip code or other limited geographical area, the amount of premium to be paid by an insurer for each $1,000 of insured value under covered policies in that zip code or other area." § 215.555(5)(b), Fla. Stat. By September 1 of each year, "each insurer shall notify [SBA] of its insured values under covered policies by zip code, as of June 30 of that year." § 215.555(5)(c), Fla. Stat. SBA then calculates a reimbursement premium by applying the reported insured values, by zip code, to the premium formula developed by the actuarial consultant. Id. Reimbursement premiums are a major source of revenue for FHCF. Other sources of revenue may include investment income, pursuant to section 215.555(3); emergency assessments on all premiums paid for any property and casualty insurance in Florida, pursuant to section 215.555(6)(b); interest on certain advances made to insurers likely to be due reimbursements, pursuant to section 215.555(4)(e); and certain fees that FHCF may impose on insurers filing untimely or incorrect exposure data, pursuant to section 215.555(7)(e). FHCF may also anticipate revenues and maintain cash flow by issuing post-loss revenue bonds, pursuant to section 215.555(6)(a), and borrowing money by other means, such as by issuing pre-event bonds, pursuant to section 215.555(7)(b). Allowable expenditures of FHCF are reimbursements to insurers, debt service, costs of legislatively authorized hurricane-loss mitigation programs, reinsurance costs, and administrative costs. § 215.555(3), Fla. Stat. Section 215.555(7)(a) specifically authorizes FHCF to enter into reinsurance contracts with reinsurers acceptable to OIR "consistent with the prudent management of the fund." FHCF purchases reinsurance to manage its loss exposure and maintain its ability timely to reimburse Florida insurers for covered losses. FHCF's reinsurance contracts are unique due to a variety of factors, such as the loss amounts retained by individual insurers, the three tiers of reimbursement rates, and the limits on total reimbursements in a reimbursement contract year. FHCF's reinsurance contracts thus require customized pricing, which places a premium on careful negotiations to ensure that FHCF is purchasing reinsurance contracts at favorable prices. For a variety of reasons, including the emergence of pension funds, hedge funds, and wealthy individuals as reinsurers, reinsurance costs have declined in recent years. For instance, FHCF was quoted, in 2008, 25 cents for each dollar of reinsurance, but was quoted, in 2015, 6.78 cents for each dollar of reinsurance, presumably for comparable loss exposures. In recent negotiations, FHCF representatives were concerned that some reinsurers may have had access to more detailed loss-exposure data than was available to FHCF-- specifically, to covered properties' street addresses or other locational coordinates, rather than merely zip codes. Knowledge of street address data would permit more accurate pricing of reinsurance because, for the past ten to fifteen years, loss- projection models have been able to analyze street address data to produce more accurate projections of covered losses from specified wind events. It is unnecessary to determine whether the concern of the FHCF representatives was well-founded. Regardless of whether the possession of more-detailed data by FHCF would restore parity with reinsurers or confer an advantage over reinsurers, access to this more-detailed data would improve FHCF's bargaining position when negotiating for the purchase of reinsurance. For these reasons, SBA and FHCF decided to obtain from insurers their street address data with the 2015 Data Call. Rule 19-8.029, which incorporates the 2015 Data Call by reference, cites as rulemaking authority section 215.555(3) and cites as the law implemented sections 215.555(2), (3), (4), (5), (6), (7), and (15) and 627.351(6). The rule-amendment process did not take long. On January 22, 2015, SBA published notice of development of the proposed street address and other rules. By January 28, 2015, FHCF had prepared the street address rules. FHCF provided notice of a rule development workshop for the morning of February 5, 2015, and the FHCF Advisory Council provided notice of a meeting to consider the proposed rules for the afternoon of the same day. Pursuant to section 215.555(8), the advisory council is a nine- member body that includes one representative of carriers, one representative of reinsurers, one representative of insurance agents, and representatives of other industries and consumers. At the workshop, a FHCF representative explained the street address rules, asked for questions or comments, and received none. At the advisory council meeting, which was attended by five of its members, a FHCF representative explained the street address data and, again, received no questions or comments. On March 24, 2015, the SBA Trustees met to authorize FHCF to file the proposed rule changes. The Trustees approved the filing without discussion, and, on March 25, 2015, FHCF published the proposed rules, including the street address rules. On May 12, 2015, the proposed rules became final. The silence of participating carriers during the rulemaking process undermines the claim of the chief witness of Petitioner and Intervenor that each carrier's street address data represents its "crown jewels." Nonetheless, there is ample evidence of the importance of street address data to insurers. Street address data is the foundation of the carrier's relationship with its policyholders. Unlike zip code data, street address data facilitates communications with policyholders and access to other databases for policyholder information that an insurer may use to generate additional revenues, not limited to insurance. In this era of Big Data, the growth in the amount of information accessible through a person's street address has increased in the past year by an amount in excess of the increase of this information in the preceding 30 years. Presently, over 500 pieces of additional information is available to the possessor of street address data, obviously presenting marketing opportunities across many industries, not just insurance. And this data retains much of its value even after a policyholder has moved to another residence. This data is less valuable to an insurer to the extent that it is available from sources other than the insurer. In particular, if an insurer's street address data is obtained by a competitor, the competitor may target the insurer's customers, sparing itself much of the customary costs of obtaining new business. Thus, when transferring rights to their confidential data, insurers include within the transfer agreement various provisions ensuring the proper and secure use of the data and providing for relief in the event of a breach of the agreement. Property and casualty insurers also protect their street address data from unauthorized disclosure by implementing data-security technology. The ongoing threats posed by hackers and advances in their technology requires constant updating of insurers' data-security technology. The importance of policyholders' locational data has long been recognized. In 1993, when creating FHCF, the Legislature enacted section 215.557, which treats as confidential and exempts from public records laws insurers' reports of covered property by zip code, which the statute acknowledges is "proprietary and trade secret information" that, if revealed, "could substantially harm insurers in the marketplace and give competitors an unfair economic advantage." Ch. 93-413, § 2, Laws of Fla. For its part, FHCF has implemented data-security technology to safeguard insurers' confidential information. The reinsurance contracts and SBA Policy 10-043 preserve the confidentiality of all information submitted under a claim of confidentiality. SBA and FHCF have imposed contractual provisions requiring their consultants to preserve the confidentiality of all data identified as confidential by SBA or FHCF, strictly limiting access to such data, and directing the destruction of any such data received by the consultants after the completion of their work. However, in the event of a breach of an agreement between SBA or FHCF and a contractor, Petitioner's members would have no effective relief against SBA, FHCF, or the contractor of SBA or FHCF. To transmit their 2015 Data Calls to SBA, insurers upload the data, including the street address data, onto an SBA server using FHCF's Web Insurer Reporting Engine (WIRE). First used for the 2014 data call, WIRE is a "secure web-based program." Fla. Admin. Code R. 19-8.029(2)(k). WIRE transfers the data to an SBA server, where it is stored. In general, SBA and FHCF prohibit the removal of confidential data stored on an SBA server; consultants, including the actuarial consultant, may use their software to analyze this data, but may not remove data from an SBA server. FHCF's chief operating officer testified that, in connection with the premium-setting process, he intends to share only the zip code data with the actuarial consultant. Access to the street address data is further limited by the fact that SBA and FHCF do not presently have programs to access the data; someone trying to access this data would have to write code to remove this data. Of course, FHCF write such code when it uses the street address data to support its negotiations with reinsurers. Based on these and perhaps other security precautions, FHCF's chief operating officer testified that the SBA server on which the street address data is stored cannot be hacked. Computer-related crime, such as that prohibited by sections 815.01, et seq., may be perpetrated by an unknown third party or by an employee or consultant, with access to the data, who acts with an intent to enrich himself, embarrass Respondents, harm insurers, or cause panic among policyholders. It is impossible to credit completely the blanket assurance of FHCF's chief operating officer, whose range of expertise spans insurance and loss modeling, but not computer security. The ongoing nature of data-security efforts suggests that the security risks posed by hackers and malevolent insiders are themselves dynamic. Section 815.02(1) and (3) finds as much in acknowledging that "[c]omputer-related crime" is a "growing problem" in the public and private sectors, and the "opportunities for computer-related crimes in financial institutions, government programs, government records, and other business enterprises . . . are great." These risks to the among the most closely guarded collections of data would not be "growing" and "great," if absolute protection of data were technologically feasible. Prior to transmitting its street address data to FHCF, each carrier's street address data is exposed to the risks associated with its storage on the insurer's server or servers and its accessibility by the insurer's employees and consultants. New risks attach when the data is transmitted by internet to FHCF and when the data is then stored on an SBA server; multiple storage points create multiple sets of risks. Petitioner is a trade association comprising 16 property and casualty insurers required to participate in the FHCF. Petitioner's insurer members include Intervenor, as well as four insurance industry consultants, who are irrelevant to this case and are not included in references to Petitioner's "members." Established in 1997, Petitioner's purpose is to promote a healthy, competitive insurance market in Florida. By the September 1, 2015, filing deadline for the 2015 Data Call, all of Petitioner's members, except Intervenor, had timely filed their 2015 Data Calls with the information required by fields 13 and 14. Intervenor timely filed its 2015 Data Call, but omitted the information called for in fields 13 and 14 to avoid Respondents' mootness argument against Intervenor's standing, as discussed below. By letter dated September 17, 2015, a copy of which was sent to OIR, FHCF advised Intervenor that, as a result of this omission, it was not in compliance with rule 19-8.029. The letter warns that possible consequences include FCHF's withholding of reimbursement payments or advances from Intervenor until it becomes compliant.
The Issue The Petitioner appeals the disapproval of its license transfer application by the Respondent. Hence the issue posed is whether or not the Respondent unlawfully disapproved the application for transfer on the grounds that "the location failed to qualify for zoning approval" within the meaning of Section 561.18, F.S. The premises sought to be licensed is located at 1480 South Ocean Boulevard, Pompano Beach, Florida. The former name of the business was Paddock International, Inc., d/b/a Paddock International. The proposed name of the new business is Jacob's Ladder, Inc., d/b/a Jacob's Ladder. When the application for transfer was submitted to the Division of Beverage for approval, it was rejected on May 19, 1976, for, as previously stated, the reason that it "failed to qualify for zoning approval", citing Section 561.18, F.S., as amended. The disapproval was appealed and the matter is now before the undersigned to determine whether or not the applicants and the premises met all of the qualifications required in the beverage law. The Petitioner takes the position that the Respondent's and County Zoning Board's action amounts to arbitrary and capricious conduct and that in no instance, has zoning approval been required in license approval situations. C. Lloyd, Respondent's representative and employee for approximately eight years, testified that he processes approximately 600 license applications yearly of which approximately 40 to 50 percent represent transfer applications. Based on his experience, the Petitioner's application is the only transfer application requiring zoning approval. He was advised during his investigation by a Mr. Kauth that the Broward County Zoning Board acted on a previous mix-up in the type of license which was previously issued and the county was misinformed in giving zoning approval to the prior licensee. He testified further that in almost all cases no inspection is made as to whether or not the particular premises meets the zoning requirements in transfer application situations. By way of background, the record evidence reveals that the license was initially issued to the owners of the premises sought to be licensed here on or about January 4, 1960. Since that time, approximately 21 licenses have been issued and/or renewed and at no time has zoning ever surfaced as a problem. The most recent zoning certificate was dated December 4, 1974 and the zoning was satisfactory at that time. George Maurer, Chief of Zoning Inspection for Broward County and who has served as the Zoning Chief for the past three years testified that he supervises personnel in the zoning department and is charged with maintaining records; overseeing and enforcing zoning procedures. He recalled being asked to sign the zoning approval form for the subject premises and he refused in that there was no certificate on file and according to his testimony, such must be current with the present owner's name contained thereon. He admitted that the prior zoning approval certificate had not been revoked either administratively or otherwise and that there was no hearing as to any proposed revocation or notice of any intent to revoke the current zoning approval certificate. The zoning approval was withheld here due to the inadequate parking spaces and for violations of the South Florida Building Code and numerous other code violations. To the best of his knowledge, the code violations had been corrected with the exception of a sign which was erected on the premises sought to be licensed. When Petitioner filed its application for transfer of license from the previous owners, he was advised that there existed 47 parking spaces, however, based on a field examination conducted by him on August, 1976, his inspection revealed that there were only 38 parking spaces. On cross examination he testified that there has been no change in the zoning regulations from the time of issuance of the prior zoning certificate through the time that the disapproval was given for the license application in question. Robert R. Krauth, Deputy County Administrator of Broward County, testified he mailed a mailgram to beverage agent Joseph J. Scozzafava and advised that the zoning certificate had been improperly granted for the premises sought to be licensed under the previous ownership. The testimony is that he had no knowledge that zoning certificates were required in transfers and that to his knowledge no steps had been taken to close the restaurant due to these alleged inadequacies. On cross examination he testified that he had some knowledge that the use of the premises had changed however he had no evidence on that point. He received no complaints from Jacobs Ladder and to his knowledge the sole problem centered around the inadequate parking spaces. George C. Gatterer, 2/ an employee of Broward County Board of County Commissioners and the Assistant Director of General Services for the zoning department, testified that the area is located in a R-6 zoning area. The zoning certificate could not be approved for the subject premises based on the "improper parking spaces". He was aware of no regulation which required that new zoning certificates be changed based solely on a name change. He knew the former compliance officer, Smith, who certified that the property had been in compliance during the prior periods in which the zoning approval had been certified. Other evidence revealed that the parking lot had not changed nor had the use changed and that prior licensees had no problem getting licenses transferred. Petitioner's agents attempted to obtain parking in contiguous areas but were unable to obtain such.
Findings Of Fact Based on the record evidence, it is clear that the request for a new zoning certificate was a new procedure utilized by the Division of Beverage in the subject case. Respondent's own witness testified that he was in charge of processing most license transfers and that he was aware of no other application in which a zoning certificate was required in order to gain transfer approval from the Respondent. The evidence further revealed that the same number of parking spaces, at least in terms of footage, now exist as has existed when zoning approval was given in the earlier situations. This situation has existed for more than 16 years and the county's witness who is in charge of the zoning approval testified that there has been no change in the zoning regulations since the issuance of the most recent zoning certificate in 1974. Evidence further reveals that at no time did the Petitioner receive and notification that the prior zoning approval was being withdrawn either administratively or otherwise, nor was any notice given of an intent to revoke the prior zoning approval. Based on these facts, the undersigned concludes that the requirement that a zoning approval be submitted along with the transfer application in this case represented a marked departure from the existing rules, regulations and procedures of the Division of Beverage, and amounted to a denial of due process. Based thereon I shall recommend that the transfer application be approved since, in my opinion, based on the evidence presented, the premises possess the requisite qualifications as required by the beverage law. It thus appears that Respondent's failure to approve the application for reasons advanced cannot stand and I shall recommend that the approval be issued forthwith.
Recommendation Based on the foregoing findings and conclusions of law, I recommend that the Department of Business Regulations, Division of Beverage, approve the application submitted in the subject case. DONE and ENTERED this 27th day of August, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
