The Issue The issue is whether Respondent should deny Petitioner's application for a sign permit, because the proposed site is not zoned commercial and, therefore, fails the requirement for commercial zoning in Subsection 479.111(2), Florida Statutes (2007),1 and the location does not qualify as an un-zoned commercial/industrial area within the meaning of Subsection 479.01(23).
Findings Of Fact Respondent is the state agency responsible for regulating outdoor signs at the proposed site. The proposed site is located at 2505 West Bella Vista Street, Lakeland, Florida. Petitioner is a Florida corporation engaged in the business of full-service advertising in the state, including road-side signs or billboards. On March 21, 2008, Petitioner submitted an application for an outdoor advertising permit for two structures with four sign faces identified in the record by application numbers 57095, 57096, 57097, and 57098. On March 31, 2008, Respondent issued a Notice of Denied Application (the Notice). The Notice notified Petitioner of proposed agency action to deny the permit application. The Notice states two grounds for the proposed denial. The first ground alleges the “Location is not permittable under land use designations of site [sic]” within the meaning of Subsection 479.111(2). The second ground alleges the “Location does not qualify as unzoned commercial/industrial area” within the meaning of Subsection 479.01(23). Section 479.111 applies to signs located within the interstate highway system and the federal-aid primary highway system (the regulated highway system). The proposed site is located within the regulated highway system adjacent to Interstate 4 in Polk County, Florida. Subsection 479.111(2), in relevant part, authorizes signs within the regulated highway system which satisfy one of two disjunctive requirements. A sign must be located in either a “commercial-zoned” area or must be located in a “commercial- unzoned” area and satisfy a statutorily required use test.2 The term “commercial-unzoned” is defined in Subsection 479.01(23). However, a determination of whether the proposed site satisfies the statutory use test for a “commercial-unzoned” area is not necessary if the proposed site is found to be in a “commercial-zoned” area. The Legislature has not defined the term “commercial-zoned” area, and Respondent has cited no rule that defines the term. The issue of whether the proposed site is in a “commercial-zoned” area is an issue of fact and is not within the substantive expertise of Respondent. Even if the definition were within the substantive expertise of Respondent, Respondent explicated no reasons in the evidentiary record for deference to agency expertise. The evidentiary record explicates reasons for not deferring to purported agency expertise in this case. Respondent previously approved a sign permit from the same applicant on the same property. Petitioner spent $23,000.00 to move the previously approved sign so that both the proposed and existing signs could be permitted on the same property. It is undisputed that the proposed site is located on property zoned as Leisure Recreational in the Polk County Comprehensive Plan. It is also undisputed that Leisure Recreational “allows for multiple uses including commercial.”3 However, Respondent interprets the Leisure Recreational designation to be an “unzoned-commercial” area, because “The subject parcel is not explicitly zoned commercial. ”4 Respondent apparently has adopted a titular test for determining whether the proposed site is “commercial-zoned.” If the zoning designation does not bear the label “commercial,” Respondent asserts it is not “commercial-zoned” within the meaning of Subsection 479.111(2). The fact-finder rejects that assertion and applies a functional test to determine whether the local zoning label permits commercial use. A preponderance of the evidence supports a finding that the local zoning label of Leisure Recreational means the proposed site is “commercial-zoned” within the meaning of Subsection 479.111(2). Credible and persuasive expert testimony shows that the Leisure Recreational zoning designation specifically designates the proposed site for commercial uses, within the meaning of Subsection 479.01(23),5 including retail structures up to 20,000 square feet, bars, taverns, marinas, and fishing camps. The commercial uses allowed under the Leisure Recreational zoning designation are not discretionary with county planning staff but are permitted as a matter of right. Much of the dispute and evidence in this proceeding focused on two use tests that Respondent performed in accordance with Subsections 479.01(23)(a) and (b). However, the statutory use test applies only to site locations that are “commercial- unzoned.” Findings of fact pertaining to the accuracy of the use tests utilized by Respondent are unnecessary because they are inapposite to “commercial-zoned” property such as the proposed site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting the application for a sign permit. DONE AND ENTERED this 8th day of April, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 2009.
Findings Of Fact The Applicants acquired in 1960 for approximately $40,000 a 38 acre parcel of real property located adjacent to Governors Creek just outside the corporate limits of the City of Green Cove Springs in Clay County, Florida. The applicants created an unrecorded subdivision by subdividing the parcel into lots approximately one-half acre in size in accordance with a map dated July 19, 1961 which shows 50 numbered lots, access roads to these lots, and three parcels designated as not being included in the subdivision. The map of the subdivision was never recorded in the office of the Clerk of the Court of Clay County, but the tract has been referred to variously as the Bradley-Triplett Subdivision and Governor's Creek Subdivision. The Applicants began to develop the tract in 1961 for the purpose of selling the lots therein as single family home sites. Their activities included clearing and grading all the roads shown on the map and installing storm drainage structures. Shortly after the initial work was done, the Applicants approached the County Supervisor of Roads, James Knowles, and the County undertook maintenance of the roads. At the time development began, Clay County had no subdivision regulations, and there was no requirement to record the plat of the subdivision. A map of the subdivision was given to the County at the time it began to maintain the roads in 1961. Sales of lots in the subdivision began in 1961, and several lots were sold in the subdivision over the next few years. However, sales efforts were discontinued in 1965 because of the poor market. At the request of the Applicants, the County ceased to maintain a portion of the roads in 1975 in an effort to prevent dumping of garbage in the area. Initially, the subdivision was zoned agricultural. In June 1976, Mr. Bradley appeared before the Clay County Zoning Commission and requested the zoning of 30 acres of the tract be changed from BB to RB which permitted one single family dwelling per one-half acre. This request was granted. In June 1976, Mr. Bradley wrote Mr. John Bowles, Public Works Director of Clay County, requesting permission to install water lines within the graded road rights-of-way as shown on a map submitted by the Applicants which depicted all the lots which are the subject of the instant Petition for vested rights. This permission was granted by Bowles, and the Applicants paid $8,000 for the installation of water lines and fire hydrants in the subdivision. Water service is provided by the City of Green Cover Springs. In August 1976, the Applicants presented to the County a Warranty Deed for the roads shown in the Map. The County accepted the roads and agreed to continue to maintain the roads if certain improvements were made. Subsequently, the Applicants worked on making the improvements requested by the County, and the County continued to maintain the roads. The subdivision has appeared on maps used by various County departments for many years. In June 1978, Mr. Bradley appeared before the Clay County Planning, Zoning and Building Commission and requested that the remainder of the subdivision be re-zoned from agricultural to RB. This request was granted. In September 1978, the Public Works Department of Clay County requested the Applicants perform additional work on the road network in the subdivision to include creating a 20 foot drainage easement, construction of a drainage ditch, installation of street signs, and other improvements regarding grading and drainage. The drainage easement was granted to the County, and the drainage ditch was apparently constructed together with some of the other requested improvements; however, not all of the requested improvements were completed to the County's satisfaction. In March 1980, Mr. Bradley wrote Mr. Bowles a letter granting the County access to the roads within the subdivision for the purpose of maintaining them. In 1983, the County adopted new standards for the acceptance of roads not located within platted subdivisions. At this time, the Applicants became concerned about the status of the roads, and appeared before the County Commission. In November 1983, they contacted Mr. Bowles regarding their concerns. The status of County-requested improvements was a subject of continuing correspondence between the County and the Applicants. As a result thereof, the Applicants again undertook to satisfy the County regarding the list of requested improvements to the roads, and expended additional money on these improvements. The Applicants have spent over the years $20,000 on the roads, $15,000 on the water system and fire hydrants, and $4,000 on the drainage system within the subdivision. In 1984, the County Commission determined that it would not accept responsibility for maintenance of the roads, but that it would not re-convey title to the roads to the Applicants. The County has not altered its position since that determination. There are 50 numbered lots in the subdivision, and three unnumbered outparcels, some of which have been subsequently subdivided by sales. The unnumbered outparcel located in the northeast corner of the subdivision will be designated in this order as the unnumbered northeast parcel. The remaining unnumbered lots will be designated in this order as Lots A through G, which are located as follows: Lot A, located to the west of Lot 33; Lot B, located to the north of Lot A; Lot C, located to the north of Lot B; Lot C, located to the north of Lot B; Lot D, located to the north of Lot C; Lot E, located to the north of Lot D; Lot F, located to the north of Lot E, and Lot G, located to the north of Lot F. The County concedes there are 19 lots of record in the subdivision: Lots numbered lots 1, 8, 9, 10, 11, 12, 13, 33, 34, 35, 36, 37, 40, 41, 42 and 43 plus the lots designated above as Lots A, D and F. The Hearing Officer includes Lot E as one of the recorded lots because it was subdivided from Lots D and F, which the County recognizes as lots of record, after the parcel from which the three lots were created was sold as one lot. Lots 1, 8, 9, 10, 11, 12, 13, 33, 34, 35, 36, 37, 40, 41, 42, 43, and unnumbered Lots A, D, E, and F meet the Plan's criteria for development, and are not at issue in these proceedings. The Plan requires that over 70 percent of the total number of lots in a subdivision created between 1959 and 1970 be sold for the remaining lots to statutorily vest. The Applicants' subdivision does not meet the criteria in the Plan for statutory vesting because the requisite percentage of lots have not been sold. The lots at issue in the Applicant's request for equitable vesting are the remaining numbered lots ( 2, 3, 4, 5, 6, 7, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 38, 39, 44, 45, 46, 47, 48, 49, and 50), the unnumbered northeasterly parcel, and the lots designated in this order as Lots B, C, and G. On January 23, 1992, the Board of County Commissioners of Clay County formally adopted the 2001 Comprehensive Plan pursuant to and in compliance with Chapter 163, Part II, Florida Statutes. On November 23, 1993, the zoning of the subdivision was administratively changed to AR-2 which permits the building of single family residences at a density of one per five acres. None of the lots at issue are five acres in size and qualify for further development. A total of 12 homes have been built in the subdivision, each having an average size of 1,800 square feet and occupying lots approximately 1/2 acre in size. The existing layout of the roads does not permit consolidation of the unsold existing lots into five acre lots. Even if they could be consolidated, the increased costs of a five acre lot would dictate the construction of a house larger than 1,800 square feet. In sum, enforcement of the current plan's provisions will prevent any further development of a valuable piece of property conveniently located adjacent to the City of Green Cove Springs in a subdivision which has been recognized and considered in the County's development plans and maps for thirty years.
The Issue The issue to be determined is whether Respondent violated section 475.25(1)(b) & (c), Florida Statutes (2007), as alleged in the Administrative Complaint and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with regulating the practice of real estate pursuant to section 20.165 and chapters 455 and 475, Florida Statutes. At all times material to this Administrative Complaint, Respondent was licensed as a real estate broker associate in the State of Florida, having been issued license number 3057283. At all times material to this Administrative Complaint, Respondent was licensed with Re/Max Professionals, Inc., a real estate corporation. At the time of hearing, Respondent was licensed with Access Realty of North Florida, Inc., a licensed real estate corporation. Respondent's address of record is 757 West Duval Street, Lake City, Florida 32055. At all times material to the Administrative Complaint, Respondent was the listing agent for a property known as 831 South West 5th Street, Live Oak, Florida (5th Street property). On March 4, 2008, Respondent listed the property as having a Commercial Intensive (CI) zoning. At the time of the listing, zoning classifications for property in Live Oak were not available on line, and could only be obtained by calling for the information. At the present time, George Curtis is employed by the City of Live Oak and handles inquiries regarding zoning for properties in the City of Live Oak. He does not recall receiving a telephone call from Respondent regarding the zoning classification for the 5th Street property. However, at the time of Respondent's inquiry, Mr. Curtis was just starting his employment with the city, and did not yet have an office. Inquiries were at that time directed to the City Clerk's office. Mr. Curtis could not state that no call was received by that office, or, if received, what information was given. The listing for the property states at the bottom, "[t]his information is deemed reliable, but is not guaranteed." Respondent listed the property zoning as CI after calling to inquire regarding the appropriate zoning for the property. While she testified that her call was to the Suwannee County office as opposed to the City of Live Oak, it is found that the call must have been made to the City, given the telephone call described below. The property described in the listing is not zoned CI, but rather Commercial Neighborhood (CN). In Live Oak, CI zoning is the most intense zoning district, and is limited to major arterial roads in the city. It is intended to meet the needs of a regional population. CN zoning is intended to provide for commercial use on a more limited scale, in terms of the size of the building that can be placed and the types of uses. It is intended to meet the needs of a neighborhood area. A funeral home would not be a permitted use for property zoned CN. It would require a zoning change. A funeral home would be permitted on a property zoned as commercial general (CG). The CG category is between CI and CN. In September 2008, Respondent contacted the City of Live Oak and was referred to George Curtis about the possible use of the property on SE 5th Street as a daycare. During their telephone conversation, he told her that in order to operate a daycare on the property, the owner would need to receive a special exception to the zoning requirements. He obtained her e- mail address and sent her an e-mail with attachments regarding obtaining special exceptions. Respondent believed, based upon their conversation, that the same would be true for any business to be located on the property. Mr. Curtis does not recall telling Respondent at that time that the property was not zoned as CI. On October 16, 2008, Respondent sent the following e- mail to Mr. Curtis: Hi George, the contract for a day care on 831 SW 5th Street, Live Oak (lots 14, 15, 16, Block E, Hildreth) fell through. I now have a pending contract but the buyers want to use the property for a funeral home. Do you see any problem with this? Anne The e-mail was sent at 5:01 p.m. At 5:22 p.m., Mr. Curtis sent the following reply: Hello Anne: I believe this property was Neighborhood Commercial between Green and Ammons on the south side of 5th. C-N does not have any allowances for a Funeral Home, even as a Special Exception. A petition could be proposed to the City Council for Residential- Office or Office Zoning that does allow for the Funeral Home (with also a Special Exception) but other criteria would have to be evaluated to be sure that parting and buffering requirements could be met after any zoning change took place--which is also a process that is not guaranteed but a possibility--there is no way to predict whether the rezoning and the special exception would be approved. This would probably be a 4-6 month process start to finish plus the associated fees to try. Funeral Homes are allowed by right in General Commercial Zoning but you have to front a major street (129/90/51, etc. to get considered for that zoning…) Hope this helps -- wish I had better news… Respondent claims that she never received this e-mail, and that she never deleted it from her computer. She testified that when she did not receive a response, she called the zoning office and was told that a special exception would be required for a funeral home. She passed this information on to Mr. Wright. On October 17, 2008, Russell Wright made an offer to purchase the property on S.W. 5th Street for $45,000. The contract (Petitioner's Exhibit 3) has been reduced and copied several times, and as a result, is illegible in most respects. However, it can be ascertained that the contract was made on October 17, 2008, and signed by the sellers on October 22, 2008. The contract specified that closing was to take place October 31, 2008, which it did. The contract also specified that the Buyers would pay $5,000 down, and the Sellers would finance the remainder at 8 percent, with payments of $485.31. As part of the closing, the Buyers and Sellers signed an Affidavit of Buyer and Seller Regarding Contract Compliance, which stated "all of the contingencies and conditions set forth in the contract (and all addendums thereto) between the Seller and Buyer have been satisfied, performed or waived by the Buyer and the Seller " Because of the condition of Petitioner's Exhibit 3, it cannot be determined whether the form contract made any representations regarding zoning and who was responsible for determining the appropriate zoning for the property. On October 23, 2008, Respondent sent an e-mail to Russell Wright with attachments labeled "Petition for Special Exemption," "How the Future Land Use Plan Map - Brochure," and "Sec. 12.2 Special Exceptions." The message in the e-mail reads: Hi Russ, here's the contact person who deals with the zoning in Live Oak, and the forms for filing. I received 1 of the forms back from you, the As Is Rider but I still need the corrected Lead based paint disclosure that I sent with the AS Rider in yesterday's fax. Please complete this form and fact back to me. The Seller's [sic] are going to close at 9:00 am on Friday 31st, please let me know as soon as possible a time that would be convient [sic] for you and your wife to attend. Regards, Anne. Mr. Wright acknowledged receiving an e-mail, but not the documents. He sent Respondent the other documents required for closing. After the closing, he called her and stated that he could not locate the paperwork related to special exceptions, and on November 3, 2008, she mailed it to him. With the paperwork was the following note: Dear Russell and Marcus: I have enclosed the paperwork for the Special exception. If you have any questions you may call George Curtis at 386-362-2276. Mr. Curtis is the development manager for the City of Live Oak. Regards, Anne Mr. Wright began making renovations on the property in order to open a funeral home. In July 2009, he began the process of getting his city occupational license. He could not obtain the license because the property was not zoned for his intended use. At that point, Mr. Wright contacted city officials, including George Curtis and the Mayor of Live Oak. Mr. Curtis advised Mr. Wright that he had sent an e-mail to Respondent advising her that a funeral home could not be operated on the property with its present zoning. Mr. Wright wrote to Respondent, demanding that she compensate him for the fact that he could not open the funeral home without a zoning change. The letter stated in pertinent part: The Mayor of Live Oak and Mr. George Curtis has informed me that I can apply for a zoning change so that My Wife and I can open our business. But it will cost $750.00 to file the initial papers. And that is NOT a guarantee. To date with the down payment and monthly payments and renovation cost, your dealings have cost us $25,000 plus pain and suffering and embarrassment. And we have property that we can't use for the intention it was purchased. Ms. Hurst, we are allowing you and your firm to settle this matter out of court. Ms. Hurst we will settle this matter for the amount of $50,000.00 which is damages plus pain and suffering. If you and ReMax Professionals, Inc., are not willing to settle with us out of Court, we will retain the Attorney with whom my Wife and I have consulted. . . . It is clear from the evidence that Mr. Wright chose to believe that he could open a funeral home on the property without any further administrative action either to change the zoning or to obtain a Special Exception for its intended use. Neither belief is consistent with the credible evidence that Respondent sent him information regarding Special Exemptions and the process to obtain them. All of the information given to him is consistent with his need to follow up with the City's zoning department, which he did not do. Based on the more persuasive evidence presented in this classic, "he-said, she-said" case, it is found that Respondent did not receive the October 17, 2008 e-mail from George Curtis, but believed that a Special Exemption would be required to operate a funeral home on the property, and that she supplied information to Mr. Wright to that effect. Mr. Wright's claim that Respondent represented that the property could be used as a funeral home with no further action is rejected.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing Count One in the Administrative Complaint; finding a violation of section 475.25(1)(c), as alleged in Count Two; imposing a reprimand and fining Respondent $250.00. DONE AND ENTERED this 8th day of June, 2011, in Tallahassee, Leon County, Florida. S Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 2011. COPIES FURNISHED: William Haley, Esquire Brannon, Brown, Haley, Robinson & Bullock, P.A. Post Office Box 1029 Lake City, Florida 32056-1029 Joseph A. Solla, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Thomas W. O’Bryant, Jr., Director Division of Real Estate 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner is entitled to attorney's fees and costs as a prevailing small business party pursuant to section 57.111, Florida Statutes (2015),1/ and, if so, in what amount.
Findings Of Fact The Division is the entity of the State of Florida empowered and required to ensure compliance with the Condominium Act, chapter 718, Florida Statutes, and implementing administrative rules. The Boca View Condominiums complex comprises 72 residential condominiums in Boca Raton, Florida. The Association operates Boca View Condominiums and is subject to the Condominium Act. The Association is not under developer control, but is controlled by the unit owners. Hurricane Wilma hit Florida in October of 2005. At that time, Mr. Alexander Boburka was a unit owner in Boca View Condominiums. Ms. Diana Kuka has lived in Boca View Condominiums since 1998 and was the president of the Association at the end of 2005. She testified that the Association is a non-profit business incorporated by the State of Florida. This testimony was supplemented by Department of State records showing the Association as a not-for-profit corporation whose principal place of business is in Boca Raton. She testified the Association had only two employees at the time of the Notice to Show Cause and a net worth of less than two million dollars. Boca View Condominium Association is a small business party. Ms. Kuka testified that the first time she learned that Mr. Boburka claimed that his unit had been damaged by Hurricane Wilma was on June 11, 2006, when Mr. Boburka sent an e-mail to her, stating: I am writing to ease my mind and assure myself that the Association litigation through the developer is responsible for the faulty roof that allowed rain water from Hurricane Wilma to enter my condo along pipes (common areas/elements?) and caused damage to both bathroom ceilings last year. I do not have wind coverage and have not yet repaired damage and do not plan to do so until after this hurricane season ends. Please confirm my understanding of the situation as it occurred with other units above and below me. My condo insurance company said that my standard policy does not cover the damage due to the fact that the hurricane caused damages. Kindly respond at your convenience. It is not clear if Ms. Kuka ever responded to Mr. Boburka, but a few months later, he wrote two checks, each in the amount of $1,000.00, to the order of Ricardo Salinas: one dated September 12, 2006, and the other dated September 15, 2006. The checks had the notation "repairs" written in the "For" space. An e-mail from Mr. Boburka to Ms. Kuka dated August 2, 2007, referenced a conversation between them in Costco two weeks previously and stated that Mr. Boburka was "in the process of obtaining a breakdown of cost to repair damages in my unit bathrooms and kitchen." It stated that he had copies of checks paid to the contractor. Ms. Kuka testified at hearing that the Association will not issue a check to a unit owner without an invoice: And we do not, we do not, absolutely not issue a check unless we have a backup, unless we have an invoice. Everybody can give us a check. Everybody can say, I spent this or I spent that. so I made it clear, because the board wanted to have some backup, wanted to have – you know, if he can't provide proof of damages but at least give us – we wanted to, you know, like give him the benefit of the doubt, but at least give us some breakdown, like an invoice that said, I repaired such and such, and it cost such and such. Notwithstanding Ms. Kuka's testimony that a check would not be issued without an invoice, the Association did not follow that policy with respect to Mr. Boburka in this case. Mr. Boburka did not provide a breakdown to the Association. The Association paid Mr. Boburka the amount of $1,961.34 by check dated November 28, 2007. Although the Association argued at hearing that the payment to Mr. Boburka was "contingent" and subject to his later providing proof regarding the amount and cause of his damages, the evidence does not support this claim. About five and one-half years later, a letter from the Association to Mr. Boburka, dated June 14, 2013, referenced an attached copy of the reimbursement check given to him in 2007 and requested him to "advise, as soon as possible, in detail, the nature of this expense." An almost identical letter, with the addition of the words "Second Request," and dated July 3, 2013, was sent to Mr. Boburka. Mr. Boburka did not provide the requested information. An "expense adjustment" in the amount of $1,961.34 was entered upon Mr. Boburka's account ledger from the Association, dated May 2, 2014. A note indicated, "Charge back for monies recd from association due to hurricane damages used for others [sic] purposes." Mr. Boburka filed a complaint with the Division on May 12, 2014. He alleged that the Association improperly applied a charge of $1,961.34 to his account ledger. Case No. 2014020742 was opened and assigned to Ms. Sirlei Silveira, a financial examiner in the Division's Bureau of Compliance. In response to Division inquiries, counsel for the Association e-mailed Ms. Silveira on Monday, July 28, 2014, setting forth reasons that it was believed Mr. Boburka was not entitled to the money that the Association gave him earlier, alleging generally that the Association believed the original claim by Mr. Boburka in 2006 was fraudulent. A data entry was made on Ms. Silveira's case file at the Division dated May 11, 2015. It indicated "Closing Order" and reflected a Code of "368." About a month later, a notation was made in the case indicating "Memorandum Prepare/Revise/Review" dated June 16, 2015. On July 28, 2015, Mr. Boburka, through counsel, filed a complaint with the Division alleging that the Association failed to include him on the ballot for election to Association office, despite proper notice of his intent to be a candidate. Mr. Boburka alleged that the reason he was not permitted to be a candidate was that he had not paid the improper charge that had been posted to his account earlier. The Division opened Case No. 2015033369 and assigned it to Mr. Harry Hague, the lead investigator for the Miami and Fort Lauderdale sections for the Bureau of Compliance. An entry dated July 29, 2015, was made on Ms. Silveira's case indicating "Case File Review." An entry dated August 19, 2015, indicating "Case File Review" was also made. At some point Mr. Hague was directed to merge Ms. Silveira's case into his own, because, as Mr. Hague testified, "it was part and parcel" to his own case. Mr. Hague testified that "[w]e wouldn't maintain two active investigations with a single issue." An entry on September 2, 2015, indicates "Case Reassigned" and the note "case reassigned to Hague for combining with investigation 2015033369 and preparation of aa." After a few more data entries indicating further reviews, an entry dated October 19, 2015, on the earlier case indicates "Case Closed Duplicate." Ms. Silveira's case was not closed on May 11, 2015, based upon a determination by the Division that there was no violation. Had that been done, the file would have reflected a "UF" disposition code, indicating that the charge was determined to be unfounded. Had the case actually been closed, the parties would have been notified of that fact. Contrary to the argument of the Association, Ms. Silveira's case was not closed because it was determined to be unfounded and then reopened by the Division as an act of retribution against the Association in response to other election concerns that had been the subject of an earlier complaint. The evidence did not show that the Division acted in bad faith. Mr. Hague prepared an investigative report dated September 1, 2015. The report concluded that the Association improperly posted a $1,961.34 charge to complainant Mr. Boburka's account ledger and improperly failed to include Mr. Boburka's name as an eligible candidate for the election of the Association's directors, in violation of provisions of chapter 718. On October 2, 2015, the Division filed a Notice to Show Cause against the Association regarding the $1,961.34 charge to Mr. Boburka's account ledger. The Notice to Show Cause provided the Association with a clear point of entry to request administrative proceedings, as it was required to do by law. The Association filed a "petition" requesting an administrative hearing on November 13, 2015. A little over one month later, on December 17, 2015, the Division filed a Motion to Dismiss the Petition and Cancel Hearing in DOAH Case No. 15-6768. The motion was granted. The Association was the prevailing small business party in DOAH Case No. 15-6768. The Association incurred attorney's fees and costs in defending against the Notice to Show Cause filed by the Division. The Association submitted an affidavit describing the nature and extent of attorney services and the costs incurred. Expert testimony by the Association's attorney provided additional detail and generally supported the reasonableness of the fees, except as further discussed below. The hourly rate of $375.00 was not contested by the Division's expert, and is found to be reasonable and customary. The Division presented the testimony of Mr. Peter Dunbar, accepted by the Association as an expert in reasonable and customary attorney's fees and in condominium association law. Mr. Dunbar's testimony as to reasonable and customary attorney's fees was credited on several matters of dispute. It would be reasonable and customary to bill only .6 hour for the telephone call from attorney Thomas Morton and computer communication to the client--the entry on the invoice dated October 19, 2015. On the entry dated November 9, 2015, to prepare and serve the response to the Administrative Complaint, 3.0 hours would be reasonable and customary, in addition to .4 hour to correct a mistake in the Petition. It is accepted that it was prudent for the Association to prepare a Motion to Dismiss as indicated on the invoice entry dated December 7, 2015, even though it seemed likely that Petitioner was going to dismiss without it, and in fact did so. However, Mr. Dunbar's contention that 3.9 hours to prepare the Motion to Dismiss was unreasonable is accepted. As Mr. Dunbar testified, the document substantially duplicated the content of the Petition Involving Disputed Issues of Material Fact that had been prepared earlier; no additional research was required. One hour is reasonable and customary. On the three entries dated December 9, 2015, related to preparation and service of subpoenas, this is a task customarily conducted by an assistant or paralegal; attorney time of .1 hour would be reasonable and customary to oversee this work. On the entry dated December 16, 2015, for an e-mail exchange with attorney Robin Smith, .1 hour would be reasonable and customary. On the three entries dated December 17, 2015, to prepare and serve routine Notices of Cancellation, .1 hour would be reasonable and customary. Finally, a reasonable and customary time to prepare a motion for prevailing party fees and affidavit from existing information, reflected in the January 4, 2016, entry, would be 1.5 hours. The Association showed that attorney's fees in the amount of $13,050.00 were reasonable and customary, based upon the adjusted total of 34.8 hours. With respect to costs, the claimed amount of $174.00 for "Electronic Records Fee" was vague and non-specific; it was not shown to be reasonable. The remaining costs, in the amount of $320.00, were proven by the Association. As the parties stipulated, no special circumstances exist that would make an award of fees and costs unjust. The action of the Division in filing the Notice to Show Cause was substantially justified on the facts and the law.
Findings Of Fact Appellant owns an L-shaped tract of land situated on Lakeview Avenue, Clearwater, Florida. This property contains 4,916 square feet and is presently zoned CG. However, the City is in the process of rezoning this property to RM- 28, High Density Residential, and only RM-28 zoning uses are now permitted. There are no minimum lot sizes for CG zoned property uses except when used for multi-family dwellings, at which time they are required to comply with RM-28 zoning requirements. Minimum lot size for a triplex in RM-28 zoning is 10,000 square feet. The property of Appellant is surrounded by lands owned by Kalmia Condominiums and there is no additional property which can be purchased to make this property conforming. In December, 1973, a tract of land which included the property here involved was purchased by Kalsa from Highland Apartment Management. Kalsa was owned by Sainer, the Appellant here, president of Kalsa and the contractor who built Kalmia Condominiums; and Kalan, an investor who was secretary of Kalsa. In July, 1976, the eastern portion (approximately one- half of this property) was sold back to Highland Apartment Management. Most of the western portion of this property was developed as Kalmia Condominiums and subsequently conveyed to the condominium owners with a north-south easement over the lot here involved to provide access to Lakeview Avenue. In April, 1980, the remainder of the original tract not previously conveyed and which included the land here under consideration was conveyed to Sainer and Kalan, with each owning one-half. No evidence was submitted how the sole ownership of the property here involved vested in Appellant but this issue was not raised at the hearing and, for the purpose of this order, it is assumed Appellant owns the tract as alleged. The principal use of this property has been as a parking lot for the residents of Kalmia Condominiums. Negotiations to sell this property to the Kalmia Condominiums broke down when Petitioner drastically increased the asking price.
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 Whether Respondent violated Sections 112.3143(3)(a), 112.3143(4), and 112.313(7)(a), Florida Statutes (1993), by committing the acts alleged in the Order Finding Probable Cause and, if so, what penalty is appropriate.
Findings Of Fact All times pertinent to this proceeding, Respondent served as a member of the Mexico Beach Planning and Zoning Board (Zoning Board). Respondent began his service on the Board in mid-April, 1994. In that public position, Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees. In late 1993, Respondent contracted with the owners of Toucans Restaurant (Toucans) to build an additional story on the existing building. Toucans is a bar/restaurant located on Highway 98 in Mexico Beach, Florida. The Zoning Board is empowered to make decisions relative to zoning and rezoning matters, including the granting of parking variances. In furtherance of his work for Toucans, Respondent sought a parking variance from the Zoning Board. To this end, Respondent appeared before the Zoning Board on three separate occasions. The last time Respondent appeared before the Zoning Board regarding the parking variance for Toucans was April 19, 1994, shortly after his appointment to the Zoning Board. At that meeting, Respondent was representing Toucans before the Zoning Board and attempting to secure a parking variance for Toucans. At the April 19, 1994 meeting, when Respondent presented the Toucans parking variance issue before the Zoning Board, he participated in the Zoning Board's discussion of the matter. Prior to his participating in the Zoning Board's discussion of the Toucans matter on April 19, 1994, Respondent failed to formally announce his interest in the Toucan project. Respondent failed to file a written memorandum disclosing his interest in the matter prior to the April 19, 1994 meeting. Respondent failed to orally disclose the nature of his interest in the Toucans project at the April 19, 1994 Zoning Board meeting. At its April 19, 1994 meeting, the Zoning Board voted on the Toucans project. Respondent abstained from voting on the Toucans parking variance request at that meeting, but did not file a written memorandum disclosing his interest in the project within fifteen days of the vote. Respondent filed a Memorandum of Voting Conflict with respect to the Toucans parking variance request on May 27, 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Final Order and Public Report be entered by the Florida Commission on Ethics finding that Respondent, Jim McCoullough, violated Sections 112.3143(3)(a), 112.3143(4) and 112.313(7)(a), Florida Statutes (1993), and imposing a civil penalty of $300.00. DONE and ENTERED this 30th day of April 1997, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April 1997. COPIES FURNISHED: Eric Scott, Esquire Department of Legal Affairs The Capitol PL-01 Tallahassee, Florida 32399-1050 Kerrie Stillman Complaint Coordinator Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Mr. James Naus 115 Fifth Street Mexico Beach, Florida 32410 Bonnie Williams Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact Appellants are the owner of the residence located at 1387 Lemon Street, Clearwater, Florida, having purchased the property in October 1991. The residence is a 3-bedroom 2-bath house containing approximately 1600 square feet. On the back of the property and adjacent to the house is a patio and screen porch. The proposed storage shed would be located some 10 feet from the screened room and rest on concrete blocks. The proposed storage shed is 10 feet by 14 feet and would extend into the 7 feet utility easement in the rear of the property and come within 2.83 feet of the real property line. The Clearwater Building Code requires a 10 foot setback from the real property line. Accordingly, Appellants have asked for a 7.17 foot variance. Appellants intend to store books and records in this shed, if approved, as they contend there is insufficient room in the house for these records. Appellants engaged the services of a person observed erecting a gazebo a few blocks away to construct the storage shed. The contractor employed by Appellants apparently was not licensed and when Appellant asked the contractor if he needed a permit for the storage shed the contractor advised that he didn't pull permits. Appellants engaged the contractor to construct the storage shed without making any inquiries to the city building department to ascertain if a permit was required. After the structure was nearly completed a stop work order was posted on Appellants residence because no permit had been issued for the work. When Appellants applied for a permit it was learned that the proposed building would encroach into the setback and that a variance would be required before the permit could be issued. When the variance was applied for the Planning and Zoning Board denied the variance for the stated reason that the application did not meet the requirements of Section 137.012 of the Land Development Code of the City of Clearwater. These proceedings involve Appellants' appeal from that denial. Appellants' lot is neither square nor rectangular having a slight curve generated by Lemon Street in front and the rear property line runs at an oblique angle with the side property lines which run north and south. However, this rear property line is only a few degrees from being perpendicular to the side property lines. The plat plan accompanying the variance request shows none of the lots in the vicinity of Appellants lot to be truly rectangular and are little different in shape than is Appellants' lot. Appellants' backyard is quite small with the southeast corner of Appellants' house approximately 15 feet from the rear property line. A spa located in the southwest corner of this lot appears from Exhibit 2 to be approximately 10 feet from the rear property line. Appellants propose to have the storage shed painted to look like the house and to be firmly secured against heavy weather. Appellants contend that it would constitute a hardship if they are not granted the requested variance. Appellants also contend that their property is unique; but unless the location of the house near the rear property line constitutes a unique situation, no other evidence was presented that their lot is substantially different from all of the other lots in the vicinity. When Appellants moved into this house they found that the previous owners had used the southeast portion of this lot for storing old lumber and other junk which Appellants cleaned up to make room for the proposed storage shed. They contend the proposed shed is a vast improvement over the clutter formerly existing in this location.
The Issue The issue in this case is whether the decision of the City of Clearwater Development Code Adjustment Board denying Petitioner's application for a variance for certain signage is supported by the evidence in the record, or whether it departs from the essential requirements of law. See Section 137.014(f)(3), City of Clearwater Land Development Code.
Findings Of Fact On or about August 2, 1989, the Petitioner applied for a variance concerning certain signage on its property located at 2626 Gulf to Bay Boulevard, in Clearwater, Florida, which is zoned CH (highway commercial). At hearing, Petitioner abandoned its variance request concerning total square footage of its signage, and stated that the only variance presently by the Petitioner is for 21 feet in height to allow a 41 foot high pole sign to remain after October 13, 1992. This is an sign which has been in place since 1971, and, thus, was in place when the pertinent provisions of the Land Development Code governing sign height were enacted. The Petitioner does not propose to change this sign in any way, but simply seeks authorization to retain the sign after October 13, 1992, the date on which all nonconforming signs must be brought into compliance. Petitioner's property is located on the northeast corner of the intersection of U.S. 19 and Gulf to Bay Boulevard. At that point, U.S. 19 passes over Gulf to Bay Boulevard, and Petitioner contends that without the additional 21 feet in height, this sign will not be visible to motorists along U.S. 19, or to those approaching this intersection driving east on Gulf to Bay Boulevard. Without a variance, Petitioner will be required to bring this sign into conformance with the signage height requirements of the Land Development Code by October 13, 1992, and for property zoned CH, the maximum height allowed for signs is twenty feet. The Development Code Adjustment Board denied Petitioner's variance application on September 14, 1989, and Petitioner timely filed this appeal of the Board's decision. The only reason given in support of this variance is that without the continued authorization for the additional height, this sign will be of little economic benefit to Petitioner after October 13, 1992, and Petitioner would be unwilling to expend the funds necessary to reduce the height of this sign since the resulting 20 foot high sign would be of little benefit. Petitioner would rather just remove the sign than to have a 20 foot high sign that is of no economic benefit, according to Nichols.
