Findings Of Fact At all times material hereto Respondent Howard B. Berman has been a licensed real estate broker having been issued license number 0178090. At all times material hereto Respondent Michael J. Weil has been a licensed real estate broker having been issued license number 0179132. At all times material hereto Respondent Paramount Realty, Inc., has been a corporation licensed as a broker having been issued license number 0196048. Although Respondent Berman was a director of Respondent Paramount Realty, Inc. since at least March 7, 1979, he did not become an officer or stockholder in that corporate broker until December of 1982 or January of 1983. Although Respondent Weil was a director of Respondent Paramount Realty, Inc. since at least March 7, 1979, he did not become an officer or stockholder in that corporate broker until January of 1984. Prior to the time that Respondent Berman and Respondent Weil became officers and stockholders of Paramount Realty, Inc., they were not employed by Paramount but rather had an independent contractor relationship with that corporate broker. On or about June 13, 1979, Respondent Weil, acting as trustee for himself and for Respondent Berman, entered into a contract to purchase a certain parcel of land located in Broward County, Florida, with the intent of developing that land by building a condominium thereon. On or about October 18, 1979, Respondent Weil as trustee sold the above-referenced parcel of land to an investors group known as North Beach Development Group, Ltd., a Florida limited partnership, which the Respondents organized. The general partner in that limited partnership was North Beach Development Company, a Florida corporation, in which none of the Respondents had an interest. On or about October 18, 1979, Respondents Berman and Weil, as employees of North Beach, Inc., a Florida corporation, negotiated and obtained a consultation agreement between North Beach Development Group, Ltd. and North Beach, Inc. under which Respondents Berman and Weil would provide consultation services in connection with the development of a 34 unit condominium complex on the above-referenced parcel of land. On or about October 19, 1979, the general partner North Beach Development Company, and each of its stockholders, and each of the limited partners of North Beach Development Group Ltd. executed an Approval, Consent and Ratification agreement approving the above mentioned consultation agreement, establishing Respondent Paramount as the exclusive real estate agent for the condominium units, and approving the purchase by Respondents Berman and Weil of condominium units Nos. 604 and 607 for a combined total purchase price of $185,000. Prior to the creation of North Beach Development Group, Ltd., Respondents Berman and Weil placed $25,000 of their moneys on deposit under the contract to purchase the above-referenced land. During the existence of the limited partnership Respondents Berman and Weil loaned approximately $40,000 to the partnership. Respondents Berman and Weil also personally guaranteed the three million dollar construction loan involved in the project. Accordingly, both Respondents Berman and Weil had their personal funds at risk in the development of the condominium project. At no time did either Respondent Berman or Respondent Weil represent to Pat Dalton or any other investor or potential investor that either or both of them had invested or would invest any of their personal moneys in either the general partner North Beach Development Company or the partnership North Beach Development Group, Ltd. Five changes were made to Respondent Berman's unit 604, the total cost of all five changes being approximately $2,300. On May 19 and May 20, 1981, two checks were written off the account of North Beach Development Group, Ltd. to pay for the five changes to unit 604. On May 26, 1981, Respondent Berman (and his wife) closed on their purchase of unit 604. At the closing, Respondent Berman totally reimbursed North Beach Development Group, Ltd. the moneys it spent six days earlier for the five changes to unit 604.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final order be entered finding Respondents Howard B. Berman, Michael J. Well and Paramount Realty, Inc., not guilty of the allegations in the Amended Administrative Complaint filed against them and dismissing that Amended Administrative Complaint with prejudice. DONE and RECOMMENDED this 25th day of January, 1985, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 1985. COPIES FURNISHED: Harold Huff, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Langford, Esquire Department of Professional Regulation Post office Box 1900 Orlando, Florida 32802 Richard S. Rachlin, Esquire 1810 New World Tower 100 N. Biscayne Boulevard Miami, Florida 33132
The Issue The issue for determination is whether Petitioners are eligible for a permit, pursuant to Section 161.053, Florida Statutes, for construction seaward of the Coastal Construction Control Line in Broward County, Florida.
Findings Of Fact On November 30, 1993, Vander Ploeg and Associates, Inc., on behalf of Paul Leto, Richard Meyer, and Berta Anderes (Petitioners) submitted an application to the Florida Department of Environmental Protection (Respondent) for a permit to perform construction on their property seaward of the Broward County Coastal Construction Control Line. Respondent deemed their application complete on April 18, 1994. Petitioners proposed construction will be seaward of the Coastal Construction Control Line. The proposed construction will occur on two adjacent lots in Broward County. Petitioner Leto is the owner of one of the lots described as Lot 19, Block 196, Hollywood Central Beach, Plat Book 4, Page 20, Public Records of Broward County. Petitioners Meyer and Anderes are the owners of the other lot described as Lot 20, Block 196, Hollywood Central Beach, Plat Book 4, Page 20, Public Records of Broward County. Petitioner Leto purchased his lot in September 1992 and Petitioners Meyer and Anderes purchased their lot in March 1993. The lots were platted in or around the 1920's. Both lots are seaward of the seasonal high water line, on a sandy beach with no frontal dune structure. They are bordered by the Atlantic Ocean on the eastern most side and by a roadway (Surf Road) which is immediately adjacent to the lots on the western most side and landward of the lots. Approximately 200 feet north of the lots is an existing structure and approximately 800 feet south of this first existing structure is another existing structure. Petitioners topographical survey, which was submitted to Respondent in December 1993, showed that Lots 19 and 20, each measured 40 feet in a shore parallel direction and 80 feet in a shore normal direction, i.e., perpendicular to the shoreline. The proposed structure will be located directly on the sandy beach. The City of Hollywood, Florida has granted Petitioners a variance. Further, the proposed construction complies with the rules, zoning regulations, and ordinances of the City of Hollywood. Petitioners' application requests a permit for the construction of a single-family residence on the lots, which will house two families. However, the proposed construction is for a duplex, not a single-family residence. Petitioners are willing, and agreeable, to changing the design of the proposed structure to comply with Respondent's specifications for a single- family residence. Additionally, the proposed construction includes a riprap which will also be located on the sandy beach. A riprap is typically used for protective armoring. No structure presently exists for the riprap to protect. Furthermore, the riprap proposed by Petitioners is not adequately designed as a coastal protection structure, and if the proposed single-family residence is modified in accordance with Respondent's specifications, the proposed modified single-family residence would not be eligible for coastal armoring. The riprap structure is not an integral part of the structural design. Petitioners are willing, and agreeable, to eliminating the riprap structure. No other issues exist as to the structural integrity of the design of the proposed project. The lots on which the proposed structure will be located are a part of the beach-dune system. The natural function of the beach provides protection to upland property. The lots on which the proposed structure will be located are subject to normal storm-induced erosion. Tide and wave forces will impact the proposed structure during storms of minor intensity, including five-year storms. The proposed structure will induce greater erosion on the lots as a result of scour due to the interaction of the storm waves and currents with the proposed structure. During the storm, the normal storm-induced erosion combined with the scour erosion will form a breach or depression in the subject property. In turn, the upland property will be exposed to greater tide and wave forces, increasing the risk of erosion and damage to the upland property. The subject lots and surrounding properties have been subjected to unnatural forces which have added to the erosion. The Port Everglades inlet has inhibited the natural downdrift of sand. The City of Hollywood's beach maintenance division has been regularly pushing sand seaward and in the process, breaking down natural forming cliffs. Even though these unnatural forces are capable of being eliminated, the normal storm-induced erosion and the scour erosion would still exists. The existing developed structures to the north and south of the subject lots appear to create a reasonably uniform line of construction. However, the developed structures have been unduly affected by erosion. The proposed structure will be located within this line of construction. During a major storm along the shoreline, waves remove sand from the beach and dune area and deposit the sand in an offshore bar. After the major storm, a recovery of the beach and dunes takes place. Normal wave activity carries the sand from the offshore bar back to the beach, and the sand is then carried landward by winds and is caught and trapped by dune vegetation; thereby reforming a dune. Constructing the structure as proposed will not locate the structure a sufficient distance landward of the beach-dune system. As a result, the proposed structure will interrupt natural fluctuation in the shoreline and not preserve the natural recovery following the storm-induced erosion. The cumulative impact on the beach-dune system by the proposed structure would be severe, i.e., the effects on the beach-dune system by repeating this same proposed structure along the subject shoreline would be severe. There would be structure-induced scour and general degradation of the beach-dune system. Additionally, the recovery potential of the subject area following a major storm event would be threatened. Over the years, the beach of the subject property has been subjected to a re-nourishment project consisting of pumping sand from offshore. This method of re-nourishment may have negatively impacted the sand bar system immediately offshore affecting the hindrance of erosion. A sand bar system immediately offshore softens wave action on the shore and aids in inhibiting erosion. The proposed structure will hinder lateral public beach access. Currently, lateral beach access exists along the beach between the existing northern developed property and the existing southern developed property. The proposed structure will be located on the sandy beach, and the seaward face of the proposed structure will be within approximately one foot of the wet sand beach. At times, the proposed structure will be surrounded by water on at least three sides. No alternative beach access would be available. The proposed riprap will also be located on the sandy beach and will further hinder lateral public beach access. 2/ Loggerhead turtles, which are nesting marine turtles, engage in nesting activities along the stretch of beach where the subject property is located. They are a threatened species, i. e., close to extension. Although they do not nest every year, the turtles usually provide several nests in a single year. Typically, one hundred eggs comprise a turtle nest. In 1992, approximately 2,221 loggerhead turtle nests were in Broward County, with 22 of these nests located within 1,000 feet of the subject property. Turtle nesting efforts have been observed in the beach area of the subject property. One nest was found within the subject property. Structures located on the sandy beach interfere with marine turtle nesting habits. If female turtles make contact with the structures, they often abort nesting attempts, which results in false crawls. Repetitive false crawls harms successful nesting, which may cause malformed egg chambers, impacting the successful incubation of the nest. Also, interaction with a structure can cause injury or death to a female turtle attempting to nest. Additionally, urbanization activity and lighting on the beach deter nesting. A loss of marine turtle nesting habitat will result if the proposed structure is constructed. Also, armoring, such as the proposed riprap, can result in nests being placed more seaward. 3/ Consequently, the nests would be threatened with tidal inundation, which would affect the mortality of the nest itself. As one nest has been located within the subject property, at least one nest or crawl per year would be affected by the proposed structure. Within 30 years, the proposed structure will be seaward of the seasonal high water line. The location of the proposed structure is seaward of the 30-year erosion projection for the subject property. Beach Defense Fund, Inc. (Intervenor) presented no evidence to show that its interest is different than the public at large and that it has substantial interest separate and apart from the public.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying the application of Paul Leto, Richard Meyer, and Berta Anderes for a permit, pursuant to Section 161.053, Florida Statutes, for construction seaward of the Coastal Construction Control Line in Broward County, Florida. DONE AND ENTERED this 31st day of May, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL, 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 31st day of May, 1996.
The Issue The issue for determination is whether the Town of Indian River Shores is entitled to a coastal construction control line permit to construct a beach access seaward of the coastal construction control line in Indian River Shores, Florida.
Findings Of Fact The Town of Indian River Shores (Town) is an incorporated municipality located on a five-mile stretch of the Atlantic Ocean in Indian River County, Florida. The Town has a population of approximately 2,700 residents. The Town's Public Safety Department has the combined functions of law enforcement, fire protection, and life support (lifesaving). All of the Officers of the Public Safety Department are cross-trained and cross-designated as police officers, firefighters, and emergency service specialists who are either paramedics or emergency medical technicians (EMTs). The Officers are on eight-hour shifts; each shift has approximately four to five Officers on duty, i.e., a police officer, a firefighter, a paramedic, and an EMT. When fully staffed, the Public Safety Department consists of 25 Officers. Because of the small number of Officers and their varied duties, restrictions and limitations are placed on their deployment. One of the vehicles used by the Public Safety Department in the performance of duties is an all terrain vehicle (ATV). The Public Safety Department has one ATV which is used on the beach for patrol and rescue purposes and for moving rescue and lifesaving equipment to and from the beach. In order to access the beach, the Public Safety Department must travel across the dune, primarily through private property (Corrigan Beach) located approximately 3.4 miles from the office of the Public Safety Department. The Town determined that this location was unsatisfactory for beach access due to the property being offered for sale, the great distance of the property from the Public Safety Department's office, and the dune being breached each time the ATV is taken onto the beach. The Town determined, however, that Beachcomber Lane, a public street within the Town, was the best choice for beach access and entry by the Public Safety Department. Beachcomber Lane is approximately 1,000 feet in total length and extends from Highway A1A to the bluff of the Atlantic Ocean. The Pubic Safety Department is located approximately 1,500 feet from Beachcomber Lane. The residents of Beachcomber Lane include Peter Broom, Jeremy R. Geffen, and Duane Jackson. At various times, the Public Safety Department has also used Beachcomber Lane as an access to the beach on emergency bases. Currently, a public raised wooden walkway, with steps, leads over the dune and onto the beach at the Atlantic Ocean end of Beachcomber Lane. In order for the Public Safety Department to obtain beach access by way of Beachcomber Lane, an access ramp will have to be constructed seaward of the coastal construction control line (CCCL). Such construction requires, among other things, a permit from the Department of Environmental Protection (DEP). To design and present the plan to the DEP for a proposed beach access by way of Beachcomber Lane, the Town obtained the services of Coastal Technology Corporation (Coastal Technology), an engineering firm. On July 24, 1996, Coastal Technology filed an application on behalf of the Town with the DEP for a permit to construct a beach access ramp seaward of the CCCL. The application process included the submission of detailed drawings and other documents required by DEP. In the application, Coastal Technology described the construction, in pertinent part, as follows: 6. The proposed work consists of the removal of Brazilian Pepper . . . and installation of a 100 foot (approximate) long, 10 foot wide stabilized emergency access ramp. To minimize the impact to the existing native vegetation, the proposed emergency access ramp will be located approximately 8 feet from the north Right-of-Way within the area of the existing Brazilian Peppers. . . . A 2-inch layer of washed concrete sand will be placed between the limestone and paver blocks for a proper leveling of the previous paver blocks. The paver blocks will be TURFSTONE . . . which . . . have been permitted by DEP at other locations. . . . The openings in the TURFSTONE will be filled with excavated beach sand from the proposed access ramp footprint. Any remaining sand . . . will be placed at the seaward end of the proposed access ramp. To mitigate for any potential impact to native vegetation, 6 sea grapes will be installed . . . and any sea oats removed during excavation will be kept alive and replanted within those areas void of sea oats. Three 6-inch by 6-inch pressure treated posts will be installed with a chain fence. A locking chain fence will be used to prohibit the general public from accessing the beach through the emergency access ramp. In the application, Coastal Technology presented the justification for the construction, in pertinent part, as follows: 7. The proposed access ramp at Beachcomber Lane is specifically for the use by the Town of Indian River Shores for emergency access to the beach. The access ramp will have a locking chain only accessible by the Public Safety Department and has been designed to accommodate four-wheel drive patrol and EMT vehicles. . . . Beachcomber Land [sic] site was chosen by the Town because of : 1) the relative stability of the shoreline at that location; and, [sic] 2) accessibility from the Indian River Shores Town Hall which is on the west side of A1A across from Beachcomber Lane. The application indicated that the proposed beach access ramp was being constructed for emergency access to the beach. However, prior to the filing of the application, both emergency and routine patrol access by the Public Safety Department were discussed as uses for the access ramp at public meetings by the Town's public officials in which the subject of the access ramp was brought up. Such use for the beach access ramp was contemplated by the Town from the very inception of the plan for the access ramp. Routine patrol is defined by the Public Safety Department to be patrolling approximately every other day for one or two hours. By notice dated August 7, 1996, the DEP requested public comment on the Town's application for the CCCL permit. By letter dated August 21, 1996, residents of Beachcomber Lane, including Mr. Broom, Mr. Geffen, and Mr. Jackson, provided the DEP with their comments on the Town's application. On September 3, 1996, the Town's application for the CCCL permit was considered complete by the DEP. On November 6, 1996, at the request of DEP, the Town conducted a public meeting to obtain public comments regarding the proposed beach access ramp. The residents of Beachcomber Lane were notified of the public meeting, and among the residents attending the meeting were Mr. Broom, Mr. Geffen, and Mr. Jackson. At the public meeting, the Town clearly stated that the proposed beach access ramp would be used by the Public Safety Department for both emergency and routine patrol purposes with the ATV. Also, the Director of the Public Safety Department indicated that, based upon information collected regarding criminal activity and suspected criminal activity along the beach, routine patrol was needed.2 The application process culminated in the issuance of a Final Order by the DEP on November 27, 1996, granting the CCCL permit, with special permitting conditions in addition to the standard conditions. The CCCL permit granted by the DEP was Permit No. IR-507. The proposed beach access ramp to be constructed is approximately 100 feet in length and 10 feet in width. The construction will utilize turf blocks which permit grass and foliage to grow through the blocks on the access-way. A provision of the DEP Final Order requires the removal of exotic plants (Brazilian Pepper), which are not native plants, and the replanting of native vegetation adjacent to the access-way. On December 6, 1996, public notice of DEP's issuance of the CCCL permit to the Town was published in the Town's local newspaper. The Town agrees to abide by the special conditions, as well as the standard conditions, to the issuance of the CCCL permit. The beach access ramp on Beachcomber Lane will be used by the Town's Public Safety Department for public service purposes, including emergency rescue, training, and routine patrol. Beachcomber Lane is the appropriate location for the beach access ramp. The DEP has determined that the construction of the beach access ramp meets all the requirements of the DEP for the issuance of the CCCL permit. The DEP has determined the proposed beach access ramp to be a minor structure. The construction of the proposed beach access ramp will cause no significant adverse impact or cumulative impact on the beach dune system. The design of the proposed beach access, with the conditions added by the DEP, minimizes adverse impact of the access ramp. Native vegetation will be maintained and replenished around the proposed beach access ramp. The proposed construction of the beach access ramp will not result in a significant adverse impact to the beach and dune system. No net excavation in the sandy soils seaward of the control line will result from the construction. No structurally induced scour will result from the construction because the proposed structure is designed to break- away during a storm. The potential for wind and waterborne missiles during a storm is minimized by the construction. Public access to the beach is not interfered with by the beach access ramp. The construction of the beach access ramp will occur in a nesting habitat of the marine turtle, i.e., loggerhead, leatherback and green turtle. The DEP addressed protection of the nesting area through one of its special conditions to the issuance of the CCCL permit. The special condition included "no construction, operation, transportation or storage of equipment or materials seaward of the dune crest during the marine turtle nesting season" which is March 1 through October 31 of each year. With this special condition, the construction, itself, will have no adverse impact on the marine turtle or the turtle nesting. The Town agrees to abide by this special condition.3 The access ramp, itself, will have minimal impact on the marine turtles and will not cause a "take" of the turtles. Furthermore, the use of the ATV by the Public Safety Department will have no adverse impact on the marine turtles or the turtle nesting. At hearing, the DEP made another recommendation for the issuance of the CCCL permit, involving the marine turtle. Prior to the issuance of the Final Order, the DEP was not fully aware that the proposed beach access ramp was to be used for both emergency and routine patrol access. Having considered the circumstance of routine patrol, the DEP further recommends that a survey of turtle nesting be conducted after construction, but prior to routine use, on the Town's entire five-mile stretch along the Atlantic Ocean to mark turtle nesting areas for their protection and to place certain restrictions on the use of the ATV vehicle. This recommendation will not prohibit or hinder the construction of the beach access ramp.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the Town of Indian River Shores the Coastal Construction Control Line Permit No. IR-507, with the special conditions as may be required by the Department for the protection of marine turtles. DONE AND ENTERED this 8th day of December, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1997.
The Issue The issue in this case is whether Respondents, The Fourth Bayshore Condominium Association, Inc. (“Bayshore”), Karl Stemmler (“Stemmler”), and/or Richard Grove (“Grove”), discriminated against Petitioner, Robert Pagano (“Pagano"), on the basis of his physical handicap in violation of the Florida Fair Housing Act.
Findings Of Fact Pagano is a Caucasian male who is handicapped by virtue of medical complications which resulted in the amputation of his left leg in March 2008. He has been confined to a wheelchair since that time. At all times relevant hereto, Pagano was renting a condominium unit at Bayshore. In January 2012, Pagano saw another unit at Bayshore advertised for rent. He called Grove, listed as the owner of the unit, and inquired about renting the property. Grove told Pagano that a key to the unit would be left under a mat between the screen door and front door on January 19, 2012. On that day, Pagano went to inspect the unit, accompanied by a friend, Philip Saglimebene. Upon arrival at the unit, Pagano and his friend began looking for the hidden key, but could not find it. They apparently made some noise while searching for the key, because they were confronted by Stemmler. According to Pagano, Stemmler began asking them in unfriendly terms who they were and what they were doing at the unit. The friend then told Stemmler they were looking for a key so they could go in and inspect the unit as Pagano was interested in renting it from Grove. Stemmler, supposedly identifying himself as a “building representative,” said there was no key to be found. He also reputedly told Pagano and his friend that they would not need a key anyway, “because you are not moving in.” When the friend explained that the unit was for Pagano, not him, Stemmler allegedly said that Pagano was not moving in either because he was an “undesirable.” When asked to explain that comment, Stemmler purportedly said, “He just is; that’s all you need to know.” (None of Stemmler’s comments were verified by competent evidence and, without verification or support, cannot be relied upon to make a finding of fact in this case.) Pagano believes Stemmler’s purported comments were based on the fact that he (Pagano) has long hair and a beard and does not fit into the conventional norm at Bayshore. He also believes that his handicap served as a basis for Stemmler’s alleged comments. There was no credible evidence presented at final hearing to substantiate Pagano’s suppositions. Grove had put his condominium unit up for rent at the beginning of the year. When Pagano called to inquire about it, Grove – who lives out-of-state – notified a friend to leave a key under the mat, as described above. That friend simply forgot to leave a key at the unit on the designated date. Grove knew nothing about Pagano’s interaction with Stemmler. Grove had not spoken to Stemmler prior to the day he and Pagano had their interaction. Stemmler had no authority to speak for Grove or to make a decision concerning to whom Grove would rent his condominium unit. Subsequent to the day Pagano visited the unit, Grove took the unit off the rental market because his wife decided to use the unit to house family and friends rather than renting it out to someone else. It took several weeks for the rental advertisement for the unit to be removed from a locked bulletin board at Bayshore. Grove said that if the unit ever went back on the market, he would call Pagano first about renting it, i.e., Grove had no opposition whatsoever to Pagano’s being a tenant. Van Buren, president of Bayshore, explained that the condominium association utilizes the support of voluntary building representatives to assist with security and minor maintenance at Bayshore. The volunteers, who are generally seasonal residents at Bayshore, do not hold keys to individual units and have no authority to grant or deny an applicant’s request to rent a unit. Stemmler is one of many building representatives who resides part-time at Bayshore. Pagano does not know of any non-handicapped individual who was allowed to rent a unit at Bayshore to the exclusion of himself or any other handicapped person. In fact, Pagano currently resides in another unit at Bayshore; he is already a resident there.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Robert Pagano in its entirety. DONE AND ENTERED this 5th day of September, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 5th day of September, 2012.
The Issue The issues are whether Petitioner's application for a Notice of Proposed Change to its Development of Regional Impact constitutes a substantial deviation from the criteria in Section 380.06(19)(b)1.-15., Florida Statutes, and whether the proposed change is consistent with Bay County's Comprehensive Plan.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner, Bay Point Club, Inc. (Petitioner), is the owner of Parcels F, 9, 10, and 12 located within the Bay Point Yacht and Country Club Resort Development of Regional Impact (Bay Point DRI) in Panama City, Florida. The Bay Point DRI was approved by Respondent, Bay County (County), on July 22, 1986, and authorized the development of 2,161 residential units, 200 hotel units, 123 marina slips, and recreational facilities on approximately 946 acres. The County is responsible for issuing development orders for projects that are to undergo development of regional impact review, including amendments to development orders of previously determined DRIs, in conformity with the requirements of Section 380.06, Florida Statutes. When the original Development Order was issued in 1986, Bay Point Yacht & Country Club was the sole developer of the Bay Point DRI. Since that time, the ownership and control of the properties within the Bay Point DRI has changed, and there are now multiple owners and developers of the 36 separate development areas or parcels included within the Bay Point DRI, including Petitioner, who owns the above four parcels. The Bay Point DRI was approved by the County prior to the adoption of its Comprehensive Plan (the Plan). When the first Plan was adopted in 1991, the County recognized and incorporated the Bay Point DRI through the adoption of an overlay to the Future Land Use Map (FLUM) which delineates the boundaries of the property. As stated in Future Land Use Element Policy 3.4.5, the overlay was adopted to ensure the consistency and compatibility of the Bay Point DRI with the County's FLUM. Parcels F and 12 were designated as "Seasonal/Resort" and Parcels 9 and 10 were designated as "Residential" on the FLUM. These designations remain in effect as of the date of the final hearing. A Seasonal/Resort classification allows a broad range of uses such as beach houses, multifamily housing, condominiums, hotels, lodges, restaurants, and other similar uses, while a Residential classification permits those land uses typically associated with residential occupancy. The Bay Point DRI has been amended 15 times, which amendments cumulatively reduced by 145 the total number of residential units. None of these amendments constituted a substantial deviation from the approval given in the original Development Order, and the County has never required a corresponding amendment to its Plan, FLUM, or DRI overlay as a condition for approval for any of these changes to the DRI. In July 1993, PFP One, Inc., Petitioner's parent company, entered into a Purchase and Sale Agreement with the Federal Deposit Insurance Corporation, as manager of the FSLIC Resolution Trust Fund, to purchase Parcels F (a waterfront lot adjacent to the Bay Point Marina), 10, and 9 for $235,000. At that time, Parcels 9 and 10 were vacant, and they remain vacant today. A private membership tennis facility was operating on Parcel F through a lease agreement Petitioner inherited as a part of the purchase. These tennis facilities were closed on April 1, 2000, due to a lack of membership support. Parcel 12 was purchased by PFP One, Inc. in 1994. It contained a private clubhouse facility which had once been operational prior to the approval of the DRI, but was closed at the time of the sale. The clubhouse was remodeled by Petitioner shortly after the Parcel was purchased and reopened the same year. Due to a lack of membership support, however, the clubhouse was closed in 1996. The single-family residential portion of Bay Point begins within a few hundred feet west of the above Parcels. The Development Order currently provides the following descriptions for Parcels F, 12, 10, and 9: Parcel F: Located adjacent to the Bay Point Clubhouse, this 4.8 acre site currently supports the Bay Point Tennis Center. As a part of Bay Point's long term plan, the Tennis Center is scheduled to be moved to Area 9 in 1986. In 1987, a 70-unit condominium project designated as Port Towers is planned to be built on this waterfront site. [A] total of 97,000-sq. ft. of heated and cooled space are planned. Included will be a pool and recreation center. Building height would be restricted to not more than five stories with a majority of the project being of the two and three story height. Four, 2100 sq. ft. penthouse units, eight (8) 1,800 sq. ft. three-bedroom units, forty (40), 1400 sq. ft. two-bedroom units and eighteen (18), 1000 sq. ft. one-bedroom units are planned. There would be no restrictions of resort rental use, although it is assumed that, like Marina Club Village, the vast majority of these units will be primary and secondary homes because of pricing. Restrictive covenants for this project would be developed similar to those currently in force at Bay Point. Parcel 12: A 4-acre main clubhouse site, which is adjacent to the swimming pool, snack bar, health club and real estate facilities, is in the vested area and was substantially completed prior to July 1, 1973. Parcel 10: This one acre site is the planned location of the new Sport Center Clubhouse which will serve Bay Point's member golf facilities and the resort's tennis and health facilities. Included in the 14,000 square ft. Clubhouse will be a 90-seat restaurant and snack bar area, a health club, exercise and massage rooms, men and women's locker rooms, offices for the Director of Tennis and Golf Professional and a classroom. Additional space will house the club's sports retail center which sells both hard and soft goods associated with golf, tennis and physical exercise. Parcel 9: This 6 acre site has been set aside as the future location of the Bay Point Tennis Center. When completed, it will consist of up to 14 tennis courts, one of which will be the center court with stadium stands. The original description of Parcels F and 12 reflects that the acreage of the two sites combined is 8.83 acres. A survey completed just before the NOPC was submitted determined that the combined acreage of the two parcels was actually 9.67 acres. Petitioner has stipulated that in the event the smaller acreage number is correct, the density that will be developed on the property will be in conformity with the limitations imposed by the smaller acreage. On May 14, 2001, Petitioner filed with the County a Notification of Proposed Change to a Previously-Approved Development of Regional Impact (NOPC) under Section 380.06(19), Florida Statutes. Copies were also provided to the Department of Community Affairs (DCA) and the West Florida Regional Planning Council (Council). Under the NOPC, Petitioner proposes to change the Development Order as to Parcels F and 12 as follows: The proposed project will be a 136-unit condominium project with approximately 58 units on Parcel F and 78 units on Parcel 12. The number of units on both parcels will increase from the current 70 units authorized on Parcel F to 136 units on Parcels F and 12 combined, a cumulative increase of 66 units. Three concrete structures are planned. The center building, which is the farthest from any existing development, is 11 stories in height with a step increase to 12 stories. The two exterior buildings are six stories in height with step increases to ten stories. All improvements to the project will be built by year end 2004, which is the current build-out date for the Bay Point DRI, as amended. The existing tennis courts located on Parcel F will be reduced to four hard surface courts with separate restroom facilities. The residential units will consist of 1, 2, 3 and 4 bedroom condominiums, approximately 900 to 2,400 sq. ft. in size. Thus, the proposed change in Parcels F and 12 will increase the number of condominium units from 70 to 136, change the height limitation from 5 stories to 12 stories, and eliminate the existing tennis facility. In addition, Petitioner proposes to eliminate the swimming pool and clubhouse now located on Parcel 12 and replace them with condominiums. The NOPC also proposes to change the Development Order as to Parcels 9 and 10 in the following manner: The designations for Parcels 9 and 10 will be changed from "Tennis Complex" and "Sports Center/Clubhouse," respectively, to Recreation. These changes are sought because of the historical absence of community or public support for the existing private tennis and clubhouse facilities presently located on Parcels F and 12. Funded through annual memberships by residents of Bay Point and the public, support for these facilities has been insufficient to economically sustain them and justify their continued operation. Consequently, due to lack of membership support, the Clubhouse on Parcel 12 was closed in 1996. For the same reason, the tennis courts on Parcel F were closed April 1, 2000. Changing the designation on Parcels 9 and 10, from Tennis Complex and Clubhouse to Recreation[,] will afford the Applicant with the flexibility needed to develop new or expanded active and/or passive recreational opportunities which the residents of Bay Point are willing and able to support, and which are economically feasible. In no event, however, will the Applicant develop, or allow others to develop, recreational facilities on Parcel 9 or Parcel 10 which exceed the intensity standards authorized for the development of these properties by the original Bay Point DRI. Under these proposed changes, Parcels 9 and 10, which are predominately wetlands, will remain undeveloped and constitute a passive recreation area. The changes proposed in the NOPC will require corresponding changes to the uses originally approved for Parcels F, 12, 10, and 9 in the Bay Point DRI Development Order, including changes to Map H, the Master Development Plan Map. The changes proposed by the NOPC for the DRI Development Order, including the changes to Map H, will not require a corresponding amendment to the underlying land use designations for Parcels F and 12 (Seasonal/Resort) and Parcels 9 and 10 (Residential). The NOPC was reviewed by the Council for conformity with the requirements of Section 380.06(19)(f)4., Florida Statutes. On June 11, 2001, the Council advised the County that the changes proposed for Parcels F, 9, 10, and 12 did not appear to constitute a substantial change from the previously- approved Bay Point DRI. The DCA did not submit a written objection to the proposed NOPC. On August 7 and September 7, 2001, the County held quasi-judicial public hearings on the NOPC. At the latter meeting, the County denied the NOPC on the basis of a 2-2 tie vote regarding the question of whether the proposal constituted a substantial deviation. The County did not make any determination with respect to the question of whether the NOPC was consistent with its Comprehensive Plan. This finding was confirmed in a letter from the County Attorney's Office dated September 7, 2001, and transmitted to Petitioner on September 11, 2001. On October 11, 2001, Petitioner filed its Petition to Appeal DRI Development Order with the Florida Land and Water Adjudicatory Commission (Commission). On November 7, 2001, Intervenors, K. Earl Durden, David Allen Spencer, Harry B. Sipple, III, Unal Tutak, David W. Hill, Lucy N. Hilton, and William F. Fusselman, who all own property within the Bay Point DRI and have standing to participate, filed a Petition to Intervene. On November 8, 2001, Intervenor, Bay Point Community Association, Inc., which is the homeowners' association for the approximately 1,300 residences within the Bay Point DRI and likewise has standing to participate, filed its Petition to Intervene. These Petitions were granted by the Commission on December 19, 2001. Although the Petitions to Intervene contended that the NOPC constituted a substantial deviation requiring further DRI review by the County, that issue has been abandoned. Remaining at issue is the contention that the NOPC is inconsistent with the County's Comprehensive Plan (Plan) by generally failing to protect residential property values, promote viable neighborhoods, and maintain the community character in residential areas, as required by various Plan Objectives and Policies. Intervenors also contend that the NOPC lacks a needed stormwater plan. In more simple terms, however, Intervenors object to any high- rise development in an area surrounded by single-family residential homes and in a community (Bay Point) where no other buildings exceed seven stories in height. The characteristics of the community Bay Point is a unique, residential resort development on St. Andrews Bay in Panama City, Florida. A large portion of the land lying north of Bay Point is owned by the United States Navy; thus, Bay Point is somewhat isolated from the unplanned developments which occur in other inland areas, as well as along the Gulf of Mexico. Residential and commercial development commenced in Bay Point in 1971. To date, no high-rise buildings have been constructed in the community. Most structures are one or two stories in height, and only four buildings in Bay Point exceed two stories: the Bay Town commercial and condominium development (three stories); the Lagoon Towers condominium with sixty-three units (seven stories), which is the tallest building in Bay Point; the Marriott Legends Edge timeshare with twenty-eight units (six stories); and the Marriott Hotel (five stories). The three tallest buildings are in the extreme southeast portion of Bay Point a minimum of 1,600 feet and as far as 3,000 feet from the site of Petitioner's proposed high rise condominium buildings. When viewed from a distance, the four buildings which exceed two stories in height can barely be seen above the tree line. Bay Point is a mixed use development because it includes residential and nonresidential uses, as well as some community facilities. However, it is fair to state that Bay Point is a low-rise, low-density residential development, and it was planned as a predominately residential community under the 1986 DRI Development Order. Access to the residential part of the community is controlled through gates and a security force. Although there are some resort rental activities and tourist accommodations (a Marriott hotel), Bay Point is comprised of predominately permanent residents. There are 681 single-family homes on individual lots in the western portion of Bay Point, which are one and two-story structures comprising 79.9 percent of the development in Bay Point. The two-story single-family homes tend to be clustered along the bay or along the canals running through the development. As originally developed, commercial development made up only 10.4 percent of the land area of Bay Point. Of that total, 6.6 percent is retail and office development (such as offices, restaurants, retail shops, and a post office); 1.5 percent is commercial recreation (pro shops and golf and tennis club); and 1.7 percent is a Marriott Hotel. In addition, community facilities (including a playground for children) comprise 1.5 percent of the land area. There is also a 201-slip marina and a semi-private golf club on the premises. The "resort core" area of Bay Point refers to certain development in the Seasonal/Resort land use category containing a mixture of mainly seasonal and tourist residential, commercial, and noncommercial uses. Of the almost 1,000 acres in the Bay Point DRI, only about 24 acres were planned and approved for "resort core," or less than 15 percent of the 200 acres designated as Seasonal/Resort. The remaining 85 percent of the Seasonal/Resort area has a predominately residential character. Petitioner's project on Parcels F and 12 is far from any development that could be characterized as "resort core," and all of the development in the immediate vicinity of and surrounding Parcels F and 12 is residential development with structures not exceeding two stories in height. Thus, Petitioner cannot rely on any perceived proximity of Parcels F and 12 to the "resort core" as a basis for justifying the high-rise structures. Consistency with the Plan Intervenors contend that the NOPC is inconsistent with Future Land Use Element (FLUE) Policy 3.4.5 (which allegation is subject to an objection by Petitioner); Housing Element Objective 8.5; Housing Element Policy 8.5.1; Housing Objective 8.9 (which allegation is subject to a Motion to Strike); Stormwater Management Objectives 5E.9 and 5E.12; Stormwater Management Policies 5E.9.1, 5E.10.1, and 5E.12.1; and FLUE Policy 3.3.1. Each of these items will be addressed separately below. As a part of its 1999 Plan (which amended and updated the 1991 Plan), the County adopted special treatment zones (STZs) to be designated on the FLUM in addition to the future land use categories. The specific STZs are established pursuant to FLUE Objective 3.4, which provides that the zones are created "for purposes of dealing with unique or desirable circumstances." The unique circumstance in this case is the DRI. In the Plan, the County has either adopted or expressed its intent to adopt distinct land development regulations or land use controls for each STZ. FLUE Policy 3.4.5 establishes the Bay Point DRI STZ. This policy provides that: [t]he Bay Point Development of Regional Impact (DRI) Special Treatment Zone shall be established in order to ensure compatibility and consistency between the Bay Point DRI Development Order and the FLUM. Development in this area shall be governed by the DRI Development Order. (Emphasis supplied) The last sentence of Policy 3.4.5 was added by comprehensive plan amendment adopted on July 10, 2001. By virtue of the underscored language, the conditions and restrictions on the use and development of Parcels F, 9, 10, and 12 in the DRI Development Order in effect on July 10, 2001, are incorporated into the County's Plan. This was confirmed at hearing by the County's Planning and Zoning Manager. Thus, the maximum five-story height limitation on Parcel 12 contained in the DRI Development Order is incorporated into the Plan by reference through Policy 3.4.5. Because all three of Petitioner's proposed high-rise condominium buildings exceed the five-story height limitation for Parcel F found in the DRI Development Order in effect on July 10, 2001, the NOPC is inconsistent with Policy 3.4.5. Objective 8.5 of the Housing Element provides that all projects in the County will "preserve and protect the character, compatibility, and aesthetics of residential areas and neighborhoods through the enforcement of land use regulations." Petitioner contends that this Objective cannot apply to the development on Parcels F and 12 because these parcels are in a mixed land use category under the FLUM and therefore are not in "residential areas or neighborhood" as contemplated by the Objective. However, the Objective refers to "residential areas and neighborhoods," and not to future land use categories. Thus, the Objective is directed towards existing residential and multi-family development in Bay Point, including Intervenors' property, and must be taken into account when judging the merits of Petitioner's application. "Character" and "aesthetics" are not defined in the Plan. Rather, they are terms of art in the planning profession and are commonly understood by planning professionals. These terms refer to development as it exists, not development that could occur based on a land use category. This is because one cannot protect the character and aesthetics of a land use designation. The evidence shows that "character" consists of those attributes that lend a sense of place to an area, which people in the area can identify with that is distinguishable from other such areas. It includes such factors as type of buildings, building height and mass, the relationship of one building to another, the types of activities that go on in the area or neighborhood, the presence or absence of vegetation, the presence or absence of underground utilities, street design, architectural design, and the preservation of the long-standing stable nature of a neighborhood. "Aesthetics" are those attributes that determine whether an area is visually pleasing. The character of the Bay Point community is that of a stable, low-rise, low density, residential resort community. The buildings in Bay Point consist of individual homes and small villa or townhouse-type buildings clustered on parcels. There are no high-rise buildings in the community or beachfront property. The evidence clearly supports a finding that Bay Point is a predominately neighborhood residential community. Petitioner proposes to construct on Parcels F and 12 three separate high-rise buildings. The outer buildings are six stories at their exteriors, with step increases to ten stories at the interiors. The center building will be eleven stories at the outer edges, with a step up to twelve stories at the peak. The construction of these high-rise condominiums will be in stark contrast to, and out of harmony with, the existing low-rise, low-bulk structures which surround the proposed project and will dramatically change the low-rise, neighborhood character of Bay Point. Thus, the proposed condominiums are not consistent with Objective 8.5 in that they do not preserve the character of the existing residential development within Bay Point. Policy 8.5.1 of the Housing Element requires compatibility between types of residential structures. The Policy also requires that specific criteria be included in the County's Land Use Code "for the preservation and protection of residential areas." It further provides that these standards should ensure that "compatibility between types of residential buildings" will be maintained, and that "residential areas will be used primarily for residential purposes." As of the date of hearing, however, no standards had been adopted, although the County is now in the process of developing such criteria. Until specific criteria are adopted and included in the Land Use Code, Petitioner contends that the Policy cannot be relied upon by Intervenors. If this proposition were true, however, no existing project could be measured for compatibility, and the Policy would be meaningless. The more persuasive evidence supports a finding that in the absence of specific standards in the Land Use Code, it is appropriate to rely upon standards used by land use professionals for determining compatibility between types of residential buildings. Indeed, every land planning expert who testified at hearing agreed that a consistency determination should be made based on the guidance provided in the Objectives and Policies of the Plan. The County has addressed the subject of compatibility in Objective 3.9 and Policy 3.9.1 of the Future Land Use Element. The former provision provides that "[a]ll proposed land uses shall be compatible with adjacent conforming land uses," while the latter provision defines "compatibility" to mean "a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition." The evidence establishes that land use planners view compatibility as meaning the relationship between buildings, uses, and activities to one another. Factors to be used in making this determination are density, building height, scale and mass, lot configuration, and building orientation. Other factors used in this determination include established development patterns, expectations that arise from established development patterns, character of the neighborhood, and stability of the neighborhood. The evidence supports a finding that the development pattern in Bay Point, the expectations of Intervenors and the community based on that development pattern, and the atypical height and mass of Petitioner's project render the proposed project incompatible with Bay Point and thus inconsistent with Objective 8.5.1 of the Plan. In making this finding, the undersigned has found that Petitioner's compatibility analysis is too narrow in scope and ignores the reality that Petitioner proposes to develop three high-rise buildings, grouped together in one location, in an established, predominately low-rise residential community. Objective 8.9 of the Housing Element requires that any project in the County "[p]rotect residential property values and ensure that each homeowner has the opportunity for quiet use and enjoyment of their residence." Thus, in order to be consistent with the Plan, Petitioner must demonstrate that its project will not impact the residential property values in Bay Point in a negative manner. To demonstrate consistency with the foregoing Objective, Petitioner's expert opined that the proposed project would infuse new capital and value into the Bay Point area thereby increasing property values. However, Petitioner's market study (Petitioner's Exhibit 12) is flawed in several respects. For example, it incorrectly defines the Bay Point neighborhood as including an intensely developed Gulf front tourist district along Thomas Drive and the east end of Highway 98 in Panama City, within a three to six mile southern radius of Bay Point, and which includes high-rise condominiums, motels, and commercial uses that are dependent on the tourist industry. The study also concludes, erroneously, that most of the condominium units in Bay Point are utilized as second homes and rental properties by absentee owners. Finally, the study uses two "comparable" projects on which to base a market analysis, one in Destin and the other in Seascape. Neither property is really comparable since both are located on the Gulf of Mexico in neighboring Walton County. The more credible evidence establishes that the threat of development of high-rise buildings on Parcels F and 12 has caused a decline in residential property values in Bay Point. Further, if the NOPC is approved, the property values will continue to decline. This decline has been exacerbated by the loss of the Bay Point community center and tennis courts, which were previously located on the lots in question. Given these considerations, it is found that the NOPC is inconsistent with Housing Element Objective 8.9, in that the NOPC does not protect property values within the community. Intervenors further contend that the NOPC is inconsistent with various Objectives and Policies in the Stormwater Management Element since the NOPC does not contain a detailed stormwater plan for the proposed project. These Objectives and Policies are designed to reduce and eliminate flooding, protect surface waters from contamination and sedimentation caused by the stormwater, and prevent future problems by regulating development. This contention has been rejected since the specific requirements for the stormwater system necessary to serve Parcels F and 12 are not properly addressed in the DRI process, but rather will be considered by the County at the time the actual construction documents for these parcels are submitted for review and permitting. Finally, Intervenors assert that the NOPC is inconsistent with Future Land Use Element Policy 3.3.1, which designates criteria for designating land use categories on the FLUM and attendant standards for development. No credible evidence was presented on this issue, and therefore the contention has been rejected. All other matters raised by Intervenors have likewise been considered and rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order denying Petitioner's application for a NOPC on the ground that it is inconsistent with FLUE Policy 3.4.5, Housing Element Objective 8.5, Housing Element Policy 8.5.1, and Housing Element Objective 8.9 of the Bay County Comprehensive Plan. DONE AND ENTERED this 11th day of December, 2002, 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 11th day of December, 2002. COPIES FURNISHED: Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol, Suite 2105 Tallahassee, Florida 32399-0001 Kenneth D. Goldberg, Esquire 1725 Mahan Drive, Suite 201 Tallahassee, Florida 32308-5201 Michael S. Burke, Esquire Burke & Blue 221 McKenzie Avenue Panama City, Florida 32401-3128 Robert C. Apgar, Esquire Sherry A. Spiers, Esquire Law Offices of Robert C. Apgar 320 Johnston Street Tallahassee, Florida 32303-6214 Richard W. Moore, Esquire Amundsen and Gilroy, P.A. Post Office Box 1759 Tallahassee, Florida 32302-1759 Raquel Rodriguez, General Counsel Florida Land and Water Adjudicatory Commission Department of Legal Affairs The Capitol, Suite 209 Tallahassee, Florida 32399-0001
The Issue Whether Rule 61B-23.003(9), Florida Administrative Code, is an invalid exercise of delegated legislative authority.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner, Michael Gertinisan, is a unit owner and member of the Bay Hills Village Condominium Association, Inc. (Association). The Association is responsible for the operation of the Bay Hills Village Condominium. Petitioner purchased his unit in December, 1992. Prior to December, 1992, the Petitioner had leased the unit for a number of years. The Bay Hills Village Condominium is a mobile home park condominium where each unit is comprised of a parcel of vacant land upon which is placed a mobile home. Transfer of control of the Association from the developer to the unit owners, other than the developer, pursuant to Section 718.301, Florida Statutes, has not occurred. However, unit owners, other than the developer, are entitled to elect a representative to the board of administration of the Association in an upcoming election. The declaration of condominium for Bay Hills Village Condominium was recorded in the public records in 1985. A number of units were sold to purchasers in 1985. At the time Bay Hill Village Condominium was created and the declaration of condominium recorded in the public records in 1985, the controlling statute, Chapter 718, Florida Statutes, contained no maximum period of time during which the developer was entitled to control the operation of the Association through its ability to elect a majority of the board of administration. The developer of a condominium is statutorily entitled to control the affairs of the condominium association for a period set forth in the statutes. This right to control the affairs of the condominium association for the period set forth in the statutes is a substantive vested right. With the right to control the condominium association, comes the attendant rights, including but not limited to, the right to: (a) adopt a budget meeting the marketing needs of the developer; (b) enter in to contracts with related entities providing for maintenance and management of the condominiums; (c) control ingress and egress on and over the condominium property to move construction equipment; (d) adopt board policies relating to the renting of units in the condominium; (e) adopt board policies regarding placement of "For Sale" signs on the condominium property and to model its units; (f) maintain the property in accordance with the developer's need to conduct an ongoing sales program; and (g) change the size and configuration of units in the condominium to meet the needs of the developer's marketing campaign. In those situations where the developer still exercises control over the condominium association, the aforestated rights of the developer would be substantively impaired by a retroactive application of Section 718.301(1)(e), Florida Statutes, as created by Chapter 91-103, Section 12, Laws of Florida, to condominiums in existence prior to the affective date of the Chapter 91-103, Section 12, Laws of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, ORDERED that the Petitioner failed to establish that Rule 61B-23.003(9), Florida Administrative Code, is an invalid exercise of delegated legislative authority and the relief sought by the Petitioner is DENIED. DONE AND ORDERED this 14th day of January, 1994, in Tallahassee, Florida. WILLIAM R. CAVE 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 14th day of January, 1994. APPENDIX TO FINAL ORDER, CASE NO. 93-6214RX The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact: The Petitioner elected to not file any proposed findings of fact. Respondent's Proposed Findings of Fact: Proposed findings of fact 1, 2, 3, 4, 5, 6, 8 and 9 are adopted in substance as modified in Findings of Fact 1, 2, 3, 4, 5, 6, 7 and 8, respectively. Proposed finding of fact is unnecessary. COPIES FURNISHED: Michael Gertinisan 10506 Bay Hills Circle Thonotosassa, Florida 33592 Karl M. Scheuerman, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Henry M. Solares, Director Division of Florida Land Sales Condominiums and Mobile Homes 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent, Department of Community Affairs, is the state land planning agency charged with the responsibility of administering the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. The Department has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern pursuant to Sections 380.031(18), 380.032, and 380.07, Florida Statutes. At all times pertinent to this proceeding and to DOAH Case Number 93- 7165DRI, Petitioner, Fred Snowman, owned the real property known as Lot 75, Matecumbe Ocean Beach subdivision, Lower Matecumbe Key, in Monroe County, Florida (the subject property). A building permit issued by Monroe County, described below, for this property was the subject of DOAH Case Number 93- 7165DRI (the underlying proceeding.) The lot is approximately 100 feet wide and, at different points, between 200 and 225 feet deep. The subject property is bounded on the landward side by U.S. 1 and fronts the Atlantic Ocean in an area known as Matecumbe Beach. Matecumbe Beach is a known resting and nesting habitat for marine turtles. This building permit constituted a development order on property within the Florida Keys Area of Critical State Concern. On September 30, 1993, Monroe County issued to Mr. Snowman, as the owner and general contractor, building permit number 9330008850, which authorized the construction on the subject property of a single-family residence containing 2,472 square feet of heated and cooled area, 1,568 square feet of porches, 1,435 square feet of storage enclosure below base flood elevation, and a swimming pool. The authorized construction was to be consistent with the building site plan, which was also approved by Monroe County. On November 18, 1993, the Department timely appealed the subject building permit to the Florida Land and Water Adjudicatory Commission (FLWAC) pursuant to Section 380.07, Florida Statutes. FLWAC referred the matter to the Division of Administrative Hearings where it was assigned DOAH Case Number 93- 7165DRI. A formal hearing was conducted in DOAH Case Number 93-7165DRI in Key West, Florida, on June 30, 1994. Following the formal hearing, the parties were afforded the opportunity to file post-hearing submittals. Thereafter, a recommended order was entered which recommended that FLWAC enter a final order that dismisses the Department's appeal. After the entry of the recommended order, the Department voluntarily dismissed its appeal. FLWAC subsequently entered a final order of dismissal. Petitioner, Fred Snowman, was the prevailing party in DOAH Case Number 93-7165DRI. SMALL BUSINESS PARTY The issue as to whether Petitioner is a "small business party" as defined by Section 57.111(3)(d), Florida Statutes, was disputed by the Department in this proceeding. The parties stipulated that Mr. Snowman meets the remaining criteria contained in Section 57.111, Florida Statutes, for an award of attorney's fees and costs. The following testimony elicited by Petitioner's counsel of the Petitioner was the sole evidence pertaining to the number of employees of the Petitioner: Could you tell us a little bit about your business? What's the nature of your business? Primarily I'm a speculation - spec builder and general contractor in the Florida Keys, and have been since 1973. Q. How many employees do you maintain on a regular basis? A. I mainly have subcontractors. Occasionally when I have a job, I hire for that particular job. But I'm the sole proprietor and I'm the employee. (Transcript, page 9, lines 12-22.) While the foregoing testimony establishes that as of May 15, 1995, Petitioner was the sole proprietor and sole employee of his business, it does not establish that Petitioner had fewer than 25 employees in 1993 when the Department initiated its actions against him. 1/ The following testimony elicited by Petitioner's counsel of the Petitioner pertains to his net worth: Q. What is your net worth? Let me ask you this. Does your net worth exceed a million dollars? A. No. Q. Less than a million dollars? A. Yes. (Transcript, page 9, line 23 through page 10, line 3) The following testimony elicited by Respondent's counsel of the Petitioner on cross examination also pertains to his net worth: Q. When you're identifying your net worth, what exactly are you considering? A. Well, net worth is all my assets minus my liabilities. Q. All of your personal assets? A. Which are far and few between (sic) today. Q. Do you have business assets? A. No. Q. Do you own any property? A. Lot 75. Q. Any property other than Lot 75? A. I own three lots, small lots in Plantation Key. Q. Are they developed or undeveloped? A. No, they're undeveloped. Q. Do you know how much they're worth? A. They're valued at fifteen thousand per lot. Q. They're not on the water? A. Not on the water. Q. Lot 75, do you know what that property's worth? A. That property is worth about a hundred and seventy-five thousand. Q. Without the house on it? A. Without the improvements, yes. Q. How about in its improved condition? A. I would say, in the improved condition, with this home, it would be about five hundred thousand. Q. Okay. Other than the real estate, do you have any personal or business investments, stocks or -- A. No. Q. No? A. Just my condo. (Transcript, page 10, line 8 through page 11, line 13.) There was no other evidence presented as to Petitioner's net worth. While the foregoing testimony establishes that as of May 15, 1995, Petitioner had a net worth of less than two million dollars, it does not establish that his net worth was below that figure in 1993 when the Department initiated its actions against him. SUBSTANTIAL JUSTIFICATION The Department's appeal initially raised several issues. All issues in the underlying proceeding but one were voluntarily dismissed by the Department either prior to the hearing or at the hearing. The only issue litigated at the formal hearing in DOAH Case Number 93-7165DRI was the appropriate setback from the portion of the beach-berm complex located on the subject property known to serve as an active nesting or resting area of marine turtles. Pertinent to this proceeding, Section 9.5-345(3)(f), Monroe County Code, provides: f. No structure shall be located within fifty (50) feet of any portion of any beach-berm complex which is known to serve as an active nesting or resting area of marine turtles, terns, gulls or other birds; There was no dispute in Case 93-7165DRI that the turtle nesting setback applied to Mr. Snowman's property. The dispute was how to apply the setback. There was a bona fide factual dispute as to the extent of the beach berm complex on the subject property that should be considered to be "beach berm complex which is known to serve as an active nesting or resting area of marine turtles" within the meaning of the setback ordinance. The Department established that it followed its standard procedures in deciding to appeal the subject development order. The Department maintains a field staff in the Florida Keys that routinely reviews development orders issued by Monroe County for consistency with the land development regulations, the Monroe County comprehensive plan, and Chapters 163 and 380, Florida Statutes. The permit package typically reviewed, and reviewed in this case, includes the permit, a permit conditions sheet, surveys, and site plans. The Department staff usually reviews a biological survey or habitat evaluation index, reviews the County's entire file, reviews aerial photographs and conducts a field assessment. In this case, the Department also looked at records of the Department of Natural Resources and of the Save A Turtle volunteer environmental group. In this case, the Department conducted a field assessment of Mr. Snowman's lot and measured the point it considered to be the landward extent of the turtle nesting setback line. Kate Edgerton, an experienced biologist employed by the Department, measured the point the Department asserted was the landward extent of the turtle nesting setback line. Ms. Edgerton made a good faith assessment of the beach berm complex and considered the property to contain one beach berm complex. (Transcript, DOAH Case 93-7165DRI, page 166, line 17.) Ms. Edgerton testified in the underlying proceeding that she considered herself bound by the definitions in the Monroe County land use regulations and that she believed herself to be applying the pertinent definition when she measured the setback line. (Transcript, DOAH Case 93- 7165DRI, page 163, lines 20-23.) Following field staff review, a report is prepared and forwarded to Tallahassee for review by additonal staff, including the Department's administrator of the critical state concern program. Department staff in Tallahassee review the field staff report and participate in formulating a recommendation as to whether to appeal the permit. The appeal decision is then made either by the Department Division Director or by the agency head. Each material step in the Department's customary practice of reviewing permits was followed in reviewing the subject permit. Section 9.5-4(B-3), Monroe County Code, contains the following definition of the term "beach berm" that was found to be pertinent to the underlying proceeding: (B-3) "Beach berm" means a bare, sandy shore- line with a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. The sand is calcareous material that is the remains of marine organisms such as corals, algae and molluscs. The berm may include forested, coastal ridges and may be colonized by hammock vegetation. The term "berm" is identified in the Monroe County comprehensive plan as . . . a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. A berm is higher in elevation than both the beach and the area landward of the berm. At the formal hearing in the underlying appeal, there was conflicting evidence as to the extent of the beach berm complex on the subject property. The Recommended Order found that there were two distinct ridges located on the subject property. The issue of whether both ridges could be considered part of the "beach berm complex" was one of first impression. Succinctly stated, it was the position of the Department in the underlying appeal that both ridges were in an area of potential habitat on a beach that is known habitat and it asserted the position that both ridges should be considered to be one beach berm complex. The Department asserted the position that the setback should be measured from the landward extent of the second ridge (the more landward of the two ridges). Monroe County had measured the setback from the landward extent of the first ridge. Mr. Snowman agreed with the County's determination of the setback. Mr. Snowman presented evidence that the County had, for several years, applied the setback from the landward extent of the first ridge and argued that, based on the foregoing definitions each ridge should be considered to be a separate beach berm, but that only the first should be considered to be a beach berm. The Department presented evidence that the County had applied the setback provision in an inconsistent manner by measuring from the crest of berms in some cases and measuring from the landward extent of berms in other occasions. The Recommended Order rejected the Department's position and concluded that the definition of "beach berm" contained in Section 9.5-4(B-3), Monroe County Code, and the description of "berm" in the comprehensive plan were unambiguous. Although the Department argued that other provisions of the code and comprehensive plan supported their construction of the setback requirement, it was concluded that the issues should be resolved based on the unambiguous definition of "beach berm". It was also concluded that no deference should be afforded the Department's construction of the term "beach berm" because there is a plain and unambiguous definition of the term that is a part of the Monroe County Code. It was observed that "[w]hile a greater setback may better serve the goals of the comprehensive plan, as argued by the Department, the imposition of a greater setback requirement should come from a change in the Monroe County Code." This observation was made because the Department had found support for its interpretation of the setback requirement from other parts of the code and comprehensive plan. This case involved bona fide disputed issues of material fact and legal issues that were of first impression. It is found that those issues, although resolved against the Department following the formal hearing, were of sufficient merit to substantially justified the Department's actions in initiating the underlying appeal.
The Issue Did Respondent, Robert Skidmore, III, violate section 112.313(6), Florida Statutes (2011),1/ by using his position as county commissioner to ask a county staff member to approve a zoning application for Beach Road Boutique? Did Mr. Skidmore violate section 112.313(6) by asking a county employee to look for and selectively enforce code violations against J.J.'s Restaurant?
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: At all times relevant to this proceeding, Mr. Skidmore was a Charlotte County commissioner. Beach Road Boutique Zoning Scott and Jill Hemmes, constituents of Mr. Skidmore, owned a business known as Beach Road Boutique in Charlotte County. They sought to obtain a state alcoholic beverage sales license. In order to obtain a license, the applicant must demonstrate local zoning approval. Charlotte County Commission employees enforce and apply zoning regulations in the county. Erin Mullen-Travis is the licensing manager for Charlotte County Planning and Development. During 2011, she was the code compliance and licensing manager. Ms. Mullen-Travis has worked for Charlotte County over 26 years. One of Ms. Mullen-Travis's duties as code compliance and licensing manager was the review and approval of the zoning requirements on applications of establishments wanting alcoholic beverage licenses. Ms. Mullen-Travis first denied the zoning application of Beach Road Boutique on February 17, 2011. Mr. and Ms. Hemmes sought Mr. Skidmore's assistance getting approval for their zoning application. Mr. Skidmore called Ms. Mullen-Travis about the application. Mr. Skidmore told Ms. Mullen-Travis that he had some nice people in his office and that he needed help getting zoning approval for them. In her 26 years of employment with Charlotte County, Mr. Skidmore was the only county commissioner who had ever directly sought her assistance with constituent matters. Other commissioners had always gone through the chain-of-command. He identified the applicant, and Ms. Mullen-Travis explained why the zoning had not been approved. Ms. Mullen-Travis felt intimidated by Mr. Skidmore. Mr. Skidmore, however, did not threaten Ms. Mullen-Travis or explicitly offer any reward available to him because of his position as county commissioner. He did, however, implicitly offer a reward, if she helped the Hemmes. It is common knowledge in Charlotte County that Ms. Mullen-Travis is a NASCAR fan. Among other things, she drives a car with Dale Earnhardt and NASCAR badges and decals. During the call, Mr. Skidmore asked Ms. Mullen-Travis about her affinity for NASCAR. He also offered to get her an autographed photo of Rusty Wallace (a NASCAR driver) and tickets to a race. He told her that he had gone to school with Rusty Wallace's son. This is true. And Ms. Mullen-Travis could not have known it without Mr. Skidmore telling her. Given the context, Ms. Mullen-Travis accurately considered that the tickets and photo were offered in exchange for her approval of the application to the benefit of the Hemmes. Also, the call was made in Mr. Skidmore's official capacity. Charlotte County has a Home Rule Charter (Charter). Section 2.3(A)(1) of the Charter makes the county administrator responsible for all administrative matters and operations. Section 2.3(C)(1) states: "Except for purposes of inquiry and information, the members of the board of county commissioners shall not interfere with the performance of the duties of any employee of the county who is under the direct or indirect supervision of the county administration." Also, the long-established practice was for commissioners to only contact agency directors. Mr. Skidmore's call to Ms. Mullen-Travis was contrary to the Charlotte County Charter and the practice under it. Therefore, it was not an authorized act pursuant to his duties or authorities as a county commissioner. Mr. Skidmore and Ms. Mullen-Travis were the only participants in the call. He denies the conversation. Ms. Mullen-Travis's account is more credible. This is based upon her contemporaneous communications about the call, the common recollection of all witnesses of a NASCAR component to the conversation, the fact that she could not otherwise have known Mr. Skidmore went to school with Rusty Wallace's son, the relative personal interests of the witnesses in the outcome of the proceeding, and the demeanor of the witnesses, particularly of Mr. Skidmore's. Shonna Jenkins worked as a contractor licensing investigator for Charlotte County for a little over seven years. She held that position in 2011 and reported to Ms. Mullen-Travis. Mr. Skidmore had obtained Ms. Jenkins cell phone number. He had a practice of calling her directly to check on contractor licensing matters. He also contacted Ms. Jenkins to ask her to approve the Beach Road Boutique zoning application. J.J.'s Restaurant After a meeting held on March 3, 2011, Mr. Skidmore flagged Ms. Jenkins down in the parking lot. He asked her to "do him a favor," and "go shut them [J.J.'s Restaurant] down. I want them out of this f**ing town." Mr. Skidmore wanted Ms. Jenkins to find code violations for J.J.'s Restaurant. Mr. Skidmore said that he would make sure that Ms. Jenkins got a pay raise or a pay grade increase for this. Either the ex-boyfriend or ex-husband of Mr. Skidmore's wife and father of her child had an interest in J.J.'s Restaurant. There was conflict between the two families. Mr. Skidmore had also requested the Charlotte County director of Growth Management, Jeff Ruggieri, to take code enforcement actions against J.J.'s Restaurant. Ms. Jenkins was intimidated and feared her job with the county was in jeopardy if she did not do as Mr. Skidmore asked. Ms. Jenkins reported the conversation to Ms. Mullen-Travis and Joanna Colburn, a licensing investigator, immediately afterwards. Ms. Jenkins was visibly upset and shocked. She also contemporaneously documented the incident. Ms. Jenkins is and has been frank about her dislike for Mr. Skidmore. This hostility, as well as the mental and emotional difficulties Ms. Jenkins suffered as a result of her employment and dealings with Mr. Skidmore, does not undermine her testimony. In light of the witnesses' demeanor and corroborating evidence, her testimony is credible. In addition, although evidence established Ms. Jenkins was taking several medications, the record does not indicate that the medications in any way affect a person's memory or veracity. Mr. Skidmore's requests to Ms. Jenkins and Mr. Ruggieri to act against J.J.'s Restaurant were in violation of the Charlotte County Charter and, therefore, not authorized acts pursuant to his duties or responsibilities as a county commissioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order and public report be entered finding that Respondent, Robert Skidmore, III, twice violated section 112.313(6) and that he be fined $5,000 for each violation for a total of $10,000, together with public censure and reprimand. DONE AND ENTERED this 27th day of February, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 27th day of February, 2015.
The Issue The issues are whether Respondents are guilty of the following: (a) breach of fiduciary relationship in violation of Section 718.111(1)(a), Florida Statutes; (b) failure to respond in writing to written inquiries in violation of Section 718.112(2)(a)2., Florida Statutes; (c) failure to properly notice a meeting in which regular assessments were discussed in violation of Section 718.112(2)(c), Florida Statutes; (d) failure to proportionately excuse payment of common expenses for all units owners after doing so for one unit owner in violation of Section 718.116(9)(a), Florida Statutes; and (e) willfully and knowingly violating Chapter 718, Florida Statutes, in violation of Section 718.501(d)(4), Florida Statutes.
Findings Of Fact Ocean Gate is a unit-owner controlled condominium located in St. Augustine, Florida. A three-member board of directors governs Ocean Gate. However, Article V of Ocean Gate's Articles of Incorporation states as follows in relevant part: This corporation shall have three (3) directors initially. Thereafter, the number of directors may be increased from time to time in the manner provided by the Bylaws, but shall never be fewer than three. Ocean Gate's original developer was Robert Laurence/Ocean Gate Development, Inc. On or about June 16, 1999, the developer recorded Ocean Gate's Declaration of Condominium in the official record book 1417, page 1932, of the public records of St. Johns County, Florida. At that time, Ocean Gate's directors, as set forth in the Articles of Incorporation, were Roger W. McClain, Leslie Gallagher, and Robert J.L. Laurence. The property at issue includes two buildings (2.1 and 2.2) containing a total of 10 units. Units 600, 604, 608, 612, 616, and 620 are located in Ocean Gate's 2.1 building. Units 605, 609, 613, and 617 are located in Ocean Gate's 2.2 building. On June 16, 1999, the following deeds were recorded in the official record book of St. Johns County, Florida: (a) unit 600 to Mr. and Mrs. Grissom (later sold to the Mr. Barrow/Flag Development Corporation); (b) unit 604 to Mr. and Mrs. McNeely; (c) unit 608 to Dr. and Mrs. Blankenship; (d) unit 612 to Mr. and Mrs. Klinehoffer; (e) unit 616 to Mr. and Mrs. Pittman (later sold to Mr. and Mrs. Weaver); and (f) unit 620 to Mr. and Mrs. Carabetta. The unit owners in the 2.1 building had to lend the developer funds to complete the construction of their units. Even so, these unit owners had to foreclose on that loan and spend additional funds to complete the construction on their units. On or about July 1, 1999, Ocean Gate issued a Notice of Owners Meeting. The meeting was scheduled for July 17, 1999. The agenda attached to the notice included the following: (a) call to order; (b) establish a quorum; (c) waiver of 60-day notice; (d) introduction of May Management Services, Inc. (May Management); (e) official approval of management contract; (f) discussion of board members; (g) discussion of contract; and (h) adjournment. Ocean Gate held its first unit owners' meeting on July 17, 1999. Mr. Klinehoffer, Mr. and Mrs. Pittman, Dr. and Mrs. Blankenship, Mr. and Mrs. McNeely, Mr. Grissom, and Mr. and Mrs. Carabetta attended the meeting. The developer did not attend the meeting. During the July 17, 1999, meeting, the unit owners accepted the resignation of Les R. Gallagher, as a director, and elected the following directors/officers: Mr. Grissom, president; Mr. Kleinhoffer, vice president; and Mrs. Pittman, secretary/treasurer. The representative of May Management announced that the developer had turned over $8,308.44 to the unit owners. Ocean Gate conducted a unit owners meeting on December 4, 1999. Mr. Grissom and Dr. Blankenship attended the meeting. Mrs. Pittman attended by proxy. A representative of the developer was also in attendance. During the meeting, the unit owners approved Ocean Gate's 2000 operating budget. On or about January 14, 2000, Mrs. Pittman resigned as a director and secretary/treasurer. A unit owners meeting took place on January 29, 2000. Mr. Grissom, Dr. and Mrs. Blankenship, Mr. Carabetta, Mr. and Mrs. McNeely, and Mr. Weaver were in attendance. In a notice dated March 22, 2000, Ocean Gate scheduled a unit owners meeting for April 15, 2000. The agenda included the following: (a) call to order; (b) establish a quorum; (c) approval of minutes of January 29, 2000; (d) financial report; (e) old business (release of lien payment for John M. Williams); (f) new business, including election of director; (g) date of next meeting; and (h) adjournment. During the meeting, Mr. Weaver was elected to fill a vacancy on Ocean Gate's board of directors. The Carabettas' unit, which is located in the 2.1 building, is the largest unit on the property. Mr. Carabetta refused to pay some of Ocean Gate's assessments because he did not believe Ocean Gate was properly maintaining his unit. In time, he filed at least one lawsuit against Ocean Gate and its board of directors. He also filed defamation and discrimination lawsuits against some of the unit owners in their individual capacities. Mr. Carabetta testified at hearing that Ocean Gate failed to maintain his unit while expending funds to maintain the units of the Weavers, the Blankenships, the McNeelys, and the Klinehoffers. There is no persuasive evidence that the directors of Ocean Gate improperly refused to pay for maintenance/repair of the common elements in the 2.1 building, including the limited common elements directly affecting Mr. Carabetta's unit. The 2.2 building was the subject of a foreclosure suit. It was sold on the courthouse steps to Flag Development Corporation on June 13, 2000. Pursuant to that sale, Flag Development Corporation also bought two additional condominium developments, Ocean Gate Phase II and Ocean Gate Phase III, which are not a part of the property at issue here. The record contains a Certificate of Title conveying real and personal property to Flag Development Corporation. The certificate refers to a description of real and personal property, "Exhibit A," which is not attached to the copy of the certificate in the record. John Williams and Mr. Barrow are business associates affiliated with Flag Development Corporation. After receiving title to the 2.2 building, their company did nothing more than clean up the property. They did no construction, maintenance, or repair work. In two letters, Jones & Pellicer, Inc., civil engineers and land surveyors, responded to Mr. Weaver's request for a survey to determine the square footage for each unit. The first letter dated May 31, 2000, referred to the survey of units 600, 604, 608, 612, 616, and 620 in the 2.1 building. The second letter dated July 31, 2000, referred to the survey of units 605, 609, 613, and 617 in the 2.2 building. According to the letters, the surveys determined the square footage for each unit using the floor area, as defined by Section 4.7-Unit Boundaries "A" and "B" in the Ocean Gate Declaration of Condominium. Mr. Walters purchased the four units in Ocean Gate's 2.2 building from John Williams/Flag Development Corporation in late July or early August 2000. The purchase price was approximately one million dollars. The record contains a copy of the corporate warranty deed conveying the 2.2 building to Mr. Walters. The deed states that the transfer of title is "subject to taxes for the current year, covenants, restrictions, and easements of record, if any." The attachments to the deed describing the property include Schedule A, Exhibit A, and Exhibit A Continued. The document identified as Exhibit A Continued, and which appears to be signed by the original developer, is not legible. When Mr. Walters bought the four units, the 2.2 building had a roof, windows, walls, and doors from which the square footage of each unit could be determined. The building was about 45 percent complete but not sufficiently complete to qualify any of the units in the building for a certificate of occupancy. Mr. Walters hired a contractor to complete the construction on his units. The construction, which involved a considerable sum of money, included work on the common elements and the interior of the units. There were liens on the 2.2 building for Ocean Gate's assessments when Mr. Walters purchased his four units. Mr. Walters refused to pay any past or ongoing assessments on his four units. In turn, Ocean Gate refused to expend any funds to maintain or repair the 2.2 building. Ocean Gate continued to impose assessments on all unit owners, including Mr. Walters and Mr. Carabetta. Ocean Gate also had to impose special assessments on some unit owners to make up the shortfall when Mr. Walters and/or Mr. Carabetta refused to pay their regular assessments. On October 17, 2000, Ocean Gate filed a Revised Claim of Lien against Mr. Walters for unpaid assessments and late charges. The Revised Claim of Lien alleged that Mr. Walters owed Ocean Gate a balance of $20,983.42. In a letter dated October 18, 2000, Ocean Gate advised Mr. Walters that a foreclosure suit would be instituted if he did not pay the assessments and charges. Early in 2001, Ocean Gate filed a Complaint seeking foreclosure of the liens against Mr. Walters in Case No. CA-01- 85, in the Circuit Court, Seventh Judicial Circuit, in and for St. Johns County, Florida. On or about March 1, 2001, Mr. Walters filed a Motion to Dismiss in Case No. CA-01-85, in the Circuit Court, Seventh Judicial Circuit, in and for St. Johns County, Florida. Mr. Walters took the position that he was not obliged to pay condominium assessment until a certificate of occupancy was issued and that the original developer had never relinquished control of Ocean Gate. Mr. Walters and Mr. Carabetta together owned over 51 percent of the total square footage in all units. Therefore, they controlled a majority of Ocean Gate's voting interests, which are directly proportional to the square footage in each unit. Specifically, Mr. Walters controlled a total of 36.207 percent of the membership voting interests and Mr. Carabetta controlled a total of 15.990 percent of the membership voting interests. Mr. Weaver was Ocean Gate's president in September 2001. Mr. McNeely and Mr. Klinehoffer were also directors/officers. All three of the directors were named as defendants in one or more of Mr. Carabetta's lawsuits. On or about September 26, 2001, Mr. Weaver issued the second notice of Ocean Gate's annual meeting of unit owners. The notice included the following agenda items: (a) roll call; (b) reading of minutes of last meeting; (c) reports of officers; (d) election of directors; (e) unfinished business; (f) original resolutions and new business; and (g) adjournment. The annual meeting of Ocean Gate's unit owners took place on October 27, 2001. During the meeting Mr. Walters and Mr. Carabetta, in concert with one additional unit owner, used their majority voting interests to elect themselves as directors. Mr. Walters and Mr. Carabetta received 64 percent of the votes. Dr. Blankenship, receiving 84.69 percent of the votes, became Ocean Gate's third director and "acting" president. After the election of the directors, Mr. Walters expressed his frustration about the liens on his property and the pending foreclosure action involving at that time approximately $50,000 in assessments and interest. In an effort to resolve the conflict, Dr. Blankenship proposed the following as a global concept: Homer Barrow and the newly elected Ocean Gate Phase I Condo Association Board will attempt to satisfy the concerns of the Carabetta's [sic] with regard to correction of deficiencies on their unit. The Carabettas will dismiss all lawsuits and complaints against other unit owners and boards and pay overdue assessments. Richard Walters will contribute $10,000 to the Phase I Association as final settlement of lien/foreclosure action. Unit owners will end foreclosure action against Richard Walters and forgive existing liens against Richard Walters. It is understood that the above action and commitments are interdependent and sequential in the order listed above. Minutes of Meeting of the Unit Owners, October 27, 2001. Mr. Walters initially objected to paying the $10,000. However, John Williams persuaded Mr. Walters to join in the proposed agreement. After Dr. Blankenship's motion regarding the proposed agreement was seconded, the unit owners who were present at the October 27, 2001, meeting verbally approved the proposed agreement. The unit owners never reduced the proposed agreement to writing. They never signed a copy of the minutes containing the proposed agreement. Mr. Klinehoffer was the only unit owner who was not present at the meeting. Mr. Klinehoffer had not given Mr. Weaver or any other unit owner his proxy to vote in favor of a settlement of the pending litigation against Mr. Walters. More importantly, the consideration of assessments and a settlement agreement regarding the foreclosure suit were not included as agenda items in the notice of the unit owners' meeting. On November 17, 2001, Ocean Gate's directors held another meeting. They elected the following officers: Dr. Blankenship, president; Mr. Walters, vice-president; and Mr. Carabetta, secretary/treasurer. During the November 17, 2001, meeting, Mr. Walters wanted to discuss implementing the proposed settlement agreement from the October 27, 2001, unit owners' meeting. In other words, Mr. Walters wanted Ocean Gate to drop the foreclosure suit against him in exchange for $10,000. However, the minority unit owners asserted that Mr. Carabetta had not dropped his lawsuits against Ocean Gate and the other unit owners in the 2.1 building. Mr. Weaver took the position that the proposed settlement agreement was not valid unless it was implemented sequentially beginning with coming to terms with Mr. Carabetta and Mr. Carabetta dropping all of his lawsuits. Mr. McNeely asserted that he would not agree to participate in the global agreement. Mr. Klinehoffer stated that he did not agree to the global agreement and specifically objected to any change in Mr. Walters' assessment responsibilities or liabilities. On December 10, 2001, Mr. Walters and Mr. Carabetta conducted a board of directors meeting. A facsimile transmission had been sent to Dr. Blankenship as notice of the meeting, but he was out of town and had no actual prior knowledge about the meeting or its agenda. The notice for the December 10, 2001, board of directors meeting was posted on Ocean Gate's property 48 hours in advance of the meeting. The agenda attached to the notice made reference to a non-specific item identified as "approval of resolutions" without reference to the subject matter and without mention of assessments or settlement agreements. During the December 10, 2001, board of directors meeting, Mr. Walters proposed a resolution to allow him to pay $10,000 in lieu of his past due assessments, to release the liens on his four units, and to dismiss the foreclosure action. After Mr. Walters proposed the resolution, Mr. Carabetta provided a second and voted to pass the resolution. Mr. Weaver and Mr. McNeely protested that Mr. Walters could not vote due to a conflict of interest and that without Mr. Walters' vote, the board of directors did not have a quorum. Mr. Walters then recused himself. Next Mr. Weaver contacted Dr. Blankenship by telephone. However, on faulty advice from Mr. Carabetta's personal attorney, Mr. Walters and Mr. Carabetta refused to let Dr. Blankenship vote on the resolution. Mr. Walters and Mr. Carabetta also refused to let Ocean Gate's attorney, Roseanne Perrine, participate in the meeting by telephone. Before the meeting adjourned, Mr. Walters declared that the resolution had passed and the matter was closed based on Mr. Carabetta's sole affirmative vote. Next, Mr. Walters proposed that Ocean Gate terminate its contract with May Management. Mr. Walters then introduced a representative of Coastal Realty and Property Management, Inc. (Coastal). Over Mr. Weaver's objections, Mr. Walters and Mr. Carabetta voted to replace May Management with Coastal. The greater weight of the evidence indicates that May Management was a reputable company with no major complaints from the unit owners. In a letter dated December 11, 2001, Ms. Perrine reminded Mr. Walters and Mr. Carabetta that her firm represented Ocean Gate in the foreclosure action against Mr. Walters. She claimed that the resolution passed on December 10, 2001, was invalid. She asserted that she would withdraw as counsel of record if requested to dismiss the lawsuit based on the December 10, 2001, resolution. In a letter dated December 12, 2001, Mr. Carabatta enclosed a copy of a check made payable to Ocean Gate in the amount of $8,062.54. According to the letter, the check represented the amount of Mr. Carabetta's assessments though year 2001. The letter stated that the check had been delivered to Coastal for deposit into an operating account for Ocean Gate. Finally, the letter demanded that May Management stop all foreclosure proceedings against Mr. Carabetta and release the lien of record against his property. On December 12, 2001, Mr. Carabetta authorized Coastal to open new bank accounts for Ocean Gate using his check as an initial deposit. Dr. Blankenship wrote a letter dated December 13, 2001, to Mr. Walters and Mr. Carabetta. In the letter, Mr. Blankenship objected to the lack of notice regarding the December 10, 2001, board of directors meeting and its agenda. Dr. Blankenship's letter complained that he had not been allowed to vote when he was called during the meeting. On or about December 16, 2001, the Circuit Court Judge in Case No.: CA-01-85, in the Seventh Judicial Circuit, in and for St. Johns County, Florida, entered an Order Granting in Part and Denying in Part Defendants Motion to Dismiss. The order states as follows in pertinent part: Third, the Defendants assert the Plaintiff is without standing to assess maintenance fees, file liens, or foreclose any lien because the developer never turned over control of the association to the unit owners pursuant to Article 8.5 of the Declaration of Condominium of Ocean Gate Phase I, A Condominium. Nothing contained in Article 8.5 of the Declaration supports the Defendant's assertion. The Association was given the authority to assess fees in Paragraph 7 of the Declaration, not Article 8.5. Paragraph 7 states: Assessments. To provide the funds necessary for proper operation and maintenance of the Condominium, the Phase I Association has been granted the right to make, levy, and collect Assessments and Special Assessments against all Unit Owners and Units. Fourth, the Defendants' assert the condominium association had no authority to charge condominium fees since the buildings have not yet been completed, nor have certificates of occupancy been issued. According to Ris Investment Group, Inc. v. Dep't of Business and Professional Regulation, 695 So. 2d 357 (Fla. 4th DCA 1997), the question before the Court is whether, in accordance with the Declaration, the term "unit" was intended to encompass raw land and/or condominiums which had not yet been purchased, or just land upon which the condominium units had already been built and/or purchased. A review of the pertinent portion of the Declaration is necessary to answer the foregoing questions. Paragraph 7 of the Declarations states: Assessments. To provide the funds necessary for proper operation and maintenance of the Condominium, the Phase I Association has been granted the right to make, levy, and collect Assessments and Special Assessments against all Unit Owners and Units. Paragraph 3 of the Declaration states: Definitions. ‘Unit’ means a part of the Condominium Property, which is to be subject to exclusive private ownership as defined in the Condominium Act. ‘Condominium Property’ means the parcel of real property described in Exhibit "A" attached hereto, together with all improvements built or to be built thereon, and the easements and rights appurtenant thereto. A review of Exhibit ‘A’ and ‘A-1’ reveals that the term "Condominium Property" refers to the entire condominium complex, not just one unit. Reading the pertinent portions of the Declaration, in toto, it appears as though the parties intended that the Association could assess fees from "units" which encompass any portion of the condominium property, whether improvements have been built or are to be built thereon. Accordingly the Defendant's assertion is without merit and the Motion to Dismiss in this regard is denied. Around the first of January 2002, Mr. Walters tendered a check to Ocean Gate in the amount of $10,000. The front side of Mr. Walter's check, number 652, indicates that it was for association dues in full through December 31, 2001. The backside of the check states, "Endorsement of this instrument constitutes payment in full for association dues on 605, 609, 613, and 617, Mediterranean Way, thru December 31, 2001." There is no evidence that the $10,000 check was deposited to Ocean Gate's bank account. After the December 2001 meeting, the Weavers, McNeelys, Klinehoffers, and Blankenships sent numerous letters by certified mail to Mr. Walters and Mr. Carabetta. The letters protested the manner in which Mr. Walters and Mr. Carabetta had conducted the December 10, 2001, and subsequent meetings, demanding that they remove themselves as directors, and inquiring about many other matters relating to the operation and management of Ocean Gate. Many of the letters specifically requested Mr. Walters and Mr. Carabetta to respond in writing within 30 days as required by Section 718.112(2)(a)2., Florida Statutes. Mr. Carabetta responded to one of the complaint letters. All subsequent complaint letters were referred to Alan Scott, Esquire. Mr. Scott did not provide a written response to the letters unless specifically directed to do so by Mr. Walters and/or Mr. Carabetta. Mr. Scott responded to one complaint letter. On or about January 24, 2002, Mr. Scott, writing on behalf of Mr. Walters and Mr. Carabetta, sent a letter to Dr. Blankenship and May Management. The letter stated that a majority of Ocean Gate's voting interests (Mr. Walters and Mr. Carabetta) had entered into written agreements to remove Dr. Blankenship from his position as a director. On January 29, 2002, Mr. Carabetta filed a Notice of Voluntary Dismissal without Prejudice in one of his lawsuits naming Ocean Gate as defendant. That case was Case No. CA01-858 in the Circuit Court, Seventh Judicial Circuit, in and for St. Johns County, Florida. Competent evidence indicates the Mr. Carabetta dismissed all of his lawsuits against his neighbors after the December 2001 meeting. Ocean Gate's directors issued a notice dated February 4, 2002. The notice indicated that the directors would meet on February 7, 2002. The agenda for that meeting included the following: (a) call to order; (b) roll call; (c) appointment of new director; (d) fill officer vacancies; (e) consider discharge of association attorneys and appointment of new association legal counsel; (f) consider discharge of May Management and appointment of Coastal; and (g) consider change of association mailing address and resident agent. During the directors' meeting on February 7, 2002, Mr. Walters and Mr. Carabetta appointed Mr. Barrow as a director. The directors then elected Mr. Walters as president, Mr. Barrow as vice-president, with Mr. Carabetta retaining his office as secretary/treasurer. Next, the directors voted to make the following changes: (a) to fire May Management and hire Coastal as Ocean Gate's management company; (b) to discharge Ms. Perrine and retain Mr. Scott as Ocean Gate's attorney; and (c) to update the corporate report data showing Mr. Scott as registered agent. In a letter dated February 8, 2002, Mr. Klinehoffer, Mr. Weaver, Mr. McNeely, and Dr. Blankenship advised Mr. Walters and Mr. Carabetta that the February 7, 2002, directors' meeting had not been properly noticed. The letter alleged that the notice had not been posted on the property 48 hours in advance of the meeting and that none of the minority unit owners had received notice by fax, phone, or letter. By letter dated March 1, 2002, Mr. Walters, Mr. Carabetta and Mr. Barrows advised Ms. Perrine's law firm that her services as counsel for Ocean Gate were terminated. The letter directed Mr. Perrine to turn over her foreclosure file to Mr. Scott, who would replace her as counsel for Ocean Gate. By letter dated March 25, 2002, the minority unit owners objected to the termination of Ms. Perrine as Ocean Gate's attorney. During an April 10, 2002, directors' meeting, Mr. Carabetta and Mr. Barrows voted to accept Mr. Walters' payment of $10,000 in satisfaction of his past due assessments, penalties and interest. Thereafter, Mr. Walters tendered his check for $10,000 on the same day that Ocean Gate's new attorney, Mr. Scott, dismissed the foreclosure suit against Mr. Walters. In a letter dated April 17, 2002, Mr. Weaver protested the actions taken by Mr. Walters, Mr. Carabetta, and Mr. Barrows during the April 10, 2002, directors' meeting. Additionally, the minority unit owners continued to send Mr. Walters, Mr. Carabetta, and Mr. Barrow letters complaining about various problems in the management of Ocean Gate and requesting a response within 30 days. The minority unit owners did not receive any responses to these letters. In a letter dated April 17, 2002, Petitioner's investigator, Eurkie McLemore, advised Mr. Walters about the complaints filed against him and Mr. Carabetta by the minority unit owners. Ms. McLemore requested a response to the allegations by April 30, 2002. The letter contained the following warning: Please note that if you as a MEMBER OF THE BOARD OF DIRECTORS AND OFFICER OF THE ASSOCIATION fail to respond to this letter, or if another complaint is received, the Division will pursue an enforcement resolution, which may result in civil penalties of up to $5,000 per violation. Therefore, you are urged to respond appropriately to this warning letter and to use your best efforts to comply with sections 718.111(1)(a), 718.116(9)(a), 718.112(2)(c), 718.112(2)(a)2., Florida Statutes, now and in the future. By letter dated April 30, 2002, Ocean Gate's attorney, Mr. Scott, responded to Ms. McLemore's letter. According to the letter, Mr. Walters and Mr. Carabetta denied the allegations and did not indicate that any corrective action would be taken. In June 2002 Ocean Gate's directors authorized Mr. Scott, as Ocean Gate's counsel, to file a voluntary dismissal with prejudice in the foreclosure suit against Mr. Walters. Mr. Walters sold his units at an on-site auction in July 2002. Mr. Walters executed warranty deeds for the three successful bidders in August 2002. As of January 31, 2002, Mr. Walters owed Ocean Gate past-due assessments plus interest in the amount of $62,943.56. The accrued interest on that amount as of June 16, 2003, was $15,767.36. Mr. Walters paid his quarterly assessments at the end of March and June 2002. He also paid Ocean Gate $10,000 when the foreclosure suit was dismissed in June 2002. Therefore, the total amount that Mr. Walters owed Ocean Gate as of June 16, 2003, was $68,710.92 During the hearing, Mr. Walters presented evidence that he was entitled to an offset for his expense in maintaining and repairing the 2.2 building. However, the evidence presented is insufficient to determine whether Mr. Walters' expenses were related to maintenance and repair of common elements. The greater weight of the evidence indicates that Mr. Walters is not entitled to an offset.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That Petitioner issue a final order imposing a civil penalty on Respondents in the amount of $10,000 each and requiring Mr. Walters to make restitution to Ocean Gate in the amount of $68,710.92 plus interest on this amount from June 16, 2003, until the date payment is made. DONE AND ENTERED this 8th day of August, 2003, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 8th day of August, 2003. COPIES FURNISHED: John B. Bamberg, Esquire Post Office Box 2210 St. Augustine, Florida 32085 Joseph S. Garwood, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Ross Fleetwood, Division Director Division of Florida Land Sales, Condominiums, and Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0892 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact On July 24, 1986, Key Sand Associates, Ltd., by and through its agent, Eduardo Avila, made an application for a variance to the height limitation under the Code to allow a 145 foot building for 26 residential units, as described in plans submitted as part of the application. A public hearing was set before the Development Code Adjustment Board (DCAB) for August 28, 1986. There was no evidence that notice was not published in the newspaper as provided by the Code or was not mailed to the owners of the adjacent properties within 200 feet of the subject parcel as shown by the latest ad valorem tax records. On August 28, 1986, a public hearing was held before the DCAB at the time and place set forth in the notice. At the time of the hearing, minutes were kept and a tape recording was made. The tape recording and minutes of the hearing reveal that the DCAB heard the testimony of: a planning official; Eduardo Avila, representing the applicant; Y. H. Lee, architect, representing the applicant; Mr. Carl G. Myers, President of the Sand Key Property Owners Association, an opponent; Sam Dervish, representing the adjacent property owner, Dervish Bros. Gallery Restaurant, an opponent; and, Ed Armstrong, an attorney representing the interests of the developer of the adjacent property of Crescent Beach Club I, an opponent. Two letters in opposition were read into the record. At the conclusion of the public hearing before the DCAB, the DCAB found that the requirements for the variance under Section 137.012 of the Code had been met and granted the variance, as requested, by a vote of 4-1. 1/ On September 10, 1986, the appellant, Walt Buchholz, filed a notice of appeal with the City Clerk under the procedure provided in Section 137.013 of the Code. The notice of appeal alleged that Buchholz is "a resident and owner of unit 16A, 1340 Gulf Blvd., Clearwater, Florida," adjacent to the subject parcel. It further stated that the bases of the appeal were: (1) that the present owners of the adjacent property were not notified although the developer was; (2) that the applicant had misrepresented the facts at the hearing related to a representation about a blank wall on the condominium building in which Buchholz owned property; and (3) the naviety of the DCAB related to a display of model buildings by the applicant at the hearing. A hearing on the appeal was set for January 23, 1987, and appropriate notice given. The appeal hearing was continued from December 29, 1986, to January 23, 1987, on Appellant's motion to enable Buchholz to be present at the hearing on the ground: "Appellant's presence at a hearing in this case is necessary for Appellant's testimony is essential to support his position." The conduct of the appeal hearing was in accordance with Section 137.013(e) of the Code. At the appeal hearing on January 23, 1987, the hearing officer accepted the record on appeal which had been transmitted by the City Clerk to the Department of Administrative Hearings on September 19, 1986, consisting of seven items, as required by Section 137.013(e)(2)a. of the Code. The appellant did not present any witnesses nor introduce any evidence in support of the issues raised in his notice of appeal during the presentation of his case. 2/ However, the appeal hearing reflected a concession by Key Sand that Buchholz owns a condominium unit in the Crescent Beach Club, less than 200 feet from the subject property, and did not receive notice because the City Clerk sent the notice to the owner according to the latest ad valorem tax roll, the developer of the Crescent Beach Club. Appellant's counsel argued that failure to provide notice to owners of adjacent property who became owners of the property after the publication of the last ad valorem tax roll was a procedural impropriety. Appellant's counsel argued that the applicant had not presented sufficient evidence to support any of the required standards for approval of a variance at the August 28, 1986, hearing as required by Section 137.012 of the Code. Key Sand argued that Appellant was not a party in interest as required under the Code, in that, (1) there was no showing that appellant was an adversely affected person with a definite interest exceeding the general interest shared by the rest of the community and (2) being a person who owns property within 200 foot of the subject property does not by itself prove an adverse interest to his property in granting the variance. Appellant did not present even any argument during his case related to the second and third items of appeal set forth in the notice of appeal filed in this matter. Appellant did not prove that the DCAB was deceived by the passing reference to a "blank wall" during the DCAB hearing or that the DCAB naively was deceived by the models displayed at the hearing. To the contrary, the record on appeal reflects that the DCAB was not deceived by the reference to a blank wall" and that the DCAB critically weighed the display models along with all the other evidence.
