Findings Of Fact W. B. Johnson Properties, Inc., Petitioner, is the owner of the 428- room Holiday Inn Surfside located on Clearwater Beach. This hotel was constructed in 1981 on land zoned CTF-28 for commercial tourist facilities. The tract of land on which the hotel is situated is approximately ten acres and the maximum density of 42 rooms per acre is utilized. This hotel is currently in conformity with all building and zoning regulations. Holiday Inn Surfside has decking around its swimming pool which is capable of accommodating only 120 to 150 deck chairs for the guests of the hotel. Additional chair space, if needed, must be obtained by using the undecked area of the beach in front of the hotel. The occupancy rate for this hotel from the beginning of 1983 to date has been 80 percent. Petitioner owns the entire beach fronting its property, a distance of some 340 feet. Prior to the passage of Clearwater Ordinance No. 3075-83, the western setback line for this property was 50 feet from-mean highwater (MHW). Ordinance 3075-83 made the Coastal Construction Control Line (CCCL), as established by Section 161.063, Florida Statutes, as the western setback line for property located on Clearwater Beach. This is now the Coastal Control setback line. The Coastal Construction setback line as it crosses Petitioner's property is 338 feet from MHW of the Gulf of Mexico. Prior to the passage of Ordinance No. 3075-83, Petitioner could have constructed decking up to the then setback line, 50 feet from MHW. Petitioner is one of the few property owners on Clearwater Beach that has undisputed ownership of the beach fronting its property seaward of the CCCL. This area of Clearwater Beach in the vicinity of Holiday Inn Surfside is the widest part of the beach between the CCCL and MHW. Exhibit 7, which was submitted as a late-filed exhibit, clearly shows the beach north of Petitioner's property is not as wide as is the beach fronting Petitioner's property, and much of the property on the beach south of Petitioner's property is owned by the City. Solely by having ownership of more beachfront property seaward of the CCCL, Petitioner is more adversely affected by Ordinance No. 3075-83 than are other property owners. Petitioner has signs restricting the use of the decking around the pool to hotel guests. Petitioner also has a patio bar in the vicinity of the pool which is accessible from the beach and from the hotel. Drinks are served to the public at this patio bar. By extending the deck 28 feet seaward of the OCCL, Petitioner would be able to provide decking for an additional 150 to 170 chairs for the use of hotel guests. With an 80 percent occupancy rate there is insufficient deck space to accommodate all of the hotel guests who desire to use these facilities. Currently the excess place their deck chairs in the sand seaward of the CCCL. Those who testified in opposition to the variance requested did so on the grounds that the increased deck facilities would bring more people to the patio bar, thereby increasing the traffic and parking problems on the beach, that the hotel did not adequately restrict the use of the existing deck to guests of the hotel, and that if this application is granted it will open the doors to others who would like to construct a deck seaward of the CCCL. None of these grounds is deemed particularly meritorious. Many factors could increase the patronage of the patio bar and more adequate decking would not be a significant one, particularly in view of Petitioner's contention that the deck was reserved for guests of the hotel, albeit not strictly enforced during periods of low occupancy.
The Issue Whether Glenda Parris (Respondent), while employed as a West Palm Beach Code Enforcement Officer, violated section 112.313(6), Florida Statutes,1/ by using her position to rent property and/or gain preferential treatment at a court proceeding and, if so, the appropriate penalty. Whether Respondent, while employed as a West Palm Beach Code Enforcement Officer, violated section 112.313(7), by having a contractual relationship that conflicted with her official responsibilities and, if so, the appropriate penalty.
Findings Of Fact At the times relevant to this proceeding, Respondent was employed as a West Palm Beach Code Enforcement Officer. Respondent is subject to the requirements of part III, chapter 112, which consists of sections 112.311 - 112.326, and is known as the Code of Ethics for Public Officers and Employees. Respondent's assigned duties included inspecting, observing, reporting, and enforcing the City of West Palm Beach's code regulating zoning, housing, and the environment Respondent's was assigned a work zone in West Palm Beach that included 231 Lytton Court (the subject property). At the times relevant to this proceeding, Dr. Rhonda Nasser was the owner and/or principal of El Nasco II, a limited liability company. El Nasco II owned the house at 231 Lytton Court. In the summer of 2010, Respondent issued multiple notices of violation to Dr. Nasser relating to the subject property. In July 2010, Respondent and Dr. Nasser met at the subject property to discuss the notices of violation. At that meeting, Respondent asked Dr. Nasser if she could rent the subject property. Respondent was on duty and in her uniform when she negotiated the lease of the subject property. Dr. Nasser entered into an agreement with Respondent for Respondent to rent the subject property for $1,200.00 per month beginning in August 2010. As soon as she moved in to the subject property, Respondent began to complain to Dr. Nasser as to items that needed to be repaired or replaced. Respondent wrote a demand letter on August 31, 2010, that referenced code requirements. On November 3, 2010, wrote a second demand letter that also referenced code requirements. Dr. Nasser testified, credibly, that she believed that Respondent was threatening to use code violations to support her demand as to items that needed to be impaired or replaced. Dr. Nasser's belief was reasonable. Respondent began to withhold rent because Dr. Nasser would not make the improvements Respondent had demanded. At the end of January or the beginning of February 2011, Dr. Nasser initiated eviction proceedings against Respondent due to Respondent's failure to pay rent. John Frasca has been employed as a West Palm Beach Code Enforcement Officer for more than 11 years. Respondent asked Mr. Frasca on two separate occasions prior to May 26, 2011, to inspect the subject property. At the first inspection, Respondent deliberately withheld the fact that she lived at the subject property. At the time of the second inspection, Respondent pressured Mr. Frasca to complete the inspection and informed him that she needed the inspection report for her attorney. A rental license for a residence is the official authorization from the City of West Palm Beach that an owner may rent its residence and that the residence will be inspected. A rental license guarantees to a renter that the residence has been inspected and maintained, and is meeting all current codes. A rental license is required by the city code. Mr. Frasca discovered that the owner of the subject property had no rental license. Respondent should have known that the owner did not have a rental license, and she should have refused to rent the property until the owner obtained a rental license. The eviction proceedings initiated by Dr. Nasser progressed to a court hearing before a judge. At the eviction hearing, Respondent wore her work uniform, which consisted of dark colored pants, a code enforcement badge on her belt, and a shirt with "City of West Palm Beach, Code Enforcement" written on it. Dr. Nasser believed that Respondent wore the uniform in court to give the appearance that Respondent was an expert in code enforcement. Alleged code violations came up as an issue during the eviction hearing. Respondent argued that she withheld the payment of rent because Dr. Nasser would not correct perceived code violations. Following the eviction hearing, Dr. Nasser contacted John Alford, who was, at that time, the Director of Public Works for West Palm Beach. Mr. Alford supervised the West Palm Beach Code Enforcement Department, including the code enforcement officers. There existed an unwritten policy that code enforcement officers were not to wear their uniforms on unofficial business. Mr. Alford had admonished the code enforcement officers, including Respondent, to "take care while wearing the badge." The City of West Palm Beach investigated Respondent's actions and prepared a document titled "Timeline - 231 Lytton Ct., WPB." That document, which is in evidence as Exhibit 9, reflects Respondent's actions regarding the subject property. West Palm Beach uses a computer tracking system called Community Plus System that tracks all activities relating to a building code complaint and/or violation. A code officer puts in all information related to an inspection plus action taken for the property by its owner or a magistrate. The public can go to a website to view the status of a property in the City. The City prepared a report based on the Community Plus System for the subject property. Mr. Alford determined that Respondent had manipulated entries for the subject property in the Community Plus System by changing information relating to inspections. On June 7, 2011, Mr. Alford notified Respondent in writing that he was going to terminate her employment. On July 6, 2011, Respondents' employment was terminated for violations of the City's Employee Handbook and Code of Ethics. Mr. Alford determined that Respondent's actions of proposing and negotiating a lease agreement while on duty and in uniform violated subparagraph 6 of the City's Ethics Policy 4.4, which is as follows: "City representatives shall not engage in financial transactions using non-public information or allow the improper use of such information to further any private interest or gain." Mr. Alford also determined that Respondent violated the City's Code of Ethics provision 4.4 by wearing her City-issued uniform and badge to court for a personal matter giving the appearance that she was acting on behalf of the City.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter a Final Order and Public Report that finds that Respondent, Glenda Parris, violated section 112.313(6) and imposes against her a civil penalty in the amount of $500.00. It is further RECOMMENDED that the Florida Commission on Ethics enter a Final Order and Public Report that finds that Respondent, Glenda Parris, violated section 112.313(7) and imposes against her a civil penalty in the amount of $500.00, for a total civil penalty of $1,000.00. DONE AND ENTERED this 4th day of March, 2013, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 4th day of March, 2013.
Findings Of Fact In May 1979, Respondent issued invitation for bids for office space in West Palm Beach, Florida, for the purpose of establishing a combined claims, tax, and appeals unemployment compensation office in the West Palm Beach area. The lease on the present office in West Palm Beach expires in December, 1979. Two prior invitations for bids on the required office space had failed to result in the receipt of any bids. The invitation for bids provided that Respondent reserved the right to reject any and all bids and to make the award deemed to be in the best interests of the State of Florida. (Testimony of Bradner, Exhibit 15) On May 30, 1979, Petitioner Richard S. Weinstein submitted the sole bid in response to the May 1979 invitation. He proposed to lease his building located at 1814 North Dixie Highway, West Palm Beach, and to meet all bid specifications and requirements. At the time of bid submission, Petitioner was leasing the building in question to a tenant who operated a used furniture store on the premises. In order to meet the specifications of the bid, the property required considerable renovation and improvement which Petitioner agreed to accomplish. (Testimony of Petitioner, Exhibit 2) A bid selection committee composed of four departmental employees in Respondent's Tallahassee headquarters was appointed to consider Petitioner's bid and arrive at appropriate recommendations. On June 7, 1979, one of the committee members, accompanied by several officials of the West Palm Beach Office, inspected Petitioner's building and the surrounding area to determine its suitability for the proposed unemployment compensation office. Based upon statements made by those officials and the building's tenant that the area was unsafe and subject to frequent vandalism and theft, the committee member thereafter recommended to the selection committee that the bid be rejected and that the Department should readvertise for new bids. The committee unanimously accepted the recommendation and, on June 13, 1979, Petitioner was advised in a letter from the Respondent's support services director that his bid had been rejected based on the "inability of the building to meet our programmatic needs." Petition thereafter protested the decision and, as a result, the Secretary of the Department, Wallace E. Orr, directed the entire committee to make an on-site evaluation of the property and surrounding area. Thereafter, on July 18, 1979, the committee visited the site. At this time, each committee member, together with one of the officials of the local office, inquired of various businessmen in the surrounding area as to local criminal activity and solicited their opinion as to safety and security problems. One of the committee members also telephoned a city police desk sergeant concerning crime statistics in the area. (Testimony of Petitioner, Lowhorn, Orr, Bradner, Exhibits 3-4, 12) Petitioner gave the committee members a petition from a number of local businessmen supporting his bid, and a letter from the nearby Good Samaritan Hospital advising that it may construct a medical office building adjacent to the hospital in the future. Letters were also sent to the Department by the manager of an apartment building adjacent to Petitioner's premises stating that the area was safe and that there had been no break-ins in more than four years, and from the Mayor of West Palm Beach to the Secretary of the Department describing the area and asserting that it was making a resurgence in character as a result of city improvements and that it was no more unsafe than most of the areas of the city. Another letter, dated July 20, 1979, was sent to the Department from the West Palm Beach Downtown Development Authority Executive Director stating that the area was growing, new buildings were being developed, and that the downtown area generally was becoming a "hub" for governmental facilities. Upon return to Tallahassee, each member of the bid committee rendered a report and recommendations concerning Petitioner's bid. They applied weighted criteria in its consideration, and concluded that the bid was unacceptable because it failed to meet the two criteria of "condition of immediate vicinity of location" and "security of the facility." In these respects, they basically found that (a) the various businesses in the area were essentially "fortified" against burglary and vandalism, (b) the proposed office would be subjected to break-ins and possible loss of valuable office equipment and unemployment compensation checks, (c) the local departmental employees would be fearful of working in an unsafe area and (d) an office located at Petitioner's premises would be "depressing" to members of the public who utilized the departmental services. No mention was made in the various reports of the petition or letters sent to the Department by civic officials. The committee again recommended rejection of the bid and, by letter of August 1, 1979, Petitioner was advised of this fact and that new calls for bids would be made in the near future. Secretary Orr had viewed the premises himself and agreed with the committee recommendations that the site was unsuitable for the establishment of a local office. He felt that placement of the office in the area where Petitioner's building was located would be inconsistent with departmental goals to upgrade their state offices and improve their "image." He had not been made aware of most of the various letters and the petition provided to the committee, but had considered the letter of the West Palm Beach Mayor prior to arriving at his decision. (Testimony of Butler, Frisch, Radner, Baker, Orr, Lowhorn, Renfroe, Quigg, Petitioner, Exhibits 6-10, 11-12, 16) The street on which Petitioner's building is located is commercial in nature, although it is on the fringe of a residential community. It is an older part of the city and, until about five years ago, was in a rundown and depressed condition. In recent years, however, there has been an upgrading of the character of the downtown area of West Palm Beach which extends northerly to encompass the businesses in Petitioner's vicinity. The establishment of governmental facilities in the downtown and adjacent areas have been encouraged and a state office building is located in the area. A Department of Health and Rehabilitative Services "halfway house" has been erected approximately two blocks from Petitioner's building. Additionally, a branch banking facility, professional offices, several quality restaurants, and other modern business establishments are in the near vicinity. A laundry plant is across the street from Petitioner's building and at the present time presents an unsatisfactory appearance. It is intended, however, by the owners to expand and remodel the building in the near future. The City of West Palm Beach has the second highest crime incident rate in the state based on population. The city is divided into ten zones for police purposes, and during 1978, the zone in which Petitioner's building is located was average from the standpoint of crime statistics. In the opinion of the City Chief Police Inspector, it is typical of the various commercial areas located along U.S. Federal Highway No. 1, and as safe an area in the daytime as any in the city. He is of the further opinion that a burglar alarm would be a sufficient security precaution for nighttime safety, and that with such protection, a building would have adequate security. The highest crime rate in the city is located in the zone where the city hall, police station and other governmental buildings are located. Although business and professional individuals in the area near Petitioner's building have experienced minor vandalism and occasional illegal entries in the past, they uniformly are of the opinion that the area is safe with normal security precautions, such as a burglar alarm. A local boat sales establishment has a fence around the premises and a watch dog, but no burglar alarm. These precautions are designed to protect the expensive boats which are located out- side the building. The apartment building next to Petitioner's premises has not experienced break-ins in recent years although some of its elderly patrons have been exposed to occasional purse snatching on the street. The laundry plant across the street from Petitioner's building experiences various window breakage by youths on the weekends, and had a break-in recently in the nighttime through a poorly secured door in the rear of the premises. (Testimony of Lowhorn, Stackhouse, Hauser, Hodges, Lee, Lunney, Eddy, Ring, Eaton, DeSanti, Witt (Deposition - Exhibit 1), Exhibits 12-14).
Recommendation That Petitioner's bid be accepted by Respondent and recommended for approval to the Department of General Services. DONE and ENTERED this 17th day of December, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: John C. Moyle, Esquire 707 North Flagler Drive Post Office Box 3888 West Palm Beach, Florida 33402 Kenneth H. Hart, Jr. and Chad J. Motes, Esquires Department of Labor and Employment Security 2561 Executive Center Circle E. Suite 131 Tallahassee, Florida 32301
Findings Of Fact On or about December 4, 1981, Respondent executed an Agreement with Daytona Sands Beach Club, Inc. (Beach Club), the developer of the project, which was back-dated to August 14, 1981. By the terms of this Agreement, Beach Club sold its interest in thirty-four units of a forty unit condominium time share development having a retail value of $150,000, to Respondent for fifteen percent of the retail value. Respondent testified that the Agreement was simply a financing arrangement whereby Beach Club assigned time-share periods in thirty- four units as collateral for a loan made by Respondent. He stated he received none of the indicia of ownership. However, this is not confirmed by the terms of the Agreement which specifically refer to a sale of Beach Club's interest to Respondent, and an arrangement by which Beach Club would then market and sell the units which Respondent had purchased from them. The Agreement also expressly provides that it "constitutes the entire agreement between the parties and there are no other terms, conditions, or agreements which are not set forth herein or referred to herein." Additionally, it was Respondent who had used this form Agreement previously in other projects and who provided this Agreement for execution by Beach Club. Of the thirty-four units involved in Respondent's Agreement with Beach Club time-share purchasers had acquired time-share periods in twenty-eight units prior to the execution of this Agreement. An Addendum to the Agreement expresses the intention of Beach Club and Respondent that "the present structure of the Sands Beach Club, Inc., contemplates right to use only and not fee simple title." This was a "right to use project" whereby time-share purchasers acquired no interest in the underlying real property and were simply leasing the right to use particular units for a specified number of weeks each year. Thus, Beach Club had an ownership interest in the project at the time the Agreement was executed with Respondent despite the fact that time-share purchasers had already acquired a right to use twenty eight of the thirty-four units referenced in the Agreement. Respondent knew this was a "right to use" project at the time the Agreement was executed. Several months after the execution of this Agreement and Addendum, Respondent had an Assignment prepared which he executed with Beach Club. Although this later executed Assignment specifically acknowledges the prior executed Agreement and Addendum, Respondent contends that this Assignment was prepared and executed for the sole purpose of providing him with additional security for his purported financing arrangement with Beach Club. However, by acknowledging the prior executed Agreement and Addendum which, by their terms refer to a sale of Beach Club's interest to Respondent, the Assignment confirms that Respondent was not simply providing financing in this transaction. Respondent did not execute any additional agreement in association with the transaction other than as set forth above. Specifically, there is no evidence that Respondent agreed in writing to honor fully the rights of time- share purchasers to occupy and use the facilities and to cancel their contracts and receive appropriate refunds, nor did Respondent agree in writing to comply with Chapter 721 or to assume all obligations of the seller to these purchasers. There is no evidence that notice of Respondent's Agreement with Beach Club was mailed to each purchaser.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order imposing a $5,000 civil penalty against Respondent. DONE and ENTERED this 10th day of September, 1985, at Tallahassee Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1985. COPIES FURNISHED: Thomas A. Bell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Robert E. Austin, Jr., Esquire Post Office Drawer 1930 Leesburg, Florida 32748 Richard B. Burroughs, Jr. Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 James Kearney, Director Division of Florida Land Sales Condominiums & Mobile Homes 725 South Bronough Street Tallahassee, Florida 32301 =================================================================
The Issue Whether or not on or about August 23, 1975, Carole Sanders, licensed under the beverage laws as a licensed vendor, did employ, on her licensed premises persons under the age of 18. to wit: Margie Johnson, W/F, DOB: 11/12/60, age 14, address: Homosassa, Florida, and Mrs. Fawn Hetland, DOB: 5/22/59, age 16, address: Sindpiper Motel, Room #38, Clearwater, Florida, contraty to Florida Statute 562.13. Whether or not on or about August 23,1975, Carole Sanders, licensee, her agent, servant, or employee, did allow procuring for the purpose of prostitution on her licensed premises, contrary to Florida Statutes 796.07(3)(A) and 561.29. Whether or not on or about August 23, 1975, Carole Sanders, licensee, or her servant, employee or an agent, did allow a person under the age of 18 to consume alcoholic beverages on her licensed premises, to wit: Margie Faye Johnson, W/F, DOB: 11/12/60, contrary to Florida Statue 562.11.
Findings Of Fact The Petitioner began its presentation by offering into evidence a copy of the amended notice to show cause, together with the notice of hearing, which became Petitioners Exhibit #1 which was admitted without objection. The Petitioner also presented a copy of the license of the Respondent, which was allowed into evidence without objection, as Petitioner's Exhibit #2. Petitioner then called Margie Faye Johnson to the stand. Miss Johnson testified that she was 15 years old as of November 12, 1975. She now lives with her mother at Homasassa, Florida, but in August, 1975, she was a runaway. While away from home, the witness went to the establishment of the Respondent, to wit, Charlie's Beach Bar and applied for a job as a topless dancer. At that time the witness was 14 years old. She had been told about this job by one Fawn Hetland, an acquaintance she had met two weeks prior to applying for the job. The job application was made sometime in August, 1975, three or four days prior to certain arrest warrants were served on Charlie Sanders, the husband of the Respondent. These warrants were served on or about August 23, 1975. The process of the hiring of Margie Johnson was described by her in the following fashion She said she asked Charlie Sanders about being a dancer in his bar and that he interviewed her and asked her to dance, after which she was hired as a topless dancer in the bar. During the course of the hiring procedures the witness testified that she was never asked for an identification card of any kind. She did say that she signed a writing presented to her by Carole Sanders, which was something to do with taxes. This writing spoken of was admitted as Petitioner's Exhibit #3, without objection. According to the witness, Charlie Sanders was responsible for hiring her as opposed to the Respondent, Carole Sanders. The night the witness was hired, in addition to neglecting to ask for an identification card, for some identification of her age, the witness indicated that she never saw anyone call for references concerning her age. She felt that she would have observed such a call because the phone was near the area in which she was located. During the course of her employment for the three or four days, Margie Johnson indicated that she danced topless, served alcoholic beverages, and consumed alcoholic beverages, and also worked the cash register. On the night that the arrest was made of Charlie Sanders, which would have been August 23, 1975, the witness was found in possession of a mug of beer. The mug itself is Petitioner's Exhibit #6 which was admitted without objection, after a stipulation had been entered into concerning the chain of custody of the beer mug and a stipulation that the mug contained an alcoholic substance, to wit, beer. Margie Johnson was arrested, by her statement, for drinking on the premises and being in an adult bar. Other activities concerning Margie Johnson while she was working for the Respondent, included a request by Charlie Sanders that she prostitute herself for an older man, whom she said was in the conversation, but whose name she does not know. The witness indicated that Charlie Sanders actively participated in this procurement situation by asking her if she had done any prostituting and asking her if she would like for him to set her up. The witness also indicated that Charlie Sanders propositioned her to go to bed with him, evidently for purposes of having sexual relations. To the witness's knowledge, Mrs. Sanders was not involved in any procurement for prostitution. Margie Johnson had also worked at two other topless lounges in the area to include the Savoy Lounge and the Stock Market. While working at the Savoy Lounge she said she had shown a birth certificate which had been given to her by some "chick and a guy" who picked her up. This birth certificate indicated that she was 22 years old. She had been requested to show proof of age at the Savoy Lounge and had shown the phony birth certificate, but she said she never showed any identification of age at the Stock Market. The Stock Market proprietors had asked her for proof of age but she had indicated that she would bring that proof in and never did. While at Charlie's Beach Bar, the witness stated that she never was questioned about her age. An effort was made to develop the fact that the witness worked in bars other than the bars spoken of, this was objected to and the objection was sustained because it was not felt that further development of the issue was material or relevant. Finally, the witness indicated that Charlie Sanders had told her the night they were arrested, that if she was not 18 years old that he was going to kill her. At present the witness is not in immediate contact with the Respondent or any employees at-Charlie's Beach Bar. John T. McMullen, agent for the Division of Beverage, testified that he assisted in serving a warrant issued to the Indian Rocks Police Department for August 23, 1975. This warrant was served around midnight on that date and when the witness entered Charlie's Beach Bar with the warrant party he noticed that Margie Johnson was sitting with a beer mug in her hand and that mug contained beer. This beer mug has been identified as Petitioner's Exhibit #6. When Officer McMullen approached Margie Johnson, because he felt she was under age, she stated that she was 18 and had been born in 1953. Later she admitted that she was a juvenile. Officer McMullen later returned to the bar around 1:15 A.M. on August 24, 1975, and picked up certain records from the Respondent, Mrs. Sanders. Part of these records have been admitted into evidence as Petitioner's Exhibit #5, admitted with objection. The witness testified that Mrs. Sanders told him that she had hired Margie Johnson because she knew the girl Fawn Hetland and because Margie Johnson had indicated that she was 18 years old and had worked at the Stock Market Bar. Consequently, according to Mrs. Sanders, she presumed these things to be so. Officer McMullen went back to the bar on a third occasion around 12:45 P.M. on September 3, 1975 at which time a citation for beverage violations was served upon the Respondent. At that time the witness stated that he read the citation to Carole Sanders and she told him she couldn't go and not plead guilty to the citation, because she had hired Margie Johnson and that her husband had hired Fawn Hetland and that they knew the girls were minors. Beverage Agent Woodrow Ray took the stand and testified essentially the same way as Officer McMullen, about the facts surrounding the service of the warrant on August 23, 1975, at Charlie's Beach Bar. Officer Ray also went back to get records In the early morning hours of August 24, 1975. He indicated the receipt of Petitioner's Exhibit #5 from Carole Sanders and stated that he had given her a receipt in return which is admitted into evidence as Petitioner's Exhibit #4, without objection. *A more complete description of the objection to the introduction of Exhibit #5 will be discussed in the section of this order entitled CONCLUSIONS OF LAW. Officer H. C. Adams of the Indian Rocks Police Department, testified that he was involved in serving the warrant on Charlie Sanders at Charlie's Beach Bar on August 23, 1975. He had seen Margie Johnson drinking the beer which was in Petitioners Exhibit #6, and had removed the beer mug and contents from Margie Johnson. The Petitioner called Jack Lewzader to the stand. Before Mr. Lewzader testified, the Petitioner offered to amend count 2 of the amended information by changing the date of August 23, 1975, as reflected, to the date of August 16, 1975. The Respondent was offered the right of a continuance since there had been a change in count 2; however, the Respondent indicated that he was sufficiently prepared to defend the charges reflected in count 2 and the testimony of Jack Lewzader was taken. Mr. Lewzader said that he was a customer in Charlie's Beach Bar and that on one occasion he had taken home one Fawn Doyle* and on the way home Fawn Doyle had offered to sell herself for $10.00 and as the car stopped, Fawn Doyle grabbed the $10.00 from his hand and jumped out of the car. He stated that he went back to Charlie's Beach Bar and confronted Charlie Sanders later that same day, with the details of his problem with Fawn Doyle. Lewzader said that Charlie Sanders told him that he would have to talk with her. Charlie Sanders then introduced Lewzader to a Mike and a Linda who were in Charlie's Beach Bar. A conversation then ensued, in which it was indicated through Charlie Sanders, that he might help make the matter with Fawn Doyle right by the introduction of Mike and Linda. Linda and Mike stated that Linda would sell herself for $25.00 for the first hour, $50.00 for the second hour and $75.00 for all night and that they would deduct the $10.00 that had been taken by Fawn Doyle. This conversation with Linda and Mike took place on the premises of the Respondent, to wit, Charlie's Beach Bar. On cross-examination, Mr. Lewzader indicated that he had gone to the Indian Rocks Police Station to complain, after the $10.00 had been taken by Fawn Hetland. Then he went to speak to Charlie Sanders and met Mike and Linda, and later returned back to the police station to file a complaint. Respondent's Exhibit #1 was introduced through the witness, Lewzader. This item of evidence was the affidavit of complaint by Jack Lewzader. It was admitted without objection. As Respondent's Exhibit #1 reflects, the discussion Mr. Lewzader had at the police station was with one Officer Marvin Padgett. The witness indicated that Respondent's Exhibit #1 accurately reflects the details of his complaint. Respondent presented testimony in the course of the hearing, and the first witness was Diane Poole. Diane Poole is 23 years old and is a topless dancer at Charlie's Beach Bar at this time and has been so employed for two months. She testified that she applied for a job at Charlie's Beach Bar while down there having a glass of wine. She indicated that while having the wine she was carded by the bartender who was a lady; however, she auditioned before showing any identification card. The process of her hiring included Charlie Sanders asking where she had worked before and dancing to three songs, discussing certain written rules, discussing how old she was and signing a certain paper on income tax. She said that she has never been asked about being a prostitute. The witness has been a dancer for about 3-1/2 years and had started in Phoenix, Arizona. She has also held jobs as a model and as a secretary. *Fawn Doyle and Fawn Hetland was believed to be one and the same person to the knowledge of the witness. Marvin Padget took the stand, after being called by the Respondent. He testified that he knows Charlie Sanders and Carole Sanders. He further testified that he knows Jack Lewzader as being a complainant who came to him about alleged acts of prostitution by Fawn Hetland. In the discussion of his complaint about Fawn Hetland, the witness said he advised Lewzader of his rights and told him that he would not prosecute him for his involvement with the minor, Fawn Hetland. The witness further stated that he asked Lewzader if he was a regular patron of Charlie's Beach Bar and told him to keep his eyes and ears open. If he heard about anything else, such as prostitution, going on in the bar, he instructed Lewzader to report any matters of impropriety to him concerning prostitution in Charlie's Beach Bar. He also asked Lewzader if he had heard of other incidents such as the one with Fawn Hetland. He did not mention the names of any persons he wanted observed in Charlie's Beach Bar. Later, according to the witness, Jack Lewzader completed the complaint which is Respondent's Exhibit #1. Carole Sanders took the stand in her own behalf. She testified that Margie Johnson came into Charlie's Beach Bar and that she auditioned to be a dancer. According to Carole Sanders, Margie Johnson was asked for an identification and she told her she had lost her purse and that she would bring in some identification at a later time. She said she told Margie Johnson about their rules, which were not in the form of writing at that time, and also explained to her about the matters concerning income tax. The witness seemed to indicate that the actual hiring of Margie was at a later time, although she and her husband had agreed to hire Margie Johnson on the same date of the audition. According to the witness, it was her understanding that Margie Johnson would have an identification to show at the time she was actually employed. She doesn't know if any identification was ever shown by Margie Johnson to indicate her age. The witness said, to her knowledge, there is no prostitution in Charlie's Beach Bar and has not been since she became the proprietor, even though there have been 30 or 40 girls hired by the bar in that time period. According to the witness, Fawn Hetland was hired by Charlie Sanders. Margie Johnson, as indicated by the witness, was interviewed and eventually went to work the first day, effective the night that her bar was raided. The witness indicated that she never told anyone she was guilty of hiring minors. Nevertheless, she indicated that she knows she should have made sure on the age of her employees and was remiss in the instance of Fawn Hetland and Margie Johnson. She further stated that she is more careful now about the matter of identification for prospective employees. Charlie Sanders took the stand in behalf of the Respondent. Charlie Sanders, as stated before, is the husband of the Respondent. Describing the hiring of Fawn Hetland, he said he asked for a proof of age and she produced an employment card for Orange County. The witness said he was bothered by that somewhat and asked for further proof of age and Fawn Hetland promised proof later on. He testified that he knew she was married and had a child and for that reason seemed to be satisfied to accept better proof of age at a later time. To the witness's way of thinking, the reason better proof of age was never forth coming was because Fawn Hetland's husband had most of her identification and refused to give it to her. He also stated he had phoned an establishment called the House to see if she had danced there before and was told yes. In discussing Margie Johnson, the witness indicated that he had hired her over a four day period but that she had only worked one day. He said he asked Margie Johnson where she had worked before and she indicated the Savoy Lounge. His wife was there when Margie Johnson was hired. He said he wasn't shown any identification at the time of hiring but Fawn Hetland said that she was alright and he also called the Savoy Lounge, after which he was satisfied at that time. The witness then said that on the second or third night that she had worked she showed him a birth certificate that indicated that she was born in 1953, to which he simply replied, "is this yours?" and then told Margie Johnson to get to work. He said he told his wife that he had seen Margie Johnson's identification. To the witness, Margie Johnson, in August, 1975, looked 22 years of age as the phony birth certificate indicated. In discussing the Lewzader matter, the witness said that Lewzader came into the bar and wanted to talk to him about Fawn Hetland. He said that Lewzader told him that Fawn Hetland wanted some money for baby food and that he was going to give her $10.00 and she "ripped" the $10.00 off him, and that Lewzader simply wanted him to know what kind of person Fawn Hetland was. He confronted Fawn Hetland with the matter and Fawn Hetland said that Lewzader was trying to have sex with her. Before he could resolve the difference between Jack Lewzader and Fawn Hetland, he had to leave the bar and to his knowledge that was the end of the situation. The witness indicated that he had found out about the complaint before the time of his arrest by the Indian Rocks Beach Police Department, for prostitution type charges. He said that Lewzader was in his bar and he confronted Lewzader with the fact of Lewzader's claim in the affidavit, and Lewzader told him they simply had made it up, meaning the police. He said that Lewzader told him that he would never have come back into the bar to face him had he made the charges that the police claim. As an aside, the witness indicated that there had been a Linda working there at one time but that her fiance had not liked it and she had quit the job. He said that Linda continued to come in there, perhaps, but that he did not think Linda was in there at the time Jack Lewzader came to discuss the matter of Fawn Hetland. Attention is drawn to Petitioner's Exhibit #5 which is records turned over to the police by Carole Sanders, Respondent. These records seem to indicate that Margie Johnson was working there for more than one night. Moreover, these records seem to indicate that a person named Linda was working there at the same time that Marge (Margie Johnson) was. From the discussion of the employment of Margie Johnson, both from the standpoint of Margie Johnson, Carole Sanders, and Charlie Sanders, it appears that Margie Johnson was employed on the licensed premises of the Respondent when she was under the age of 18. Furthermore, the description of the technique involved by Carole Sanders and Charlie Sanders in trying to ascertain the age of Margie Johnson does not demonstrate due diligence on the part of the Respondent in hiring Margie Johnson. This conclusion assumes the validity of the story of any one of the three witnesses, to wit, Margie Johnson, Carole Sanders, or Charlie Sanders. It is noted that there is a major inconsistency concerning the date at which Margie Johnson was formally employed by the Respondent, when considering the version of Carole Sanders and Charlie Sanders, and consequently Margie Johnson is more creditable. In examining the application of count 1, to Fawn Hetland, one must look to the statements of Charlie Sanders. Assuming that what Charlie Sanders has said is exactly true, it would appear that Charlie Sanders as the agent or employee of Carole Sanders did not use due diligence in hiring Fawn Hetland. This is further established in view of the fact that a prima facie case has been established that Fawn Hetland was under the age of 18 when she was hired, as set forth by testimony offered by officer McMullen in discussing Carole Sanders admission. Although the nature of the acts of Jack Lewzader in involving himself with a minor for purposes of promoting prostitution on the part of Fawn Hetland and then in returning to Charlie's Beach Bar and engaging in the discussion of further prostitution with a subject whose name is Linda, would make his testimony somewhat suspect, it would still seem strong enough to support the charges in count 2. The testimony of Jack Lewzader must be contrasted with the interest on the part of Charlie Sanders in protecting the license, and must be considered in view of the fact, that there was a Linda working there at some time and who was apparently working there at the same time as Margie Johnson. Furthermore, Margie Johnson testified that she had seen Fawn Hetland discuss the price of $25.00 for purposes of prostitution, and leave with the man she was having that conversation with and not return until the next day. Finally in discussing count 3 of the charges, it is well established that Margie Faye Johnson was consuming an alcoholic beverage, to wit, beer on August 23, 1975, when the investigators arrived on the premises to serve the warrant. It has also been established that due diligence had not been followed in ascertaining the age of Margie Johnson before allowing her to consume that alcoholic beverage on the licensed premises, for reasons set forth in the discussion of count l.
Recommendation For committing the violation alleged in count 1 of the amended Administrative Complaint, it is recommended that the Director of the Division of Beverage revoke the license of the Respondent. For committing the violation alleged in count 2 of the amended Administrative Complaint, it is recommended that the Director of the Division of Beverage assess a civil penalty in the amount of $500.00. For committing the violation alleged in count 3 of the amended Administrative Complaint, it is recommended that the Director of the Division of Beverage revoke the license of the Respondent. DONE and ENTERED this 2nd day of March, 1976, in Tallahassee, Florida. CHARLES C ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Department of Business Regulation 725 Bronough Street Tallahassee, Florida 32304 Robert K. Hayden, Esquire 932 South Myrtle Avenue Clearwater, Florida 33516 =================================================================
The Issue The issue in the case is whether the Town of Beverly Beach's Comprehensive Plan Amendment 03-1, initially adopted by Ordinance 2003-ORD-6 and amended by Ordinance 2004-ORD-6, is "in compliance," as required by Section 163.3184, Florida Statutes (2004).
Findings Of Fact The Department is the state land planning agency and has authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes (2004). One of the Department's duties under the Act is to review proposed amendments to local government comprehensive plans to determine whether the amendments are in compliance with the Act. The Town of Beverly Beach is a small municipality in Flagler County, Florida, and has the duty and authority to adopt a local government comprehensive plan pursuant to Chapter 163, Florida Statutes (2004), and to amend the plan from time to time. In June 2002, the Town proposed to amend its Future Land Use Map (FLUM) to change some of the land uses within the 37-acre Shelter Cove Planned Unit Development (PUD). The Shelter Cove PUD was the subject of an earlier lawsuit in the circuit court for Flagler County brought by the owners and developers of the property after the Town denied their PUD application. In 2002, the court entered judgment against the Town and ordered the Town to approve the PUD application. In its order, the court included a statement that the Shelter Cove PUD was consistent with the Beverly Beach Comprehensive Plan. The purpose of the plan amendment proposed in June 2002 was to re-designate 14.25 acres from Conservation/Spoil Area to Low Density Residential, 0.75 acres of Conservation/Spoil Area to Medium Density Residential, and 8.25 acres of Low Density Residential to Medium Density Residential. The proposed amendment was transmitted to the Department for compliance review. In its July 2003 ORC Report, the Department set forth four objections to the proposed amendment: 1) increased density in a Coastal High Hazard Area; 2) no traffic impact analysis regarding emergency evacuation; 3) inadequate potable water and sanitary sewer services; and 4) unsuitability for development because of saltwater marsh and potential use by threatened and endangered animal species. The Town made changes to the proposed amendment to address the Department's objections and adopted Plan Amendment 03-1 on October 6, 2003. One significant change made by the Town was to reduce the size of the land affected by the amendment from 23.25 acres to 14.5 acres. The stated purpose of the revised amendment was to deal exclusively with the spoil areas within the Shelter Cove PUD; to convert them from Conservation to Low Density Residential. The Department was not satisfied with the changes made by the Town and on November 17, 2003, it issued a Statement of Intent To Find The Comprehensive Plan Amendment Not In Compliance. This statement did not reassert the four objections of the ORC Report, but identified only two reasons for its determination that Plan Amendment 03-1 was not in compliance: 1) increased density in a Coastal High Hazard Area that would increase evacuation clearance times and 2) inadequate sanitary sewer facilities based on the denial of the utility's permit renewal by the Department of Environmental Protection (DEP). The Department recommended remedial actions that would bring Plan Amendment 03-1 into compliance. Thereafter, the Department and Town entered into a compliance agreement to identify remedial actions by the Town that would bring the plan amendment into compliance. Pursuant to the agreement, the Town adopted remedial measures in Ordinance 2004-ORD-6 (the Remedial Ordinance) that caused the Department to determine that the plan amendment was in compliance. The Remedial Ordinance (with additions and deletions as indicated in the ordinance) states in pertinent part: Limiting Density on the 14.5-acre amendment site & Hurricane Evacuation Plan Future Land Use Element: contains policies controlling the density and intensity of development (both residential and non- residential) in the Town of Beverly Beach. Policy A.1.1.9 The Low Density Residential (LDR) land use (up to 5 dwelling units/acre) shall be applied to 14.5 acres of upland spoil sites in the Shelter Cove development as shown in Exhibit A, not to exceed a total gross density of 28 residential units. In addition to the provisions described in Policy 1.1.4, the following provisions shall apply to the Shelter Cove Development: Residential land use for the Shelter Cove Planned Unit Development(PUD)shall be limited to a maximum of 115 dwelling units. The Town of Beverly Beach shall not issue a permit or certificate of occupancy until the Building Official certifies the required public facilities and services will be provided consistent with Chapter 9J-5, Florida Administrative Code (see Policy A.1.1.1). * * * Policy A.1.1.10 No later than December 2005, Beverly Beach shall revise its comprehensive plan to update the goals, objectives and policies and future land use map series and transmit such revisions to the Department of Community Affairs. The updated plan shall reflect changes to Chapter 163, Florida Statutes, and Rule 9J-5, Florida Administrative Code, since the plan went into effect in 1991. This revision shall be based on a planning period through Year 2015, with current and forecasted conditions and satisfy data and analysis requirements. * * * Revise policies under Objective D.2.1, Beverly Beach Comprehensive Plan regarding the provision of potable water and sanitary sewer Public Infrastructure/Facilities Element: refers to the protection of water quality by specific policies that require deficiencies in wastewater treatment facilities be corrected in accordance with DEP requirements. Objective D.2.1 By December 31, 1992 December 31, 2005, the Town shall require that existing deficiencies in the wastewater treatment package plants owned by Surfside Utilities operated by Ocean City Utilities be corrected in accordance with FDER Department of Environmental Protection [DEP] requirements. Policy D.2.1.1 As the Town does not own the wastewater treatment plants nor has operational control over the same, the Town shall formalize a coordination committee to include the owner/operator of Surfside Utilities Ocean City Utilities, the members of the Town Commission, members of the Flagler County Board of County Commissioners or their appointee, members of the City of Flagler Beach Commission or their appointee, and FDER the Department of Environmental Protection [DEP] and any other identified stakeholder in the Town. Policy D.2.1.2 The Town shall use the coordination committee to address the deficiencies in the wastewater plants, to set priorities for upgrading and replacing components of the plants, and to request FDER the Department of Environmental Protection [DEP]to increase and enforce their regulations requiring periodic monitoring and maintenance of package treatment plants. Policy D.1.2.3 The Town shall use the coordination committee to investigate the feasibility of assuming operational responsibility of the wastewater treatment system by another entity. Applying the five dwelling units per acre density allowed in the Low Density Residential category to 14.5 acres would generate 72.5 units. However, as indicated above, the Remedial Ordinance also restricted the total allowable dwelling units in the 14.5 acres to 28 units. The 28 units coincide with the site plan for the Shelter Cove PUD that was the subject of the circuit court judgment. The site plan called for 28 single- family lots in the former spoil areas. Charles Osbourne, Bernard Knight, and Mary Jo Knight were residents of the Town of Beverly Beach when the Town adopted Plan Amendment 03-1. They intervened against the Town in the original proceedings initiated by the Department. Following the Department's determination that the plan amendment had been brought into compliance by the Remedial Ordinance, they filed an Amended Petition to Intervene and were realigned as the Petitioners. On some date between the filing of their original petition in this case and the date of the final hearing, Petitioners Bernard Knight and Mary Jo Knight moved out of Beverly Beach. They are no longer residents of the Town. In their Amended Petition to Intervene, the Petitioners assert that the Remedial Ordinance did not resolve all the problems originally identified by the Department's ORC Report, and Plan Amendment 03-1 is still not in compliance. The Petitioners' objections to the amendment fall into three categories: insufficient and inaccurate data and analysis, insufficient legal description for the lands affected by the plan amendment, and inadequate wastewater services available for the increased density resulting from the amendment. These three categories will be used to organize the findings of fact that follow. Data and Analysis/Maps The Petitioners assert that the maps used for Plan Amendment 03-1 and the Remedial Amendment are not the official maps currently contained in the Beverly Beach Comprehensive Plan. They contend the unofficial maps contained errors that caused some of the area designated as Conservation/Saltwater Marsh to be included in the 14.5 acres re-designated Low Density Residential. At the hearing, the Petitioners also attempted to show that maps used by the Town with Plan Amendment 03-1 were not consistent with the Beverly Beach FLUM with regard to the depiction of saltwater marsh areas outside the 14.5 acres affected by the plan amendment. Whether such discrepancies exist is not a relevant inquiry for determining whether Plan Amendment 03-1 is in compliance. A 1997 report regarding threatened and endangered animal species, prepared by Lotspeich and Associates for the developer of the Shelter Cove PUD, includes a statement that there are 10.3 acres of spoil on the 37-acre PUD site. That figure is inconsistent with the Town's claim that the lands affected by Plan Amendment 03-1 consist of 14.5 acres of spoil. Lindsay Haga, a regional planner with the Northeast Florida Regional Planning Council (Council), made the determination that there are 14.5 acres of spoil area. Because the Town does not have a professional planning staff, the Council was providing planning services to the Town under contract. Ms. Haga worked on Plan Amendment 03-1 on behalf of the Town. Ms. Haga obtained a mapping of the land uses within the Shelter Cove PUD from information maintained by the St. Johns River Water Management District (District). The land use categories are based on the Future Land Use Classification Categorization System, and were applied by the District using aerial photography. Using professional software called "ArcView," Ms. Haga derived the size of the various land uses mapped within the Shelter Cove PUD by the District. The software calculated the size of the spoil areas as 14.5 acres. According to Ms. Haga, planners use this method "100 percent" of the time to delineate land uses on future land use maps. Ms. Haga was called as a witness by the Petitioners and by Beverly Beach and testified at length on direct and cross-examination on how she determined the size of the spoil areas. Nevertheless, some ambiguity remains as to whether the size and position of the spoil areas designated in the official Town FLUM are the same as their size and position as delineated by Ms. Haga for Plan Amendment 03-1 using information from the St Johns River Water Management District. The Town and the Department seem to suggest in their joint post-hearing submittal that the size and position of the spoil areas on the FLUM can be "cleaned up" or re-drawn using more site-specific information presented at the final hearing. The implication is that, if the Town's FLUM delineated less than 14.5 acres as Conservation/Spoil Area, but better data is presented at the hearing to show that the spoil areas actually cover 14.5 acres, the FLUM delineation can be ignored or treated as if did cover 14.5 acres. The redrawing of land uses as they are depicted on an adopted FLUM is arguably beyond the authority granted to the Department in Chapter 163. That issue need not be decided on this record, however, because the more credible and persuasive evidence shows there were no material changes to the size and position of the spoil areas in Plan Amendment 03-1, and no saltwater marsh was re-designated as Low Density Residential. Data and Analysis/Topographic Information The Petitioners assert that topographic data used by the Town was flawed and did not accurately reflect that much of the Shelter Cove PUD is within the 100-year floodplain. For example, the June 2002 Transmittal Packet sent to the Department included a statement that, "According to FEMA the 100 year floodplain is confined to the saltwater marsh areas located adjacent to the Intracoastal Waterway." At the hearing, the Town admitted that some of topographic information was inaccurate and described it as a "scrivener's error." The parties stipulated to the introduction into evidence of topographic information that indicates a portion of the 14.5 acres affected by Plan Amendment 03-1 lies within the 100-year floodplain. The Petitioners have not shown how the inclusion of inaccurate topographic in the data and analysis causes Plan Amendment 03-1 to be not in compliance; or, put another way, the Petitioners have not shown how the accurate topographic information proves Plan Amendment 03-1 will be inconsistent with the Beverly Beach Comprehensive Plan or applicable state laws and regulations. The Beverly Beach Comprehensive Plan does not prohibit Low Density Residential uses in the 100-year floodplain. Data and Analysis/Clustering The Petitioners contend that the data and analysis was flawed because it included a reference to the possibility of clustering dwelling units to avoid adverse impacts to areas unsuitable for development, but the Town has no regulations that allow for or address clustering. Neither the Amended Petition to Intervene nor the evidence presented by the Petitioners makes clear how this alleged error causes Plan Amendment 03-1 to be not in compliance. Any alleged error must relate to the 14.5 acres affected by the amendment. The Petitioners did not show that clustering of dwelling units is planned or necessary on the 14.5 acres. Data and Analysis/Scrub Jays The Petitioners contend that the data and analysis is insufficient because it fails to describe and account for the current use of the site by the Florida scrub jay, a bird listed as threatened by the Florida Fish and Wildlife Conservation Commission and the United States Fish and Wildlife Service. The Town and Department stipulated that scrub jays have been seen on the property. Charles Osbourne and Gail Duggins, a birdwatcher, testified that they have seen scrub jays in the Shelter Cove PUD area on several occasions. They marked Petitioners' Exhibit 15 to indicate eight specific sites within the PUD where they had observed scrub jays. None of the marked sites are located on the 14.5 acres affected by Plan Amendment 03-1. Lotspeich and Associates conducted a scrub jay survey on the 37-acre Shelter Cove PUD in 1997. They observed no scrub jays on the 14.5 acres that will be affected by Plan Amendment 03-1. In the written report of the survey, Lotspeich and Associates concluded that, "no jays reside on-site nor did any birds react as though they were defending territory which extended onto the property." Following a second survey in 2002, Lotspeich and Associates reached the same conclusion that the property "is unlikely to support a resident Florida scrub jay population." The observations of scrub jays made by Mr. Osbourne and Ms. Duggins do not contradict the conclusions of the Lotspeich and Associates reports. Mr. Osbourne and Ms. Duggins did not offer an opinion (and no foundation was laid for their competence to offer such an opinion) that scrub jays reside on the 14.5 acres affected by Plan Amendment 03-1. The Department's ORC Report stated that the originally-proposed amendment was not consistent with Policy E 1.4.3 of the Town's comprehensive plan which calls for the Town to obtain information from appropriate agencies concerning the known locations of listed plant and animal species. The Department recommended in the ORC Report that the Town conduct a survey for gopher tortoises and other listed species. The Department's objection about listed species, however, was not included its subsequent Statement of Intent to Find The Comprehensive Plan Amendment Not in Compliance. The Town had available to it, as part of the data and analysis to support Plan Amendment 03-1 and the Remedial Amendment, the Lotspeich and Associates reports prepared for the United States Fish and Wildlife Service. The reports convey the results of Lotspeich and Associates' surveys of the Shelter Cove PUD property for gopher tortoises, scrub jays and other listed species. It is likely to be the best information available since it is a site-specific, scientific study. The Petitioners did not show that better data were available or that the Lotspeich and Associates reports are flawed. In fact, the Lotspeich and Associates reports were exhibits offered by the Petitioners. Policy E.1.4.3 of the Beverly Beach Comprehensive Plan directs the Town to adopt land development regulations that provide protections for known listed species. Land development regulations are the usual and appropriate tools for applying specific protective measures to specific development proposals. No regulations have yet been adopted by the Town to protect listed species. Listed species are not left unprotected from development activities in the Town, however, since there are both state and federal laws to protect listed species and their habitats. Data and Analysis/Beach Access The Petitioners contend that the data and analysis was insufficient because it indicated that there are five locations in the Town where the public can gain access to the beach, but the Petitioners allege there are only two public beach walkovers that qualify under the Beverly Beach Comprehensive Plan. The beach access issue relates to the Town's recreational level of service standard adopted in the Recreation and Open Space Element of the Beverly Beach Comprehensive Plan. Policy F.1.1.1 specifies that the adopted level of service standard is "Five publicly-owned beach access facilities." The Petitioners apparently believe that the easements acquired by the Town that provide for public beach access across private property do not qualify as publicly-owned beach access facilities as contemplated by the Beverly Beach Comprehensive Plan. The term "publicly-owned beach access facilities" is not defined in the Recreation and Open Space Element, but one can find a statement at page F-2 that, "Access points and parking areas are support facilities for public owned beaches." Therefore, the Town considers an access point, without any man- made structures, to be a "facility." Furthermore, the comprehensive plan, itself, includes a map that depicts the location of the five public beach access points. It must be assumed that these access points met the Town's intent and meaning. By raising the issue of whether the data and analysis for Plan Amendment 03-1 is accurate in referring to the existence of five public beach access points, the Petitioners are collaterally attacking the existing comprehensive plan. Stephen Emmett, the mayor of Beverly Beach, stated that the five public beach access points depicted in the Beverly Beach Comprehensive Plan, as well as a new sixth beach access point, are currently maintained by the Town. Description of the Land Affected The Petitioners alleged in their Amended Petition to Intervene that the Town did not have an adequate legal description for the lands affected by the plan amendment. The issue was not raised in the Petitioners' Pre-Hearing Statement. When the Department objected to the Petitioners' presentation of evidence on this issue because it was not raised in their Pre- Hearing Statement, the Petitioners voluntarily withdrew the issue. Sanitary Sewer Services The Petitioners contend that sanitary sewer services are not adequate for the increased residential density that would result from Plan Amendment 03-1. The Beverly Beach Wastewater Treatment Facility is operated by Ocean City Utilities. Ocean City's application to renew the permit for the facility was denied by DEP in September 2003 because the facility was not in compliance with several DEP regulations. As a result of the denial of Ocean City's permit renewal application, DEP would not allow new customers to connect to the Beverly Beach Wastewater Treatment Facility, including the Shelter Cove PUD. DEP subsequently approved the connection of the Shelter Cove PUD wastewater collection system to the Beverly Beach Wastewater Treatment Facility. Permitting problems associated with the treatment plant was one reason for the Department's objection to the originally proposed plan amendment and the Department's subsequent determination that Plan Amendment 03-1 was not in compliance. No evidence was presented to show that Ocean City Utilities has corrected the deficiencies in the wastewater treatment plant or has obtained a renewal permit from DEP. Nevertheless, the Department determined that Plan Amendment 03-1 is in compliance based on the changes to the Beverly Beach Comprehensive Plan called for in the compliance agreement and adopted in the Remedial Ordinance. Objective D.2.1 of the Beverly Beach Comprehensive Plan was amended to require that existing deficiencies in the wastewater treatment plant be corrected by December 31, 2005. Policies D.2.1.1, D.2.1.2, D.2.1.3 were amended to re-constitute and re-energize a coordination committee to address the deficiencies in the wastewater plant and the feasibility of giving operational responsibility to another entity (such as Flagler County). In addition, the Remedial Ordinance amended Policy A.1.19 of the Beverly Beach Comprehensive Plan to prohibit the Town from issuing a permit or certificate of occupancy for the Shelter Cove PUD "until the Building Official certifies the required public facilities and services will be provided consistent with Chapter 9J-5, Florida Administrative Code." No dispute was raised about the available capacity of the Beverly Beach Wastewater Treatment Facility to serve the Shelter Cove PUD.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the Town of Beverly Beach Plan Amendment 03-1, and Remedial Ordinance 2004-ORD-6, are "in compliance" as defined in Chapter 163, Part II, Florida Statutes (2004). DONE AND ENTERED this 29th day of August, 2005, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2005. COPIES FURNISHED: Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Sidney F. Ansbacher, Esquire Upchurch, Bailey and Upchurch, P.A. Post Office Box 3007 St. Augustine, Florida 32085-3007 Robert J. Riggio, Esquire Riggio & Mitchell, P.A. 400 South Palmetto Avenue Daytona Beach, Florida 32114 Thaddeus Cohen, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Heidi Hughes, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
Findings Of Fact The Respondent. The Respondent, Charles Polk, served as the President of Daytona Beach Community College from 1974 to 1990. [Stipulated Fact.] Mr. Polk resigned as President of Daytona Beach Community College in 1990. Mr. Polk's Purchase of Real Estate from Anargyros N. Xepapas. In November, 1985, Mr. Polk and his wife purchased a life estate and one-half interest in a condominium unit from Anargyros N. Xepapas. Mr. Xepapas owned the other one-half interest in the condominium unit. [Stipulated Fact.] The purchase price of the life estate and one-half interest in the condominium unit was $150,000.00. [Stipulated Fact.] The weight of the evidence failed to prove that this price was not the fair market value or that the transaction was not an arms-length transaction. Under the terms of the agreement, Mr. Polk and his wife were required to pay $30,000.00 immediately. They subsequently executed and delivered to Mr. Xepapas a note and mortgage for the remaining $120,000.00. [Stipulated Fact.] Mr. Polk was a mortgagor and Mr. Xepapas was a mortgagee. Under the terms of the agreement, Mr. Polk was required to pay maintenance fees of approximately $5,000.00 per year, taxes, insurance and all other expenses of the unit, which totaled approximately $14,000.00 per year. [Stipulated Fact.] Mr. Xepapas agreed to maintain the payments on the first mortgage. [Stipulated Fact.] Following the closing, Mr. Polk paid Mr. Xepapas an additional $60,000.00 on the mortgage, reducing the principal balance to $60,000.00. [Stipulated Fact.] A warranty deed was provided to Mr. Polk for the purchase of the property. [Stipulated Fact.] Neither the deed nor the mortgage were recorded. [Stipulated Fact.] Mr. Polk and his wife used the condominium as their residence. [Stipulated Fact.] Mr. Xepapas action in selling the condominium to Mr. Polk and his wife was a business transaction. Mr. Xepapas. Mr. Xepapas is an architect and developer who designs, builds, and sells property in the Daytona Beach area. [Stipulated Fact.] At the time Mr. Polk purchased the one-half interest in the condominium unit from Mr. Xepapas, Mr. Xepapas was the owner of the condominium building in which the unit was located. [Stipulated Fact.] In addition to being the owner of the condominium building at issue, Mr. Xepapas was the architect, developer and contractor for the condominium and for other condominium buildings in the areas. Mr. Xepapas was trying to sell the condominium units as part of his business because of cash-flow problems. [Stipulated Fact.] The condominium sales market was "soft" and Mr. Xepapas was trying to eliminate the carrying costs for unsold units. Mr. Xepapas sold a total of four condominium units pursuant to an arrangement similar to the arrangement by which he sold the condominium unit to Mr. Polk. Mr. Xepapas had made offers to sell one-half interests in condominium units to various other persons besides Mr. Polk. [Stipulated Fact.] Mr. Xepapas was a sole proprietor. He entered into his relationship with Mr. Polk in his capacity as a sole proprietor. Mr. Xepapas has known Mr. Polk for ten to fifteen years and considers himself a friend of Mr. Polk. [Stipulated Fact.] Mr. Xepapas' Business with Daytona Beach Community College. In 1987, the Board of Trustees of the Daytona Beach Community College decided to expand the College's educational facilities by obtaining a new center in the Deltona area. [Stipulated Fact.] In September, 1987, the Board of Trustees instructed staff to develop a request for proposal for the design and construction of the facility which would be leased to the College. [Stipulated Fact.] Mr. Polk was involved to some extent in the decision as to whether the new center should be purchased or constructed, and whether it should be acquired through a long-term lease/purchase agreement. In response to the advertisement of the request for proposal in September, 1988, Mr. Xepapas submitted a proposal. [Stipulated Fact.] There were a total of nine persons or businesses that responded to the request for proposal for the Deltona facility. Mr. Polk knew that Mr. Xepapas had picked up a bid proposal package and, therefore, believed that Mr. Xepapas would submit a proposal. Mr. Polk appointed the committee which reviewed the proposals. This committee ultimately narrowed the acceptable proposals to two, including Mr. Xepapas, and directed that those two proposers submit final proposals. In January, 1989, Mr. Xepapas, in his capacity as a sole proprietor, was the successful bidder on the contract; however, there is no evidence to indicate that Mr. Polk abused his position in order to ensure this result. [Stipulated Fact.] Mr. Xepapas and Mr. and Mrs. Polk were co-owners of the condominium prior to and at the time that Mr. Xepapas was awarded the Daytona Beach Community College contract. Ultimately, Mr. Xepapas was not able to fulfill his obligations under the contract with Daytona Beach Community College. Although the evidence failed to prove that Mr. Polk asserted any influence over the decision to award the contract to Mr. Xepapas, Mr. Polk was involved to some small degree in the award of the contract to Mr. Xepapas. The evidence failed to prove that Mr. Polk disclosed his co-ownership of the condominium with Mr. Xepapas to the Board of Trustees of the Daytona Beach Community College, that he refused to participate in any way in the bidding process or that he attempted to take the more drastic step of severing his relationship with Mr. Xepapas while the bidding process was going on. In May, 1989, Mr. and Mrs. Polk ultimately quit claim deeded the property to Mr. Xepapas. The evidence failed to prove why. They, therefore, lost their investment in the property. Mr. Polk also resigned as President of Daytona Beach Community College as a result of the allegations concerning his relationship with Mr. Xepapas.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, Charles Polk, violated Section 112.313(7), Florida Statutes, as alleged in Complaint No. 89-80. It is further RECOMMENDED that Mr. Polk be subjected to public censure and reprimand. DONE and ENTERED this 13th day of December, 1991, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1991. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Advocate's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3-11. 3 13. 4 14-16. 5 16 and 18. 6 4, 12 and 19-20. 7 Hereby accepted. 8 3, 21, 27-28 and 30. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 13. 3 3, 11 and 14. 4 20. 5 16. 6 4 and 17-18. 7 5 and 8-9. 8 6-7. 9 21. 10 22. 11 24. 12 26 and hereby accepted. See 23, 27 and 30. 13 27 and 30. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 David A. Monaco, Esquire Post Office Box 15200 Daytona Beach, Florida 32015 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
