Findings Of Fact Antonios Markopoulos, Appellant, applied for seven variances on property located at 200 Coronado Drive, Clearwater, Florida, to allow the construction of a 7 to 9 story parking garage covering the property from lot line to lot line. The property in question is a 95 feet x 105 feet parking lot adjacent to a hotel, shops and restaurants owned by Appellant. The first waiver requested was of the minimum lot size of 150 feet on which to build. Since this property was unique in that regard and could never attain the 150 feet minimum dimension, the Board granted that variance. The other six requests for variances involved setbacks and open space requirements. Appellant proposes to build a parking garage with two elevators to lift cars to the various parking levels with the building extending to the lot lines in all four directions. The hotel, restaurants and stores located at this site and owned by Appellant are nonconforming uses. The hotel has 86 rooms and if built today would require a minimum of 86 parking spaces. The stores and restaurants would require additional parking spaces that are now not available. Appellant proposes to construct a garage with approximately 340 parking spaces which he contends are the minimum needed to provide adequate parking for patrons at the hotel, stores and restaurants. At the hearing before the Board, Appellant contended that the parking garage would also serve to relieve parking problems at other establishments in the vicinity. Appellant proposes to have parking customers drive up a ramp through a ticket machine which will dispense a ticket which can be validated at the hotel, restaurants or shops. The car will then be parked by attendants who will drive the car onto an elevator to lift the car to a floor with parking space. This clearly indicates that Appellant is proposing to construct a parking garage which will be open to the general public. Appellant presented testimony that if the setbacks required by the Code were followed on all sides, there would be insufficient square feet per floor to make the parking garage financially feasible. He also presented testimony of the City of Clearwater Traffic Engineer to the effect that construction of a parking garage at this location would not create a traffic problem. Although most, if not all, of the property surrounding Appellant's property are nonconforming with less setbacks than are required by the existing code, none of these properties have been covered lot line to lot line with a structure or structures. The primary emphasis of the evidence submitted by Appellant is that there is insufficient parking at Clearwater Beach, and erection of a parking garage will do much to alleviate this problem.
The Issue Whether Respondent is in violation of the Driveway Permit issued to him October 11, 1984, in having more RV parking spaces than authorized by the permit.
Findings Of Fact Respondent is the owner of the Peace Creek RV Park located on the east side of U. S. 27 in Polk County, Florida. He also owns the land immediately surrounding the RV Park. In 1984, Respondent was granted highway connection permit No. B-1698 to provide ingress and egress to the RV Park (Exhibit 1). Although Respondent initially applied for a highway connection permit for a 110 space RV Park, this was modified to 98 spaces and approved for 98 spaces. In 1984, the DOT regulations for highway connection permits required the applicant to provide a left-turn lane into RV parks having 100 or more spaces. For RV parks with less than 100 spaces, no left-turn lane was then required. Although Respondent contends he was unaware that the RV park was approved for only 98 spaces instead of the 110 provided, it is found as a fact that in 1984 Respondent was aware that the plans for parking spaces at the RV park were reduced from 110 to 98 to avoid the additional expense of providing for a left-turn lane, and at the present time he does not recall his acquiescence in that determination (Exhibits 1 and 12). This RV park is equipped for 110 spaces. Traffic along U. S. 27 has increased in the vicinity of the Peace Creek RV Park from an average rate of approximately 8700 vehicles per day in 1985, to 13,600 in 1989 (Exhibit 3). Driveway permit requirements have changed over the years to require more and/or greater safety features. The latest change occurred effective in 1990, and permit requirements now include the requirements for curbs, longer left-hand turn lanes (more storage space) and wider openings in the median than existed in prior years. Respondent does not really object to the requirement to install a left- turn lane, but feels the width of the opening and curb requirements are excessive. Respondent submitted no credible evidence to show the 1990 requirements of DOT for driveway permits are arbitrary, capricious or unnecessary to provide a safe entrance to or exit from U. S. 27 by vehicles entering or leaving Respondent's RV park. Respondent presented evidence that other highway entrances both north and south of the Peace Creek RV Park were approved without curbs and with smaller openings than the 1990 regulations require. However, these highway connections were approved when U. S. 27 was less busy and when the regulations were less demanding than they are at the present time. Respondent also presented evidence that he has provided rights of way and borrow pit easements for DOT in the past at no cost or for a nominal amount.
Recommendation It is recommended that G. W. Mann's existing highway connection permit be revoked and, if he modifies the existing entrance to comply with the current requirements, that, upon completion of this modification, G. W. Mann be granted a new highway connection permit. ENTERED this 17th day of July, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1990. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire 605 Suwannee Street Tallahassee, FL 32399-0458 G. W. "Buck" Mann, Jr. Box 348B Buck Mann Road Winter Haven, FL 33884 Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0458 Attn: Eleanor Turner, MS 58 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
The Issue This is an appeal from a resolution of the Monroe County Planning Commission ("Planning Commission") granting the application of Barry J. Mankowitz, M.D., for a variance from the off-street parking requirements of the Monroe County Code. The appeal was transferred from the Planning Commission to the Division of Administrative Hearings pursuant to Article XIV, Monroe County Code, the Hearing Officer Appellate Article. The issue presented in the appeal is whether Resolution No. P33-97 of the Planning Commission should be affirmed, reversed, or modified.
The Issue Whether the construction activity was begun within the 45 day period within which the issuance of the permit by the city could have been challenged and was not in compliance with local codes and ordinances.
Findings Of Fact The Department of Community Affairs is the state land planning agency empowered to enforce the provisions of Chapter 380, Florida Statutes, and the rules promulgated thereunder. (Section 380.031-.032, F.S.). Billy Marlar owns and operates the Rainbow Motel, located at 123 Water Street, Apalachicola, Florida. (R. 9) Petitioner Marlar is the record title holder of wharf lots 13 and 14 in the City of Apalachicola according to the map or plat commonly used. Lots 13 and 14 are held in the name of Rainbow Motel and Marina. Lots 13 and 14 are located within the Riverfront District, as identified in the Land Development Code of the City of Apalachicola. (R. 57) Old plats reflect that the dimensions of wharf lots 13 and 14 are 206.54 feet wide and approximately 70 feet deep, or 14,250.75 square feet. Over the years, sand has accreted to the eastern boundary of these wharf lots and for the past 35 years there have been improved structures on the eastern boundary of the property. Although the Franklin County tax rolls reflect wharf lots 13 and 14 as being approximately 200 feet wide by 180 feet deep, the Rainbow Hotel is built on pilings over water or land which is tidal. Inspection of the property reveals that the water line of the Apalachicola Bay lies approximately at the western edge of the main portion of the hotel. On May 13, 1988, Billy Marlar applied for a permit to construct a concrete parking lot on wharf lots 13 and 14 in the City of Apalachicola. (Rainbow Exhibit 2) On May 16, 1988, the Apalachicola Planning and Zoning Commission considered Mr. Marlar's application at a special meeting, and granted the permit application. (Rainbow Exhibit 9). On May 25, 1988, Permit No. 1172 was forwarded to the Department of Community Affairs for consideration as a development order. (Rainbow Exhibit 2). Prior to the permit being forwarded to DCA, construction of the parking lot commenced. A portion of the parking lot was poured on May 23, 1988, and the remainder of the parking lot was completed within 2 - 3 weeks of that date. (R. 50-51, 53). The Land Development Code provides that lot coverage within the Riverfront District shall contain a minimum of 50 percent pervious surface. The term "pervious surface" means that water will percolate through that surface that covers the earth. (R. 59). The concrete parking lot constructed by Billy Marlar on wharf lots 13 and 14 is not a pervious surface. (R. 70). The dimensions of the portion of the parking lot on lots 13 and 14 are 78 feet along the northern boundary, 205 feet along the eastern boundary, 78 feet along the southern boundary and 205 along western boundary. There is a planter in the southwestern corner which has approximately 704 square feet. The proposed finding submitted by the Department states that the parking lot contains 12,589.87 square feet, which will be the area used. (DCA Exhibit 1 and R. 71). The dimensions of the pervious surface of the property are based upon the area of the non-tidal portion of the two lots. The dimensions of the non- tidal area of the two lots are determined from resolution of the conflicts in the testimony and evidence presented and an examination of the property. The western boundary is 215 feet; northern boundary is 112 feet; eastern boundary is 215 feet; and southern boundary is 122.5 feet. The total non-tidal area of the two lots based upon these dimensions is 25,208 square feet. (Rainbow Exhibit 3). Although the records of the Franklin County Property Appraiser's Officer indicated the dimensions of wharf lots 13 and 14 were 200 feet wide by 180 feet deep, a substantial portion of the eastern boundary of that area is submerged. (Rainbow Exhibit 3 and 5, R. 32). Conflicting evidence was presented as to the dimensions of the non-tidal property from the street frontage to the mean high water line. The drawings show a meander line along the mean high water line; however, observation revealed water under the majority of the hotel, particularly on the northeast corner. Based upon those observations, the eastern boundary on non-tidal land is computed as a straight line parallel to the western edge of the longest portion of the hotel and five (5) feet to the east of longest portion of the hotel running from southern boundary to the northern boundary. See pencil additions to Rainbow Exhibit 3 made by fact finder after observation of the property pursuant to motion. A portion of the Rainbow Motel and the Pot Restaurant extend over the water. (R. 32 and Rainbow Exhibit 3). A portion of the hotel approximately 21.9 feet by 17.3 feet and 5 feet by 136.32 feet is located on the pervious surface of lots 13 and 14. Approximately 33% of the restaurant, the dimensions of which are 47 by 46 feet, is located on the pervious surface of lot 13. The buildings cover a total of 1,781 square feet. The total impervious surface on lots 14 and 13 is 14,371 square feet. The total non-tidal area of the two lots is 25,209 square feet. The impervious surface must be reduced by 1767 square feet. (R. 76).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered requiring Billy Marlar and Rainbow Hotel to bring the project into compliance within 30 days by removal of 1767 square feet of impervious surface from the non-tidal portions of lots 13 and 14. DONE and ENTERED in Tallahassee, Leon County, Florida, this 18th day of August, 1989. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1989. ANNEX A Consideration of Proposed Findings of Fact The proposed findings of the Department of Community Affairs were read and considered as follows: Paragraphs 1-10 Adopted. Paragraph 11 The proposed dimensions are rejected as being contrary to the best evidence of the dimensions of the non-tidal area of the two lots. Paragraphs 12 & 13 Adopted. The proposed findings of Marlar and Rainbow Hotel were read and considered as follows: Paragraphs 1 & 2 Adopted. Paragraph 3 The existence of non-tidal land to a depth of 180 feet is rejected as contrary to the best evidence. Paragraph 4 & 5 Substantially adopted. Paragraphs 6 & 7 Rejected as a finding, although included as portions of the conclusions of law or statement of case. Paragraph 8 Some land has accreted; however, that the accretion is all pervious surface is rejected as contrary to best evidence. Paragraph 9 The stormwater management plan is irrelevant to how much of the pervious area of the two lots is covered with impervious structures. Paragraph 10 The city map is rejected as the best evidence of the area of the non-tidal area of the two lots. COPIES FURNISHED: L. Kathryn Funchess, Esquire David L. Jordan, Esquire C. Laurence Keesey, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Thomas G. Pelham, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Deborah Hardin-Wagner, Esquire Governor's Legal Office The Capitol, Room 209 Tallahassee, Florida 32399-0001 J. Ben Watkins, Esquire 41 Commerce Street Apalachicola, Florida 32 320 J. Patrick Floyd, Esquire 408 Long Avenue Post Office Drawer 950 Port St. Joe, Florida 32456 Honorable Jimmy Nichols Mayor, City of Apalachicola Post Office Box 10 Apalachicola, Florida 32320 Apalachicola Planning and Zoning Commission Post Office Box 10 Apalachicola, Florida 32320
Findings Of Fact In 1974 and up through the present time, Respondent has been a licensed real estate broker. During 1974, she operated under the name "World Wide Real Estate Center." Realty, Inc., is a corporate real estate broker licensed by the State of Florida, and Respondent is presently employed by Realty, Inc. On or about May 1, 1974, Respondent, while registered and operating as a real estate broker in the name of World Wide Real Estate Center presented a seminar in St. Petersburg, at which time she lectured and discussed real estate matters, specifically the purchase of real property located in Costa Rica. At that seminar, Respondent introduced Otho "Skip" Thomas as her associate and, together with him, made the presentation concerning Costa Rica and the availability of real property for purchase in Costa Rica. William E. Hoyer, Janice Hoyer, and Norma L. Johnson attended the seminar, since they had travel arrangements made for a vacation in Costa Rica in June. The Hoyers and the Johnsons knew Thomas as a former travel agent who had arranged several vacation trips for a travel group of which the Hoyers and the Johnsons were members. They knew that Thomas had sold his travel agency prior to the time they attended the seminar conducted by Respondent and Thomas. Since Thomas was describing real property and the prices of available property in Costa Rica and answering questions from the audience at the seminar, the Hoyers and the Johnsons assumed he had become a licensed real estate salesman after giving up the travel agency business. At all times, Respondent knew that Thomas was not a licensed real estate broker or a licensed real estate salesman. Since the Hoyers and the Johnsons were interested in purchasing real property in Costa Rica, between the time of the seminar and their departure for Costa Rica, they went to the office of World Wide Real Estate Center. Thomas met with them and discussed in more detail both property descriptions and sale prices of property available in Costa Rica. He gave them a business card from World Wide Real Estate Center containing both Respondent's name and Thomas's name. He arranged to meet them in Costa Rica. Respondent was not present at this meeting at World Wide Real Estate Center. After the Hoyers and the Johnsons arrived in Costa Rica for their vacation, they met with Respondent and Thomas in a hotel room to further discuss available real estate. Thomas ran the meeting and went through a file box he had, reciting specific pieces of property available and their purchase prices. Thomas then returned to St. Petersburg, Florida, and Respondent, together with a Costa Rican, Carlos Salizar, began showing property to the Hoyers and to the Johnsons. As a result, the Hoyers selected a piece of property to purchase, but the Johnsons found two pieces of property they were interested in purchasing, although they could only purchase one of those two properties. Respondent took the Hoyers and the Johnsons to an attorney's office in Costa Rica. Both the Hoyers and the Johnsons signed documents, probably powers of attorney whereby the lawyer would negotiate and purchase the property the Hoyers wanted and also whichever parcel the Johnsons decided they wanted. Since the Hoyers had made their decision, they gave to the lawyer a check for $4,000 to be used by him as a down payment. After they left the lawyer's office, Respondent told them to stop payment on that check and to instead wait until they had returned to St. Petersburg and then give a check for $4,000 made payable to World Wide Real Estate Center to Thomas. She also told the Johnsons to give Thomas a check for $4,000 made payable to World Wide Real Estate Center after they had returned to St. Petersburg and decided which parcel they wished to purchase. Respondent told the Hoyers and the Johnsons to deal with Thomas because he was handling the business affairs in St. Petersburg for her while she was in Costa Rica. She did not tell them to make the check payable only to the escrow account of World Wide Real Estate Center, nor did she tell them that Thomas was an authorized signature on the general account of World Wide Real Estate Center, but not on the escrow account of World Wide Real Estate Center. The Hoyers returned to St. Petersburg and stopped payment on the check for $4,000 which they had left with the attorney selected by Respondent. On July 22, 1974, the Hoyers gave Thomas a cashier's check in the amount of $4,000 payable to World Wide Real Estate. Thomas deposited that check into the general operating account of World Wide Real Estate Center. The Hoyers delivered the funds to Thomas pursuant to the express instructions of Respondent given to the Hoyers while they were still in Costa Rica. After the Johnsons returned to St. Petersburg, Thomas began contacting them to obtain their decision as to which piece of property they wished to purchase. When they decided, Thomas met with Norma Johnson on July 24, 1974. Mrs. Johnson gave him two checks in the total amount of $4,000 payable to World Wide Realty and obtained from Thomas a receipt for the funds. Thomas deposited the checks into the general operating account of World Wide Real Estate Center. The Johnsons delivered the funds to Thomas pursuant to the express instructions of Respondent given to the Johnsons while they were still in Costa Rica. Since the Johnsons and the Hoyers heard nothing regarding the status of the purchase of the property on their behalf, they began contacting Thomas in St. Petersburg and Respondent in Costa Rica. They were advised that the property was being surveyed or that real estate transactions in Costa Rica were normally slow. In September, Respondent returned from Costa Rica. She discovered that Thomas had left town after withdrawing the funds in the general operating account of World Wide Real Estate Center. The funds withdrawn by Thomas included the Johnsons' $4,000 and the Hoyers' $4,000. Respondent did not notify either the Hoyers or the Johnsons that their funds had been stolen by Thomas until December, 1974, when she met with them at the Johnsons' home. She then advised them that the police were unable to locate Thomas and that, if necessary, she would use her own funds to purchase the property for them. Both the Johnsons and the Hoyers told her they wanted the property or their money back. Hearing nothing further from Respondent, the Hoyers and the Johnsons retained an attorney, who wrote to Respondent on March 20, 1975, demanding immediate return of his clients' moneys. Hearing nothing further from Respondent, in May, 1975, the Johnsons and the Hoyers each filed a civil action against Respondent demanding return of their money. Both lawsuits were consolidated for trial. On December 18, 1975, a final judgment was entered against Respondent, doing business as World Wide Real Estate Center, and in favor of the Johnsons in the amount of $4,000 plus interest. On December 23, 1975, final judgment was entered against Respondent, doing business as World Wide Real Estate Center, and in favor of the Hoyers in the amount of $4,000 plus interest. Respondent failed to pay either final judgment. She was deposed in aid of execution in order to locate assets to collect on the final judgments. On February 1, 1978, Respondent filed for bankruptcy in order to discharge the judgments of the Hoyers and the Johnsons. Respondent admitted that was the only reason she went through bankruptcy. The Discharge of Bankrupt was entered on May 4, 1978. Respondent has never returned to the Hoyers or the Johnsons their moneys, despite the demand therefor made on her by them at the December, 1974, meeting at the Johnsons' home; despite the demand made on her by their attorney on March 20, 1975; despite the demand made on her by the filing of the civil actions in May, 1975; despite the demand made on her by the entry of the final judgments in December, 1975; and despite the demand made on her by the taking of her deposition in aid of execution. In spite of her knowledge that Thomas was not a licensed real estate salesman or broker, Respondent represented Thomas to be her agent and a licensed real estate salesperson. By the time of the formal hearing in this cause, Respondent's husband, Karl Landes, had become a licensed real estate broker. He and Respondent are employed by corporate broker Landes Realty, Inc. The sole stockholders of Realty, Inc., are Respondent and her husband.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding Respondent Mary E. Landes guilty of the allegations contained within the Amended Administrative Complaint, revoking her license as a real estate broker, and revoking the license of Landes Realty, Inc., during such period of revocation. RECOMMENDED this 21st day of October, 1982, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1982. COPIES FURNISHED: Mark P. Kelly, Esquire Freeman & Lopez, P.A. Suite 410, Metropolitan Bank Bldg. 4600 West Cypress Avenue Tampa, Florida 33607 Barry J. McCaughey, Esquire McCaughey, Knaust & Evans, P.A. 3151 Third Avenue, North Suite 400W St. Petersburg, Florida 33713 William M. Furlow, Esquire Staff Attorney Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Mr. Samuel R. Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Carlos B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
The Issue The issue for determination is whether the Florida Department of Labor and Employment Security illegally rejected Petitioner's bid as nonresponsive.
Findings Of Fact Fred Boozer, Sr., (Boozer), the Petitioner, owns Boozer Properties, a family business which includes a building at 2235 South Babcock Street, Melbourne, Brevard County, Florida. The building is currently occupied by staff of the Florida Department of Labor and Employment Security (LES) and other tenants. In south Brevard, LES staff also occupies another building in Palm Bay. Because of staff expansion and the need to co-locate its offices, LES issued a Request for Proposal (RFP) for Lease No. 540:0904 on January 28, 1992. The RFP had been previously advertised but was successfully challenged on issues unrelated to the issues in this proceeding. The January 1992 RFP sought approximately 11,474 to 11,818 square feet of office space. The RFP also specified that 95 off-street parking spaces be provided for the exclusive use of LES employees and clients. The spaces were to be suitably paved and lined, and under the control of the bidder. The RFP advertised a pre-proposal conference on February 4, 1992. No bidder attended, and no objections to the RFP were filed. Six responses were received on the February 28th deadline, one of which was immediately determined to be nonresponsive. The remaining bid proposals were evaluated, and Boozer's bid, offering his Babcock Street site, and 95 parking spaces, received the highest points from the evaluation committee. During a recent LES bidding process for office space in West Palm Beach, a problem arose with a bidder's ability to provide the required parking spaces. Cognizant of this, the LES leasing manager contacted the City of Melbourne to determine whether the apparent bid winner, Boozer, could meet his obligation to provide 95 spaces. The written response dated March 20, 1992, from Dominic Mauriello, a Melbourne city planner, provides his estimation that, for the various uses in the Babcock Street building, 207 parking spaces would be required. The memo states that a site plan on file at the city planning office reflects that there are 165 spaces. The site plan attached to Boozer's bid proposal submitted to LES indicates that 175 spaces are available. LES staff person, Lynne Mobley, telephoned Fred Boozer on March 24, 1992, informing him of the memorandum from the city. He responded with a request that he be allowed twenty-four hours to provide additional information. By March 27, 1992, the LES leasing office had not received further information from Boozer. The RFP had advertised a 30-day deadline for the bid award, which deadline fell on a weekend. The agency considered that it needed to make the award on Friday, the 27th. After contacting the City of Palm Bay to assure that the next highest rated response could deliver the requisite parking spaces, a letter was sent notifying Woodlake S.W. No. 1, Ltd., (Woodlake) of its award. In a letter dated March 27, 1992, LES notified Boozer that its bid was determined nonresponsive based on the outcome of investigation and consultation with the city regarding his inability to produce the required 95 exclusive spaces. In the meantime, Fred Boozer had contacted Peggy Bray, the City's Planning and Zoning Administrator, who provided an amended estimation stating that 190 spaces would be required for the Babcock Street site, and that the site currently includes 184 parking spaces. Ms. Bray's letter, dated March 27, 1992, states that in order to provide 95 spaces for the Department of Labor, 1800 square feet of office space would need to remain vacant. The Bray letter was immediately sent by facsimile transmission to LES, and was received the afternoon of March 27th, after the award and rejection notices were sent. Boozer's building is approximately 39,000 square feet. Several tenants are month to month lessees, and another tenant is expected to move prior to the beginning of the LES lease term. Boozer is willing to keep vacant the 1800 square feet and contemplated that necessity when he submitted his bid proposal. He did not include this agreement in his written bid response, but neither did LES specifically ask, either in the bid form or at the time of the committee's site walk-through prior to the bid award. Boozer contends that he responded on the bid proposal that he would provide 95 exclusive spaces and he remains willing to provide those spaces. At hearing, Boozer disclosed that 20 additional parking spaces are located adjacent to the subject property and are available for use by HRS' County Health Services, another tenant in the Babcock Street building. The spaces would reduce by 20 the spaces required by the city code, but their existence was not disclosed in the bid proposal as they are not part of the attached site plan. Boozer's onsite parking spaces range from one-half to one foot short of the eleven-feet width required by the city code. No evidence was presented with regard to any pending or contemplated enforcement action, and LES did not base its decision on this defect. LES did base its decision on a good-faith reliance on the communication by a member of the City of Melbourne planning staff. Even when that initial communication was corrected by the planning administrator, the number of spaces available were still less than needed for LES purposes and to comply with the City's code. LES did not anticipate, nor was it informed prior to bid award, of Boozer's ability and willingness to keep space vacant to comply with his commitment to provide 95 parking spaces to LES.
Recommendation Based on the foregoing, it is hereby, recommended that a final order be entered dismissing Petitioner's protest of intended bid award. RECOMMENDED this 18th day of June, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2372BID The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings of Fact Adopted in paragraphs 2, 3 and 4. Adopted in paragraphs 4 and 9. Adopted in paragraph 6. Adopted in substance in paragraph 7. Rejected as unnecessary. The testimony of Ms. Mobley is that she did not receive the message. Adopted in paragraph 10. Adopted in paragraphs 8 and 9. Adopted in paragraphs 10 and 13. Rejected as unnecessary. 10-13. Adopted in paragraph 11. Rejected as unsubstantiated by competent evidence. Adopted by implication in paragraph 5. Rejected as irrelevant, except as to Intervenor's spaces, which is adopted in paragraph 8. 1718. Rejected as unnecessary and irrelevant. Respondent's Proposed Findings of Fact 1. Adopted in paragraph 3. 2. Adopted in paragraph 1. 3. Adopted in paragraph 2. 4-5. Adopted in paragraph 4. 6-7. Adopted in paragraph 5. 8. Adopted in paragraph 6. 9. Adopted in paragraph 7. 10-11. Adopted in paragraph 8. 12. Adopted in paragraph 10. 13. Adopted in paragraph 12. 14. Adopted in paragraph 9. Intervenor's Proposed Findings of Fact 1-2. Adopted in substance in paragraph 3. 3. Rejected as unnecessary. 4-5. Adopted in paragraph 4. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 11. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 10. Adopted in paragraph 9. 15-16. Adopted in paragraph 8. Rejected as unnecessary. Adopted in Preliminary Statement. 19-28. Rejected as unnecessary. COPIES FURNISHED: Howard M. Swerbilow, Esquire Post Office Box 541271 Merritt Island, FL 32954-1271 Edward A. Dion, Esquire Department of Labor and Employment Security Suite 307, Hartman Building 2012 Capital Circle Southeast Tallahassee, FL 32399-2189 Jack Spira, Esquire 5205 Babcock Street N.E. Palm Bay, FL 32905 Alan Taylor Elizabethan Development Corporation 245 Avenue O S.W. Winter Haven, FL 33880 Frank Scruggs, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle S.E. Tallahassee, FL 32399-2152 Cecilia Renn Chief Legal Counsel Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle S.E. Tallahassee, FL 32399-2152
Findings Of Fact The upland property abutting the proposed marina is zoned CTF-28, which provides for the complete range of motel-hotel developments. Type A Marina facilities are permitted as a special exception in a CTF-28 district. The property owned by Petitioners is presently occupied by a 17-room motel (Exhibit 5) and there are 15 available parking spaces. Petitioners propose to remove the seaward 16 feet of the existing 20-year-old dock, extend the remaining portion of this dock from its present length of 62 feet to 112 feet, and construct four finger piers two feet wide by 24 feet long extending seaward from this dock so as to provide seven boat slips. As private slips this would constitute a Class A marina. Petitioners intend to convert the existing motel from sole ownership (husband and wife) to a cooperative association which will enter into long-term leases with proprietary lessees who purchase shares in the association. Specifically, the current owners will transfer title to the property to Tropical Palms Development Corporation, who in turn will transfer the property to The Bel Crest Beach Cabanas & Yacht Club, Inc., who will sell the leases (Exhibits 2 and 3). A copy of the Proprietary Lease proposed for use in this endeavor was not presented to the Board of Adjustment and Appeal on Zoning, nor was the By- Laws of The Bel Crest Beach Cabanas & Yacht Club, Inc. These documents were presented at this hearing as Exhibits 4 and 5. The Proprietary Lease (Exhibit 4) provides the dock is appurtenant to the unit and may not be conveyed, leased or subleased independent of the unit. Slips 1-7 are assigned to Units 7, 8, 9, 10, 11, 16 and 17, respectively (Exhibit 5). Petitioner Leonhardt testified that he would never allow the motel unit to be leased independent of the slip appurtenant to that unit. He also testified that the boat slips got little use from motel occupants. The existing dock, which is 62 feet long, contains berthing space for three or four boats, depending on the size of the boats. No evidence was presented concerning the parking problem, if any, resulting from the existing docking facilities. Respondent's primary concern and the reason this application was denied by the Board of Adjustment and Appeal on Zoning is the effect the proposed marina will have on parking on Clearwater Beach. Vehicular parking is a serious problem confronting Clearwater Beach at this time. Further aggravation of this problem will adversely affect the public interest. A special exception for a seven-slip, Class A marina was granted to the Sea Gull Motel located some 300 feet west of the Bel Crest motel less than one year ago. The Sea Gull converted to cooperative ownership in a plan similar to that proposed by Petitioners. At the Sea Gull hearing for a special exception the parking situation on Clearwater Beach was not raised. Item 40 of the Proprietary Lease (Exhibit 4) contemplates more than one person may be named as lessee and provides joint lessees have only one vote, are jointly and severally liable for lessees' obligations, etc. Nowhere does the Proprietary Lease or By-Laws of the Association specifically preclude one owner- lessee occupying the boat slip while another owner-lessee occupies the motel unit. Once converted to a cooperative, the Bel Crest will continue to operate as a motel run by the resident manager with the units owned by the shareholders in the Association. Currently, all units of the motel are owned by a single owner. The By-Laws and Proprietary Lease do not fully cover the situation regarding the boat slip when the unit appurtenant to that boat slip is rented by the usual overnight motel guest who has no use for a boat slip. The proposed slips present no hazard to navigation or interfere with the enjoyment of the waters adjacent thereto by the boating public.
Findings Of Fact Petitioner, within the past year, purchased two tracts of property 50 feet by 100 feet located at 614-620 Mandalay Avenue on Clearwater Beach. This property is zoned "CG" or "General Business" and there are four buildings on this property comprising five dwelling units. The land use plan for this location is commercial/tourist facilities. Petitioner submitted an artist's drawing of what the site could look like if the variance requested was granted. No building permits have been requested; accordingly, no specific plans have been submitted to establish the use to which the property would be put if the variance requested is granted. The proposal of Petitioner (such as it is) contemplates converting the ground floors of the existing structures to commercial use. If the existing buildings were so converted, with the upper floors remaining residential, the zoning code requires provision be made for twenty-eight off-street parking spaces. Since the existing five dwelling units would be credited (grandfathered) for having eight such parking spaces due to the construction having occurred before the zoning code was enacted, Petitioner is requesting a variance for the remaining twenty off-street parking spaces that would be required. Actually, there are no off-street parking spaces on this property but five or six parking spaces exist in the right-of-way for Mandalay Avenue. There are no off-street parking spaces on Mandalay Avenue in the vicinity of Petitioner's property and none are proposed to be provided by Petitioner. Mandalay Avenue is the main north-south artery on Clearwater Beach and is four-laned in the vicinity of Petitioner's property, which lies near the northern terminus of "CG" zoning. At the hearing before the Board one witness spoke in favor of the variance requested because the proposal by Petitioner was better than if the property was used for the construction of a high-rise residential unit, which the zoning would permit. Since no specific proposal is before the Respondent for the issuance of a permit, there is no assurance that granting the requested variance would preclude the construction of high-rise residential units. The dwellings occupying this property were constructed some thirty years ago and are expensive to maintain and are not a very attractive investment. Petitioner referred to several other businesses where variances in parking requirements have been granted when bars and restaurants on Mandalay Avenue were rebuilt or expanded; however, little evidence was presented that parking variances have been granted when a new use for the property was proposed.
The Issue Whether the Respondent's real estate broker's license should be suspended, revoked, or otherwise disciplined based upon alleged violations of Chapter 475, Florida Statutes.
Findings Of Fact The Respondent, Peter H. Bos, Jr., is a licensed real estate broker in the State of Florida, holding License Nos. BK 0225668 and 0189099. He is the registered broker for Bos Realty Company, Inc., and Sandestin Realty, Inc. Bos Realty, Inc., and Sandestin Realty, Inc., are registered real estate brokerage companies. The Respondent is also the Chairman of the Board and Vice President of Sandestin Corporation, Inc. ("Sandestin") . Sandestin is not a real estate brokerage company and does not engage in any real estate business regulated under Chapter 475, Florida Statutes. Sandestin is a licensed hotelier. In 1987, Sandestin ceased acting as the management company of Sandestin Resort. Sandestin Corporation instead became a company which operated a hotel. In order to obtain rooms for its hotel operation, the corporation entered into leases with various local condominium owners, including Sandestin Resort unit owners. These leases were entered into under a landlord and tenant contract and not a management contract. The landlord and tenant contract did not establish any fiduciary relationship between Sandestin Corporation, Respondent, or the landlord/unit owner. Similarly, the landlord and tenant agreement did not establish any escrow relationship between Sandestin Corporation, Respondent, or the landlord/unit owner. During this time, the leasehold agreement did contain two typographical errors. One error, committed by the law firm who drafted the agreement, placed Sandestin Realty's name over the signature block at the end of the contract. The other error was contained in an exhibit to the contract and listed Sandestin Realty in its title. All of the typographical errors were discovered and corrected by 1988. None of the errors materially effected the understanding of the parties as to who those parties were or the relationship they had. In reality none of the parties involved in the contracts containing the typographical errors noticed either fallacy. Around May 22, 1987, Margaret Irwin purchased a unit from Sandestin Realty Company, Inc. She signed a landlord and tenant agreement dated March 25, 1987, between herself, as landlord, and Sandestin Corporation, Inc., as tenant. Although Ms. Irwin was somewhat confused about the exact relationship between the parties, the contract she signed was plain on its face and unambiguous in its language that the agreement she was entering into was a leasehold agreement with her as a landlord and Sandestin Corporation as a tenant. Ms. Irwin's confusion appeared to result from assumptions that emanated from her own mind. The evidence did not establish that any representation was made either on behalf of or by Respondent that the lease agreement was other than what it purported to be. Moreover, the evidence did not establish that Ms. Irwin's confusion was caused by any actions of Respondent or any of the typographical errors which were in the agreement at the time Ms. Irwin signed it. Up until 1989, Ms. Irwin received all of the lease payments she was entitled to receive under the lease agreement. In 1989, Sandestin Corporation experienced financial difficulties. Beginning in August 1989, Sandestin Corporation, on the advice of its attorneys, did not make the agreed upon lease payments to Ms. Irwin as well as other unit owners from which it had leased units. All of the unit owners's including Ms. Irwin, were made aware of Sandestin Corporation's financial difficulties in a letter dated October, 1989. Ms. Irwin elected to terminate her lease agreement with Sandestin Corporation and demanded the back rant which was owed to her. The back rent remains unpaid to this date. In late 1989, Sandestin Corporation filed for a Chapter 11 bankruptcy. That bankruptcy is ongoing today. The unit owners who elected to continue leasing their units to Sandestin Corporation have begun to receive incremental payments on the back rent owned to them by a special order of the bankruptcy court. Importantly, all of the unit owners, including Ms. Irwin, were treated as landlord/creditors of Sandestin Corporation. The money owed to these unit owners has been treated as property of Sandestin Corporation and therefore part of the bankrupt's estate. The money was not treated as property being held by Sandestin Corporation on behalf of and as fiduciary for these various unit owners. There was absolutely no clear and convincing evidence presented of any fraud, misrepresentation, scheme, trick, or device, or breach of trust on the part of Respondent. The language of the lease agreement is plain on its face and clearly establishes a landlord and tenant contract. The agreement did not establish any fiduciary or escrow relationship. Additionally, Respondent's duties in relation to Sandestin Corporation were not those which involved any real estate duties regulated by Chapter 475, Florida Statutes. Therefore, Respondent is not guilty of violating any of the provisions of 475.25(1)(b), (d), or (k), Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, the pleadings and argument of the parties, it is therefore, RECOMMENDED that the Board enter a Final Order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of January 1991. DIANE CLEAVINGER 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 30th day of January 1991. APPENDIX The facts contained in paragraphs 2, 3, 4, 5, 6, 12, 13, 14, 15, 24, 26, 26, and 30, of Petitioner's Proposed Findings of Fact are adopted. The facts contained in paragraphs 1, 7, 8, 9, 10, 11, 18, 20, 21, 22, 31, 32, 33, 34, and 35 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 16, 17, 19, and 28, of Petitioner's Proposed Findings of Fact are immaterial. The facts contained in paragraphs 23, 25, 29, and 36 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts in paragraphs 1, 2, 3, and 4 of Respondent's Proposed Findings of Fact are adopted. COPIES FURNISHED: Janine B. Myrick, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 E.C. Kitchen, Esquire Post Office Box 1854 Tallahassee, Florida 32302-1854 Darlene F. Keller Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
