The Issue Whether the subject activities of Charles River Laboratories, Inc. (CRL) constitute development within the meaning of Chapter 380, Florida Statutes. Whether the challenged after-the-fact building permit is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan (Comprehensive Plan), and the Monroe County Land Development Regulations (LDRs). Whether the Department of Community Affairs (DCA) is barred by the Doctrine of Equitable Estoppel from challenging the after-the-fact permit issued by Monroe County. Whether the DCA and Curtis Kruer are barred by the Doctrine of Collateral Estoppel from challenging the after-the-fact permit. Whether the action by the DCA is consistent with prior agency practice.
Findings Of Fact THE PARTIES Petitioner is the state land planning agency that administers the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. The appeal in the instant proceeding was timely. Monroe County is a political subdivision of the State of Florida and is responsible for issuing permits for construction in unincorporated Monroe County. Monroe County issued Permit 95100012145, the permit that is the subject of this appeal, on December 1, 1995. Monroe County did not actively participate at the formal hearing. Charles River Laboratories (CRL) is the applicant for the permit that is the subject of this appeal. Paul Schilling, D.V.M., has been the director of CRL's monkey breeding activities in the Keys since 1983 and signed the application for the permit on behalf of CRL. CRL applied to Monroe County for an after-the-fact building permit for certain work that had been completed on Raccoon Key and Key Lois. The building permit subsequently issued by Monroe County and challenged in this proceedings authorized certain work done on three feeding stations on Raccoon Key and certain work done on a field cage on Key Lois. The field cage is used as a breeding pen for monkeys. Michael C. Coppola signed the application as the general contractor of record. Mr. Coppola did not participate in this proceeding. Intervenor, Curtis Kruer, moved to the Florida Keys in 1977. He resides on Big Pine Key and maintains an office on Summerland Key. Mr. Kruer is a recreational fisherman and a licensed fishing guide and boat captain. He earns a portion of his livelihood as a fishing guide and has, in the past, chartered trips to the shallow waters surrounding Key Lois and Raccoon Key. In recent years, he has stopped fishing these areas because of what he perceives to be diminished fish population caused by degraded water quality and less seagrass extent and quality. Mr. Kruer is also of the opinion that there has been a diminution of the aesthetic character of the islands. Mr. Kruer attributes these negative impacts to CRL's use of the islands. In addition to commercial fishing activities, Mr. Kruer has fished the waters of both islands for recreation. He has reduced his recreational fishing around Key Lois because of the environmental degradation, but he continues to fish for recreation around Raccoon Key. Mr. Kruer has shown that he has been impacted by the activities of CRL on Key Lois and Raccoon Key and that he will be further impacted if those activities continue. He established that he has the requisite standing to intervene in this proceeding. AREA OF CRITICAL STATE CONCERN Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical State Concern, as designated under Sections 380.05 and 380.0552, Florida Statutes. These statutory provisions require that Monroe County adopt and implement a comprehensive plan and land development regulations consistent with the Principles for Guiding Development found at Section 380.0552(7), Florida Statutes. THE MONROE COUNTY COMPREHENSIVE PLAN The Monroe County Comprehensive Plan was adopted by the Monroe County Commission on February 28, 1986, and became effective on September 15, 1986 (Comprehensive Plan). The Comprehensive Plan complies with the Principles for Guiding Development and has been approved by the Petitioner and by the Administration Commission. The Monroe County Comprehensive Plan is implemented by and through its adopted land development regulations (LDRs), codified primarily in Chapter 9.5, Monroe County Code (M.C.C.). Although there have been subsequent amendments to the Comprehensive Plan, those amendments have not been shown to be relevant to this proceeding. CRL's use of these islands predated the adoption of the Comprehensive Plan. Prior to the adoption of the Monroe County Comprehensive Plan, all pertinent permitting agencies, including the Department of Community Affairs, were aware of CRL's activities on these two islands. In the 1980s Dr. Schilling met with representatives of the Department of Community Affairs and with Monroe County staff, including the Monroe County biologist. Dr. Schilling was not told during any of these meetings that the Department of Community Affairs objected to its operations on these two islands. The actual uses CRL was making of these two islands at the time the Comprehensive Plan was adopted was not incorporated into the Comprehensive Plan. In 1984, Jim Murley was employed by the Department of Community Affairs, but not as its director, the position he currently holds. Mr. Murley advised CRL's attorney in 1984 that CRL should insure its continued use of the two islands by writing itself into the comprehensive plan so that there is no conflict with its use of the two islands and the adopted plan. Despite that advice, CRL did not file anything with Monroe County in an effort to write its use of the two islands into the Comprehensive Plan. CRL's use of these islands has not been registered with Monroe County as nonconforming use. Although the Monroe County Code provides for such registration, the evidence established that Monroe County has never undertaken the task of registering nonconforming uses in the county. THE PROPERTY CRL owns Key Lois and Raccoon Key, two offshore islands in the general vicinity of Cudjoe Key and Summerland Key that are within the Florida Keys Area of Critical State Concern. Key Lois, formerly known as Loggerhead Key, is located within the Florida Keys Marine Sanctuary approximately two miles south of Cudjoe Key in Hawk's Channel, which is in the Atlantic Ocean. CRL owns approximately 57 acres on Key Lois above the mean high water line. Raccoon Key is located in the Great White Heron National Wildlife Refuge, which is also within the Florida Keys National Marine Sanctuary and lies approximately three miles north of Cudjoe Key in the Gulf of Mexico. 1/ CRL owns approximately 100 acres on Raccoon Key that is above the mean high water line. CRL breeds reheus monkeys (Macaca mullata) on these two islands and also utilizes a land base on Summerland Key as part of its monkey farming operation. The monkeys that are bred on these two islands are either kept for future breeding or are sold for medical research related to human health. These monkeys are an important resource for medical research. The islands were selected, in part, because it would enable CRL to keep the monkeys isolated from diseases. Monkey breeding is properly considered a commercial activity as opposed to an agricultural activity. CRL began its monkey breeding operations on Key Lois in 1973 and on Raccoon Key in 1976. When they were first introduced to the Keys, the monkeys on both islands were not confined so that each monkey had free-range of its island. As a result of a dispute with the Florida Department of Environmental Regulation (FDER), CRL has agreed to a scheduled reduction of the monkeys' access to both islands. 2/ CRL has agreed to eliminate all free ranging monkeys from Key Lois by the year 2003 and to eliminate all free ranging monkeys from Raccoon Key by the year 2008. The monkey population reached its zenith in 1983 about the time Dr. Schilling assumed his responsibilities as the director of CRL's monkey breeding activities in the Keys. At that time the monkey population on Key Lois was approximately 2,000 and the monkey population on Key Raccoon was approximately 4,000. Since that time there has been a steady decline in the monkey population on both islands and, at the time of the formal hearing, there were approximately 200 monkeys on Key Lois and 1,000 monkeys on Raccoon Key. CRL supplies food and water to the monkeys on a daily basis. THE STRUCTURES The structure at issue on Key Lois is a field cage which was reconstructed from a former holding pen with solid walls to a structure whose sides and ceiling is chain link fencing. In the permit that is at issue in this proceeding, the structure is referred to as Field Cage 7. The structure was formerly referred to as Compound III. A permit for the former holding pen (then referred to as Compound III) was issued by the Army Corps of Engineers (ACOE) on June 22, 1983. Compound III was described by that ACOE permit as follows: "96' x 48' x 12', galvanized sheet metal and chain link fencing with pipes set in concrete. Used for feeding, watering and trapping monkeys. Construction date 1972." The former pen was initially used as a temporary holding pen for newly acquired animals. CRL now uses this structure as a breeding pen. Glen Boe and Associates prepared the sketches that were attached to CRL's permit application to Monroe County. The sketch depicted the basic structure 3/ of Field Cage 7 as being 50 feet in width and 100 feet in length, which is slightly larger than the description on the ACOE permit. Despite those differences, the footprint of the basic structure has not been enlarged. The discrepancy between the ACOE permit and the Boe drawing is an error. In addition to the basic structure, the Boe drawings also depict two small holding pens on either end of the cage. These holding pens are approximately 10' x 15' on one end and 10' x 20' on the other end. These holding pens facilitate the handling of monkeys and were added to the structure, without a permit, in 1988. The floor of Field Cage 7 is sand. The walls and top are supported by galvanized pipe on ten foot centers. These pipes are sunk in concrete footers. The walls, gates, and top of the structure are constructed of the same materials that are used for a typical chain link fence, with galvanized pipe being used for the framework. The solid walls were removed because they were corroding, they were too hot, and they were not keeping the monkeys confined. The chain link material provides a more suitable cage for the monkeys and is less wind resistant than solid walls. During spring high tides, all of Key Lois is typically inundated with water except for a narrow sand berm. In some years, this sand berm has been partially inundated. The three feeding stations on Raccoon Key were designed to be a feeding station that could also be used to trap and confine adult monkeys. Each of these structures is an octagon that is 32 feet in length and 32 feet in width with an open top, gates, and chain link fencing at the bottom of the walls. The wall above the chain link portion is constructed of smooth sheet metal, which prevents the monkeys from climbing over the top of the structure when the doors are closed for the purpose of trapping and confining monkeys. The three feeding cages on Raccoon Key are located in areas that flood during spring tides Both Raccoon Key and Key Lois are vulnerable to hurricanes. These islands would likely be inundated and the structures obliterated if a major hurricane were to strike them. DEVELOPMENT The activity authorized by the building permit is "development" as defined in the Monroe County land development regulations and Chapter 380, Florida Statutes. The building permit is a "development order" within the meaning of Chapter 380, Florida Statutes. See Section 9.5-4(D-8), Monroe County Code, and Section 380.04, Florida Statutes. 4/ CRL argues that these should be construed to be temporary structures and that the building activity associated with those temporary structures does not require a building permit. CRL did not establish that these structures, which are expected to remain in place for over a decade, are exempt from permitting requirements as temporary structures. THE SUBJECT PERMIT CRL has received permits from different permitting agencies for various structures, a marina, and a dock facility. It has also received letters advising that certain activities did not require a permit. There are structures on both islands that were constructed by CRL without the benefit of a building permit. CRL applied for the subject building permit after Curtis Kruer complained to Monroe County staff that there had been building activity on the two islands that had not been permitted. Thereafter, CRL was contacted by Monroe County staff. Dr. Schilling testified that CRL did not believe that a building permit was required since the structures have no roofs and were constructed either in the same footprint as prior structures or were moved at the direction of the FDER. Rather than argue with Monroe County's staff, Dr. Schilling caused an application to be filed that resulted in the challenged building permit. The application, filed October 11, 1995, was for permits for three feeding cages on Raccoon Key, a field cage (Field Cage 7) on Key Lois, and fencing. The permit application does not refer to any agency agreements, identify any other structures on the islands, indicate whether these structures replace or relocate other structures, or identify any habitat types or areas. The permit application contains drawings that reflect that the structures are more than fifty feet from the waters that surround the two islands. The permit that was subsequently issued was for the three feeding cages and the field cage only. The fencing was not permitted. This permit constitutes a development order. The Department of Community Affairs routinely reviews development orders issued in the Florida Keys Area of Critical State Concern. The Department timely filed its appeal of this development order. There was insufficient evidence to establish that the Department's appeal of this development order was inconsistent with prior agency practice. Monroe County typically requires a habitat analysis and a computation reflecting that a project satisfies the open space requirements contained in LDRs. The county biologist usually conducts a site inspection. In this case, Monroe County did not require a habitat analysis, an open space computation, or a site visit by the county biologist because it viewed these structures as reducing a nonconforming use. The staff considered CRL's use of the entire islands to be the nonconforming use that was being reduced. Monroe County has adopted an official "existing conditions map" that should show the vegetation, natural features, and developed land in the county. 5/ If the existing conditions map does not show a habitat designation, the habitat should be determined by field verification. The existing conditions map reflects the habitat for Raccoon Key, but it does not designate the habitat of Key Lois. THE LAND USE DISTRICT Section 9.5-202 establishes the different land use districts for Monroe County 6/ , including a land use designated as "Offshore Island District (OS)", the designation in which Raccoon Key and Key Lois fall. Section 9.5-212 pertains to the purpose of the "Offshore Island District (OS)" designation and provides as follows: The purpose of the OS district is to establish areas that are not connected to U.S. 1 as protected areas, while permitting low intensity residential uses and campground spaces in upland areas that can be served by cisterns, generators and other self-contained facilities. Section 9.5-231 pertains in general to the permitted uses in the different land use districts and provides, in pertinent part, as follows: No structure or land in Monroe County shall hereafter be developed, used or occupied unless expressly authorized in a land use district in this division. . . . Section 9.5-241 lists the uses that are permitted as of right in the Offshore Island District and the uses that are permitted as major conditional uses. The use CRL makes of the two offshore islands involved in this proceeding is not included as an "of right use" or as a "major conditional use." The use CRL makes of these two islands is inconsistent with the OS designation. That use is of greater impact than those contemplated by the OS designation. NONCONFORMING USES AND NONCONFORMING STRUCTURES Prior to the building activity at issue in this proceeding, the Field Cage 7 on Key Lois and the three feeding stations on Raccoon Key were nonconforming structures. 7/ CRL's use of both islands are nonconforming uses. Article V of the LDRs pertains to nonconforming uses. Section 9.5-141 provides, in pertinent part, as follows: The purpose of this article is to regulate and limit the continued existence of uses and structures established prior to the enactment of this chapter that do not conform to the provisions of this chapter. Many nonconformities may continue, but the provisions of this article are designed to curtail substantial investment in noncon- formities and to bring about their eventual elimination in order to preserve the integrity of this chapter. Section 9.5-143 pertains to "nonconforming uses" and provides, in pertinent part, as follows: Authority to Continue: Nonconforming uses of land or structures may continue in accordance with the provisions of this section. Ordinary Repair and Maintenance: Normal maintenance and repair to permit continuation of registered nonconforming uses may be performed. Extensions: Nonconforming uses shall not be extended. This prohibition shall be construed so as to prevent: Enlargement of nonconforming uses by additions to the structure in which such nonconforming uses are located . . . Relocation: A structure in which a nonconforming use is located may not be moved unless the new use thereafter shall conform to other limitations of the land use district into which it is moved. Change in Use: A nonconforming use shall not be changed to any other use unless the new use conforms to the provisions of the land use district in which it is located. Section 9.5-144 pertains to "nonconforming structures" and provides, in pertinent part, as follows: Authority To Continue: A nonconforming structure devoted to a use permitted in the land use district in which it is located may continue in accordance with the provisions of this section. Ordinary Repair and Maintenance: Normal maintenance and repair of registered nonconforming structures may be performed. Enlargements and Extensions: Noncon- forming structures which are used in a manner conforming to the provisions of this chapter may be enlarged or extended provided that the nonconformity is not further violated. Relocation: A nonconforming structure . . . shall not be moved unless it thereafter shall conform to the regulations of the land use district in which it is located. . . . ACTIVITY WAS NOT REPAIR AND MAINTENANCE The building activity on Raccoon Key involved new construction as opposed to repair and maintenance of existing nonconforming structures. These structures were abandoned or razed and the three new structures with a different design and constructed of different materials in a different footprint were built. The building activity on Key Lois was new construction as opposed to repair and maintenance of an existing nonconforming structure. The former structure, with the exception of the two holding pens that were added in 1988 without a permit, should be considered to be a nonconforming structure. The structure was dismantled to its foundation and a completely new structure was erected. With the exception of the holding pens on either end, the new structure was constructed in the footprint of the previous, nonconforming structure. A building permit from Monroe County was required for the building activity at issue in this proceeding. OPEN SPACE REQUIREMENTS An open space ratio is defined in Section 9.5-4(0-4) as ". the percentage of the total gross area of a parcel that is open space." There are two different open space ratios applicable to the subject permit. One is based on the land use district designation and the other is based on the type habitat on the property. In the instance where a land use district open space ratio and a habitat open space ratio are different, the higher open space ratio applies. The open space ratio requirement for the Offshore Island land use designation is found at Section 9.5-262, M.C.C., and requires that 95 percent of the area be left as open space. Section 9.5-343, M.C.C., contains the open space ratios designed to protect habitat. These open space ratios vary depending on the land type depicted on the Existing Conditions Map, which has been adopted and shows vegetation, natural features, and developed lands. On Raccoon Key, these three designations are depicted on the Existing Conditions Map: "fringing mangroves", "saltmarsh and buttonwood associations", and "speciality farms". Much of the island consists of fringing mangroves. A portion along the eastern shoreline is designated saltmarsh and buttonwood. Five areas in which CRL had placed structures are designated as speciality farms. The southernmost of the feeding stations on Raccoon Key at issue in this proceeding and Field Cage 7 on Key Lois are in fringing mangrove areas, a designation that has an open space requirement of 100 percent. Section 9.5- 345(m), M.C.C., authorizes the construction of piers, docks, utility pilings, and walkways in mangroves. The feeding station and the field cage are not the type structures that can be built in mangroves. The other two feeding stations on Raccoon Key at issue in this proceeding are in areas with 95 percent open space ratios. Dr. Schilling performed an open space analysis by which he concluded that all structures on both islands at issue in this proceeding met the applicable open space requirements. The southernmost feeding station on Raccoon Key and Field Cage 7. Key Lois do not comply with the open space ratio requirement. As to the other structures, the Department of Community Affairs established that Dr. Schilling's analysis was flawed. The evidence failed to establish whether the remaining structures meet the open space requirements. SETBACK REQUIREMENTS Section 9.5-286(b) pertains to shoreline setback requirements and provides as follows: (b) All buildings other than docks, utility pilings, walkways, nonenclosed gazebos and fences and similar structures shall be set back fifty (50) feet from natural water bodies with unaltered shorelines or unlawfully altered shorelines, measured from the landward limit of mangroves, if any, and where mangroves do not exist, from mean high tide line. The Monroe County staff relied on the drawings attached to the application in concluding that the structures comply with setback requirements. These drawings erroneously reflect that Field Cage 7 is more than 50 feet from the water and they do not reflect the landward extent of mangroves. The shoreline on Key Lois is unaltered. Field Cage 7 is obviously within 50' of the shoreline. Field Cage 7 does not comply with the setback requirement found in Section 9.5-286(b), M.C.C. The shoreline on Raccoon Key is unaltered. All three of the feed stations at issue in this proceeding are within 50' of the landward extent of mangroves. These three feed stations do not comply with the setback requirement found in Section 9.5-286(b), M.C.C. ADVERSE ENVIRONMENTAL IMPACTS Despite the food that is provided, the free roaming monkeys have destroyed mangroves on the two islands. In the process of pulling leaves off the mangroves, the monkeys strip bark and break branches from the mangroves. The adverse impact on the mangroves is evident, with dead mangroves being observed in large quantities on both islands. Because Key Lois is a sand key, the absence of mangroves to stabilize its shorelines and to break or absorb wave energy has contributed to erosion. Nutrients from fecal waste and food reach the nearshore waters of both islands. The excessive nutrient loading has contributed to algal blooms and the degradation of those nearshore waters. PRIOR DISPUTES In the 1980s, a dispute developed between CRL and the FDER regarding CRL's activities on these two islands. As a result of that dispute and after several years of negotiation, CRL and the FDER settled their dispute by the execution of two consent orders, one pertaining to Key Lois and the other pertaining to Raccoon Key. The Department of Community Affairs was not a party to that dispute and did not participate in the negotiations. In 1986, CRL filed a civil action in the Circuit Court of the Sixteenth Judicial Circuit in and for Monroe County, Florida, against the Governor and Cabinet sitting as the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) to determine the mean high water line for the purposes of delineating the boundary between the lands owned by CRL and the sovereign submerged lands held in trust by the State of Florida. The case number assigned to that proceeding was 86-190-CA-13. That civil action was settled, with the consent agreements between CRL and FDER being incorporated by reference. The Department of Community Affairs was not a party to the suit between CRL and the Board of Trustees and did not participate in the negotiations that resulted in the settlement agreement. 8/ The settlement agreement between CRL and the Board of Trustees was approved by the circuit judge presiding over the civil action and was incorporated by reference in the court's "Consent Final Judgment" entered in Case No. 86-190-CA-13. The court's order provided in part, that the ". . .terms and conditions contained in [the Settlement Agreement] shall govern the parties' conduct and define their respective duties and obligations." By its settlement agreement with the Board of Trustees, CRL agreed to cease its operations on Key Lois and convey title to Key Lois to the State of Florida no later than December 31, 2012. It also agreed to cease its operations on Raccoon Key and quitclaim its ownership of Raccoon Key to the United States for inclusion in the National Wildlife Refuge System no later than December 31, 2024. The consent agreements with the FDER requires CRL to obtain all governmental permits that are necessary to effectuate the terms of the agreements. Those provisions require CRL to obtain any necessary building permits. The settlement agreement between CRL and the Board of Trustees also included the following: ". . . [H]usbandry practices will be changed to reduce the free-ranging population. Nonproductive animals will be intensely culled; selective breeders will be replaced and juveniles will be confined in corral gang-type caging similar to that used by many zoos." The provisions of the consent order between CRL and FDER for Key Lois included the scheduled reduction of the free-range population of animals, to culminate with the elimination of all free-ranging monkeys during the year 2003, and the restoration of the previously damaged mangrove areas on the island. "Holding Compound III," now referred to as Field Cage 7, was identified on a location map. The following comment reflected the future plans for this structure: "This compound will be renovated and turned into the first breeding corral." The provisions of the consent order between CRL and FDER for Raccoon Key also provided for the scheduled reduction of the free-range population of animals , to culminate with the elimination of all free-ranging monkeys during the year 2008, and the restoration of the previously damaged mangrove areas on the island. Five feeding stations were identified on the location map. The following comments reflected the future plans for these structures: "Three 48' x 24' wire structures are used to feed and trap the free ranging animals. FS I will be relocated to near (sic) Compound II. FS V will be dismantled and not replaced. FS II, III and IV will remain in use as long as free range animals are on the island." The structures referred to by the consent order as FS II, FS III, and FS IV are referred to by the development order issued by Monroe County as feeding stations 1, 2, and 3, respectively. These three feeding stations were moved short distances to less environmentally sensitive areas at the direction of FDER, but they remain in the approximate location as they were prior to the adoption of the Comprehensive Plan. The feed stations on Raccoon Key were also redesigned by CRL so that they could be better suited for trapping adult monkeys. In reliance on the consent orders with the FDER and with the settlement with the Board of Trustees, CRL has expended over $197,000 in lease fees and administrative fees to the FDER, spent some $120,000 on refoliation, $90,000 on fencing, $15,000 in feed stations, $125,000 in breeding and holding pens, and $200,000 for water treatment plants, for a total of $747,000. CRL contributes approximately one million dollars per year to the local economy in salaries and purchases. MODIFICATIONS There was no evidence of modifications to the structures that would render them consistent with the Comprehensive Plan. VARIANCES The Monroe County Code makes provision for the issuance of variances in appropriate circumstances. Section 9.5-523, M.C.C., pertains to variances and provides, in pertinent part, as follows: Variances may be granted to the requirements contained in divisions 10, 9, 4, 11, and 14, article VII, pursuant to the standards and procedures set forth in subparagraph (e) of this section, but only if a variance is not otherwise available as part of the conditional use approval process. Variances may be granted from the open space ratio requirements of section 9.5-182 according to the standards and procedures set forth in subsection (e) of this section. However, no variance shall be granted under this section if such variance would result in an open space ratio less than that required by section 9.5-343. * * * An application for a variance shall be submitted to the development review coordinator in a form prescribed by the planning director. The development review coordinator shall schedule a hearing on the variance upon receipt of a completed application. The notice requirements shall be those described in section 9.5-45. All applications for variances under this section shall be heard and decided by the planning commission at a regularly scheduled public hearing. Appeals may be filed by an owner, applicant, adjacent property owner, any aggrieved or adversely affected person as defined by section 163.3215(2), Florida Statutes; or any resident or real property owner may request an appeal of the planning commission's variance decision under the hearing officer appellate article of these regulations [Section 9.5-535, et seq.] by filing the notice required by that article within thirty (30) days of the date of the written variance decision of the planning commission. The planning commission, in granting or denying a variance under this section, shall consider whether the following conditions are met: A showing of good and sufficient cause; Failure to grant the variance would result in exceptional hardship to the applicant; A determination that the granting of the variance will not result in additional threats to public expense which would not otherwise occur; create a nuisance; or cause fraud or victimization of the public; Unique or peculiar circumstances or conditions which apply to the property but which do not apply to other properties in the same land district; The granting of the variance would not confer upon the applicant any special privilege denied by these regulations to other properties in the same land district. The planning commission, in determining whether the foregoing conditions for a variance are met, shall consider the following factors relevant: Physical characteristics of the proposed construction for which a variance is requested; Whether it is possible to use the property without the variance; The increased or decreased danger to life and property if the variance is or is not requested; The importance to the community of the services to be provided if the proposed variance is granted; The compatibility of the proposed variance in light of existing and permitted development in the immediate area; The safety of access to the property for ordinary and emergency vehicles if the variance is or is not granted; The additional or lessened costs of providing governmental services if the variance is or is not granted. The issues pertaining to the issuance of variances for these structures are not identical to the issues litigated in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FLAWAC enter a final order that adopts the findings of fact and the conclusions of law contained herein. It is further recommended that the final order find that the subject permit is inconsistent with the Monroe County Comprehensive Plan and Land Development Regulations. It is further recommended that FLAWAC order that the structures can remain in place until CRL has had a reasonable opportunity to apply to Monroe County for variances for the subject structures and for an amendment to the Monroe County Comprehensive Plan. Should CRL not apply for variances or an amendment to the comprehension plan within a reasonable time established by FLAWAC, or should those applications be denied, the subject structures should be ordered removed. DONE AND ORDERED this 16th day of December, 1996, in Tallahassee, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1996.
The Issue The Respondents have all been charged with multiple violations of Chapter 48, Florida Statutes. The specific violations charged raise the following issues: Whether the Respondents violated Section 489.023(1), Florida Statutes, by offering, disposing, or participating in the offer or disposition of subdivided lands located in Dade and Osceola Counties, Florida, without a valid order of registration from the Division of Florida Land Sales, Condominiums and Mobile Homes. Whether the Respondents violated Section 498.023(2), Florida Statutes, by disposing or participating in the disposition of subdivided lands located in Dade and Osceola Counties, Florida, without furnishing each purchaser with a public offering statement, approved by the Division of Florida Land Sales, Condominiums and Mobile Homes, prior to the purchase. Whether the Respondents violated Section 498.023(3), Florida Statutes, by disposing or participating in the disposition of subdivided lands principally offered by long distance telephone solicitation without furnishing the prospective purchaser with a copy of a synopsis or summary of the sales script, approved by the Division of Florida Land Sales, Condominiums and Mobile Homes prior to the execution of the sales agreement Whether Melvin Lewis, Larry Burton Lewis, Virginia G. Young, or Julio Bercowicz are jointly and severally liable with one or more of the other Respondents for the foregoing violations because of materially participating in the offer or disposition of subdivided lands located in Florida, which offers or dispositions were made in violation of Chapter 498, Florida Statutes, and involved fraud, deception, false pretenses, misrepresentation, or false advertising. Underlying all of the foregoing issues is the issue of whether the activities of the Respondents alleged in the several Notices To Show Cause constitute a "common promotional plan" within the meaning of Rule 7D-1.003(3), Florida Administrative Code.
Findings Of Fact At all times material to these cases, Melvin Lewis and Fay Lewis were and are husband and wife. Larry Burton Lewis ("Larry Lewis") and Cindy Morales are their son and daughter. During the period June 11, 1984, through March 16, 1987 (and perhaps later), Helen Lewis was married to Larry Lewis. Julio Bercowicz is the brother of Helen Lewis. From 1980 through 1987, Virginia Young was employed by Melvin Lewis as a secretary. South Florida Properties, Inc., was a Florida corporation created on April 26, 1977, for purposes which included selling real property located in section 21, township 54 south, range 37 east, Dade County, Florida, comprising 48 lots known as South Florida Properties. West Miami Estates, Inc., is an active Florida corporation created on July 20, 1978, for purposes which included selling the following real property: approximately 40 acres in the southeast 1/4 of the northwest 1/4 of section 19, approximately 10 acres in the northeast 1/4 of the southeast 1/4 of the southeast 1/4 of section 33, and approximately 21.25 acres in the northwest 1/4 of the northeast 1/4 of section 34, all in township 55 south, range 37 east, Dade County, Florida, comprising 48 lots known as West Miami Estates. Miami Kendall Estates, Inc., is an active Florida corporation created on October 12, 1979, for purposes which included selling approximately 60 acres in both the southwest 1/4 and the southern 1/2 of the northwest 1/4, of the southwest 1/4 of section 17, township 54 south, range 38 east, and approximately 10 acres in the east 1/2 of the east 1/2 of the southeast 1/4 of the southeast 1/4 of section 35, township 55 south, range 37 east, Dade County, Florida, comprising 48 lots known as Miami Kendall Estates. Randy Landes was the original incorporator, director, and president of Miami Kendall Estates, Inc. Miami Kendall West Inc., was a Florida corporation created on April 15, 1980, for purposes which included selling approximately 10 acres in the south 1/2 of the south 1/2 of the southwest 1/4 of section 32, township 54 south, range 38 east, and approximately 40 acres in the northeast 1/4 and approximately 20 acres in the west 1/2 of the southwest 1/4, both in the southwest 1/4 of section 34, township 55 south, range 37 east, section 34, Dade County, Florida, comprising 46 lots known as Miami Kendall West. Gateway Acres, Inc., is an active Florida corporation created on February 9, 1984, for purposes which included selling approximately 60 acres located in the western 1/2 of the southeast 1/4 of section 16, township 25 south, range 27 east, Osceola County, Florida, comprising 48 lots, numbered 27 through 39 and 42 through 76, known as Gateway Acres. Maingate Acres, Inc., is an active Florida corporation created on June 11, 1984, for purposes which included selling approximately 35 acres located in the western 1/2 of the southeast 1/4 and in the northeastern 1/4 of the southwest 1/4 of section 16, township 25 south, range 27 east, Osceola County, Florida, comprising 28 lots, numbered 1 through 26, 40, and 41, known as Maingate Acres. Central Florida Estates, Inc., is an active Florida corporation created on November 4, 1985, for purposes which included selling approximately 60 acres located in the southern 3/4 of the south 1/2 of the northeast 1/4 of section 19, township 25 south, range 27 east, Osceola County, Florida, comprising 48 lots known as Central Florida Estates. Mid-Florida Acres, Inc., is an active Florida corporation created on December 18, 1985, for purposes which included selling approximately 60 acres located in the north 1/2 of the northeast 1/4 of section 19, township 25 south, range 27 east, Osceola County, Florida, comprising 48 lots known as Mid-Florida Acres. Melvin Lewis controlled or participated in the formation, operation, or business of South Florida Properties, Inc., West Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., Maingate Acres, Inc., M and L Management, Inc., and Central Florida Estates, Inc., as follows: Melvin Lewis was a subscriber to the formation of South Florida Properties, Inc., Gateway Acres, Inc., and M and L Management, Inc., and participated in the formation of Central Florida Estates, Inc. Melvin Lewis is and has been the sole shareholder of Gateway Acres, Inc., since 1984, of Maingate Acres, Inc., since 1986, and of Miami Kendall Estates, Inc., and Central Florida Estates, Inc., since 1988. Melvin Lewis was the president of South Florida Properties, Inc., from 1977 through 1983; the president and a director of Miami Kendall Estates, Inc., from 1988 to the present; the president of Gateway Acres, Inc., from 1984 to present; the president of M and L Management, Inc., from 1985 to the present; the president and a director of Maingate Acres, Inc., from 1987 to the present; and the president and a director of Central Florida Estates Inc., from 1988 to the present. Melvin Lewis has been the registered agent for Gateway Acres, Inc., from 1984; for Maingate Acres, Inc., from 1986; for M and L Management, Inc., from 1985; and for Central Florida Estates, Inc., from 1988. Melvin Lewis executed the following checks, drawn on the indicated bank accounts, to pay the necessary filing fees to the Florida Secretary of State for the incorporation of the indicated corporations: Gateway Acres, Inc., paid by check number 161, and Maingate Acres, Inc., paid by check number 186, both drawn on the account of Melvin Lewis Licensed Real Estate Broker, account number 0104101960, with the Executive National Bank. M and L Management, Inc., paid by check number 50 drawn on the account of Gateway Acres, Inc., account number 0104105354, Executive National Bank. Central Florida Estates, Inc., paid by check number 2333 drawn on the account of Melvin Lewis and Fay Lewis, account number 0107205147, Executive National Bank. Melvin Lewis participated in dividing into lots for resale those parcels known as Miami Kendall Estates, Gateway Acres, Maingate Acres, and Central Florida Estates. Melvin Lewis directed and controlled the sale of lots in Miami Kendall Estates, Gateway Acres, and Maingate Acres. He further directed and controlled the sale of lots in Central Florida Estates as the real estate broker for Central Florida Estates, Inc. Melvin Lewis was authorized to execute agreements for deed as an agent for west Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., and Maingate Acres, Inc. As an authorized agent for each corporation, he executed at least two agreements for deed for west Miami Estates, Inc. (November 6, 1978 and August 15, 1979), one each for Miami Kendall Estates, Inc. (January 12, 1980), and Miami Kendall West, Inc. (January 28, 1981), four for Gateway Acres, Inc. (September 12, 26, 30 and October 5, 1984), and three for Maingate Acres, Inc. (September 7, 10, 14, 1984). As a notary public commissioned by the State of Florida, Melvin Lewis notarized the signature of Cindy Morales on six agreements for deed for Miami Kendall west, Inc. (dated from March 22 through September 21, 1982), and on one agreement for deed for Central Florida Estates, Inc. (January 28, 1986). He also notarized the signature of Fay Lewis on forty agreements for deed for Gateway Acres, Inc. (dated from April 23, 1984, through August 8, 1985), and on twenty agreements for deed for Maingate Acres, Inc. (dated from July 8 through October 31, 1984). He also notarized the agreement for deed, dated November 11, 1984, between Maingate Acres Inc., and Irma Jean DeWitt and/or Jean M. Hutchens for Maingate Acres lot 11. Melvin Lewis also notarized the corporate execution for deeds conveying lots to purchasers from West Miami Estates, Inc., Miami Kendall Estates, Inc., and Miami Kendall West, Inc. Larry Lewis controlled or participated in the formation, operation, or business of South Florida Properties, Inc., West Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., Maingate Acres, Inc., Central Florida Estates, Inc., and Mid-Florida Acres, Inc. as follows: Larry Lewis was a subscriber in the formation of West Miami Estates, Inc., and South Florida Properties, Inc., and participated in the formation of Central Florida Estates, Inc. Larry Lewis was president and a director of West Miami Estates, Inc., from 1979 through 1984, and from 1987 to the present; an officer of South Florida Properties, Inc., from 1977 to 1979; and the president of Mid-Florida Acres; Inc., from 1987 to the present. Larry Lewis has been the sole shareholder of West Miami Estates, Inc., since 1978 and the sole shareholder of Mid-Florida Acres, Inc., since 1986. Larry Lewis participated in dividing into lots for resale those parcels known as West Miami Estates and Mid-Florida Acres. From the inception of West Miami Estates, Inc., and of Mid-Florida Acres, Inc., Larry Lewis has controlled the daily operations and sale of lots by each corporation. Purchasers for lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid- Florida Acres were solicited by Larry Lewis using long distance telephone calls. Fay Lewis controlled or participated in the formation, operation or business of South Florida Properties, Inc., West Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., and Maingate Acres, Inc., as follows: Fay Lewis was a subscriber to the formation of South Florida Properties, Inc., and Miami Kendall West, Inc. Fay Lewis was the president and a director of Miami Kendall West, Inc., from its inception in 1980 until its dissolution in 1988. As president of West Miami Estates, Inc., Fay Lewis executed the warranty deed conveying lot 35A of West Miami Estates to Troy Johnson. From April 30, 1984, to August 12, 1985, Fay Lewis executed at least forty agreements for deed on behalf of Gateway Acres, Inc.; thirty-eight as corporate secretary and two as an agent for the corporation. From July 17 to November 19, 1984, Fay Lewis executed at least twenty agreements for deed on behalf of Maingate Acres, Inc.; eighteen as corporate secretary and two as an agent for the corporation. Fay Lewis executed two separate warranty deeds conveying lots in Miami Kendall Estates as a witness to the execution by the president of Miami Kendall Estates, Inc. Cindy Morales participated in the operation or business of Miami Kendall Estates, Inc., Miami Kendall West, Inc., and Central Florida Estates, Inc., as follows: From April 29 to September 28, 1982, Cindy Morales executed six agreements for deed as an authorized agent for Miami Kendall West, Inc. From January 21 to February 27, 1986, Cindy Morales executed fifteen agreements for deed as an authorized agent for Central Florida Estates, Inc. Cindy Morales also executed two separate warranty deeds conveying lots in Miami Kendall Estates as a witness to the execution by the president of Miami Kendall Estates, Inc. In 1985, Virginia Young participated in the formation of Central Florida Estates, Inc., and was listed as the sole subscriber, president, and registered agent. She participated in the daily operations of the corporation, including the filing of annual reports with the Florida Secretary of State. In 1987, she resigned her positions with Central Florida Estates, Inc., and transferred the corporation to Melvin Lewis. Saundra Bonduel ("Bonduel"), who was Melvin Lewis' accountant, was an officer in South Florida Properties, Inc., West Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., Maingate Acres, Inc., M and L Management, Inc., and Central Florida Estates, Inc., as follows: Bonduel was a vice president of South Florida Properties, Inc., from 1978 to 1983; of West Miami Estates, Inc., from 1979 to the present; of Miami Kendall West, Inc., from 1981 to 1987; of Gateway Acres, Inc., and Maingate Acres, Inc., from 1985 to the present; of M and L Management, Inc., from 1987 to the present, and of Miami Kendall Estates, Inc.; and Central Florida Estates, Inc., from 1988 to the present. Bonduel was a director and the corporate secretary of Miami Kendall Estates, Inc., from 1980 to 1988. In the foregoing capacities, Bonduel executed the annual reports filed with the Florida Secretary of State for each corporation as follows: South Florida Properties, Inc. (1978-1983); West Miami Estates, Inc. (1979-1989); Miami Kendall Estates, Inc. (1980, 1982-1989); Miami Kendall West, Inc. (1982- 1987); Gateway Acres, Inc., and Maingate Acres, Inc. (1985-1989); M and L Management, Inc. (1987-1988); and Central Florida Estates, Inc. (1988-1989). South Florida Properties, Inc., West Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., Maingate Acres, Inc., M and L Management, Inc., Central Florida Estates, Inc., and Mid- Florida Acres, Inc. have shared common offices and telephones, as follows: All of the corporations are or have been located at 633 N.E. 167th Street, North Miami Beach, Florida 33162, as follows: South Florida Properties, Inc.: Suite 519 (1978); Suite 1020 (1979); Suite 810 (1980-1983) West Miami Estates, Inc.: Suite 1020 (1979); Suite 810 (1980 to the present) Miami Kendall Estates, Inc., and Miami Kendall West, Inc.: Suite 810 (1981 to the present). Gateway Acres, Inc., and Maingate Acres, Inc.: Suite 810 (1985 to the present) M and L Management, Inc.: Suite 810 (1987 to the present). Mid-Florida Acres, Inc.: Suite 810 (1986 to the present). Central Florida Estates, Inc.: Suite 810 (1988 to the present). 2114 N.E. 182nd Street, North Miami Beach, Florida, was the personal address for Larry Lewis from 1979 through 1984; the personal address of Randy L. Landes, incorporator of Miami Kendall Estates, Inc., from 1979 through 1984; the personal address of Helen Lewis from 1984 through 1986; the corporate address of Miami Kendall Estates, Inc., in 1979 and 1980; and the corporate address of Maingate Acres, Inc., in 1984. 4927 S.W. 139th Court, Miami, Florida 33175 was the corporate address for Gateway Acres, Inc., in 1984 and for M and L Management, Inc., in 1985 and 1986. (305) 652-8523 was the telephone number given for the officer executing each of the annual reports listed below for the following corporations: West Miami Estates, Inc., and Miami (Kendall Estates, Inc. (1980-present); South Florida Properties, Inc. (1980-1983); Miami Kendall West, Inc. (1981-1987); Gateway Acres, Inc., and Maingate Acres, Inc. (1985-present); M and L Management, Inc. (1986-present); Central Florida Estates, Inc. (1988-present); Mid-Florida Acres, Inc. (1986). Mel Lewis, Larry Lewis, and Fay Lewis are authorized signers for the following corporate bank accounts with Executive National Bank, Miami, Dade County, Florida; each account opened on the indicated date: Miami Kendall West, Inc., Account Number 010-410-176-6-06, opened on October 12, 1982; Miami Kendall Estates, Inc., Account Number 010-410-179-0-06, opened on October 12, 1982; West Miami Estates, Inc., Account Number 010-410-177-4-06, opened on October 12, 1982. West Dade Acres, Inc., Account Number 010- 410-178-2-06, opened on October 12, 1982, with Cindy Morales listed as an additional signer; Gateway Acres, Inc., Account Number 101- 010-410-5354-06, opened on July 12, 1984; Maingate Acres, Inc., Account Number 010- 410-6350-06, opened on June 25, 1984. Mel Lewis, Larry Lewis, and Fay Lewis were the authorized signers for Skylake State Bank, Account Number 102-007-6, opened July 28, 1978, for West Miami Estates, Inc. Mel Lewis and Larry Lewis were the authorized signers for the bank account of South Florida Properties, Inc., at Skylake State Bank, Account Number 101-526-9. Julio Bercowicz executed agreements for deed as an authorized agent of Mid-Florida Acres, Inc. Julio Bercowicz was the original incorporator of Mid- Florida Acres, Inc., and was, at one time, the sole stockholder. He was president of Mid-Florida Acres, Inc., until at least March 17, 1986. The properties offered as West Miami Estates, Miami Kendall Estates, and Miami Kendall West share certain characteristics. All are located in the portion of the Everglades lying east of the Everglades National park. The parcels are typical Everglades wetland: primarily sawgrass prairie with occasional hardwood hammocks on slightly elevated areas and subject to seasonal flooding. Several of the small parcels comprising West Miami Estates, Miami Kendall Estates, and Miami Kendall West are located close together. One of the parcels sold as West Miami Estates and two of those sold as Miami Kendall West; are located within the one square mile of section 34, township 55 south, range 37 east, Dade County, Florida. A second parcel of West Miami Estates and the smaller parcel of Miami Kendall Estates are located in sections 33 and 35, respectively, township 55 south, range 37 east, on either side of the foregoing section 34. The parcels sold as Gateway Acres and Maingate Acres are contiguous and were formed from the single large parcel conveyed by Sand Hills Corporation to Melvin M. Lewis Licensed Real Estate Broker, Inc., on March 30, 1984. The single parcel was divided into a total of seventy-six consecutively-numbered lots; lots 1-26, 40, and 41 were then apportioned to Maingate Acres and lots 27- 39 and 42-76 to Gateway Acres. On more than one occasion, when a lot in Gateway Acres or Maingate Acres was deeded, Melvin Lewis, individually, would convey the lot by warranty deed to the applicable corporation for nominal consideration (as shown by the documentary stamps affixed to each document). If the lot was in those apportioned to Gateway Acres, Inc., he would then execute a second warranty deed as corporate president, on the same date and before the same witnesses and notary, conveying the lot to the purchaser for substantial consideration. If the lot was in Maingate Acres, the warranty deed conveying the lot to the purchaser would be executed on the same day. Fay Lewis witnessed, and Mel Lewis witnessed and notarized, the execution of at least one warranty deed by Helen Lewis as president of Maingate Acres, Inc. Those parcels sold as Central Florida Estates and Mid-Florida Acres were created from a single 140-acre parcel, acquired by M and L Management, Inc., on January 6, 1986, from David Alan Siegel and Betti L. Siegel, comprising almost the entire northeast 1/4 of section 19, township 25 south, range 27 east, Osceola County, Florida. On the same date, Melvin Lewis, as president of M and L Management, Inc., executed a warranty deed conveying to Kissimmee Hills, Inc., a 20-acre strip 2,640 feet long and 330 feet wide. This conveyance divided the single parcel conveyed by the Siegels into northern and southern portions. On January 7, 1986, Melvin Lewis, as president of M and L Management, Inc., executed a warranty deed conveying to Central Florida Estates, Inc., the remaining portion of the original parcel to the immediate south of the strip of property conveyed to Kissimmee Hills, Inc. Cindy Morales and Fay Lewis executed the deed as witnesses to the signature of Melvin Lewis. Mid-Florida Acres is comprised of the northern 60 acres remaining after 60 acres were conveyed to Central Florida Estates, Inc., and 20 acres to Kissimmee Hills, Inc. Identical or substantially identical form contracts were used to sell lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, and Central Florida Estates. The form of the contracts was also similar to the types of contracts used by many other people in the business of selling undeveloped real estate in Florida. Each sale was made by executing an unrecorded agreement for deed which reserved to the seller both the title and possession of the property until payment under the contract was complete. The use of agreements for deed is not an unusual practice in the business of selling undeveloped real estate in Florida. Purchasers of lots in South Florida Properties exchanged their lots for lots in Miami Kendall Estates, Miami Kendall West, West Dade Acres, or West Miami Estates. Melvin Lewis solicited people who had purchased lots from South Florida Properties, Inc., to exchange their lots for ones in West Miami Estates, Miami Kendall Estates, Miami Kendall West, or West Dade Acres. He subsequently sent letters to each of such purchasers verifying their discussions and providing the documents necessary for the exchange of lots. Casimir T. Brudzinski purchased lot 94-B in South Florida Properties by an agreement for deed executed by Melvin Lewis as president of South Florida Properties, Inc. After being solicited by Melvin Lewis to exchange his lot, Mr. Brudzinski agreed to exchange his lot for lot 7WD in West Dade Acres. Delbert D. Oldenburg purchased lot 126-D, South Florida Properties, by an agreement for deed executed by Melvin Lewis as president of South Florida Properties, Inc. After being solicited by Melvin Lewis to exchange his lot, Mr. Oldenburg agreed to exchange his lot for lot 43WDA in West Dade Acres, which exchange agreement was countersigned by Melvin Lewis. Ralph J. and Beryl G. Hanchin purchased lots 100A and 100B in South Florida Properties, making monthly payments to South Florida Properties, Inc. The Hanchins continued to make payments after October 1982, which payments were credited toward the purchase of lots 55A and 55B in Miami Kendall Estates. The following sales were made in each indicated parcel: at least 19 in West Miami Estates, 22 in Miami Kendall Estates, 19 in Miami Kendall West, 44 in Gateway Acres, (lots 38, 53, 67, 71 appear to have been resold due to purchaser default or refund), 24 in Maingate Acres, at least 15 in Central Florida Estates, and at least 43 in Mid-Florida Acres. None of the lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid- Florida Acres were sold as part of a reservation program approved by the Division pursuant to Section 498.024, Florida Statutes. West Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., Maingate Acres, Inc., Central Florida Estates, Inc., and Mid-Florida Acres, Inc., are neither governments nor governmental agencies. The lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres, were not offered as cemetery lots or interests in cemetery lots. The offer or disposition of lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres was not registered with either the Florida Department of Banking and Finance or the United States Securities and Exchange Commission. Each offer or disposition of a lot in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres was for the actual sale of real property and not for the sale of a debt secured by a mortgage on real property. The sale price for each separate lot sold in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres did not exceed 50,000.00. The lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres were each offered or sold without any residential or commercial buildings. The lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres were each offered or sold without any obligation of the seller to construct a residential or commercial building thereof for the purchaser. No plat or series of plats describing each lot in South Florida Properties, West Dade Acres, West Miami Estates, Miami Kendall Estates, or Miami Kendall West, was recorded or accepted for recordation in the official records of Dade County, Florida, prior to any lot sales. No plat or series of plats describing each lot in Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres, was recorded or accepted for recordation in the official records of Osceola County, Florida, prior to any lot sales. The Division did not issue any order exempting West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres from the registration requirements of Chapter 498, Florida Statutes, prior to any lot sale or other disposition being made. The Division has not issued a valid order of registration for lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres pursuant to Chapter 498, Florida Statutes. No purchaser of a lot in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres received a current public offering statement which had been approved by the Division. No purchaser of a lot in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres received a synopsis or summary, approved by the Division, of the sales script used in conjunction with the long distance telephone solicitation of the lot purchaser. The Division has not approved a public offering statement for West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres. The Division has not approved a synopsis or summary of any long distance telephone solicitation sales script for West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres. Both Melvin Lewis and Larry Lewis were familiar with the subdivided land registration requirements of Chapter 493, Florida Statutes. West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres were each created to hold less than 50 lots in an attempt to avoid the registration requirements of Chapter 498. The physical characteristics of the parcels of land offered and sold by the Respondents made those parcels unacceptable for registration under Chapter 498. Rodney A. Lein purchased lot 73 in Miami Kendall West on July 13, 1980, after a telephone call from Larry Lewis in which Larry Lewis offered Mr. Lein "income property" on land slated for development. In the conversation, Larry Lewis guaranteed he could resell the land at a profit within 3 to 4years. After the call, but before the purchase, Mr. Lein traveled to Miami to inspect the property. Larry Lewis took him to the end of west Kendall Drive in Dade County, Florida. Larry Lewis said the property offered was some 2 1/2 to 3 miles to the west of the pavement's end, but that Kendall Drive would be extended out past the property. Larry Lewis further said that as the urban area developed, the city would pay for extending such services as roads and water utilities to the property. Thomas Bezelik purchased lot 54 D, Miami Kendall Estates in January 1980 after a telephone solicitation in which the caller said the property would be a good investment and possibly purchased for industrial use. Bezelik was told an aerospace business was located close to the property he was being offered and was a potential purchaser of the site. Bezelik is still paying for the property. Robert Welch was solicited by telephone to purchase a lot in Central Florida Estates and was told the subdivision had been improved with paved streets and all utilities such as electricity, gas, telephone service, water, and sidewalks. He was further told the property would definitely appreciate in value. On the basis of this and other telephone conversations with the solicitor, Mr. Welch purchased lot 28 in Central Florida Estates. He subsequently spoke with Virginia Young by telephone, who identified herself as the president of Central Florida Estates, Inc., and affirmed the statements that had been made in soliciting him to purchase the property. She also stated Welch could redivide his 1 1/4-acre parcel into 4 lots. Eileen O. Gometz, together with her husband, since deceased, purchased a lot in West Miami Estates as a result of a telephone conversation with Larry Lewis. Larry Lewis said the property was suitable for building and would be developed within 3 to 4 years from purchase. Larry Lewis told her the property was close to a large commercial company but that the actual property itself would be home sites. At no time was she advised of the actual zoning or any rezoning of the property. Paul J. Matrullo purchased a lot in Gateway Acres after a telephone call from Larry Lewis in which Lewis assured him the property was good quality, "buildable land." Prior to his purchase, Mr. Matrullo visited the general area of the property with Larry Lewis. During the physical inspection, Lewis stated the land would be developed for residential housing or the State of Florida would purchase the property to develop a highway. Lewis further stated the property had been purchased by himself and his father, and the land was of such quality that it would double or triple in value within 12 months to 2 years. Larry Lewis gave no information specifically describing the zoning of the property. Primarily based on Lewis' representation that the property would double or triple in value within a 2-year period, Mr. Matrullo purchased lot 56 in Gateway Acres. He is currently paying for the property. William Somerset purchased lot 17 in Maingate Acres after receiving a telephone solicitation. He was told the intent of the offering was not to develop the land but to hold it as an investment for approximately 1 1/2 years and then sell it to developers. He purchased lot 17 because he was told the property would be quickly resold at a profit within "...perhaps a year and a half." He is still paying for the property. Similar sales methods were utilized in the marketing of the lots in all of the subject subdivisions. For example, solicitations for sales were made by telephone and prospective purchasers were told that they should purchase for investment purposes. Much of the land offered for sale by the Respondents was a poor investment at any price. The uses to which the property in sections 16 and 19, township 25 south, range 27 east in Osceola County, Florida, may be put are primarily agricultural. The minimum lot area is five acres and the density for residential development is one residence per five-acre lot. The purchasers of lots in Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres would not be permitted to build a separate structure on their individual lots; a minimum of four contiguous lots would have to be merged in order to create a parcel on which one residence could be built. The property purchased from Sand Hills Corporation and resold as Gateway Acres and Maingate Acres is entirely contained within the "Davenport Creek Swamp." The property is low, poorly drained, wet Florida swampland subject to periodic flooding. The single parcel sold as Central Florida Estates and Mid-Florida Acres, and in part conveyed to Kissimmee Hills, Inc., contains three distinct types of property. Roughly 45 percent of the tract is a "typical central Florida grass pond." During periods of dry weather portions of the pond dry up, but the property is subject to periodic flooding during the year. The second portion of the property is a "transitional zone" between the actual grass pond and potentially more usable land. The transitional property is low and poorly drained, again subject to occasional flooding. The smallest portion of the property, primarily found in the northern portion sold as Mid-Florida Acres, is sufficiently elevated and dry. No clear public access exists to either Gateway Acres or Maingate Acres. Access is obtained either by four-wheel drive vehicle or by foot. In soliciting purchasers for either Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres, Larry Lewis stated the offered real property was located in an area undergoing rapid growth and development. In fact, none of the parcels sold as West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres have been developed. Nor has West Kendall Drive in Miami, Florida, been extended westward to Lot 73, Miami Kendall West. Neither South Florida Properties, Inc., nor Melvin Lewis explained to the previous purchasers of South Florida Properties that the reason that they were being offered an exchange of their property was because South Florida Properties had been deeded back to the original mortgage holder in lieu of foreclosure. The lots offered for sale by the Respondents in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres were all offered as part of a common promotional plan by Melvin Lewis and Larry Lewis, with the assistance of a few of their relatives, friends, and employees. In his various capacities described in paragraph 11 of these Findings of Fact, Melvin Lewis participated in the disposition of 143 lots of subdivided lands in Florida. In his various capacities described in paragraph 12 of these Findings of Fact, Larry Lewis participated in the disposition of 186 lots of subdivided lands in Florida. In her capacities described in paragraph 15 of these Findings of Fact, Virginia Young participated in the disposition of 15 lots of subdivided lands in Florida. In his capacities described in paragraph 19 of these Findings of Fact, Julio Bercowicz participate in the disposition of at least 2 lots of subdivided lands in Florida.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the Division of Florida "Land Sales, Condominiums and Mobile Homes enter a final order in this case to the following effect: Finding each Respondent in these consolidated cases guilty of the violations charged in the respective Notices to Show Cause and Amended Notices to Show Cause. Melvin Lewis shall be ordered to pay to the Division civil penalties totaling One Million Four Hundred Forty Thousand Dollars ($1,440,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 143 dispositions of lots in which he participated. Larry Lewis shall be ordered to pay to the Division civil penalties totaling One Million Eight Hundred Seventy Thousand Dollars ($1,870,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 186 dispositions of lots in which he participated. Virginia Young shall be ordered to pay to the Division civil penalties totaling One Hundred Sixty Thousand 43 Dollars ($160,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 15 dispositions of lots in which she participated. Julio Bercowicz shall be ordered to pay to the Division civil penalties totaling Thirty Thousand Dollars ($30,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 2 dispositions of lots in which he participated. West Miami Estates, Inc., shall be ordered to pay to the Division civil penalties totaling Two Hundred Thousand Dollars ($200,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 19 dispositions of lots in which it participated. Miami Kendall Estates, Inc., shall be ordered to pay to the Division civil penalties totaling Two Hundred Thirty Thousand Dollars ($230,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 22 dispositions of lots in which it participated. Gateway Acres, Inc., shall be ordered to pay to the Division civil penalties totaling Four Hundred Fifty Thousand Dollars ($450,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 44 dispositions of lots in which it participated. Maingate Acres, Inc., shall be ordered to pay to the Division civil penalties totaling Two Hundred Fifty Thousand Dollars ($250,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 24 dispositions of lots in which it participated. Central Florida Estates, Inc., shall be ordered to pay to the Division civil penalties totaling One Hundred Sixty Thousand Dollars ($160,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 15 dispositions of lots in which it participated. Mid-Florida Acres, Inc., shall be ordered to pay to the Division civil penalties totaling Four Hundred Forty Thousand Dollars ($440,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 43 dispositions of lots in which it participated. In addition to the civil penalties recited above, West Miami Estates, Inc., Miami Kendall Estates, Inc., Gateway Acres, Inc., Maingate Acres, Inc., Central Florida Estates, Inc., and Mid-Florida Acres, Inc., each shall be ordered to, under the supervision and approval of the Division, offer each purchaser of a lot from each respective corporation, the opportunity to rescind the purchase contact and receive a refund of all principal and interest paid in purchasing the lot. The offers of rescission and refund should be made to each purchaser. The offer to rescind shall be made within 60 days from the rendition of the final order by the Director of the Division. Those purchasers who elect to rescind their contract and receive a refund shall receive their payments no later than 90 days from the date they request their refund. The Division should impose such terms of compensation and require such security as will assure the maximum recovery by those purchasers selecting a refund, including, but not limited to requiring full disclosure of all facts material to the actual lot acquired by each respective purchaser, escrowing funds or posting bonds, or the appointment of a trustee or receiver to supervise the programs of rescission and refund whose fees are to be paid by the Respondents. Melvin Lewis and Larry Lewis shall also be ordered to be jointly and severally liable for the civil penalties and other remedies ordered against West Miami Estates Inc., Miami Kendall Estates, Inc., Gateway Acres, Inc., and Maingate Acres, Inc. Melvin Lewis, Larry Lewis, and Virginia Young shall also be ordered to be jointly and severally liable for the civil penalties and other remedies ordered against Central Florida Estates, Inc. Julio Bercowicz and Larry Lewis shall also be ordered to be jointly and severally liable for the civil penalties and other remedies ordered against Mid-Florida Acres, Inc. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of November 1989. MICHAEL M. PARRISH 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 3rd day of November, 1989.
The Issue Whether an amendment to the Lee County Comprehensive Plan, adopted by Ordinance 15-10 on June 3, 2015, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2014).1/
Findings Of Fact Petitioners, Roger Thornberry, Georgette Lundquist, Steven Brodkin, Ruby Daniels, Rosalie Prestarri, and James Giedman, reside in and own property within Lee County. Petitioners submitted oral and written comments to Lee County concerning the challenged Plan Amendment during the period of time beginning with the transmittal hearing for the Plan Amendment and ending with the adoption of the Plan Amendment. Respondent, Lee County (the County), is a political subdivision of the State of Florida with the duty and responsibility to adopt and maintain a comprehensive growth management plan pursuant to section 163.3167, Florida Statutes (2015). Intervenors, RH Venture II, LLC; RH Venture III, LLC; and Greenpointe Communities, LLC (Greenpointe), are the owners and developers of the property which is subject to the Plan Amendment. Intervenors are the applicants for the Plan Amendment. The Lee County Comprehensive Plan (Comprehensive Plan) allocates future land uses based on community plans for 22 distinct communities within the County. The Fort Myers Shores planning community is located in eastern Lee County. Within Fort Myers Shores is a sub-community planning area known as Caloosahatchee Shores, which is located south of the Caloosahatchee River, east of Interstate 75 (I-75), and west of Hickey’s Creek. The southern boundary of Caloosahatchee Shores is the Orange River and State Road 82. Caloosahatchee Shores contains a mixture of future land use designations. The majority of the land is designated Suburban, Sub-Outlying Suburban, Rural, or Urban Community. The subject property is located in Caloosahatchee Shores within an existing 1,978-acre mixed-use golf community known as River Hall. Most of the existing development in River Hall was completed between 2004 and 2009 by the original developer, Landmar Group, which was then owned by Crescent Resources. Crescent Resources declared bankruptcy in 2009. Those portions of River Hall subject to the Plan Amendment were acquired by Greenpointe in 2010. The property subject to the Plan Amendment is approximately 585 acres of non-contiguous land within the existing mixed-use development. All of the property subject to the Plan Amendment is located within the Rural future land use category. The Plan Amendment changes the future land use category of the subject property from Rural to Sub-Outlying Suburban.2/ The density of development allowed in Rural is one dwelling unit per acre and the density of development allowed in Sub-Outlying Suburban is two units per acre. In 2001, the Lee County Board of County Commissioners (Lee County Commission) adopted procedures to encourage community planning aimed at specific neighborhood interests within the County. A coalition of property owners in Caloosahatchee Shores developed the Caloosahatchee Shores Community Plan (Community Plan) between 2001 and 2003. The Community Plan was incorporated into the Comprehensive Plan in 2003 and is codified as Future Land Use Element (FLUE) Goal 21 and its implementing objectives and policies. FLUE Goal 21 reads as follows: GOAL 21: CALOOSAHATCHEE SHORES: To protect the existing character, natural resources and quality of life in Caloosahatchee Shores, while promoting new development, redevelopment and maintaining a more rural identity for the neighborhoods east of I-75 by establishing minimum aesthetic requirements, planning the location and intensity of future commercial and residential uses, and providing incentives for redevelopment, mixed use development and pedestrian safe environments. This Goal and subsequent objectives and policies apply to the Caloosahatchee Shores boundaries as depicted on Map 1, page 2 of 8 in the Appendix. The Community Plan was amended in 2007 and again in 2009. Policy 21.1.5 was added to the Community Plan in 2009, and reads as follows: POLICY 21.1.5: One important aspect of the Caloosahatchee Shores Community Plan goal is to retain its’ [sic] rural character and rural land use where it currently exists. Therefore no land use map amendments to the remaining rural lands category will be permitted after May 15, 2009, unless a finding of overriding public necessity is made by three members of the Board of County Commissioners. It is undisputed that the Plan Amendment removes land from the Rural land use category. It is undisputed that the Lee County Commission did not make a finding of an “overriding public necessity” when it adopted the Plan Amendment. Petitioners allege the Plan Amendment is internally inconsistent with Policy 21.1.5 because the Lee County Commission did not make the requisite finding of an “overriding public necessity” to remove property from the Rural land use category.3/ Respondent and Intervenors argue that Policy 21.1.5 does not apply to the Plan Amendment because the existing development on the property subject to the Plan Amendment is not rural in either character or land use. Respondent and Intervenors introduced abundant evidence to establish that the property subject to the Plan Amendment is suburban development served by the full spectrum of urban services and devoid of any of the trappings of rural development, such as large-lot residential and agricultural uses. Respondent and Intervenors advocate an interpretation of Policy 21.1.5 which requires a finding of “overriding public necessity” only if a plan amendment removes property that exhibits rural character or rural land use from the Rural land use category. The County offered the testimony of Brandon Dunn, one of its principal planners. Mr. Dunn characterized the Policy as an “if/then statement”: if property in the Rural land use category (subject to a plan amendment) exhibits rural character and rural land use, then a finding of “overriding public necessity” is required. Under Mr. Dunn’s analysis, Policy 21.1.5 does not apply to the Plan Amendment because River Hall is a suburban community. Intervenors’ planning expert, Dr. David Depew, testified that the first sentence narrows the application of the second. Dr. Depew testified that the first sentence indicates “we aren’t talking about the category per se.”4/ Under Dr. Depew’s reading, the second sentence only applies to plan amendments which exhibit rural character or rural land use, rather than all plan amendments removing property from the Rural land use category. Neither Mr. Dunn’s nor Dr. Depew’s opinion is persuasive.5/ The interpretation advanced by both Respondent and Intervenors adds language to the second sentence of Policy 21.1.5 limiting its application to only those plan amendments which exhibit rural character and rural land use. The plain language of Policy 21.1.5 contains no such limitation. The policy directs the County to make a finding of an “overriding public necessity” as a prerequisite to removing land from the Rural land use category in Caloosahatchee Shores. The first sentence of Policy 21.1.5 does not constitute a limitation on the directive for a finding of an “overriding public necessity.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the Lee County Plan Amendment, adopted by Ordinance 15-10 on June 3, 2015, is not “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 1st day of December, 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 1st day of December, 2015.
Findings Of Fact The Resource Recovery Facility The purpose of the Applicants' proposed resource recovery facility (RRF), a solid waste-fired electrical power plant, is to dispose of municipal solid waste and recover energy. This "waste to energy" facility will initially dispose of up to 2,200 tons of refuse each day, and generate up to 55.5 megawatts of electrical power. The ultimate disposal capacity of the proposed facility is 3,300 tons of refuse each day, and a generating capacity of 83.25 megawatts. The proposed RRF complex will include an administrative building, scalehouse/weigh station, receiving and handling building, furnace boilers, turbine generators, ash disposal area, and electrical substation. The site development plans for the project contemplate that solid waste will be delivered by truck to the enclosed refuse receiving and handling building. All waste will be stored and processed inside the main facility. The Site The site for the proposed RRF is an undeveloped 25-acre parcel of land situated on the south side of Northwest 45th Street (Hilton Road), midway between the Florida Turnpike and Powerline Road; an unincorporated area of Broward County. The uses surrounding the site are predominantly industrial. On the south side of Hilton Road, between the Florida Turnpike, which lies to the west, and Powerline Road, which lies to the east, are welding shops, engine repair shops, and automobile salvage yards. Located north of Hilton Road is an industrial zoned area which includes an asphalt batching plant. Immediately south and east of the project site is a newly permitted landfill area which will function as an expansion of the existing landfill located immediately south and west of the site's boundaries. Consistency of the site with local land use plans and zoning ordinances Broward County has adopted a Comprehensive Plan, pursuant to Chapter 163 Florida Statutes, which establishes guidelines and policies to promote orderly and balanced economic, social, physical, environmental and fiscal development of the area. Pertinent to this proceeding are the Broward bounty Land Use Plan-map and the Unincorporated Area Land Use Plan (the land use plan element of the comprehensive plan), and Broward County's zoning ordinances. The proposed site is designated industrial under the Broward County Land Use Plan-map and the Unincorporated Area Land Use Plan. The proposed RRF is a utility for solid waste disposal and, as such, an allowable use under the industrial designation of both plans, and satisfies the goals, policies, and objectives of the Broward County Comprehensive Plan. On April 22, 1986, the Board of County Commissioners of Broward County approved the rezoning of the site to Planned Unit Development (PUD) Special Complex District, and approved the RRF conceptual site plan. The proposed RRF is a Planned Special Complex under Broward County's PUD zoning ordinances and, as such, a permitted non-residential use. 1/ The Department of Community Affairs, Department of Environmental Regulation, and South Florida Water Management District concur that the proposed RRF is consistent and in compliance with existing land use plans and zoning ordinances. The Public Service Commission did not participate in this land use portion of the power plant siting process. Notice of the land use hearing was published in the Fort Lauderdale News/Sun-Sentinel on April 21, 1986, and in the Florida Administrative Weekly on April 18, 1986.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Governor and Cabinet, sitting as the Siting Board, enter a Final Order granting certification for the location, construction and operation of the proposed facility, subject to the conditions of the certification attached to this Recommended Order as Appendix II. DONE AND ORDERED this 9th day of January 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 9th day of January 1987.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 407 EAST MADISON STREET MSC 110, TALLAHASSEE, FLORIDA 32399-4128, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES, YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. Final Order No. DEO-11-0016 MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Economic Opportunity, and that true and-correct copies have been furnished to the persons listed below in the manner described, on this ay of November 2011. Miriam Snipes, Agency Clerk DEPARTMENT OF ECONOMIC OPPORTUNITY 407 East Madison Street MSC 110 Tallahassee, Florida 32399-4128 By U.S. Mail: Marcie Oppenheimer Nolan, Esq. Derek V. Howard, Esq. Becker & Poliakoff Assistant County Attorney Fort Lauderdale, FL. 32312 Monroe County’s Attorney’s Office 1111 12" Street, Suite 408 Key West, FL 33041 By Filing with DOAH: The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition to Establish the Lakewood Ranch Community Development District Seven (Petition). The local public hearing was for the purpose of gathering information in anticipation of rulemaking by FLWAC.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the factual stipulations of the parties, the following relevant facts are found: Petitioner Pahokee Farms, Inc., is a Florida corporation which, since 1960, has been a lessee of state- owned agricultural lands in the Everglades Agricultural Area (EAA) in Palm Beach County. Its present lease expires December 31, 1985. Leases of state-owned lands within the EAA are presently governed by existing Rule 16Q-15.07(3), Florida Administrative Code This Rule provides that the Board of Trustees of the Internal Improvement Trust Fund (Board) may offer to lease lands in the EAA "by negotiation or competitive bidding." The actual practice and policy for extending leases in the EAA has, in fact, been one of negotiation rather than competitive bidding. Land has generally been released to existing leaseholders through a process of negotiation, providing the existing leaseholder paid its rent in a timely manner, properly cared for the land and was willing to pay an increased rental fee based on the current appraisal of the land. In June of 1982, Pahokee Farms, Inc., requested two five-year extensions of its agricultural lease in the EAA. The matter was deferred from the October 18, 1983, meeting of the Board of Trustees and rescheduled for the November 1, 1983, meeting. At the November 1, 1983, meeting of the Governor and Cabinet, sitting as the Board of Trustees, several members of the Board, as well as the Executive Director of the Department of Natural Resources, expressed an interest in reexamining the policy regarding agricultural leases in the EAA. For this reason, as well as the fact that several members of the Board were not present, the agenda item regarding the Pahokee Farms lease extension was deferred again to the November 17, 1983, meeting. At the November 17th meeting, the Board of Trustees directed the DNR staff, in consultation with the State Lands Management Committee, to formulate "policy recommendations" for the leasing of state-owned lands in the EAA for submission to the Board in February of 1984. The Board voted to establish its policy at that time and to then apply that policy to Pahokee Farm's request for extensions of its lease. As a result of the Board of Trustee's directions to develop policy recommendations, DNR, through the Division of State Lands, prepared a report to the Governor and Cabinet on policies for leasing state-owned lands in the EAA The report, dated March 20, 1984, set forth four options for leasing such lands, but ultimately recommended a competitive bid process through the request for proposals for leases. The report, after being deferred from the March 20, 1984, meeting, was agenda for the April 19, 1984, meeting of the Board of Trustees. The agenda item recommends "acceptance of the report and approval of recommendations." At the April 19, 1984, meeting of the Governor and Cabinet, sitting as the Board of Trustees, there was extensive discussion as to what the State's policy should be with respect to state-owned lands in the EAA. After directing the staff to develop a specific plan of action, with the Board's approval, to sell or exchange state-owned lands leased for agricultural purpose in order to acquire other valuable lands, the Board then turned to the leasing issue Governor Graham offered an amendment to the DNR report's recommended option of competitive bidding through the use of requests for proposals. The Governor's amendment to the DNR's recommendation was a two-step bidding process, calling for an initial qualification of bidders procedure and then the bid itself to be based upon both appraised value and a percentage of profits from the parcel leased. The qualified applicant offering the highest payment to the State was to be awarded the lease. Vacating lessees were to be compensated by the new lessee for ratoon or other crops based on an appraisal performed by an independent appraiser. The Governor's amendment also deleted the DNR's recommendation to provide a first right to renegotiate with existing lessees whose lease expires within four years. Prior to the Board's adoption of the Governor's amendment on April 19, 1984, a question was raised as to whether this "amendment" should he promulgated as a rule and subject to the Adinistrative Procedure Act. Governor Graham responded: "...Well, what we're doing, Mr. -- we're accepting a report. That's what we're doing at this point. We're not in a rulemaking posture." (DNR's Exhibit 9, page 209, lines 8-11). Attorney General Smith remarked that the staff would have to "do their developing toward inventing a rule here. That will have to come back through the process." (DNR's Exhibit 9, page 205, lines 16-18). Mr. Smith reiterates that "We routinely develop the policy direction and the staff goes out and makes that into a rule and comes back to us through that process, and I would contemplate that that would be done here." (DNR's Exhibit 9, page 206, lines 1-4). Governor Graham again expressed the opinion that what the Board was doing was, under its agenda item, "accepting the report which has been amended." (DNR's Exhibit 9, page 207, lines 5 and 6). Mr. Turlington stated: "...when we're voting this, we're just voting, you know, to kind of indicate to people how we're heading, and that we can handle things in a flexible, legal manner in the days ahead in order to take care of legal entanglements that some may care to inject at some future point, and I just want to be on record to make that clear..." (DNR's Exhibit 9, page 208, lines 6-12). The DNR staff thereafter drafted and the DNR Executive Director directed publication of what appears in the March 1, 1985, edition of the Florida Administrative Weekly as "proposed rules" 16Q-15.01 and 16Q-15.07. The published material differs in some respects from the Governor's amendment approved by the Board. For example, where the approved amendment provides that the participation rent factor be based upon a "percentage of the profits," the DNR's published material requires that the participation rent factor be "2 percent of the gross income." The compensation to vacating lessees for ratoon or other residual crops under the Governor's amendment was to be based upon an appraisal by an independent appraiser. DNR's published material requires compensation based upon "the remaining portion of unamortized planting costs." The published material also provides for a discretionary exemption from the qualification procedure for parcels less than 100 acres or where the annual rental value is estimated to be less than $10,000. The Board's amendment contains no such exemption. The two DNR persons most involved with the preparation and drafting of the published "proposed rules" each felt that the Governor's amendment adopted by the Board of Trustees was a policy statement direction and that it was their duty to develop a rule based upon that direction. Each felt that they were charged with the responsibility of drafting a rule and bringing it back to the Governor and Cabinet for their concurrence, their approval and their adoption. Mr. MacFarland, Director of the Division of State Lands, referred to certain portions of the published material, at least where it is different than the Board's amendment, as a "staff recommendation." (Transcript, Vol. III, page 89, line 19; also see page 27, line 25). Mr. Merriam, the Assistant Chief of the Bureau of State Lands Management, refers to the published material as a "draft rule." (Transcript, Vol. I, page 172, line 20). The material published in the Florida Administrative Weekly on March 1, 1985, has never been presented to the Governor and Cabinet sitting as the Board of Trustees. While the published notice did state that a hearing would be held by the Department of Natural Resources and the Board of Trustees on March 19, 1985, this meeting never occurred.
The Issue The issue is whether the Respondents are subject to discipline for offering and selling lots in a subdivision. The Department contends that the Respondents were required to obtain an order of registration before selling land, and to comply with other requirements with respect to their sales practices. The Respondents contend they are exempt from the registration and other regulatory requirements.
Findings Of Fact The Division is the state agency responsible for the enforcement of the Florida Uniform Land Sales Practices Act, Chapter 498, Florida Statutes. Orlando East Corporation is a Florida corporation formed in 1980 by Robert J. Loughlin which engages in the business of selling unimproved real estate in the State of Florida. It is not a government agency. Robert J. Loughlin is the President and sole shareholder of Orlando East Corporation. Between 1980 and 1986 the corporation acquired title to approximately 97 lots in the Partin Park Subdivision, a plated subdivision which contains 768 lots located in Orange County, Florida. The plat is recorded in Plat Book N at page 67 in Public Records of Orange County. The subdivision was originally approved by the Board of County Commissioners of Orange County, on February 9, 1926. On April 15, 1980, Orlando East purchased lots 1-24 and 25A in block 5 of the subdivision and lots 24-48 in block 14; on December 5, 1985, the corporation purchased lots 1-24 in block 8 of the subdivision; on June 27, 1986, the corporation purchased lots 25-48 of block 8 of the subdivision. Obviously, Orlando East Corporation is not the original subdivider of Partin Park. The Respondents have offered for sale, and sold 60 of the lots they had purchased in Partin Park by conveying 3-lot parcels in 20 sales transactions. Some of the parcels were sold by agreements for deed (nine sales), or by warranty deed or exchange agreements (11 sales). The relevant documents were executed by Mr. Loughlin on behalf of the corporation. All sales took place before February 16, 1987. One of the purchasers under an agreement for deed was Shirley Katonka. Mr. Loughlin solicited purchasers for the parcels owned by Orlando East through long distance telephone calls to out-of-state purchasers. The Respondents have not obtained an Order Of Registration to sell the lots under Sections 498.005(12), and 498.029, Florida Statutes. Neither do the Respondents have a current Public Offering Statement approved by the Division for the lots offered for sale or sold in the Part in Park subdivision. None of the land conveyed by Orlando East Corporation in the subdivision was sold as part of a reservation program approved by the Division under Section 498.024, Florida Statutes. None of the lots were re-platted after Respondents purchased them. The lots were not offered for sale as cemetery lots. The offer to sell parcels in Partin Park subdivision was not registered with the Florida Department of Banking and Finance, Division of Securities, nor with the United States Securities and Exchange Commission. The sales of each 3 lot parcel in the subdivision were for $5,000 or less. The parcels were sold without any residential or commercial buildings located on them and without the obligation of Orlando East Corporation or Mr. Loughlin to construct residential or commercial buildings on them for the purchasers. The Division had not granted an order exempting Part in Park subdivision from the registration requirements of Chapter 498 Florida Statutes, before any of the 20 sales were made by the Respondents. None of the 20 purchasers the Respondents solicited for sales received a synopsis, which had been approved by the Division, of the sales script used in conjunction with the long distance telephone solicitations. The original plan Orlando East Corporation and Mr. Loughlin had for the distribution of the lots was to sell all lots to fewer than 45 persons. This was accomplished by grouping the lots into parcels of 3-lot units. There were no covenants, declarations, or legal restrictions on the property which prohibited Orlando East Corporation from disposing of the property as individual lots. One of the reasons lots were sold in 3-lot units was to provide a purchaser a large enough piece of property so that the owner might be able to build a house on it, after obtaining a variance from the local government. The property was not sold as a home-site subdivision, however. The individual lots as plated measured 25' x 140', but the 3-lot units meet the county requirements that building lots have 75 feet of frontage and a minimum of 10,000 square feet. Of the eleven agreements for deed, eight of the original purchasers are making payments on their lots. Ms. Shirley Katonka cancelled her purchase several years ago. The Respondents are receiving a gross income of $750 per month for the eight active agreements for deed. The monthly expenses of operation for the Respondents' business is between $300 and $350 per month, leaving the Respondents a net profit of between $400 and $450 per month for the eight active contracts, assuming the purchasers continue to pay under their agreements for deed. Orlando East Corporation currently has $450 in the bank. Respondents are not offering or selling lots now, but are awaiting the outcome of this proceeding. There is no evidence that the Respondents have been selling lots in Partin Park under a common promotional plan with any other person or entity, and the Division does not contend that they are involved in a common promotional plan with any other person or entity. The Respondents argue that their subjective plan of disposition for their 97 lots is determinative of whether they are entitled to an exemption from the registration requirements of Section 498.025(1)(d), Florida Statutes. They contend that their plan of distribution would have provided for no more than 32 sales.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondents to be subject to Chapter 498, to have violated Section 498.051(1)(a) and (d), fining them $1,000 each, and requiring them to give purchasers the opportunity to rescind their purchases under Sections 498.023(2)(c) and 498.051(3)(a), Florida Statutes. DONE and ENTERED this 24th day of January, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 24th day of January, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NOS. 90-1904 and 90-2515 Rulings on findings proposed by the Department: Adopted in Finding 2. Adopted in Finding 2. Implicit in Finding 3. 4 - 7. Adopted in Finding 3. To the extent necessary, adopted in Finding 2. Adopted in Finding 4. Adopted in Finding 6. Adopted in Finding 4. Adopted in Finding 6. Adopted in Finding 7. Adopted in Finding 2. Adopted in Finding 7. Adopted in Finding 8. Adopted in Finding 9, but amended to reflect the figure of $5,000. 18 and 19. Adopted in Finding 9. Adopted in Finding 10. Adopted in Finding 11. Adopted in Finding 12. Adopted in Finding 16. Rejected as argument. Rulings on findings proposed by the Respondent: Adopted in Finding 1. Adopted in Finding 2. Adopted in Findings 2 and 3. Rejected as unnecessary. Rejected as unnecessary. Rejected as a conclusion of law. Adopted in Finding 4. Adopted in Findings 4 and 5. Rejected as unnecessary, but implicit in Finding 4. Rejected as unnecessary. Only the conduct of the Respondent is at issue here. Implicit in Finding 12. Implicit in Finding 12, although there is no legal impediment to selling individual lots. Adopted in Finding 12, except for the final sentence which is rejected as unnecessary. Adopted in Finding 12. Implicit in Finding 12. Sentence one adopted in Finding 4, the remainder rejected as a conclusion of law. Adopted in Finding 7. Adopted in Finding 13. Adopted in Finding 14. Adopted in Finding 14. Adopted in Finding 14. Adopted in Finding 15. Adopted in Finding 15. Rejected as irrelevant. Adopted in Finding 6. Adopted in Finding 6. Adopted in Finding 16. 28 - 30. Rejected as unnecessary, because the Division's policy is derived from the language of the act and is consistent with the decision in Associated Mortgage Investors v. Department of Business Regulation, 503 So.2d 379 (Fla. 1st DCA 1987). COPIES FURNISHED: Calvin L. Johnson, Esquire Assistant General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Harold M. Braxton, Esquire Suite 400, One Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156 Matthew Carter, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Janet E. Ferris, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
Conclusions On March 10, 2010, an Administrative Law Judge (“ALJ”) of the Division of Administrative Hearings entered an Order Closing File in the above captioned case.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, OFFICE OF THE GENERAL COUNSEL - CALDWELL BUILDING, 107 EAST MADISON STREET, MSC 110, TALLAHASSEE, FLORIDA 32399-4128, WITHIN 30 DAYS OF THE DAY THIS ORDER IS 2 Final Order No. DEO11-0006 FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE THEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Economic Opportunity, and that true and correct copies have been furnished to the persons listed below in the manner described, on this fopllriay of October 2011. : Miriam Snipes, Agency Clerk DEPARTMENT OF ECONOMIC OPPORTUNITY 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By U.S. Mail: Alfred J. Malefatto, Esquire Greenberg Traurig, P.A. 777 South Flagler Drive, Suite 300E West Palm Beach, Florida 33401 R. Max Lohman, Esquire Corbett and White, P.A; 1111 Hypoluxo Road, Suite 207 Lantana, Florida 33462 Brian Joslyn, Esquire Gregory S. Kino, Esquire Boose, Casey, Cikin, Lubitz, Martens, McBane & O*Connell Northbridge Center, 19th Floor 515 North Flagler Drive West Palm Beach, Florida 33401-4626 By Hand Delivery: David L. Jordan, Assistant General Counsel Department of Economic Opportunity 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By Filing with DOAH: The Honorable D. R. Alexander Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Final Order No. DEO11-0006
