The Issue Whether Rule 61B-23.003(9), Florida Administrative Code, is an invalid exercise of delegated legislative authority.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner, Michael Gertinisan, is a unit owner and member of the Bay Hills Village Condominium Association, Inc. (Association). The Association is responsible for the operation of the Bay Hills Village Condominium. Petitioner purchased his unit in December, 1992. Prior to December, 1992, the Petitioner had leased the unit for a number of years. The Bay Hills Village Condominium is a mobile home park condominium where each unit is comprised of a parcel of vacant land upon which is placed a mobile home. Transfer of control of the Association from the developer to the unit owners, other than the developer, pursuant to Section 718.301, Florida Statutes, has not occurred. However, unit owners, other than the developer, are entitled to elect a representative to the board of administration of the Association in an upcoming election. The declaration of condominium for Bay Hills Village Condominium was recorded in the public records in 1985. A number of units were sold to purchasers in 1985. At the time Bay Hill Village Condominium was created and the declaration of condominium recorded in the public records in 1985, the controlling statute, Chapter 718, Florida Statutes, contained no maximum period of time during which the developer was entitled to control the operation of the Association through its ability to elect a majority of the board of administration. The developer of a condominium is statutorily entitled to control the affairs of the condominium association for a period set forth in the statutes. This right to control the affairs of the condominium association for the period set forth in the statutes is a substantive vested right. With the right to control the condominium association, comes the attendant rights, including but not limited to, the right to: (a) adopt a budget meeting the marketing needs of the developer; (b) enter in to contracts with related entities providing for maintenance and management of the condominiums; (c) control ingress and egress on and over the condominium property to move construction equipment; (d) adopt board policies relating to the renting of units in the condominium; (e) adopt board policies regarding placement of "For Sale" signs on the condominium property and to model its units; (f) maintain the property in accordance with the developer's need to conduct an ongoing sales program; and (g) change the size and configuration of units in the condominium to meet the needs of the developer's marketing campaign. In those situations where the developer still exercises control over the condominium association, the aforestated rights of the developer would be substantively impaired by a retroactive application of Section 718.301(1)(e), Florida Statutes, as created by Chapter 91-103, Section 12, Laws of Florida, to condominiums in existence prior to the affective date of the Chapter 91-103, Section 12, Laws of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, ORDERED that the Petitioner failed to establish that Rule 61B-23.003(9), Florida Administrative Code, is an invalid exercise of delegated legislative authority and the relief sought by the Petitioner is DENIED. DONE AND ORDERED this 14th day of January, 1994, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1994. APPENDIX TO FINAL ORDER, CASE NO. 93-6214RX The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact: The Petitioner elected to not file any proposed findings of fact. Respondent's Proposed Findings of Fact: Proposed findings of fact 1, 2, 3, 4, 5, 6, 8 and 9 are adopted in substance as modified in Findings of Fact 1, 2, 3, 4, 5, 6, 7 and 8, respectively. Proposed finding of fact is unnecessary. COPIES FURNISHED: Michael Gertinisan 10506 Bay Hills Circle Thonotosassa, Florida 33592 Karl M. Scheuerman, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Henry M. Solares, Director Division of Florida Land Sales Condominiums and Mobile Homes 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based upon the evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made: On December 27, 1993, Universal Outdoor, Inc. ("Universal") entered into a twenty year lease agreement with the Greater Hollywood Jaycees pursuant to which Universal was authorized to erect an outdoor advertising sign on property owned by the Jaycees in the general vicinity of the southwest corner of Hollywood Boulevard and Interstate-95 (the "Site") within the city limits of Hollywood, Florida. The site is located at an extremely busy intersection. A railroad track separates the Site from the Interstate. To the immediate south and west of the Site is a city owned golf course. A building which serves as the Jaycees meeting hall and headquarters is located on the Site. There is a catering business that operates out of the building, at least on a part time basis. The Jaycees acquired the Site from the City of Hollywood on or about December 15, 1965. As best can be determined from the evidence in this case, the Site was owned by the government before it was acquired by the Jaycees. After securing the lease from the Jaycees, Universal applied to the City of Hollywood for a city building permit (the "Building Permit") to construct an outdoor advertising sign on the site. The city issued the requested Building Permit on February 2, 1994. The Hollywood City Commission, as well as the City's Building and Zoning Department, had to approve the issuance of the Building Permit. In deciding to issue the Building Permit, the City Commission and its Building Department apparently concluded that a sign was not inconsistent with the zoning for the Site. On or about February 3, 1994, Universal submitted an application (the "Sign Application") to the Department for a state Outdoor Advertising Sign permit for the Site. The Department denied the Sign Application in a notice dated February 15, 1994 (the "Denial Notice") stating that the Site was "in unpermitable zoning." At some point after the Sign Application was filed with the Department, Universal assigned all of its interest and rights under the lease, the Building Permit and the Sign Application to Hancock. The transfer apparently occurred sometime around the end of February. The circumstances and conditions of the transfer of interest from Universal to Hancock are not entirely clear. The president of Hancock is the brother of one of the principals of Universal. Thus, there is some question whether the transfer was an arms-length deal. At one point during the hearing, Hancock suggested that it never received formal notification of the Department's denial of the Sign Application. However, the evidence is clear that Hancock was aware when it obtained an interest in the Site that a state permit was necessary and that a hearing had been requested in connection with Universal's Sign Application. The building permit obtained from the City of Hollywood was apparently valid for only a limited time. In order to obtain a building permit for a sign, Hancock claims that the City of Hollywood required the permit applicant to make a donation of $20,000 to the Hollywood Boys Club. It is not clear when or whether such a payment was made by either Universal or Hancock. As noted in the Preliminary Statement above, the parties have stipulated that a timely request for an administrative hearing was submitted in connection with the Denial Notice. However, it does not appear that any case involving Universal was referred to DOAH. In any event, it is clear that no hearing was scheduled to be conducted on the denial of the Sign Application prior to the date that the Building Permit was to expire. Faced with the imminent expiration of the Building Permit and convinced that the City had correctly determined that the zoning allowed the sign, Hancock proceeded with construction of the sign beginning in approximately the end of April. An inspector for the Department noticed the sign under construction and issued a Notice of Violation on May 2, 1994 for erecting the sign without an Outdoor Advertising Permit from the Department. Hancock promptly halted all construction activity. At the time the Sign Application was filed with the Department in February, the Site was zoned "OS" by the City of Hollywood. The "OS" designation is a for an "open space district". The "OS" designation for this parcel appears to have been an error since the existing uses are inconsistent with that designation. The Department denied the Sign Application because the Site was not specifically zoned either industrial or commercial. In reaching this determination, the Department did not confer with the City of Hollywood nor did it make any investigation to determine what uses were permitted in the "OS" zoning district. While the City Zoning Code included certain areas specifically designated "commercial" and "industrial," it is not clear that the city intended these terms to coincide with the use of the terms in Chapter 479, Florida Statutes. "Commercial" is defined in the City Zoning Code as "any activity where there is an exchange of goods or services for monetary gain. . ." The "OS" designation allowed a number of uses which arguably fell within this definition, including camp grounds, cemeteries, golf courses, horse farms, riding stables and other similar uses. On or about April 6, 1994, the City of Hollywood passed four ordinances which cumulatively had the effect of repealing the City's prior zoning code and replacing it with a new code. There is some confusion regarding the applicable zoning for the Site under the new Zoning Code. The City's Official Zoning Map reflects that the property was rezoned "GU", which is a government use district. The adjoining golf course, which is publicly owned, is also zoned "GU". The City Planning Department has acknowledged that the "GU" designation is only applicable to government-owned property. Such designation is clearly not applicable to this Site. Furthermore, the default zoning of "RS- 1" (single family residential) is not consistent with the subject property's comprehensive land use plan designation and is inconsistent with the present use of the property. As a result of the ambiguities resulting from the newly passed zoning ordinances, the Site should be treated as unzoned as of April 6, 1994. There is at least one commercial use on the same side of the Interstate within 800 feet of the Site. In addition, there are more than three separate commercial uses within 1600 feet of the Site, each visible from the main traveled way, that are within 1600 feet of each other and within 600 feet of the right of way of the adjacent Interstate. Consequently, the Site qualifies as a "commercial-unzoned" area as defined in Chapter 479, Florida Statutes. Only the City Commission has the power to rezone property and, as of the date of the hearing in this matter, no such action had been taken with respect to the Site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order granting the application for a state Outdoor Advertising Sign permit for the Site. DONE AND ENTERED this 13th day of January 1995 in Tallahassee, Leon County, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1995.
The Issue Whether Petitioner was the subject of unlawful coercion, intimidation, threats, or interference in the exercise of her rights in connection with Respondent?s regulatory actions regarding rental property owned by Petitioner, in violation of section 818 of Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Act of 1988 and the Florida Fair Housing Act, chapter 760, Part II, Florida Statutes (2011).
Findings Of Fact Petitioner, an African-American woman, owns and manages a residential tri-plex rental unit located at 302 Dubs Drive, Holly Hill, Florida. Dubs Drive is zoned R-2 single-family residential. Petitioner?s tri-plex was constructed in 1955, and is grandfathered as a non-conforming use. The other houses on Dubs Drive are newer, and are all single-family homes. Petitioner purchased the tri-plex in 1998. At the time of her purchase, the tri-plex consisted of a single-story building with 3 apartments and two garages, and was configured, from south to north, as a two-bedroom apartment, a two-bedroom apartment, a one-bedroom apartment, a garage with a washer/dryer connection, and a garage with a toilet. The garages had drywall interiors, except that the ceilings lacked drywall. After she purchased the tri-plex, Petitioner hired Arthur Kowitz, a realtor, to manage the property for her. He performed management services from the time of the purchase until 2001. Mr. Kowitz is white. In 2001, Petitioner retained All-Florida Realtors to manage the property. All-Florida performed management services from 2001 to 2004. All-Florida is a white-owned company. In 2004, Petitioner retained John Benzette to manage the property. Mr. Benzette performed management services from 2004 through November 2007. Mr. Benzette is white. In 2004, Petitioner applied to Respondent for a permit to install an electric meter at the tri-plex. The purpose of the meter was not to serve the apartments -- each of which already had meters by which the tenants individually received and paid for service -- but was a “house meter” or “landlord?s meter” for exterior lighting, garage lighting and outlets, and other uses common to the tri-plex. The permit was issued, and the meter was installed. During one of the 2005 hurricanes that hit the area, the meter was knocked off of the unit by falling debris. It was not reinstalled at that time. The property managers from 1998 through 2007 were responsible for general maintenance and repair activities. Those types of activities did not require building permits. From the time she purchased the tri-plex in 1998, until 2008, the unit was not subject to any formal code-enforcement actions by Respondent. Starting in December, 2007, Petitioner began managing the tri-plex on her own. One of the first activities she performed as owner/manager was the conversion of the garage on the northern end of the building -- separated from the apartments by the other garage -- to a living space. That was accomplished by removing the garage door, constructing a block wall with a window and exterior door, completing interior drywall work, and installing a shower. Petitioner did not apply for or receive a building permit for the work. As part of the construction, Petitioner had the electric meter that was knocked off in 2005 renovated and reinstalled onto the unit. When Petitioner requested service from Florida Power & Light, Florida Power & Light contacted Respondent to confirm a legal connection. Respondent sent employees Mark Ballard and Tim Harbuck to the tri-plex. At that time, it was determined that Petitioner had performed construction without a building permit. Respondent?s employees initially thought the new living space was to be rented as a fourth apartment, an act that would have constituted an unallowable expansion of the non- conforming use of the property. Their belief was not unreasonable, as the configuration of the converted garage was conducive to its being used as a separate apartment, and since Petitioner subsequently placed a “For Rent” sign on the unit, despite the fact that she was living in apartment #3 at the time. However, Petitioner has denied that the rental of the converted garage as a separate unit was her intent, but that the converted garage was intended as an added room for apartment #3. Regardless of whether the conversion of the garage was intended to result in a separate apartment, the construction required a building permit. As a result of the determination that the construction was not permitted, the meter was removed on February 8, 2008. The requirement that the meter be removed, despite the 2004 permit, was not related to Petitioner?s race, but was related to the unauthorized construction and intended use of the converted garage. On April 25, 2008, Respondent sent Petitioner a Notice to Appear at a hearing before a special magistrate. The notice provided that the purpose of the hearing was the “violation of City Ordinance Building Permit Required.” The hearing was set for May 14, 2008. Petitioner asserted that she called the telephone number printed on the notice to ascertain the purpose of the May 14, 2008, hearing. She alleged that she was told by an unnamed city employee that the hearing was to be held regarding issues pertaining to her rental license. The evidence of the call was entirely hearsay, and was not corroborated by any non- hearsay evidence. Regardless of the substance of the telephone call, the notice plainly stated that the purpose of the hearing was related to a required building permit. The hearing was held as scheduled on May 14, 2008. At the hearing, Petitioner was advised that the subject of the hearing was the unpermitted construction at the Dubs Drive location. Petitioner, claiming to have had no knowledge of the subject of the hearing, requested a continuance to retain an attorney to represent her. The request was denied. At the hearing, it was determined that, at a minimum, Petitioner removed the garage door, blocked up the front of the garage and installed a door and window in its place to convert it to living space, and installed a shower. On May 22, 2008, the special magistrate entered an Order of Non-Compliance in which he concluded that Petitioner violated the Holly Hill Zoning Ordinance requiring a building permit for the work done on the property, required Petitioner to obtain a building permit, and imposed an administrative fine of $250.00. If the corrective measures were not taken, or the fine was not paid, the Order authorized an additional penalty of $150.00 per day, and authorized Respondent to place a lien on the Dubs Drive location. Petitioner was warned that she was not to use the renovated garage as a separate dwelling unit, but could only use it as an addition to apartment #3. The action by Respondent to enforce its building code was entirely appropriate, and was undertaken with all due process rights having been afforded to Petitioner. There was no evidence presented to support a finding that Petitioner?s race had anything to do with Respondent?s reaction to Petitioner?s unpermitted construction, or that Respondent failed to enforce its building code, including permit requirements, against similarly-situated property owners who were not members of Petitioner?s protected class. Petitioner paid the administrative fine on June 2, 2008, and received the after-the-fact building permit on June 10, 2008. On September 5, 2008, Respondent placed a lien on the Dubs Drive location based on its mistaken belief that Petitioner had failed to pay the $250.00 administrative fine. The notice of lien letter was received by Petitioner on November 18, 2008. Petitioner advised Respondent that she had paid the fine. Ms. Sue Meeks confirmed that the fine was paid, and Respondent promptly recorded a satisfaction of lien. The evidence indicates that the decision to record the lien was a bureaucratic error that was immediately corrected. There was no evidence presented to support a finding that Petitioner?s race was Respondent?s motive for recording the lien. A business tax receipt is required for each of the three apartments at the Dubs Drive location in order for Petitioner to engage in the business of real estate rental. Authorization for the business tax receipt was adopted by ordinance by Respondent in July, 2000, and is applicable to all rental units in the city of the type owned by Petitioner. Prior to July 2000, Respondent did not require an owner of a small rental location to obtain a business tax receipt. The business tax receipt ordinance required Respondent to perform annual inspections of businesses within its municipal boundaries. The inspections were started in 2000 or 2001. Business tax receipts are issued for a term from October 1 to September 30 of each year. If a business tax receipt is not renewed on time, Respondent is authorized to assess a 25 percent penalty, plus additional filing fees. For 2008-2009, Petitioner timely paid the business tax receipts for apartment Nos. 1 and 2. The tax was $45.00 for each apartment. Petitioner failed to pay the business tax receipt for apartment #3 until March 2009, after the renewal date had passed. Therefore, a penalty and additional filing fees were assessed which raised the business tax receipt fee for that apartment to $70.00. Petitioner alleged that Respondent “overcharged” her for the apartment #3 business tax receipt, which she construed as evidence of a pattern of discrimination. The evidence demonstrates that the $70.00 charge was the result of Petitioner?s failure to timely renew, and was not the result of discrimination based on her race. There was no evidence presented to support a finding that Petitioner?s race had anything to do with Respondent?s assessment of late penalties and fees, or that Respondent failed to assess such late penalties and fees against similarly-situated rental apartment owners who were not members of Petitioner?s protected class. On or about February 6, 2009, Respondent issued a violation notice alleging that Petitioner failed to renew her business tax receipt for apartment #1 and #2. The notice was posted on the doors of the apartments on February 10, 2009. The notice allowed three days to correct the violation, a period that had already passed when the notice was received. Petitioner had already paid the business tax receipt, and went to city hall to inquire about the violation notice. She was advised that her check, identified by Petitioner as check #486, had not been received. Petitioner went to Bank of America to stop payment on check #486, for which a banking fee of $30.00 was assessed. Upon her return to city hall, Petitioner was advised that a search had resulted in the discovery of check #486 on a city employee?s desk. It had not been cashed. Petitioner wrote a replacement check. Respondent credited Petitioner?s utility bill for $30.00 to reimburse her for the Bank of America stop-payment charge and the matter was resolved without further ado. Petitioner alleged that the incident was “harassment,” which she construed as further evidence of discrimination. To the contrary, the evidence demonstrates that the violation notice was a minor bureaucratic error that was promptly corrected, and for which Petitioner was made financially whole. There is no evidence in the record that the incident was the result of discrimination based on Petitioner?s race. On February 19, 2009, Petitioner wrote Respondent to express her belief that she was being overcharged for water. She had a single meter to serve the Dubs Drive tri-plex, but was being charged for three connections. In fact, Petitioner had three apartments. In such cases, Respondent bills for each unit served by a single “master meter.” The minimum bill per apartment includes 2000 gallons of water per month, with additional usage added as an additional charge. Respondent billed for three connections at the Dubs Drive location since at least 1997, prior to Petitioner?s purchase of the tri-plex. Petitioner inquired whether she could have separate meters installed for each apartment, rather than having minimum and total bills determined by the “master meter.” Respondent would not allow separate meters since the Dubs Drive tri-plex was a non-conforming use in a single-family zoned area, and the installation of separate meters would “enhance the non- conformity.” Respondent?s approach to billing for water in multi- family locations accounts for the demand created by three families versus one family. The evidence demonstrates that Respondent bills all multi-unit complexes in a manner to account for the demand of multiple family consumption on its water facilities. There is no evidence in the record that Respondent?s billing practice for water consumption was applied to Petitioner differently from any other multi-family facilities, or was the result of discrimination based on Petitioner?s race. On or about March 3, 2009, as a result of an annual inspection conducted as part of the business tax receipt process, Respondent cited Petitioner for several deficiencies at the Dubs Drive tri-plex, including a lack of smoke alarms, some windows that would not open, and a lack of GFI (ground-fault interrupter) electrical outlets at one location in apartment #1, and two locations in apartment #2. GFI outlets are commonly known to prevent shocks, and are required at locations where the outlets may be exposed to water, e.g. kitchens and bathrooms. Petitioner installed the GFI outlets. There was no other sanction or penalty. There is no evidence in the record that the requirement that Petitioner install a reasonable and necessary safety feature in apartments being rented to others was the result of discrimination based on Petitioner?s race. On or about March 24, 2009, during the follow-up compliance inspection of the tri-plex, one of Petitioner?s tenants advised the inspector that Petitioner had been living in the converted garage for two months, and was receiving mail in “mailbox #4” during that period. The use of the converted garage as a separate living unit would be a violation of Respondent?s zoning ordinance regarding limitations on the expansion of a non-conforming use, and would have violated the special magistrate?s Order entered at the May 14, 2008, hearing. As a result, Respondent issued violation notices to Petitioner on March 24, 2009, and March 27, 2009, each of which concerned the use of the converted garage as a separate living unit. The March 27, 2009, notice indicated that Petitioner and Respondent were “working to resolve” the issue. On March 31, 2009, Respondent provided Petitioner with a letter resolving the separate living unit issue that stated: This letter is to inform you of the requirements of Compliance in reference to 302 Dubs Ave. Your triplex must not be occupied by more than 3 separate families. The new addition on the north end of the building can be used in conjunction with #3, [b]ut can not be used as a separate unit. Mailbox #4 must be taken down within 45 Days of this date. (March 31, 2009) The letter contained nothing more than a straight-forward recitation of the terms and conditions applicable to the non- conforming residential structure. Respondent imposed no penalties or sanctions. There is no evidence to suggest that Respondent imposed terms or conditions on the use of the tri- plex different from any other similarly-situated non-conforming structure. There is no evidence in the record that Respondent?s response to the tenant?s statement that Petitioner was using the converted garage as a fourth apartment was either disproportionate under the circumstances, or was the result of discrimination based on Petitioner?s race. On April 30, 2009, the tenants of apartment #2 wrote to Petitioner with a long list of complaints regarding the conditions at the apartment that, on their face, were very serious, and which included structural, electrical, plumbing, and safety issues. The couple that lived in the apartment was white. The fact that the tenants were white does not minimize the fact that their concerns were legitimate. Having received no response to their complaints, the tenants called Respondent about the living conditions. In accordance with Respondent?s routine practice regarding complaints, Ms. Meeks was dispatched to inspect the property. Her inspection of apartment #2 confirmed the tenant complaints. Ms. Meeks also inspected apartment #1 at the request of the tenants of that apartment, and noted problems with “the bottom of the walls pealing [sic.] off and has some kind of bugs that are biting the children that live there.” The tenants also provided Ms. Meeks with a list of dates on which they alleged Petitioner had been staying in the converted garage which, if true, would have indicated that Petitioner used the addition as a separate living unit for more than 50 days over a three-month period. Respondent sent Petitioner a letter detailing the problems observed during the inspection, and advising Petitioner that her issues would be taken up at a hearing before the Special Master on July 8, 2009. The letter was received by Petitioner on June 15, 2009. The time between the letter and the scheduled hearing was ample time for Petitioner to correct the problems. On June 24, 2009, Respondent served Petitioner with a Notice to Appear at the July 8, 2009, hearing. On June 25, 2009, and June 29, 2009, Respondent obtained written statements from the tenants of apartment #2 detailing the problems that they had encountered with their leased apartment. Their statements were consistent with their earlier descriptions and the results of the inspection. On July 7, 2009, Petitioner requested a continuance of the July 8, 2009, hearing due to the death of her father. The request was granted by notice dated July 15, 2009, and the hearing was continued to August 12, 2009. Respondent was directed to “bring proof of her father?s passing” to the August hearing. On July 27, 2009, Respondent reissued a Notice to Appear for the August 12, 2009, hearing. On August 12, 2009, a hearing was convened before the special magistrate. Petitioner was represented by counsel. At the hearing it was determined that the back door of apartment #2 had been replaced to the tenant?s satisfaction, though Petitioner failed to obtain a building permit for the same, and that the electrical issue with the GFI outlet and the water heater breaker had been resolved. It was ultimately determined to be in the best interest of all of the parties to have the tri-plex inspected by Respondent, and to reconvene the hearing in September, 2009. Petitioner asserted that the August 12, 2009, hearing was continued because a white tenant had not appeared at the hearing to testify against her. The record does not support that reason. An Order Continuing Case was entered on August 26, 2009. The Order noted that Petitioner had not produced evidence of her father?s death as instructed. On August 27, 2009, Respondent reissued a Notice to Appear for September 9, 2009. On August 18, 2009, Respondent conducted an inspection of the tri-plex. It was determined that some of the deficiencies identified in the June notice had been made, but others had not. The hearing was reconvened on September 9, 2009. Petitioner was represented by counsel. After considerable discussion, it was determined that Petitioner had substantially resolved the issues identified in the June notice, some more recently than others. The special magistrate assessed a $250.00 administrative fine for the initial items of non-compliance resulting in the need to have the hearings, and $300.00 for failure to make repairs within a reasonable period after the initial notice in June. Petitioner also produced a copy of her father?s obituary as proof of his death in July. An Order of Non-Compliance reciting the outcome of the hearing was entered on September 25, 2009. The Order was not appealed. Petitioner stated her belief that the requirement that she provide evidence of her father?s death to substantiate the basis for the July 7, 2009, request for continuance was imposed as a result of harassment and discrimination against her due to her race. Although the requirement that she produce an obituary or the like seems insensitive and unnecessary, there was no evidence that Petitioner?s race was the basis for the request, or that such a requirement was not imposed on all persons seeking a continuance of a code enforcement hearing, regardless of race. On November 4, 2009, the special magistrate, after having received evidence of the completion of the repairs from Respondent, entered an Order of Compliance by which he found all of the deficiencies at the Dubs Drive location had been satisfactorily resolved. Petitioner has alleged that the code enforcement actions taken by Respondent were part of a pattern of harassment and intimidation directed at her because of her race. She argued that her white property managers were not cited for violations, thus establishing evidence of racial bias. While it is true that some of the violations for which Petitioner was cited concerned issues that pre-dated Petitioner?s assumption of management duties in December 2007, e.g., the use of interior- grade doors being used as exterior doors and the lack of GFI outlets, there was no evidence that Respondent ever noticed those deficiencies, or that any tenant had ever complained. The evidence demonstrates that the triggering event that drew the attention of Respondent?s code enforcement section was not Petitioner?s race, but was Petitioner?s unpermitted conversion of the garage into living space. The other triggering event was the complaint filed with Respondent by Petitioner?s tenants that alleged crumbling infrastructure, including the very poor condition of the exterior doors. Both incidents properly resulted in thorough inspections. There was no event at the Dubs Drive location prior to December 2007, that would have resulted in increased scrutiny. Thus, the evidence demonstrates that Respondent?s actions were reasonable and appropriate responses to conditions at the Dubs Drive location that were brought to its attention by the actions of Petitioner and her tenants, conditions for which Respondent would have been remiss had it failed to act. The evidence in this proceeding does not support a finding that Respondent?s actions were taken due to Petitioner?s race. The evidence produced at the hearing contained not a shred of competent, substantial evidence that would support a finding that Respondent took any action regarding the Dubs Drive tri-plex because of Petitioner?s race. Rather, the evidence supports a finding that Respondent was appropriately exercising its police powers to ensure that rental dwelling units within its jurisdiction are safe and sanitary. If anything, Respondent and the special magistrate treated Petitioner with considerable patience, restraint, and leniency given the nature of the non- compliance resulting from the unpermitted renovations, and from the delays in making necessary repairs to the property. Petitioner?s dated signature on the Housing Discrimination Complaint that forms the basis for this proceeding indicates that Petitioner filed her initial complaint of discrimination no earlier than August 31, 2010. However, the HUD Determination gives two dates on which Petitioner supposedly filed her complaint -- August 13, 2010, and September 2, 2009. Given the findings and conclusions herein that Respondent had no racial animus or bias in its actions regarding Petitioner -- going back to the December 2007 date on which Petitioner assumed her property management duties -- it is not necessary to determine which of the dates is accurate. However, to the extent it were to become an issue with regard to the application of the jurisdictional limits established by section 760.34(2), the most persuasive evidence demonstrates that Petitioner filed her Housing Discrimination Complaint on or after August 31, 2010. Ultimate Findings of Fact There was no competent, substantial evidence adduced at the hearing that Respondent took any regulatory, utility billing, or code enforcement action regarding Petitioner, or the Dubs Drive location, in an effort to coerce, intimidate, threaten, or interfere with Petitioner in the exercise of her rights as an owner of rental housing due to Petitioner?s race. Respondent?s actions were, in each instance, a legitimate response to unpermitted building activities, a correct application of Respondent?s ordinances, or a reasonable response to complaints filed by Petitioner?s tenants. At worst, Respondent committed two minor bureaucratic errors that were quickly resolved, and for which Petitioner suffered no loss. There was no evidence that Respondent applied its code enforcement ordinances or policies in its dealings with Petitioner in a manner that was inconsistent with their application to similarly-situated persons who were not members of Petitioner?s protected class. Having found no evidence to demonstrate that Respondent discriminated against Petitioner on the basis of her race, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief filed in FCHR No. 2011H0053. DONE AND ENTERED this 22nd day of May, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 22nd day of May, 2012.
The Issue The issue in this case is whether the Respondent committed an unlawful housing practice by discriminating against the Petitioner on the basis of race, in violation of the Florida Fair Housing Act, sections 760.20 through 760.37, Florida Statutes.
Findings Of Fact Petitioner, Dr. Rubye Johnson, is an African-American woman and, thus, is a member of a class protected under the Florida Fair Housing Act, sections 760.20 through 760.37, Florida Statutes. Respondent, Canongate Condominium Apartments No. One, Inc., is the condominium association responsible for operation of the Canongate Condominium Apartments No. One ("Canongate"). Petitioner is a resident of Canongate and currently resides in Unit 201. She previously owned and lived in Canongate Unit 207, the unit at issue in this proceeding.3 She no longer owns Unit 207. Petitioner could not recall precisely when she became a resident of Canongate.4 She testified that when she became a resident of Canongate she was a renter, and she rented Unit 207. The evidence indicates that she likely moved into Unit 207 sometime before February 4, 2000. On February 4, 2000, the Association voted to amend Canongate's Declaration of Condominium, Article VII, Paragraph G, Section i. This amendment (the "2000 Amendment") prohibits the leasing or rental of units in Canongate. Existing leases and tenants as of the amendment's effective date were grandfathered for the balance of the lease term; however, no lease extensions or renewals were allowed. Institutional mortgagees' existing rights under the Declaration of Condominium were expressly preserved. At some point after Petitioner began renting Unit 207, the unit owner told her that due to the 2000 Amendment, she either would have to purchase the unit or move out in five years' time. The owner told her he thought the 2000 Amendment was approved because Respondent's Board of Directors ("Board") did not want any more black residents in the building.5 Petitioner purchased Unit 207 in or about 2004. When she purchased the unit, she was aware of the 2000 Amendment. She acknowledged that the 2000 Amendment prohibits the leasing or rental of units in Canongate without regard to race or gender. Petitioner testified that when she came home one day, Laura Ochacher, who had owned Unit 210, approached her about renting one of her units. Ms. Ochacher told Petitioner that Unit 210 was the subject of foreclosure and that her family was being evicted. Petitioner saw the eviction notice. Ms. Ochacher told Petitioner that Canongate property manager Marsha Allen had found a company to purchase Unit 210, and that the company had allowed them to remain in and rent Unit 210. Through examining a document printed out from the Miami-Dade County Property Appraiser's Office website, Petitioner learned that Lansdowne Real Estate Holdings, LLC ("Lansdowne") owned Unit 210. From this information, Petitioner surmised that Lansdowne had purchased Unit 210 and rented it to the Ochachers. She believed that Ms. Allen and the Board were complicit in what she viewed as a rental arrangement that violated the 2000 Amendment. Her belief was based on her knowledge of the screening and approval process entailed in purchasing a unit in Canongate. Petitioner did not independently investigate the matters that Ms. Ochacher relayed to her. She did not ask Ms. Allen whether she had found a company to purchase Unit 210; whether Unit 210 was, in fact, being rented; or whether she or the Board knew of and allowed rental of the unit. Petitioner understood Lansdowne to be a land company that bought and sold land on a large scale. She did not know whether Lansdowne is white, black, or of any other race. Petitioner also heard rumors from other Canongate residents that other units were being rented. She identified these units as 618, 520, 602, 105, 309, 106, 115, 120, 315, 515, 313, 410, 430, 503, 514, "and perhaps more." She did not identify who told her about these units, nor did she independently investigate whether the units were, in fact, being rented. Following her discussion with Ms. Ochacher, Petitioner decided to ask the Board whether she could rent Unit 207. She sent a communication to the Board, dated April 11, 2009, entitled "Issues and Concerns."6 Item 12 of this communication states: 12. It is rumored that there are renters in the building and that the board of directors are [sic] sanctioning these arrangements. Is this true? If so, under what circumstance would the board of director's [sic] sanctions [sic] renters in the building? If not, do you have a clue how this perception has been generated? Petitioner's testimony regarding whether she had actually requested permission from the Board to rent her unit was inconsistent. In her deposition, she testified that she viewed the statement in Item 12 as a request to rent Unit 207, but conceded that the request was "implied." At the final hearing, she acknowledged that her statement in Item 12 did not constitute a specific request, but stated that she previously had sent letters asking to rent the unit. She was unable to recall any specific letters she sent, when she sent them, or to whom the letters were sent. No such letters were proffered or admitted into evidence. Petitioner claimed that she had orally asked Ms. Allen and various Board members, on numerous occasions, whether she could rent her unit. However, she could not recall who, other than Ms. Allen, she ostensibly had asked, nor did she recall the substance or details of such conversations. Petitioner testified that, "by the way they acted," she knew she was not allowed to rent her unit. She stated that she also had been informed, orally and in writing, that she could not rent her unit. However, she could not recall who informed her, or any details of those discussions. She did not provide any evidence of written refusal to allow her to rent her unit. Petitioner testified that she had discussed with Marsha Allen her concern that white unit owners were allowed to rent their units, while she was not. She acknowledged that no one had ever told her she was not allowed to rent her unit because she is black. Canongate property manager Marsha Allen testified on behalf of Respondent. Ms. Allen's duties as property manager include overseeing the day-to-day operation of Canongate, reporting to the Board, and serving as Respondent's records custodian. Ms. Allen testified that rental of units in Canongate is prohibited under the 2000 Amendment. She testified that neither she nor the Board have allowed Canongate owners to rent their units, and that whenever owners have asked, they have been denied permission because of the rental prohibition. Ms. Allen testified that none of the units Petitioner identified was, in fact, being rented. Ms. Allen stated that Petitioner never had asked her whether she could rent her unit. She was not aware of Petitioner ever having asked the Board or any Board member whether she could rent her unit. Ms. Allen did not interpret Item 12 of Petitioner's April 11, 2009, communication as constituting a request for permission to rent her unit. Ms. Allen also stated that she never had discussed Canongate's rental policy with Petitioner, and she never had refused a request from Petitioner to rent her unit. She testified that she never had been directed by the Board or any Board member to refuse to allow Petitioner to rent her unit. Ms. Allen testified that Petitioner never had complained to her that she was being discriminated against by not being allowed to rent her unit, while white owners were allowed to rent theirs. Lansdowne sent a letter dated October 30, 2008, to Ms. Allen. The letter asked her to inform the Board that Lansdowne had acquired title to Unit 210 through foreclosure and that they were entering into an agreement with the borrower, Laura Ochacher, to continue her occupancy for 12 months, during which she could redeem the property by paying the foreclosure judgment. The letter stated: "[t]his should not be considered a rental arrangement." The letter explained that Lansdowne had paid the past due assessments for the unit and would pay outstanding legal fees once the Board approved the occupancy agreement. Upon receiving the letter, Ms. Allen reviewed the Canongate Declaration of Condominium, specifically, Article VII, Paragraph H., to ensure that the occupancy agreement for Unit 210 did not violate the 2000 Amendment's rental prohibition. Article VII, Paragraph H., provides that if the mortgagee of a condominium unit subject to an institutional mortgage given as security becomes the owner of the unit, the owner has the unqualified right to sell, lease, or otherwise dispose of the unit. Ms. Allen determined that, based on this provision, the occupancy agreement did not violate the 2000 Amendment. Ms. Allen consulted with Respondent's legal counsel, who independently verified that the occupancy agreement did not violate the 2000 Amendment. Respondent also presented the testimony of Joyce Meade, who has served as Respondent's president since 2008. Ms. Meade's duties as President include enforcing Respondent's condominium documents, overseeing the Board, conducting meetings, and supervising Canongate's property manager. Ms. Meade testified that Petitioner did not ask her for permission to rent her unit. She also testified that, to the best of her knowledge, Petitioner did not ask the Board for permission to rent her unit, and the Board did not specifically refuse. Ms. Meade testified that had Petitioner asked to rent her unit, she would not have been allowed because all rental requests are refused due to the 2000 Amendment. Ms. Meade testified that Petitioner never complained to her that she was being discriminated against because she was not allowed to rent her unit, while white owners were allowed to rent theirs. She also was not aware of any such complaints by Petitioner to the Board. Determinations of Ultimate Fact Petitioner failed to present persuasive evidence that she requested Respondent's permission to rent Unit 207. Petitioner subjectively may have believed that she requested permission in Item 12 of her April 11, 2009, communication, but that item cannot reasonably be read to constitute such a request. Item 12 merely asks if there are renters in Canongate and the circumstances under which the Board would allow renters. No other items in the April 11, 2009, communication constitute a request to rent the unit. Petitioner did not present any evidence that she submitted other written requests to rent her unit, and her testimony that she had orally requested to rent her unit was unpersuasive. Respondent's witnesses credibly testified that Petitioner had never requested, orally or in writing, to rent her unit. Petitioner also failed to establish that her request to rent her unit was refused. Her testimony on this point was unclear, imprecise, and unpersuasive, and she provided no evidence of written refusal to allow her to rent her unit. By contrast, Respondent's witnesses testified unequivocally that they had not refused to allow Petitioner to rent her unit. They also credibly testified that Petitioner never had complained to them that she was refused permission to rent her unit because she is black, while white owners were allowed to rent theirs. Petitioner did not establish that she was qualified and able to rent out her unit. The uncontroverted evidence established that the Canongate Declaration of Condominium prohibits leasing or rental of units. Accordingly, Petitioner could not have been allowed to rent her unit, even if had she asked. Petitioner did not present any competent substantial evidence establishing that Respondent allows similarly situated white unit owners to rent their units, while refusing to allow Petitioner to rent hers. Petitioner's testimony that Lansdowne was a purchaser and that the occupancy agreement for Unit 210 actually constituted a rental arrangement was merely her personal opinion, unsupported by any competent substantial evidence. Respondent showed that Lansdowne is an institutional mortgagee that took title through foreclosure and, therefore, was not similarly situated to Petitioner and the other owners who had purchased their units. Moreover, Petitioner presented no evidence that Lansdowne was white. In sum, there is no competent substantial evidence in the record to support a finding of unlawful housing discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding Canongate Condominium Apartments No. One, Inc., not liable for housing discrimination and awarding no relief. DONE AND ENTERED this 9th day of August, 2011, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 9th day of August, 2011.
Findings Of Fact The Applicants acquired in 1960 for approximately $40,000 a 38 acre parcel of real property located adjacent to Governors Creek just outside the corporate limits of the City of Green Cove Springs in Clay County, Florida. The applicants created an unrecorded subdivision by subdividing the parcel into lots approximately one-half acre in size in accordance with a map dated July 19, 1961 which shows 50 numbered lots, access roads to these lots, and three parcels designated as not being included in the subdivision. The map of the subdivision was never recorded in the office of the Clerk of the Court of Clay County, but the tract has been referred to variously as the Bradley-Triplett Subdivision and Governor's Creek Subdivision. The Applicants began to develop the tract in 1961 for the purpose of selling the lots therein as single family home sites. Their activities included clearing and grading all the roads shown on the map and installing storm drainage structures. Shortly after the initial work was done, the Applicants approached the County Supervisor of Roads, James Knowles, and the County undertook maintenance of the roads. At the time development began, Clay County had no subdivision regulations, and there was no requirement to record the plat of the subdivision. A map of the subdivision was given to the County at the time it began to maintain the roads in 1961. Sales of lots in the subdivision began in 1961, and several lots were sold in the subdivision over the next few years. However, sales efforts were discontinued in 1965 because of the poor market. At the request of the Applicants, the County ceased to maintain a portion of the roads in 1975 in an effort to prevent dumping of garbage in the area. Initially, the subdivision was zoned agricultural. In June 1976, Mr. Bradley appeared before the Clay County Zoning Commission and requested the zoning of 30 acres of the tract be changed from BB to RB which permitted one single family dwelling per one-half acre. This request was granted. In June 1976, Mr. Bradley wrote Mr. John Bowles, Public Works Director of Clay County, requesting permission to install water lines within the graded road rights-of-way as shown on a map submitted by the Applicants which depicted all the lots which are the subject of the instant Petition for vested rights. This permission was granted by Bowles, and the Applicants paid $8,000 for the installation of water lines and fire hydrants in the subdivision. Water service is provided by the City of Green Cover Springs. In August 1976, the Applicants presented to the County a Warranty Deed for the roads shown in the Map. The County accepted the roads and agreed to continue to maintain the roads if certain improvements were made. Subsequently, the Applicants worked on making the improvements requested by the County, and the County continued to maintain the roads. The subdivision has appeared on maps used by various County departments for many years. In June 1978, Mr. Bradley appeared before the Clay County Planning, Zoning and Building Commission and requested that the remainder of the subdivision be re-zoned from agricultural to RB. This request was granted. In September 1978, the Public Works Department of Clay County requested the Applicants perform additional work on the road network in the subdivision to include creating a 20 foot drainage easement, construction of a drainage ditch, installation of street signs, and other improvements regarding grading and drainage. The drainage easement was granted to the County, and the drainage ditch was apparently constructed together with some of the other requested improvements; however, not all of the requested improvements were completed to the County's satisfaction. In March 1980, Mr. Bradley wrote Mr. Bowles a letter granting the County access to the roads within the subdivision for the purpose of maintaining them. In 1983, the County adopted new standards for the acceptance of roads not located within platted subdivisions. At this time, the Applicants became concerned about the status of the roads, and appeared before the County Commission. In November 1983, they contacted Mr. Bowles regarding their concerns. The status of County-requested improvements was a subject of continuing correspondence between the County and the Applicants. As a result thereof, the Applicants again undertook to satisfy the County regarding the list of requested improvements to the roads, and expended additional money on these improvements. The Applicants have spent over the years $20,000 on the roads, $15,000 on the water system and fire hydrants, and $4,000 on the drainage system within the subdivision. In 1984, the County Commission determined that it would not accept responsibility for maintenance of the roads, but that it would not re-convey title to the roads to the Applicants. The County has not altered its position since that determination. There are 50 numbered lots in the subdivision, and three unnumbered outparcels, some of which have been subsequently subdivided by sales. The unnumbered outparcel located in the northeast corner of the subdivision will be designated in this order as the unnumbered northeast parcel. The remaining unnumbered lots will be designated in this order as Lots A through G, which are located as follows: Lot A, located to the west of Lot 33; Lot B, located to the north of Lot A; Lot C, located to the north of Lot B; Lot C, located to the north of Lot B; Lot D, located to the north of Lot C; Lot E, located to the north of Lot D; Lot F, located to the north of Lot E, and Lot G, located to the north of Lot F. The County concedes there are 19 lots of record in the subdivision: Lots numbered lots 1, 8, 9, 10, 11, 12, 13, 33, 34, 35, 36, 37, 40, 41, 42 and 43 plus the lots designated above as Lots A, D and F. The Hearing Officer includes Lot E as one of the recorded lots because it was subdivided from Lots D and F, which the County recognizes as lots of record, after the parcel from which the three lots were created was sold as one lot. Lots 1, 8, 9, 10, 11, 12, 13, 33, 34, 35, 36, 37, 40, 41, 42, 43, and unnumbered Lots A, D, E, and F meet the Plan's criteria for development, and are not at issue in these proceedings. The Plan requires that over 70 percent of the total number of lots in a subdivision created between 1959 and 1970 be sold for the remaining lots to statutorily vest. The Applicants' subdivision does not meet the criteria in the Plan for statutory vesting because the requisite percentage of lots have not been sold. The lots at issue in the Applicant's request for equitable vesting are the remaining numbered lots ( 2, 3, 4, 5, 6, 7, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 38, 39, 44, 45, 46, 47, 48, 49, and 50), the unnumbered northeasterly parcel, and the lots designated in this order as Lots B, C, and G. On January 23, 1992, the Board of County Commissioners of Clay County formally adopted the 2001 Comprehensive Plan pursuant to and in compliance with Chapter 163, Part II, Florida Statutes. On November 23, 1993, the zoning of the subdivision was administratively changed to AR-2 which permits the building of single family residences at a density of one per five acres. None of the lots at issue are five acres in size and qualify for further development. A total of 12 homes have been built in the subdivision, each having an average size of 1,800 square feet and occupying lots approximately 1/2 acre in size. The existing layout of the roads does not permit consolidation of the unsold existing lots into five acre lots. Even if they could be consolidated, the increased costs of a five acre lot would dictate the construction of a house larger than 1,800 square feet. In sum, enforcement of the current plan's provisions will prevent any further development of a valuable piece of property conveniently located adjacent to the City of Green Cove Springs in a subdivision which has been recognized and considered in the County's development plans and maps for thirty years.
The Issue The issue presented for decision herein is whether or not petitioners Palocrave Investments Ltd., Inc. (Palocrave), and James J. James, violated the building height restriction established in the Monroe County land development regulations, and if so, what, if any, administrative penalty is appropriate.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record complied herein, I make the following relevant factual findings: Palocrave Investments, Ltd., Inc. (Palocrave), is a corporation under the laws of Florida whose address is 3972 NW 36th Street, Miami, Florida 33142. The Department of Community Affairs (Department) is a state agency as defined in Section 120.52(1), Florida Statutes, and is authorized to administer and enforce the provisions of Chapter 380, Florida Statutes and rules and regulations promulgated thereunder. Palocrave is the owner of a lot in a portion of Section 13, Township 62 south, Range 38 east, Key Largo, Monroe County, Florida. Most of Monroe County, including the subject property, is designated as an area of critical state concern (ACSC) pursuant to Section 380.0552, Florida Statutes (1986), and is subject to the provisions of Chapters 9J-14 and 28-20, Florida Administrative Code (FAC), which comprise the comprehensive plan and land development regulations for the Florida Keys ACSC. On January 29, 1987, Palocrave applied for a Monroe County building permit for the addition of a raised point to the roof of an existing house as stated in the permit application signed by Albio Castro, as contractor, and James J. James, as owner. On February 26, 1987, Monroe County issued Palocrave building permit C21282 for the addition, as applied for, including the construction of stairs, balconies and a fence, based on the information provided in the documents submitted with the application. Permit C21282 authorizes the construction of a building that has a portion of its elevation which exceeds a maximum height of 35 feet. Respondent Palocrave built a permanent roof structure above the master bedroom of the subject residence at the 35 foot level. At that point, a decorative point was added which was not accessible, functionable, heated or air-conditioned. The area which comprised the point rests atop the roof and is sealed off over the habitable area of the master bedroom. The pointed structure is of a conical shape with a maximum height of 44 feet and comprises less than one-third of the total roof area. Palocrave engaged the services of a registered engineer to complete the drawings for the pointed addition of the gable roof. The house is of Victorian design of which there are few in Monroe County. Joel Rosenblatt, a registered engineer who was tendered and received as an expert in structural and civil engineering, has been building roof systems in Monroe County in excess of eight (8) years. The addition which is in excess of the 35-foot height limitation is an embellishment and is not necessary for the structural integrity of the roof system. The roof system is of a gable type that's modified by a spiral point and is an architectural addition added only for decorative purposes. (Testimony of Rosenblatt, Eid and Benitez).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Department enter a final order finding that Palocrave Investments Ltd., Inc., and James J. James' construction of the addition to its residence which exceeds the 35 foot height limitation is a decorative spire and is therefore permissible and excluded from the building height restrictions established in the Monroe County Land Development Regulations and therefore is not in violation of such regulations. RECOMMENDED this 26th day of January, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 26th day of January, 1989. COPIES FURNISHED: Michael Halpern, Esquire Harvey Duvall, Esquire 209 Duval Street Key West, Florida 33040 Randy Ludacer, Esquire Monroe County Attorney 310 Fleming Street Key West, Florida 33040 John M. Carlson, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Thomas G. Pelham, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Larry Keesey, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399
Conclusions Having considered the entire record in this cause, it is concluded that petitioner has satisfied all requirements in Subsection 190.005(1)(e), Florida Statutes (1989). More specifically, it is concluded that all statements contained within the petition have been found to be true and correct, the creation of a district is consistent with applicable elements or portions of the state comprehensive plan and the Lee County comprehensive plan currently in force, the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community, the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district, the community development services and facilities of the district will be compatible with the capacity and uses of existing local and regional community development services and facilities, and the land that will be served by the district is amenable to separate special- district government. Respectively submitted this 7th day of May, 1991, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 7th day of May, 1991. Appendix A (Names and Address of Witnesses) Bryon R. Koste, 801 Laurel Oak Drive, Suite 500, Naples, Florida 33963 Thomas R. Peek, 3200 Bailey Lane at Airport Road North, Naples, Florida 33942 Gary L. Moyer, 10300 N.W. 11th Manor, Coral Springs, Florida 33071 Dr. Lance deHaven-Smith, Florida Atlantic University, 220 S.E. 2nd Avenue, Fort Lauderdale, Florida 33301 Samuel R. Crouch, 9200 Bonita Beach Road, Suite 101, Bonita Springs, Florida 33923 David E. Crawford, 9200 Bonita Beach Road, Suite 101, Bonita Springs, Florida 33923 Dr. James E. Pitts, College of Business, Florida State University, Tallahassee, Florida 32306 William Spikowski, Lee County Community Development Department, 1831 Hendry Street, Fort Myers, Florida 33901 Gary L. Beardsley, 2396 13th Street North, Naples, Florida Richard Huxtable, 4741 Spring Creek Road, Bonita Springs, Florida 33923 Larry Sullivan, 4778 Tahiti Village, 4501 Spring Creek Road, Bonita Springs, Florida 33923 Lee Menzies, Business Development Corporation of Southwest Florida, corner of Summerlin and College Parkway, Fort Myers, Florida Donna Buhl, 4501 Spring Creek Road, Box 91, Bonita Springs, Florida 33923 Ruth Norman, 24578 Redfish Street, S.W., Bonita Springs, Florida 33923 James Pepper, P. O. Box 1260, Bonita Springs, Florida 33923 (Names and addresses of persons filing written statements) Eugene S. Boyd, 5225 Serenity Cove, Bokeelia, Florida 33922 Edward S. Zajchowski, 4501 Spring Creek Road, Box 178, Bonita Springs, Florida 33923 Winifred M. Wheeler, 24593 Dolphin Street, S.W., Bonita Springs, Florida 33923 James W. Campbell, 4501 Spring Creek Road, Box 131, Bonita Springs, Florida 33923 Dorothy Jean Kendrick, 300 Haral Street, Sturgis, Michigan 49091 Exhibit A Appendix B (List of Documentary Evidence) Location map Local boundary map outlining district Map of district and surrounding areas Collier County Comprehensive Future Land Use Map Exhibit B Pelican's Nest PUD 1b Ridgewood RPD 1c Palmetto Bay RPD 1d Pelican's Nest RPD 1e Summary of status of permits Proposed development agreement Statement by Crawford concerning DRI Exhibit C Petition filed by Westinghouse Bayside Communities, Inc. Location map Metes and bounds legal description of district Consent to establishment of district Map of existing major trunk water mains, sewer interceptors or outfalls Proposed time tables and cost estimates Future land use portion of Lee County Comprehensive plan Economic impact statement Exhibit D Supplement to metes and bounds description in petition Specific description of all real property within district Exhibit E Photocopy of $15,000 processing check sent to County Letter transmitting petition to Commission Secretary Exhibit F Letter transmitting petition to Division of Administrative Hearings Exhibit G Notice of Publication in Florida Administrative Weekly on March 8, 1991 Affidavit for Fort Myers News-Press publication, March 11, 1991 Affidavit for Fort Myers News-Press publication, March 18, 1991 Affidavit for Fort Myers News-Press publication, March 25, 1991 Affidavit for Fort Myers News-Press publication, April 1, 1991 Exhibit H Lee County Comprehensive Plan Documentation of plan status Exhibit I Chapter 187, Florida Statutes Exhibit J Letter of March 14, 1991 from Secretary of Department Community Affairs to Commission Secretary Exhibit K White Paper by Dr. Lance deHaven-Smith Supplemental Exhibits Prefiled testimony of Bryon G. Koste Prefiled testimony of Samuel R. Crouch 3A Letter from Samuel R. Crouch to Jim Pepper 3B Letter from Samuel R. Crouch to Lloyd Read Prefiled testimony of Gary L. Moyer Prefiled testimony of David E. Crawford Prefiled testimony of Thomas R. Peek Prefiled testimony of Dr. Lance deHaven-Smith Intevenors Exhibit 1 - Letter of Edward S. Zajchowski COPIES FURNISHED: Douglas M. Cook, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, FL 32399-0001 Kenza Van Assenderp, Esquire P. O. Box 1833 Tallahassee, FL 32302-1833 Judith A. Workman, Esquire 408 Old Trail Road Sanibel, FL 33957 Marianne Kantor, Esquire Asst. County Attorney Lee County Courthouse 1700 Monroe Street Fort Myers, FL 33901 David M. Maloney, Esquire Office of the Governor The Capitol, Room 309 Tallahassee, FL 32399-0001
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondents be found guilty of violating Subsection 718.301(4)(c) , Florida Statutes, and that a $500 civil penalty be imposed; the remaining charge should be DISMISSED. DONE and ENTERED this 12th day of January, 1983 in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1983.
The Issue Appellant raises two issues on appeal: (1) whether the Board misconstrued a provision in the Special Area Plan for College Park (Special Area Plan) of the Urban Mixed-Use District 1 (UMU-1) zoning classification, which prescribes the allowable height for Type I buildings within that district; and (2) whether there is competent substantial evidence to support the Board's decision that the development and use of the subject property is compatible with the use and structures on the nearby property.
