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DEPARTMENT OF COMMUNITY AFFAIRS vs KEY LARGO ASSOCIATES, LTD., AND MONROE COUNTY, 91-007804DRI (1991)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Dec. 04, 1991 Number: 91-007804DRI Latest Update: Jun. 06, 1996

The Issue The issue in this case is whether a development order (Resolution No. 233- 1991) issued by Monroe County on June 26, 1991, to Key Largo Associates, Ltd., is inconsistent with Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and Land Use Regulations, and/or whether it violates a Joint Stipulation of Settlement previously executed by the Department of Community Affairs ("DCA"), Monroe County (the "County"), and Key Largo Associates, Ltd.'s predecessor in title.

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: DCA is the State Land Planning Agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Monroe County is a political subdivision of the State of Florida and is responsible for issuing development orders for development in unincorporated Monroe County. The County issued the Development Order which is the subject of this proceeding. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical Concern as designated in Sections 380.05 and 380.0552, Florida Statutes. Development orders issued by a local government agency for an area of critical state concern are subject to review by DCA pursuant to Section 380.07, Florida Statutes. On April 8, 1985, DCA, Monroe County, and I. D. Properties, the previous owner of the subject property, executed a Joint Stipulation of Settlement regarding DCA's challenge to a prior development order for the subject property. That Joint Stipulation of Settlement required the preservation of certain tropical hammock on the site including Paradise Tree hammock. After executing the Joint Stipulation of Settlement, I. D. Properties quitclaimed its interest in the site to Key Largo Associates, Ltd. Key Largo Associates, Ltd. proceeded to seek approval from Monroe County to develop the property inconsistent with the terms of the Joint Stipulation of Settlement. Those efforts resulted in the Development Order which is the subject of this case. The County Commission issued the Development Order granting a major conditional use permit for the Project to Key Largo Associates, Ltd., after being ordered to do so by the Circuit Court for Monroe County. The Development Order purports to authorize the complete elimination of existing tropical hammock on the site including the Paradise Tree hammock. The Development Order is inconsistent with the Monroe County Comprehensive Plan and the Land Development Regulations adopted thereunder. In addition, the Development Order is contrary to the terms of the Joint Stipulation of Settlement.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order which sustains the appeal filed by the Department of Community Affairs and which rescinds the issuance of Monroe County Resolution No. 233- 1991. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of August 1993. J. STEPHEN MENTON 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 18th day of August, 1993. COPIES FURNISHED: Terrell K. Arline Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Betty J. Steffens, Esquire McFarlain, Wiley, Cassedy & Jones Post Office Box 2174 Tallahassee, Florida 32316-2174 Blackwater Associates Partnership 7225 S.W. 108th Terrace Miami, Florida 33156 Ray Parker Parker Real Estate 2028 North Dixie Highway Fort Lauderdale, Florida 33305 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 G. Steven Pfeiffer General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 David K. Coburn, Secretary FLWAC Exec. Office of the Governor 311 Carlton Bldg. Tallahassee, Florida 32301

Florida Laws (4) 120.57380.05380.0552380.07
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MANUEL KASTRENAKIS vs CITY OF CLEARWATER AND ANTONIOS MARKOPOULOS, 90-005002 (1990)
Division of Administrative Hearings, Florida Filed:Clearwater, Florida Aug. 13, 1990 Number: 90-005002 Latest Update: Dec. 13, 1990

The Issue Whether the Planning Commission deviated from essential requirements of law in denying Appellant's application for a special use permit to operate a car rental agency at 2576 Harn Boulevard, Clearwater, Florida.

Findings Of Fact Manual Kastrenakes, d/b/a Pinellas Rent-A-Car, Appellant, purchased the property which is the subject of this appeal in 1989. Prior to this purchase, the property was the site of a Farm Store, which has been vacated. Appellant also owns a filling station in the vicinity of this property which is legally operated and is in compliance with all zoning requirements. The property is zoned CH (highway commercial). Within Highway Commercial Districts, outdoor retail sales, displays and/or storage are permitted as conditional uses. Section 135.129(11), City of Clearwater Land Development Code. Objections to the granting of this conditional use permit come from residents of multifamily residential buildings adjacent to and west of the property in issue. Many of those residents are retired and/or infirm and contend they will be disturbed by the operation of a rental car business "in their back yard." To counter some of these objections, Appellant agreed to conditions being imposed on this permit limiting hours of operation, lighting, paving, buffer zones, and parking. Protestants also contend that operating the business would depreciate the value of their property, but no credible evidence was presented to support this position. Appellant has further agreed that disabled or wrecked vehicles will not be stored on this property, and only fully operable rental automobiles will be stored and/or displayed on this property.

Florida Laws (1) 120.68
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DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES vs HANDY 89, INC., D/B/A HANDY 89 SUNOCO, 03-000535 (2003)
Division of Administrative Hearings, Florida Filed:Fort Myers, Florida Feb. 14, 2003 Number: 03-000535 Latest Update: Jun. 21, 2004

The Issue Whether Respondent committed the offenses set forth in the Administrative Complaints in these consolidated cases and, if so, what penalty should be imposed.

Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: The Department is the state agency charged with the responsibility for enforcement of the Florida Food Safety Act, Chapter 500, Florida Statutes. Handy 89 is located at 14531 North Cleveland Avenue, North Fort Myers, in Lee County. Since June 2002, Handy 89 has been operating a food establishment without a food permit from the Department. The Department does not inspect or approve septic systems at food establishments. Rather, the Department seeks certification that the food establishment has obtained approval from the local health authority or, in the case of large scale systems, from the Department of Environmental Protection. In this case, the Lee County Department of Health was the agency responsible for permitting the sewage system at Handy 89. Handy 89's owners applied to Lee County for a Certificate of Occupancy on May 20, 2002. Johanna Whalen, an environmental specialist with the Lee County Department of Health, coordinated with Handy 89 as to the steps required before the certificate could be issued. Ms. Whalen was familiar with the Handy 89 building because she drove past it every day on her way to work. She knew that the building had been closed to the public for more than one year and that it was serviced by a septic system. Ms. Whalen informed Handy 89 that when a septic system has been out of service for more than one year, it must be upgraded to meet current requirements for such systems. Handy 89 never applied for a construction permit to bring the septic system into full compliance. Klaus Kment is the Department sanitation and safety specialist responsible for inspecting the premises at Handy 89. On June 6, 2002, Mr. Kment authorized Handy 89 to operate as a food establishment. At the time, Mr. Kment was unaware of the problem with Handy 89's septic system. Mr. Kment testified that the Handy 89 building was located in a densely populated area, and he, therefore, assumed that the building was connected to city water and sewer service. Handy 89 opened for business in early June 2002. Ms. Whalen drove past the Handy 89 store and was surprised to see it opened for business. She contacted the Department's main office in Tallahassee, which relayed her concerns to Mr. Kment in Fort Myers. On June 17, 2002, Mr. Kment conducted an inspection of the Handy 89 premises and cited the facility for failure to have a sewage and wastewater disposal system approved by Lee County, and for failure to have a certified food manager. He assigned Handy 89 an overall rating of "poor." Mr. Kment conducted another inspection of the Handy 89 premises on July 2, 2002. He once again cited the facility for failure to have a sewage and wastewater disposal system approved by Lee County, and for failure to have a certified food manager, and again assigned it an overall rating of "poor." Mr. Kment's inspection report noted that Handy 89 "will need additional time to comply." Mr. Kment waited two months before conducting a third inspection, though he visited the store several times during the interim between inspections. On September 6, 2002, Mr. Kment conducted an inspection of the Handy 89 premises and cited the facility for failure to have a sewage and wastewater disposal system approved by Lee County and for failure to properly dispose of mop water. Mr. Kment noted that he had visited Handy 89 numerous times, but no progress had been made in obtaining a permit for the sewage system. By the time of the September 6, 2002, inspection, Mr. Norman Lippman of Handy 89 had become certified as a food manager, correcting that repeated violation. Nonetheless, Mr. Kment assigned Handy 89 an overall rating of "poor." By letter dated September 9, 2002, the Department denied Handy 89's application for a food permit based on its failure to obtain a satisfactory sanitation inspection rating. However, Handy 89 continued to operate and to sell products for which a food permit is required, such as dairy products and meat. The Handy 89 store contained more than 12 linear feet of shelving for these food products. On September 23, 2002, the Department issued an Administrative Complaint against Handy 89, citing the repeated violation for the sewage system, as well as the violations for improper disposal of mop water and failure to have a certified food manager. The Department proposed to settle the complaint for payment of $900.00 and the correction of all violations within 21 days of receipt of the Administrative Complaint. This is the Administrative Complaint at issue in DOAH Case No. 03-0535. On October 17, 2002, Mr. Kment conducted an inspection of the Handy 89 premises and cited the facility for failure to have a sewage and wastewater disposal system approved by Lee County. Mr. Kment also noted the presence of live insect infestation in some self-rising flour on the store shelves. Handy 89 voluntarily destroyed the flour. Due to the failure to make progress on the sewage system, Mr. Kment again assigned Handy 89 an overall inspection rating of "poor." On November 21, 2002, Mr. Kment conducted an inspection of the Handy 89 premises and cited the facility for failure to have a sewage and wastewater disposal system approved by Lee County. He noted that the owner was not present, and that no documentation was left on the premises to indicate any action on the sewage system. Mr. Kment assigned Handy 89 an overall inspection rating of "poor." On December 5, 2002, the Department issued an Administrative Complaint against Handy 89, citing the repeated violation for the sewage system, as well as the violation for insect infestation. The Department proposed to settle the complaint for payment of $750.00 and the correction of all violations within 21 days of receipt of the administrative complaint. This is the Administrative Complaint at issue in DOAH Case No. 03-0536. Dr. John Fruin, the chief of the Division of Food Safety, testified that the Department cannot give Handy 89 a food permit unless it has an approved septic system and that the Department is without authority to waive that requirement. Handy 89 offered no testimony or documentary evidence to dispute the Department's case that its sewage system was not permitted by Lee County.

Recommendation Based on all the evidence of record, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order finding that Handy 89 committed the violations alleged in the Administrative Complaints; ordering Handy 89 to pay an administrative fine in the amount of $5,000.00 within 15 days of receipt of the final order, and ordering that a closed-for-operation sign be prominently posted on Handy 89's food establishment until such time as Handy 89 has obtained a food permit pursuant to Chapter 500. DONE AND ENTERED this 5th day of September, 2003, in Tallahassee, Leon County, Florida. S _____ LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 2003. COPIES FURNISHED: Norman Lippman Handy 89 Sunoco 14531 North Cleveland Avenue North Fort Myers, Florida 33903 John McCarthy, Esquire Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Phil Reis 1470 Route 46 East Ledgewood, New Jersey 07825 Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and Consumer Services 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32399-0800 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810

Florida Laws (11) 120.569120.57201.10202.11381.00655402.12500.04500.12500.121775.082775.083
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DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO vs. JAMES P. POPE, T/A TAVERN ON THE MALL, 77-000734 (1977)
Division of Administrative Hearings, Florida Number: 77-000734 Latest Update: Sep. 12, 1977

The Issue Whether or not on or about February 2, 1977, James P. Pope, a licensee under the beverage laws, failed to file application for transfer of said license after a bona fide sale of said business and license was made by James P. Pope to Gary W. Simmons and Anthony W. Speakman contrary to 561.32, F. S. Whether or not on or about February 2, 1977, James P. Pope, licensed under the beverage laws, did allow persons, to wit; Gary W. Simmons and Anthony W. Speakman to assume a direct interest and engage in selling alcoholic beverages prior to filing a sworn application and being approved, contrary to 561.17, F. S. Whether or not on or about February 2, 1977, James P. Pope, licensed under the beverage laws, failed to manage and maintain control of all business conducted on his licensed premises, by allowing Gary W. Simmons and Anthony W. Speakman to take complete control of his premises contrary to Rule 7A-3.17, Florida Administrative Code.

Findings Of Fact The Respondent, James P. Pope, is the holder of license no. 27-526, series 2-COP, held with the Petitioner, State of Florida, Division of Beverage. James P. Pope has held this license from October 1, 1976, up to and including the date of the formal hearing. This license allows the licensee to sell beer and wine for consumption on the licensed premises. The licensed premises is located at 4220 West Fairfield Drive, Pensacola, Florida. The licensee is trading as Tavern on the Mall. On February 2, 1977, agent Daniel J. Cobb, State of Florida, Division of Beverage, went to the Respondent's licensed premises. When he arrived at the licensed premises, he spoke with one Gary W. Simmons. Simmons indicated that he was the new owner of the licensed premises although the transfer of ownership had not been completed. Simmons further indicated that he was in charge of the licensed premises and running the licensed premises. Simmons indicated that he and Anthony W. Speakman had a lease agreement with the licensee, James P. Pope. This lease agreement as shown by Petitioner's Exhibit no. 3, admitted into evidence and made a part of the record, establishes that James P. Pope as lessor entered into a lease agreement with Gary Simmons and Anthony W. Speakman as lessees, in which the lessees would manage the Tavern on the Mall, with the option to buy the business and equipment as soon as the beverage department approved the application for the transfer of the beer and wine license. The lease also indicated that the lessees would receive all the money from the business for managing the business, with the exception of $150 a week which was to be paid to James P. Pope and would go toward the down payment for the licensed premises which would come about at the time of the license transfer. The lease agreement additionally said that the purpose of the Tavern was for dispensing beer and wine. Agent Cobb also discovered the existence of a bank account which Simmons and Speakman had established to operate the business on the licensed premises. In addition, agent Cobb found that a local utility company, Gulf Power, was providing electric power to the licensed premises in the name of Simmons and Speakman. In an interview on February 3, 1977, between Cobb and Pope, the Petitioner's Exhibit no. 3 was presented to agent Cobb to establish the arrangement between Pope, Simmons and Speakman. (This lease was produced voluntarily and the Respondent has cooperated with the Division of Beverage in investigating this matter.) James P. Pope was not running or managing the business at the licensed premises on February 2, 1977, nor has he been managing the business from February 2, up to and including the date of the hearing. Pope only comes to the licensed premises two or three times a week just for purposes of checking up, but not for purposes of management. The facts in this cause do not establish that on or about February 2, 1977, James P. Pope, a licensee under the beverage laws, faced to file an application for a transfer of his license after a bona fide sale of the business located 4220 West Fairfield Drive, Pensacola, Florida, under s. 561.32, F. S. The agreement between James P. Pope and Gary W. Simmons and Anthony W. Speakman is a lease agreement with an option to buy and this is not a bona fide sale of the premises. The facts in this cause do establish that James P. Pope did allow Gary W. Simmons and Anthony W. Speakman to assume a direct interest in the licensed premises and engage in selling alcoholic beverage prior to filing a sworn application and being approved by the Division of Beverage, contrary to s. 561.17, F. S. This is established by the conditions existant on February 2, 1977, in the licensed premises. Finally, the facts as established, show that on February 2, 1977, James P. Pope, licensed under the beverage laws, was not managing and controling all the business conducted on the licensed premises under the beverage law, nor was his authorized employee or employees managing or controlling such business conducted on the licensed premises under the beverage law. Therefore James P. Pope was operating contrary to Rule 7A-3.17, Florida Administrative Code.

Recommendation Based upon the facts as shown, and the violations as established, it is RECOMMENDED: That the Director of the Division of Beverage grant the Respondent, James P. Pope, 30 days from the date of the final order, within which time to effect a legal transfer of his beverage license, license no. 27-526, series 2-COP, to Gary W. Simmons and Anthony W. Speakman or some satisfactory party, after which time if no legal transfer has been achieved, the license held by James P. Pope, license no. 27-526, series 2-COP shall be revoked. DONE AND ENTERED this 15th day of June, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles T. Collett, Esquire Division of Beverage The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 James P. Pope 4220 West Fairfield Drive Pensacola, Florida

Florida Laws (4) 210.16561.17561.29561.32
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HAROLD S. WILSON (EXOTICAR) vs CITY OF CLEARWATER AND ANTONIOS MARKOPOULOS, 92-001011 (1992)
Division of Administrative Hearings, Florida Filed:Clearwater, Florida Feb. 14, 1992 Number: 92-001011 Latest Update: Jun. 22, 1992

Findings Of Fact Petitioner, Harold S. Wilson, is Trustee of the property which is situated at 18514 U.S. Highway 19 North in Clearwater, Florida. The property is in a zoning district designated as CH and the land use classification is CTF. The immediate surrounding land usage to the north is a furniture store, to the south is a car lot, to the east is a shopping center and to the west is a complex of office buildings. The subject building where the conditional use application was filed was erected during 1986. The first tenant of the building was Styles Auto (Styles). Styles engaged in the business of wholesaling luxury automobiles from August 1986 to September 1989. During June of 1990, Petitioner moved to the subject location and has remained there to the present time. The previous tenant at this site was the "Decorators Guild." 1/ As stated, the zoning for the property is highway commercial (CH). Respondent's staff conducted a survey of the property and the requested use and found that the standards were satisfied and recommended approval of the conditional use with certain specific conditions set forth hereinafter. A review of the permitted uses and conditional uses include among them wholesale distributions. (Petitioner's Exhibit A.) James T. Ray is the owner of Exoticar. Exoticar is in the business of wholesaling luxury cars throughout the United States and abroad and, on occasion, retails vehicles. Typically, Exoticar sells vehicles such as Ferrari, Porsche, Mercedes Benz and Jaguar. The cars are usually pre-sold when purchased and often times the vehicles are never brought to the site in Clearwater, Florida. On occasion, it is necessary for Exoticar to have on display from 5 to 10 vehicles at its offices in Clearwater, Florida. Petitioner's operation is compatible with the business operations of the adjoining tenants/owners. The only display sign that Exoticar uses on its vehicles is one designating the model year and the size of its signs are less than one square foot. The former tenant, Styles, did substantially more retail sales than Exoticar. Also, Styles sold more retail vehicles in the medium price range whereas Exoticar typically sells all up-line priced vehicles. Sandra Glatthorn, a senior planner with the Planning and Development Department of the City of Clearwater, presented several proposed conditions in the event that the Board's decision was reversed and the application for the conditional use approved. Those conditions are as follows: The number of vehicles which may be displayed or otherwise parked or stored on the property while pending their sale, lease, or delivery shall not exceed five (5) at any time. All vehicles shall be parked on the paved parking area. No vehicle shall be parked on the grassed or landscaped area of the property. The handicapped parking space presently being used for vehicle display shall be relocated to the satisfaction of the city's traffic engineer, and shall be properly marked. The applicant's signs shall be brought into compliance with the city's sign regulations not later than October 13, 1992. All required permits and licensees shall be obtained within six (6) months following approval of the application. No sign on or in a vehicle shall exceed one (1) square foot in size. Signs on or in vehicles shall be limited to one per vehicle. No vehicle shall be unloaded from, or loaded onto, a vehicle transportation truck or trailer while on the property. No vehicle shall be waxed, "detailed," or serviced while on the property. This condition shall not be construed to prohibit emergency service necessary to start a vehicle or to tow an inoperative vehicle from the property. The above proposed conditions were considered by Respondent's staff and are acceptable to Petitioner. Petitioner does not prepare, wax, or detail vehicles at the proposed location. Likewise, Petitioner does not order transporters to pickup vehicles from the subject location, although on occasion a transporter will show up at that location. In those rare instances, Exoticar's owner, Ray, directs transporters to another alternate location whereby the unloading or loading of vehicles can be accomplished offsite. The Petitioner has the requisite parking spaces to comply with the City's parking code.

Florida Laws (2) 120.57120.68
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