Findings Of Fact Antonios Markopoulos, Appellant, applied for seven variances on property located at 200 Coronado Drive, Clearwater, Florida, to allow the construction of a 7 to 9 story parking garage covering the property from lot line to lot line. The property in question is a 95 feet x 105 feet parking lot adjacent to a hotel, shops and restaurants owned by Appellant. The first waiver requested was of the minimum lot size of 150 feet on which to build. Since this property was unique in that regard and could never attain the 150 feet minimum dimension, the Board granted that variance. The other six requests for variances involved setbacks and open space requirements. Appellant proposes to build a parking garage with two elevators to lift cars to the various parking levels with the building extending to the lot lines in all four directions. The hotel, restaurants and stores located at this site and owned by Appellant are nonconforming uses. The hotel has 86 rooms and if built today would require a minimum of 86 parking spaces. The stores and restaurants would require additional parking spaces that are now not available. Appellant proposes to construct a garage with approximately 340 parking spaces which he contends are the minimum needed to provide adequate parking for patrons at the hotel, stores and restaurants. At the hearing before the Board, Appellant contended that the parking garage would also serve to relieve parking problems at other establishments in the vicinity. Appellant proposes to have parking customers drive up a ramp through a ticket machine which will dispense a ticket which can be validated at the hotel, restaurants or shops. The car will then be parked by attendants who will drive the car onto an elevator to lift the car to a floor with parking space. This clearly indicates that Appellant is proposing to construct a parking garage which will be open to the general public. Appellant presented testimony that if the setbacks required by the Code were followed on all sides, there would be insufficient square feet per floor to make the parking garage financially feasible. He also presented testimony of the City of Clearwater Traffic Engineer to the effect that construction of a parking garage at this location would not create a traffic problem. Although most, if not all, of the property surrounding Appellant's property are nonconforming with less setbacks than are required by the existing code, none of these properties have been covered lot line to lot line with a structure or structures. The primary emphasis of the evidence submitted by Appellant is that there is insufficient parking at Clearwater Beach, and erection of a parking garage will do much to alleviate this problem.
The Issue The issue in this appeal is whether to sustain the decision of the City Planning and Zoning Board (the Board) to deny Thomas Nott a conditional use permit to sell pre-owned motor vehicles at his business at 700 Cleveland Street, Clearwater, Florida.
Findings Of Fact Thomas A. Nott owns Lots 6 and 7, Gould & Ewing's Plat 2nd Addition. The street address is 700 Cleveland Street, Clearwater, Florida. This property is on the northeast corner of Cleveland Street and East Avenue. The property is in the Core-2 (C-2) subdistrict of the Urban Center (UC) zoning district. The Clearwater Downtown Redevelopment Plan states in pertinent part: An extremely important aspect of the way Downtown Clearwater functions and is perceived involves transportation within and into the Downtown. If the traffic flow into Downtown is efficient and the entryways are attractive, Downtown Clearwater is more likely to be frequented by citizens and visitors. If traffic flow is congested and the roadsides are unappealing, the Downtown is less likely to be a place where people visit, live and shop and where entrepreneurs invest money. * * * Cleveland Street is the single most important roadway in Downtown Clearwater. Due to it[s] "Business S.R. 60" designation, it carries a substantial amount of the traffic heading to Clearwater Beach, as well as the bulk of the office and retail traffic headed for Downtown. . . . In the Downtown Core area, Cleveland Street has been attractively landscaped with paving block and planters. This treatment has greatly improved the appearance of the Downtown along Cleveland Street. However, these efforts are, to some extent, undermined by the poorly landscaped sections of Cleveland Street outside the Downtown Core area. Land uses outside of the Downtown Core along Cleveland Street are relatively unattractive and are poorly landscaped. A remedial landscaping program should be considered as a top priority for improving this important entryway. The City also has adopted Design Guidelines for new construction, building additions, facade alterations, and signage for the Urban Center zoning district. A section on "Landscape and Streetscape Guidelines" suggests the use of different kinds of planters and curb "neck-out" street corners to create larger pedestrian areas that incorporate benches, specialized pavers, and lighted bollards. Landscaping, including shade trees, are suggested to provide separation between people and vehicles. A subsection on "Open Spaces" states: "Designers of site improvement areas are encouraged to explore opportunities to incorporate usable open space with the project (development) area." Nott's property is in a transition area between the more attractively landscaped City core to the west and the less attractive portions of Cleveland Street to the east. Immediately to the west across East Avenue is the Pinellas Trail. Immediately to the west of the Trail, fronting on Cleveland Street, is the historic United States Post Office building, which is listed on the National Register of historic buildings. (Since it still functions as a working post office, a large number of mail delivery trucks park and operate out of the back of the post office to the north.) The Trickels Jewelers building to the immediate east of Nott's property also is attractively landscaped, especially along Myrtle Avenue. The other properties to the north, east, and south of Nott's property are less attractive. They include: an automobile and marine repair business; a restaurant with little or no open space; an import car repair service business with little or no open space; and a car rental business. Ideally, the City would like Nott's property to become the start of an eastward expansion of the more attractive urban core along Cleveland Street. Nott's property is 0.26 acre in area; its dimensions are 105 feet in width and 109 feet in depth. Unlike most properties in the downtown urban core, the building on Nott's property is set back quite a distance from the streets. The building has one story and is just 1500 square feet. In the past, the property has been used as an automobile gas and service station and as a car rental business. Before Nott bought the property, the building was in disrepair and in decline. Approximately four years ago, Nott was considering relocating from South Beach in Miami, where he was in the business of selling pre-owned motor vehicles. Initially, he investigated relocating to Dunedin, but an official with Clearwater's redevelopment agency persuaded him to take advantage of Clearwater's commitment to redevelop the downtown urban core, as well as interest-free financing available through the agency to improve the property. Nott bought the property, borrowed approximately $50,000 interest-free, and invested that and an additional $50,000 of his own money to improve the property. His plan was to conduct two businesses at the property: a roller skate and bicycle rental business catering to users of the Pinellas Trail; and a pre-owned motor vehicle sales business. Due to family priorities, Nott had to delay his departure from Miami and only was able, with the help of a nephew, to open the skate and bicycle shop. The 121 square feet of storefront planned for the vehicle sales business was used as storage space for the skate and bicycle shop pending opening of the vehicle sales business. The skate and bicycle shop, called Fritz's Skate Shop, had been operating for approximately three years when Nott became ready to open his pre-owned vehicle sales business. When he went to get an occupational license towards the end of 1998, Nott learned that a conditional use permit would be required. In discussions with staff of the City's Planning and Zoning Board, Nott also was informed that a new zoning code was going into effect which would prohibit vehicles sales at Nott's property and that he would have to expedite his application for it to be considered under the existing zoning regulations. Nott filed an application for a conditional use approval on or about January 12, 1999. At the time, Nott was not familiar with Clearwater's zoning regulations and did not address some zoning requirements. Specifically, while the sketch Nott drew by hand to approximate scale to serve as the required site plan met the minimum requirements as to form, it only showed a three-foot grass buffer along Cleveland Street and a three-foot buffer of shrubs along East Avenue, while the City's development code required at least a ten-foot landscaped buffer along Cleveland Street and at least a five-foot landscaped buffer along East Avenue. The sketch also showed parking that would obstruct vehicle flow in the parking lot and failed to show a large oak tree on the site. Finally, the sketch showed parking for the display of vehicles for sale along Cleveland Street. Nott's application was set for hearing at the Board's last scheduled meeting on March 2, 1999, just six days before the new zoning and development code would take effect. Nott still did not know all of the applicable regulations under the existing code. For some reason, Nott did not obtain a complete set of the City's zoning and development regulations until approximately February 17, 1999. Nott blamed the delay on foot-dragging by the Board's staff, and he questioned whether the staff was being uncooperative to undermine his application. Nott testified that he did not get a complete set of the applicable zoning and development regulations until after he sent a letter of complaint to the staff director on February 13, 1999. The staff denied any intention to delay Nott's application or be uncooperative. The staff blamed some of the delay on the time it took for Nott to prepare and submit an acceptable site plan. It appears that Nott entered into the application process thinking that there would be no problem meeting the City's requirements and expecting the Board's staff to walk him through the process. When Nott's expectations were not met, he perceived that the staff was treating him unfairly. But it is found that Nott's evidence did not prove unfair treatment. In fact, due to Nott's inexperience, the staff was required to give Nott more assistance than usual. For his presentation to the Board, Nott had a consultant use a photograph of the site to create a computer- visualization of the proposed vehicle sales business. The photograph depicted one vehicle parked in front of the building, as well as four vehicles parked along Cleveland Street and one parked along the east property line in two of the areas identified on the site plan as parking for the display of vehicles for sale. The visualization did not add any landscaping. At the time, Nott thought the concern was adequate parking; he did not know at the time that landscaping also would be important to his application. When Nott got and reviewed the applicable zoning and development code provisions and the staff's report, he realized that he had not addressed the landscaping buffer requirements. He had his consultant further modify the computer-visualization to add a landscaping buffer. This visualization was presented at the Board hearing on March 2, 1999. However, the visualization still depicted vehicles parked along Cleveland Street and was not clear as to the width of the landscaping buffer. The site plan was not modified, so the extent of the proposed landscaping buffer could not be ascertained from the site plan. At the Board hearing, Nott stated that he would be willing to do whatever the City said was necessary in order for him to receive a conditional use permit. But Nott made no specific proposals. Essentially, Nott was asking the City to formulate an acceptable application for him. The staff report indicated that an on-site traffic circulation problem could be cured by eliminating two customer parking spaces in front of the building. But it was impossible to determine from the evidence in the record how a wider landscaping buffer would impact either traffic circulation in the parking lot, parking, or the large oak tree. The staff report pointed out that Nott's application proposed to maintain minimal (7%) open space on the site. The neighbor to the immediate east (Trickels Jewelers) has 30-35% open space, including attractive landscaping along Myrtle Avenue. At the Board hearing, Nott claimed "open space" credit for the shade canopy provided by the large oak tree on-site and contended that the credit would increase his "open space" to 30-35% as well. But even if open space credit can be given for shade canopy over a parking lot, Nott's testimony was insufficient to prove the extent of the tree's shade canopy. Besides, it could not be ascertained from the record whether the tree would have to be removed to meet landscaping buffer, traffic circulation, and parking requirements. Nott testified at the appeal hearing that, after he proposed and depicted parking of vehicles for sale along Cleveland Street, the "Division of Motor Vehicles" advised him that it would not allow him to display vehicles in that location. Nott testified that he would simply eliminate the display parking spaces along Cleveland Street and limit the display of vehicles for sale to 12 at any one time in parking spaces adjacent to the building and along the east property line. But it was not clear from the record whether all of the remaining spaces depicted on the site plan for display parking would remain available for that purpose after adding landscaping buffer, and also maintaining adequate traffic circulation and customer parking. In addition to agreeing to meet the perimeter landscape buffer requirements, Nott also agreed to condition approval on: (1) operating his vehicle sales business only 10 a.m. to 5 p.m. on Monday through Saturday; (2) not using windshield advertising, flags, or banners; (3) only selling vehicles with a retail value of $10,000 or more; and (4) not operating a "buy here-pay here" used car lot.
The Issue The ultimate issue in this appeal is whether to approve, approve with conditions, or deny the Development Order issued to Appellee Pinellas Education Organization, Inc., d/b/a Enterprise High School (Applicant or School), by the Board on December 3, 2019. Specifically, the following issues must be resolved: Whether Appellants have standing to appeal the Development Order. Whether the issues raised by Appellants at the Oral Argument were properly preserved for appeal. Whether there is substantial competent evidence in the record to support approval of the Development Order.3 Whether the Board's decision departs from the essential requirements of the law. If the Development Order is affirmed, whether any additional conditions are appropriate. PROCEDURAL HISTORY Appellee School filed an application to renovate an existing building to operate a high school at 2495 Enterprise Road, in Clearwater, Florida.4 The Board held a quasi-judicial public hearing on the application on November 19, 2019 (Board Hearing). The Board approved the School's application with conditions and the City issued the Development Order on December 3, 2019. On December 4, 2019, two separate Appeal Applications were filed regarding the Development Order: (1) by 2521 Countryside Blvd., LLP, Countryside Property Principals, LLC, Bruce Levine, and Joan Levine; and by 2505 Enterprise, LLC, and Greg Willsey, and Sandra Willsey. The Appeal Applications were fairly similar and raised a number of issues: four issues pertaining to traffic and parking requirements; and one issue as to whether a high school is a compatible use with the surrounding area. The City referred the matter to DOAH on December 4, 2019, and it was 3 Section 4-505C states, "The burden shall be upon the appellant to show that the decision of the community development board cannot be sustained by substantial competent evidence before the board, or that the decision of the board departs from the essential requirements of law." 4 The School's application went through a Level Two approval process which requires a quasi-judicial public Board hearing to approve flexibility (i.e. deviation) from the minimum development standards set forth in the Code. See Code at §4-401. Level Two approvals must meet both the general applicability criteria and the flexibility criteria outlined by the Code. See Code at Art. 4, Divisions 1, 3, 4 and 6. assigned to an administrative law judge. On December 13, 2019, a telephonic scheduling conference was held to determine the record on appeal and set the oral argument hearing. During that conference the parties agreed not to submit pre-argument briefs, but rather, chose to file post-hearing proposed final orders. The Oral Argument was held at the Clearwater Library and was open to the general public. Applicant, the City, the Board, and all persons who were granted party status at the Board Hearing were allowed to present arguments at the Oral Argument. See Code at 4-505B. At the Board Hearing the following people were granted party status: Dr. Richard Gottlieb, who was represented by Todd Pressman; Sandra Willsey; Greg Willsey; and Todd Burch. The transcript of the Oral Argument was filed with DOAH on February 19, 2020. Pursuant to section 4-505D, the proposed final orders were due within 20 days after the filing of the transcript, or no later than March 11, 2020. Per the City's request, the parties were granted an extension to submit proposed final orders. The additional time was to allow the parties to collaborate on a master index to the record on appeal (Index), which they intended to cite to in their proposed orders. The Index and the proposed final orders were timely submitted on March 23, 2020.5 5 At the Oral Argument, the parties stipulated that the undersigned could take official recognition of the Code provisions and City of Clearwater Comprehensive Plan (Comprehensive Plan) found online. As such, the undersigned takes official recognition of the Code found at https://library.municode.com/fl/clearwater/codes/ community_development_code?nodeId=CODECO (last visited April 14, 2020); and of the Comprehensive Plan found at https://www.myclearwater.com/government/city- departments/planning-development/divisions-/development-review-zoning/comprehensive- plan (last visited April 14, 2020). FACTS IN THE RECORD Pursuant to section 4-505A, the record includes the application file of the Clearwater Planning and Development Department (Planning Department); the agenda packet of the Board Hearing; all exhibits accepted into evidence at the Board Hearing; and the streaming video of the Board Hearing.6 The following findings of fact are supported by substantial competent evidence found in the record. Parties and Property The School filed an application with the Planning Department to renovate a 16,696 square foot building located on a 1.730 acre site at 2495 Enterprise Road in Clearwater, Florida (proposed development). The proposed development is in a retail/office plaza known as Village at Countryside (Plaza), located on the east side of Enterprise Road, just south of Countryside Boulevard in Clearwater, Florida. The Plaza consists of 11 parcels, including a large vacant building that formerly housed a Toys-R-Us store. The Plaza is located within the US 19 Corridor Redevelopment Plan, and has a designation of "US 19 District, Regional Center sub-district" (US 19-RC). Property within US 19-RC is subject to the special zoning district and development standards found at Appendix B of the Code.7 The School seeks to operate Enterprise High School, a charter high school, at the proposed development site.8 As explained below, relevant to this appeal is the number of students at the School and whether there will be adequate parking for the proposed development as required by the Code. 6 See Video of Board Hearing held November 19, 2019, on Agenda FLD2019-8026 at time marker 9:25 at http://clearwater.granicus.com/MediaPlayer.php?view_id=50&clip_id=3782 (last visited April 1, 2020). 7 See Code at Appendix B – US 19 Zoning District and Development Standards, found at https://library.municode.com/fl/clearwater/codes/community_development_code?nodeId=APX BUS19ZODIDEST (last visited April 14, 2020). 8 Enterprise High School is an existing charter school which intends to move from its current location to the proposed development site. The School is subject to section 1013.33, Florida Statutes. Appellants own and operate property within the Plaza and adjacent to the proposed development site. Specifically, Bruce and Joan Levine own Appellants 2521 Countryside Blvd., LLP,9 and Countryside Property Principals, LLC. The LLP and/or LLC operate the Countryside Foot and Ankle Center.10 The Countryside Foot and Ankle Center's administrator, Todd Burch, was granted party status at the Board Hearing. Greg and Sandra Willsey own Appellant 2505 Enterprise, LLC, which is a property in the Plaza. The Willseys were also granted party status at the Board Hearing. At the conclusion of the Board Hearing, the Board voted to approve the School's application. On December 3, 2019, a Development Order was issued to memorialize the Board's action. Thereafter, Appellants filed the Appeal Applications with a document titled "Notice and Statement" which stated the following grounds for the appeals: The Neighbors assert that the decision of the Community Development Board ("the Board") was not supported by substantial competent evidence and was a departure from essential requirements of law. Specifically: The Board's decision was based upon a high school with two, 200-student shifts. However, the record below established that these student shifts would substantially overlap during the noon hour. In other words, the evaluation of the proposed change of use was based on impacts and site requirements that were substantially less than what would actually occur on the site. 9 The Appeal Application lists this entity as 2521 Countryside Boulevard Land Trust. 10 Although Appellants state that Bruce Levine was granted party status at the Board Hearing, there is no substantial competent evidence in the record supporting this statement. See Appellees' Proposed Final Order at p. 3; compare Tab 30 of the Index, Board Meeting Minutes for November 19, 2019, at p. 3 and 5. The Board's decision was based on a traffic analysis provided by the applicant that used a wrong ITE trip generation code - an elementary school instead of a high school - so it cannot be relied upon as a basis for the underlying decision. The change of use to a high school required that the applicant establish that it had one parking space per three students. There is no substantial competent evidence to establish that this parking requirement was satisfied. To the contrary, the substantial competent evidence establishes that the parking on the property failed to meet this requirement. In fact, granting this change of use would result in a substantial oversubscription of the available parking at the site. The proposed use would create tortured on-site parking and traffic circulation patterns that would substantially impact the existing medical office uses on the property, including a kidney dialysis office that serves a substantial elderly population. There is no substantial competent evidence to support the finding that the change of use would "have no impacts on the adjacent retail plaza." To the contrary, the change of use would have substantial impacts on the current retail and office plaza. The proposed change of use would have substantial negative impacts on the surrounding community and is incompatible with the existing surrounding retail, office and residential uses. At the Oral Argument, Appellants raised for the first time whether the operation of a school is an inconsistent use with: (1) an Amended and Restated Declaration of Establishment of Restrictive Covenants, Conditions, and Restrictions, and Grants of Easements dated December 7, 1983 (the "Parking Easement"); and (2) the Comprehensive Plan. The Studies The first four issues raised in the Appeal Applications are related to the Parking Study and Traffic Study (collectively referred to as the Studies) which were submitted by the School as part of its application. The Parking Study, dated September 2, 2019, consists of overall parking calculations; aerial photographs of the development site and surrounding areas; and the Parking Easement. The purpose of the Traffic Study was to analyze the impact of the development on the traffic intersection at Countryside Boulevard and Enterprise Road, as well as the full access drive at the site. The 50-page Traffic Study, dated October 18, 2019, included numerous charts, maps, and tables with underlying information and data relating to the traffic counts for the proposed development. Jerry Dabkowski, a local traffic engineer who prepared the Studies for the School, testified at the Board Hearing about the traffic and parking calculations. To rebut the Studies, at the Board Hearing Mr. Pressman presented a two-page letter from a professional engineer dated November 15, 2019, titled "Traffic Study Review." Relevant to the appeal, the letter finds fault in the number of students and the "ITE Code" used in the Traffic Study and in the Planning Department's Staff Report and Recommendation (Staff Report), dated November 19, 2019, which was also presented to the Board. These factors would affect the calculations for the number of parking spaces required for and the trip distribution caused by the proposed development. Number of Students Appellants argue the parking calculations should be based on the total number of students enrolled at the School, or 400 students. The Studies and the Staff Report calculated the traffic and number of parking spaces necessary based on two shifts with 200 students per shift. At the Board Hearing, Donna Hulbert, the School's Director, testified that unlike a traditional high school, the School operated in two shifts to allow the students to hold employment while completing their high school education. Although the School intends to enroll a total of 400 students, she explained, each of the two shifts would have a maximum of 200 students. Additionally, the students are eligible for a public transportation bus pass, which some students utilize instead of driving their personal vehicles. The Study establishes that "[t]o reduce the impacts during the AM and PM peak hours, the school intends to split the day into two shifts, each with 200 students attending." Although there was conflicting information between the School's application and Ms. Hulbert's testimony at the Board Hearing about whether the shifts would overlap, the Staff Report recommends approval of the application because, "[t]he applicant has provided the school will operate in two shifts . . . with no more than 200 students present per shift." There is substantial competent evidence that there will be only 200 students at the School at a time, and that this number was correctly used in calculating the required parking spaces and the trip generation for the proposed development. ITE Trip Calculation Appellants argue the Traffic Study utilized the wrong Institute of Transportation Engineers' (ITE) Trip Generation Code, 520, which is the code applicable to an elementary school. The Study, however, states it utilized ITE Code 530 from the Institute of Transportation Engineers' Trip Generation, 10th Edition for Office, to calculate the change in trips attributed to the proposed development. A copy of the ITE Code 530 was attached to the Traffic Study. Additionally, Mr. Dabkowski testified that ITE Code 530 was the correct code for high schools. There is substantial competent evidence that ITE Code 530 was used in calculating the change in trips for the Traffic Study which was relied upon in the Staff Report, and which was accepted by the Board. Parking Requirements Table 2 in section B-303, Permitted uses and parking, provides the following parking requirements relevant to this appeal. Use Regional Use Specific Standards Minimum Off-Street Parking Spaces Retail Plaza BCP[Level 1 Minimum Standard(Building Construction permit)] [Not included] 4/1,000 SF GFA Schools FLD [Level 2 Flexible Development (Board approval required)] 1. All off-street parking is located at least 200 feet from any property designated as residential in the Zoning Atlas 1 per 3 students Based on this criterion, the School would require 67 parking spaces (200 students/3 = 66.6667). The Staff Report and Studies establish the proposed site has 55 parking spaces, but five of these spaces cannot be used because they are within 200 feet from a parcel designated as Residential. Thus, there are 49 available parking spaces "on site," leaving 18 spaces to be designated. As stated earlier, the proposed site is one of 11 parcels in the Plaza. The Parking Study contains a copy of a Parking Easement that allows cross- parking among the parcels. Based on the square footage of the buildings on the parcels (including the proposed development site), the entire Plaza is required to have 975 parking spaces. The Plaza actually has 1,137 parking spaces, an excess of 162 parking spaces. The Code also requires off-street parking spaces be located within 600 feet of the principal and accessory uses they serve. See Code at § 3-1404A. Next to and within 600 feet of the proposed development site is currently a vacant building that formerly housed a Toys-R-Us store. That parcel has 228 parking spaces, but only 177 spaces are required for that building, leaving an extra 51 parking spaces. Based on the excess spaces available through the Parking Easement, there is substantial competent evidence supporting the City's staff finding of adequate parking spaces to satisfy the additional 18 spaces necessary for the proposed development, and the Board's approval of the same. Compatible Use The fifth issue raised in the Appeal Applications is regarding the use of the proposed development site as a charter high school. Whether this site is appropriate for the type of school operated by the Applicant was a topic of discussion among the Board members at the Board Hearing. At the Board Hearing, Planning Department Manager Mark Parry testified as an expert witness. Mr. Parry explained the nature of the US 19- RC standards and gave his opinion that the proposed development complies with all applicable provisions of the Code, including the use requirements. In contrast, Appellants expressed anecdotal fears that the types of students attending the School would disrupt Appellants' medical businesses. For example, at the Board Hearing, Mrs. Willsey expressed concern that the students at the School were known to have "behavioral problems." Mr. Burch spoke about the increased number of pedestrians in the Plaza and cited to a letter in the record from Dr. Levine: "For us to have to monitor and police our properties for trespassing students would be untenable." There was no actual evidence in the record that the School's operations would cause any problems such as increased crime or trespassing in the area. At the Oral Argument and in their proposed final order, however, Appellants' argument shifted away from the potential effects of the students in the area and instead offered the new arguments that the School was inconsistent with the Parking Easement which states the Plaza shall be used "for commercial purposes only, including without limitation the operation of merchandising establishments, restaurants, and professional offices."11 Regardless, as explained below, this argument is not appropriate on appeal because it was not raised at the Board Hearing or in the Appeal Applications. At the Oral Argument, Appellants also argued that the School is an inconsistent use with the Comprehensive Plan. Appellants cited a paragraph from the Staff Report: The proposal includes a new charter school with grades nine through 12 and constitutes a public educational facility as defined by Policy J.2.1.2. The school will be located within the US 19–RC future land use designation. The prior designation was Commercial General (CG). The intent is that all uses permitted in the CG are also permitted in the US 19–RC classification. The City is planning to update the Comprehensive Plan to reflect this. Schools are a listed permitted use in the CG classification. As explained below, this argument is also inappropriate because it was not raised at the Board Hearing or in the Appeal Applications. Appellants also argue the proposed development is an inconsistent use with the existing businesses because the adjacent properties are commercial in nature and the School is not commercial. The Code, however, clearly allows Schools as an allowable use in the US 19-RC zoning district, and in the 11 The Complete section of the Parking Easement titled "Uses" states: 2.1 Uses in General The Property, consisting of both the Building Area and the Common Areas, shall be used for commercial purposes only, including without limitation the operation of merchandising establishments, restaurants, and professional offices. No portion of the Property shall be used or operated as a discotheque, bar or cocktail lounge (except in connection with a restaurant) ... theatre, bowling alley, skating rink, roller disco or catering hall, funeral parlor, or for the sale of pornographic literature or material, or an adult book store or so called "head shop" or for a video or other game arcade, flea market, or for a use which would be noxious or immoral or otherwise constitute moral turpitude or constitute an undignified, disreputable use. previous zoning designation of CG. See Code at § B-303. Moreover, unlike the Parking Easement, the Code does not divide use categories into "Commercial" and "Non-Commercial." Rather, the uses are categorized as "Residential" and "Non-Residential." Id. Based on the Code and the review of the application submissions, the Staff Report concluded the School will be an appropriate use in the area. Based on Staff visits, aerial photographs and material submitted by the applicant it is evident that the proposal will be in harmony and consistent with the scale, bulk, coverage and character of adjacent properties and, generally, with properties in the greater neighborhood. The reuse of the 16,700 square foot building with a school will not result in any adverse visual impacts on adjacent properties. Since the character of the site will not change with the proposal, and it is currently similar in nature vis-a-vis placement of other uses in the area it is not expected to impair the value of those properties. The proposal will likely have no effect, negative or otherwise, on the health or safety of persons residing or working in the neighborhood. The testimony of Mr. Parry, coupled with the Staff Report, constitute substantial competent evidence supporting the Board's finding that the School is a compatible use with the area.
Findings Of Fact Respondent TCI has more than 70 homes completed or under construction in furtherance of plans to build 141 single family residences as part of Tymber Creek Phase I, a development in Volusia County. The development site is partially bounded by the Little Tomoka River, a natural body of water which is navigable in fact. The site of the construction respondent DER proposes to permit is home to wildlife of various kinds, including woodpeckers, great horned owls, herons, mussels, manatees, snakes, turtles and alligators. At the present time, boat traffic on the Little Tomoka River is negligible. The dock TCI proposes to build would have a total area of 120 square feet and would not impede the flow of the river. It would protrude over the water no more than five feet along the bank of the river at a point where the river widens, described by some of the witnesses as a lagoon, and would not constitute a hazard to navigation. With respect to the dock, the foot bridges, the boat ramp and the removal of the agreed upon portion of unauthorized fill, the permit DER proposes to issue would be before the fact. According to DER's appraisal of TCI's original, revised permit application, which was received in evidence as DER's exhibit No. 5, TCI made revised application, on November 29, 1977, for "after-the-fact approval for the placement of approximately 3500 cubic yards of fill After TCI had filled, it constructed parking and recreational facilities. In evaluating TCI's application, Steve Beeman, a DER employee, described the site in January of 1978: Approximately 1.6 acres of filled flood plain is presently covered by a sports complex including tennis courts, swimming pool and recreation building and an asphalt parking lot. An additional 3000 square feet has been filled and paved (asphalt was applied after receipt of DER cease and desist notice) for [access to] a [proposed] boatramp and parking area, and approximately 14,000 square feet of swamps have been filled in the construction of a 1800+ feet "natural trial". DER's exhibit No. 5. By letter dated February 22, 1978, respondent DER notified respondent TCI of its intent to deny TCI's initial application, as revised. Among the reasons DER gave for its intended denial were expected violations of various water quality standards, including a prohibition against oils and greases in concentrations greater than 15 mg. per liter ("or that no visible oil, defined as iridescence, be present to cause taste or odors, or interfere with other beneficial uses.") DER's exhibit No. 4. Rule 17-3.05(2)(r) , Florida Administrative Code. This water quality standard violation was anticipated because of "the [projected] focussing of stormwater runoff into the Little Tomoka River, across paved surfaces, which are high in petroleum based pollutants." DER's exhibit No. 5. In its notice of intent to issue a permit, DER proposes to authorize TCI "to realign (straighten) existing boatramp access road." DER's exhibit No. Mr. Wheeler's letter to Mr. Shirah of April 6, 1978, DER's exhibit No. 2, describes the proposed access road change as part of "discussions and agreements concerning resolution of the initial unauthorized fill and subsequent after-the- fact application." A drawing attached to this letter indicates that the contemplated alteration of the roadway would decrease the amount of paved surface to some unspecified extent. Another part of these "discussions and agreements concerned removal of some 1900 cubic yards of fill. Most of the fill designated for removal had been placed with the idea of creating a dry pathway through the marshy area separating the Little Tomoka River from an asphalt parking area. So placed, the fill dirt acts as a dike, preventing the preexisting communication between the waters of the Little Tomoka River and the waters of the adjacent marsh. At the hearing, Mr. Wheeler testified that, if revised in accordance with DER's exhibit No. 2, TCI's project would pose no threat to water quality, but he conceded that the effects of gasoline boat motors were not considered. An increase in beat traffic would likely result in an increase in oils and greases in the waters of the Little Tomoka River.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent DER, deny the permit is proposed to issue to respondent TCI in letters to petitioners dated April 7, 1978. DONE and ENTERED this 23rd day of August, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Segundo J. Fernandez, Esquire Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida Judson I. Woods, Jr., 32301 Esquire Post Office Box 1916 Ormond Beach, Florida 32074 Tymber Creek, Inc. c/o Stan Shirah Route 40 Twin River Drive Ormond Beach, Florida 32074
Findings Of Fact Willie Brewton owns a single family home on a lot approximately 200 feet by 600 feet bounded on the front (south) by Brewton Court and on the west by Lakeshore Lane. Across from Lakeshore Lane a new development is underway and traffic on Lakeshore Lane is increasing. Appellant's variance request involves increasing the solid fence along Lakeshore Lane in the vicinity of his entrance drive to 6 feet to provide more protection from noise and automobile headlights. This property is zoned RS-100. This code allows for a four-foot fence along the side of the residence and a 30-inch fence in front of the residence. Accordingly, the maximum allowed height of fence on Appellant's property is four feet along Lakeshore Lane. No evidence was presented that similar variances have been granted to other properties in the same district or that special conditions and circumstances exist which are peculiar to Appellant's property which are not applicable to other lands in the same district.
Findings Of Fact In March, 1992, the Department of Labor and Employment Security ("Department") issued a Request for Proposal and Bid Submittal ("RFP") seeking to lease approximately 21,033 square feet of office space in Pinellas Park, Florida. The RFP specifies that "approximately" 130 off-street no charge parking spaces were required for the exclusive use of the employees and clients of the Respondent. The RFP states that "[p]arking space must be under the control of the bidder and be suitably paved, lined, and bumper pads installed." The Department received two bids in response to the RFP; one submitted by Hart-Land Ext., Inc., ("Petitioner") and the other submitted by Resolving, Inc. Both bids were signed by James Hartley, as Vice President of the respective corporations. The Department initially determined that, on the basis of the representations contained in the bids, both bids were responsive. An evaluation committee determined that the bid submitted by the Petitioner was the lowest and best bid. On the basis of the evaluation, the Department awarded the bid to the Petitioner by letter dated May 13, 1992. Subsequent to the bid award, the Petitioner submitted several differing site plans to the Department. The site plans indicated various amendments to the configuration of parking spaces available. None of the plans indicated that there would be less than 130 parking spaces available for use by Department personnel. The Department suggests that the revisions of site plans raised doubts as to whether the property was under the control of the Petitioner, that such information was requested of the Petitioner and that appropriate responses were not forthcoming. Nothing in the site plans would suggest that the property was not under the Petitioner's control. The evidence establishes that sufficient information was provided by the Petitioner in response to Department inquiries related to property ownership. By letter dated August 24, 1992, the Department rescinded its award to the Petitioner. The stated reason for recission was that the Petitioner did not have control over 130 paved and lined parking spaces as the time of the bid opening. At the time the Petitioner submitted the proposal, it had the right, pursuant to an executed Contract for Sale and Purchase, to purchase the property which was identified in the proposal as the site upon which the office space was located. The contract was valid at all times material to this case. The Department accepts the existence of a valid Contract for Sale and Purchase as sufficient evidence of a bidder having control over the property proposed for use. The evidence establishes that at all times material to this case, the Petitioner controlled the property proposed for use in his response to the RFP. As to the parking requirements, the Department offered testimony asserting that the language in the RFP requires that such spaces be paved, lined, and bumper-pads installed, at the time the bid is submitted. The RFP includes no requirement, either express of implied, that the parking area proposed must be paved, lined, and bumpered at the time of bid submission. The Petitioner's response to the RFP met the parking requirements set forth therein. The Department asserts that because the parking spaces were not lined, it was unable to determine the number of spaces available in each area proposed for parking. The Department had ample opportunity to inspect the property proposed in the Petitioner's bid, and in fact, such inspections did occur. The Department reviewed site plans, floor plans, physically inspected the structure and had full access to the property. The fact that the parking spaces were not lined or bumper-padded at the time of bid submittal would have been obvious. Further, the RFP seeks to have "approximately" 130 spaces available. Of the 130 spaces the Petitioner said would be available, 118 spaces were paved at all times material to this case. The remaining 22 parking spaces were located in an unpaved area which would have been paved prior to the date upon which the Respondent would have occupied the building, at which time all 130 spaces would have been lined and bumper-padded also. Therefore, even if the agency's position that the RFP required paved spaces at time of bid submission were supported by evidence, the Petitioner's proposal would meet the requirement. Subsequent to the award of the project, the Petitioner closed the contract for sale in escrow and placed $150,000 in trust to close the sale. The Petitioner employed a general contractor, obtained completed floor plans, mechanical plans, electrical and plumbing plans for the structure, performed roof repairs and purchased new air conditioning equipment. At the request of Department's representatives, the Petitioner also made arrangements for additional parking spaces beyond the 130 spaces previously proposed, with the additional spaces being located off-site and across the street from the office space. The total cost of these actions is approximately $179,600. The purchase of the property and incurrence of related costs was done in good faith and in reliance upon the award of the project.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Labor and Employment Security enter a Final Order awarding proposed lease 540:0921 to Hart-Land, Ext., Inc. DONE and RECOMMENDED this 24th day of March, 1993, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1993. APPENDIX TO CASE NO. 92-5748BID The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Rejected, unnecessary. Rejected as to reference of difficulty in determining availability of parking spaces, not supported by greater weight of evidence. Measurement would have established whether space was adequate. There is no evidence that it was not. 6-9. Rejected as to inference that submission of amended site plans was inappropriate, not supported by greater weight of evidence. There is no evidence that the agency rejected the proposal based on the amendment of site plans, irrelevant. As to the amendment of site plans being indicative of a lack of 130 paved spaces, rejected immaterial. 11. Rejected as to determination that such spaces were not available on property controlled by the Petitioner, not supported by credible and persuasive evidence. COPIES FURNISHED: Shirley Gooding, Acting Secretary Suite 303, Hartman Building 2012 Capital Circle S.E. Tallahassee, Florida 32399-2152 Cecilia Renn Chief Legal Counsel Suite 307, Hartman Building 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152 William H. Walker, Esquire NCNB Bank Building, Suite 403 501 First Avenue North St. Petersburg, Florida 33701 Edward Dion, Esquire Assistant General Counsel Suite 307, Hartman Building 2012 Capital Circle S.E. Tallahassee, Florida 32399-2189
The Issue Whether Respondent violated the Florida Fair Housing Act by discriminating against Petitioner based on her sex, national origin, and/or handicap by the manner it enforced its vehicle parking rules.
Findings Of Fact Petitioner is an 81-year-old female who is a native of Peru. Petitioner does not speak, write, or read English. Petitioner and her late husband were owners and residents of a condominium unit managed by Respondent. Petitioner continued to own and reside in the unit after her husband's death in September 2009. Petitioner and her husband had ten children, two of whom are Patricia Ramirez and Gloria Silva. At the time of his death, Petitioner's husband owned an automobile that he had properly registered with Respondent. Following her husband's death, Petitioner inherited the automobile he had owned. Petitioner does not drive and does not have a driver's license. On September 17, 2009, the title to the car was changed into the names of Petitioner and Gloria Silva. Gloria Silva has not been recognized by Respondent as a "resident" of Petitioner's unit.2 Respondent's rules and policies are set forth in a "Handbook of Rules and Regulations" (the Handbook). Respondent's vehicle parking policies begin on page 28 of the Handbook. Respondent's parking policies for a "Resident Parking Decal" provide, in relevant part, as follows: A "Resident" as set forth in these regulations is a person who has been registered at the Management Office and has been approved by the Association to live in the Unit whether it is an owner or a tenant. All vehicles of Residents parked in the Condominium Property must have a "Resident PARKING DECAL" [sic]. This permit consists of a decal containing a number that is placed on the outside top or bottom left- side corner of the rear glass of the vehicle. For your protection, this decal shall be applied to the glass by an Association Representative only. Only Residents actually living all year round in the Condominium Property and owning a valid driver's license will be issued a Resident Parking Decal. . . .. Only one vehicle is allowed per Resident with a valid driver's license and a Vehicle Registration to such vehicle issued in the Residents' name. There will be a $25.00 refundable deposit for every Resident Parking Decal issued. Failure to return the Decal to the Management Office upon selling and/or disposing of his/her vehicle (including total loss due to an automobile accident) or moving out of the Property, such $25.00 shall be forfeited. . . . If the Resident sells or in any other way disposes of a vehicle to which a Resident Parking Decal was previously issued, that Resident must remove and bring to the Management Office such Resident Parking Decal before a new Resident Parking Decal is issued for a new vehicle. Gary Mars, an attorney representing Respondent, advised Petitioner by letter dated September 10, 2009, that she was in violation of Respondent's vehicle parking policy and its occupancy policy. As to the parking policy, the letter provided, in relevant part, as follows: The Rules and Regulations state that "[o]nly Residents actually living all year round in the Condominium Property and owning a valid driver's license will be issued a Resident Parking Decal. Absentee owners who lease their units are not entitled to having a Resident Parking Decal. Only one vehicle is allowed per Resident with a valid driver's license and a Vehicle Registration to such vehicle issued in the Resident's name. " . . . This correspondence serves as . . . demand that any and all guests of your Unit cease and desist utilizing a resident parking decal immediately upon receipt of this communication and secure the appropriate parking decals from the Property Management Office. Mr. Mars wrote a second letter to Petitioner on November 9, 2009, containing the following demand: This letter is being provided in order to notify you as to a recently recognized violation of the Declaration of Condominium which requires your immediate attention. Specifically, the Association has recognized that the vehicle registered to your deceased husband continues to maintain a residents [sic] parking decal even though the vehicle is utilized by your daughter, Ms. Gloria Silva, who is not a resident of the Condominium. Therefore, this use of a decal is improper and in violation of the Association's controlling documents. The Rules and Regulations state that "[o]nly Residents actually living all year round in the Condominium Property and owning a valid driver's license will be issued a Resident Parking Decal. Absentee owners who lease their units are not entitled to having a Resident Parking Decal. Only one vehicle is allowed per Resident with a valid driver's license and a Vehicle Registration to such vehicle issued in the Resident's name. " Notice is hereby provided of this violation. Specifically, the Association is demanding that your guest permanently cease and desist utilizing a resident parking decal, and remove and return the decal within seventy-two hours of this communication to the Property Management Office. In the event you and your guests fail to comply with the request as set forth herein, the Association may have no alternative but to enforce the Rules and Regulations which may include the towing and removal of the vehicle . . . By letter dated December 31, 2009, Mr. Mars wrote to Petitioner a third and final letter, styled "Final Demand," repeating his notice that the vehicle would be towed if she did not comply with the resident parking policy. On the following dates Respondent had Petitioner's vehicle towed from the condominium property: January 19, January 22, and February 9, 2010. At all times relevant to this proceeding, Petitioner was out-of-compliance with Respondent's resident parking policy. There was no evidence that Petitioner ever surrendered the Resident Parking Decal that remained on the vehicle after her husband died. There was no evidence that Petitioner filed an application reflecting the change of ownership of the vehicle following her husband's death or paid the application fee for a new decal.3 There was no evidence that Respondent knew or should have known that Petitioner was handicapped or disabled.4 There was no evidence that Respondent's enforcement of its parking policies was motivated by Petitioner's sex, national origin, or handicap.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 21st day of March, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2011.
Findings Of Fact Appellant owns the property located at 1430 Palmetto Street, Clearwater, Florida. The area is zoned RS-50, a zoning for single family residents. The house located thereon is a three-bedroom, two-bath home with a garage and carport. Appellant proposes to enclose the garage to provide two additional bedrooms and a bath. The lot on which this house is sited contains 13,000 square feet. The minimum lot size for RS-50 zoning is 5,000 square feet. The structure exceeds all setback requirements of the Code. Most of the homes in this neighborhood have driveways to the garages while Appellant's property has a circular drive in front of the house. The structure meets the City of Clearwater's fire code and to be licensed as an Adult Congregate Living Facility (ACLF) must meet all requirements of the Department of Health and Rehabilitative Services. Appellant has a housekeeper on the premises at all times to prepare the meals and take care of the residents. Appellant's son manages the property and the son's wife visits the premises daily to do the necessary shopping, take the residents to doctor appointments, shopping, or for outings. Only one automobile remains at the premises on a 24-hour basis. Some residents do not have any family locally and visitors average one every two weeks per resident. Use of this property as an ACLF is reasonably compatible with the neighborhood. Excessive traffic will not be generated by use of this property as requested and the requirements for on-site parking is satisfied. Although an ACLF is a business, it is operated similar to a home in that business hours are not such that any disturbance of the neighborhood will occur and insignificant additional traffic will be generated as a result of granting this special exception. Neighbors generally have no complaints regarding the operation of the existing ACLF with a total of five residents but strongly oppose any increase in the number of residents. As grounds for opposing the increase these witnesses cited expected decrease in property values, anticipated increase in traffic and traffic hazards to the elderly residents of the ACLF who may walk along the street, excessive numbers of vehicles at the premises for which off-street parking is not available, a general dislike for any business activity conducted in the neighborhood, their opinion that an ACLF is incompatible with the neighborhood, and that Appellant will reap a financial bonanza if the special exception is granted. No statistical evidence was presented to support any of these contentions.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, Respondent Larry Neil Heckerd (Heckerd) was licensed as a real estate salesman in the state of Florida, holding license number 0431546. Heckerd's license is presently in an inactive status. At all times material to this proceeding, Respondent Jayne R. Phoenix (Phoenix) was licensed as a real estate salesman in the state of Florida, holding license number 0069088. At all times material to this proceeding, both Heckerd and Phoenix were working under the brokerage license of Charles E. Earhart of Charles Earhart Realty. During June 1988 the owners of the property located at 317 Lagoon Drive, Ozona, Pinellas County, Florida retained Charles Earhart Realty to list and sell the property. Heckerd was the listing agent and prepared the multiple listing service (MLS) information sheet on this property. Sometime before December 8, 1988, Rafael C. Lopez and his wife, Barbara Lopez were driving through the neighborhood and viewed the property at 317 Lagoon Drive, Ozona, Florida during an "open-house". Rafael and Barbara Lopez were aware at this time that the property was in a flood zone, and there were certain restrictions on the use of this property. Phoenix was the salesperson present at the "open-house" and was advised by the Lopezes that they were looking for a 4-bedroom home so that Rafael Lopez could convert one of the bedrooms into an office. Before showing the Lopezes through the house, Phoenix provided them with the MLS information sheet prepared by Heckerd. This sheet described a 3- bedroom stilt house with a 4-car garage and a 10'6" x 19' game room on the first level. On the day the Lopezes were shown the house the game room was enclosed and was being used as a storage room. Shelving was built on all of the wall space, and the only visible electrical outlet was a single bulb ceiling light with a pull string switch. Additionally, there were no phone lines or phone jacks visible in this room. While showing the Lopezes this home during the open-house, Phoenix never suggested, inferred or advised the Lopezes that this room could be converted into, or utilized as, an office. The Lopezes left after viewing the home without any commitment on the purchase of the house, and Phoenix did not expect to hear from them again since the house did not meet their stated needs. However, the Lopezes did contact Phoenix, and on or about December 8, 1988 entered into a Contract For Sale And Purchase (contract) with Bonnie Conover as seller. The contract was prepared by Phoenix, and it referred to the "game room" as the "downstairs storage area". The contract called for the closing to be on January 31, 1989, and on that day, Heckerd and Phoenix gave the Lopezes a "walk-through" inspection of the house. During the walk through inspection it was evident that the so called game room was being used as a storage area, since boxes were packed on all the shelves and on the floor. Again, the only electrical outlet that could be observed that day was a single bulb ceiling light with a pull-string switch. Although it was later determined that there were no other electrical outlets in this room and that there were no phone jacks or phone lines in this room, that could not have been determined during the walk through inspection because of the boxes being stacked against the walls. During the walk through inspection, Heckerd pointed out to Rafael Lopez the electrical outlets on the walls in the garage, and their unusual high placement on the wall was due to the mean high water level established for the flood zone in this area. Heckerd thought the storage area could be used as a game room, and he may have referred to the storage area as a game room during the walk through inspection on January 31, 1989. However, Heckerd did not advise the Lopezes that the storage area could be used as an office. Likewise, Phoenix did not advise the Lopezes that the storage area could be used as an office. During the walk-through inspection on January 31, 1989, neither Phoenix nor Heckerd, while together or apart, heard either or both of the Lopezes discuss or refer to using the storage area as an office. After purchasing the house the Lopezes converted the storage room into an office, and on July 25, 1989 was issued a notice of violation for the use of the storage area as an office in that such use was an alleged violation of Section A107 of the Standard Building Code or Pinellas County Ordinance 77-12 as amended. Rafael Lopez abated the alleged violation without requesting a hearing, and there was no further action taken to determine if the use of the storage area as an office was in fact a violation of the building code or the county ordinance. Neither Section A107 of the Standard Building Code or Pinellas County Ordinance 77-12, as amended, were placed into evidence or made a part of the record by submitting them for official recognition. There was insufficient evidence to show that the use of the storage area as an office or a game room was in fact a violation of the building code or the county ordinance.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a Final Order finding the Respondents not guilty of violating Section 475.5(1)(b), Florida Statutes, and that both Count I and Count II of the Administrative Complaint be dismissed. RECOMMENDED this 7th day of March, 1991, 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 7th day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-6199 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Not necessary. 2.-3. Adopted in Findings of Fact 1 and 2, respectively. Adopted in Findings of Fact 5, 6, and 7. First sentence adopted in substance in Finding of Fact Second sentence rejected as not being supported by substantial competent evidence in the record. Adopted in Finding of Fact 8 but modified. First sentence adopted in Finding of Fact 13. The second sentence is rejected as not being supported by substantial competent evidence in the record. The third sentence is neither material nor relevant. Neither material nor relevant. Adopted Finding of Fact 19, but modified. Neither material nor relevant. 11.-12. Restatement of testimony, not a finding of fact, but see Finding of Facts 21, 22 and 23. Restatement of what Phoenix said to investigator, not a finding of fact but see Findings of Fact 6 and 9, otherwise not material or relevant. Adopted in Finding of Fact 7 but modified. Adopted in Findings of Fact 18 and 19 but modified. 16.-17. Restatement of testimony, but see Findings of Fact 16, 17 and 19. 18. Rejected as not being supported by substantial competent evidence in the record. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Not necessary. 2.-3. Adopted in Findings of Fact 1 and 2. 4. Adopted in Finding of Fact 4 but modified. 5.-6. Neither material nor relevant. 7.-8. Adopted in Findings of Fact 5 and 6, respectively. Restatement of testimony, not stated as a finding of fact, but see Finding of Fact 6. Adopted in Finding of Fact 7. Restatement of testimony, not stated as a finding of fact, but see Finding of Fact 9. Unclear as to whether a finding of fact, but see Finding of Fact 8, 9, 14, 15, 17, 18 and 19. 13.-15. Adopted in Finding of Fact 8, 11, 12 and 13 but modified. 16. First sentence adopted in Finding of Fact 13. Second sentence a restatement of testimony and not a finding of fact, but see Findings of Fact 17, 18 and 19. 17.-18. Not material or relevant. More a restatement of testimony than a finding of fact, but see Findings of Fact 9, 17, 18 and 19. Adopted in Finding of Fact 20 but modified. 21.-24. More of a restatement of testimony than a finding of fact, but see Findings of Fact 20, 21 and 23. Adopted in Finding of Fact 22 but modified. More of a restatement of testimony than a finding of fact, but see Finding of Fact 6. More of a restatement of testimony than a finding of fact, but see Findings of Fact 9, 17, 18 and 19. 28.-29. More of a restatement of testimony than a finding of fact, but see Findings of Fact 17 and 19. COPIES FURNISHED: Steven W. Johnson, Esquire DPR-Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802 Leslie M. Conklin, Esquire LARSON CONKLIN STANLEY & PROBST, P.A. 16120 US 19 North, Suite 210 Clearwater, FL 34624 Larry Neil Heckerd c/o Multimax, Inc. 15673 60th Street North Clearwater, FL 34620 Larry Neil Heckerd 119 Allens Road Drive East Palm Harbor, FL 34683 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801
