Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent, St. Lucie County Expressway Authority, was created by the Florida legislature in 1983, and is governed by Chapter 348, Florida Statutes. The Authority is composed of two members from the Board of County Commissioners of St. Lucie County, two members from the City Commission of Ft. Pierce, two members from the City Council of Port St. Lucie and three members appointed by the governor. Based on the anticipated future growth of St. Lucie County, there is a need for additional East-West traffic arteries in the southern portion of the county to ease expected traffic conditions. The St. Lucie County Expressway Authority employed consultants and conducted public hearings to determine the best location for such a roadway. Prior to selecting the location for the proposed East-West Expressway, the St. Lucie County Expressway Authority examined feasibility studies, traffic count reports and engineering and road design proposals on alternative alignments and found the proposed corridor to be the best choice from both an economic and environmental standpoint. The proposed expressway route connects Interstate 95 to U.S. Highway 1. Phase 1 of the project would begin in the southern portion of St. Lucie County at U.S. Highway 1 and continue east, following existing transmission lines owned by Florida Power and Light Company and extend to a point which is now called East Torino Parkway. The total length of Phase One of the project is approximately 2.6 miles. Phase Two would extend the project to Interstate 95. The St. Lucie County Expressway Authority expects to obtain funding for construction of the East-West Expressway from various sources including the State of Florida's Toll Facilities Revolving Trust Fund, the Florida Department of Transportation and state-backed revenue bonds. The use of state-backed revenue bonds would require St. Lucie County to pledge a certain portion of its gas tax revenue as security to cover the bonds in the event that the expressway did not generate enough money from tolls to pay back the bonds. A public hearing is scheduled for January, 1988 at which the St. Lucie County Commission will review updated feasibility studies and traffic count estimates to determine whether to pledge the necessary funds to support the bonds. Assuming that approval is obtained for state-backed revenue bonds, the letting of a contract to construct the East-West Expressway could be accomplished by July 1, 1989. The time period for construction of a project such as the East-West Expressway is approximately two (2) years from the date that the contract for construction is executed. Thus, under the most optimistic outlook and projections, the proposed East-West Expressway could be completed by July of 1991. However, difficulties in obtaining funding and/or necessary environmental permits could delay completion of the expressway for ten (10) years, or until 1997. In conjunction with the preparation of plans for construction of the East-West Expressway, the St. Lucie County Expressway Authority filed "right-of- way reservation maps" on October 13, 1986, in accordance with Section 337.241, Florida Statutes. The reservation maps were filed and approved by the St. Lucie County Expressway Authority in compliance with all applicable statutes and regulations. The purpose of filing the right-of-way reservation maps by the St. Lucie County Expressway Authority is to preclude development of properties within the proposed corridor of the East-West Expressway while final construction and engineering plans are being prepared, thereby preventing an increase in cost of acquisition of those properties pending eventual eminent domain proceedings. The right-of-way reservation maps will prohibit the granting of development permits, as defined in Section 380.031(4), Florida Statutes, by any governmental entity for a period of five (5) years from the date of recording of the reservation maps. This period may be extended for an additional five years at the option of the Expressway Authority pursuant to Section 337.241(2), Florida Statutes. The reservation maps do not prohibit sale, continued use of the property by its owners nor is any use prohibited which does not require a development permit as defined in Section 380.031(4), Florida Statutes. The engineering construction plans for the East-West Expressway encompass less area than the reservation maps. However, the larger reserved area will be utilized to facilitate construction of the project and for water retention on site. Thus, less private property will ultimately be taken than that which is included in the right-of-way reservation area. The property owned by Petitioners, T. L. Sloan, James Taylor and Bill Stewart (hereinafter referred to as the "Sloan property") consists of a front and rear parcel. The front parcel consists of 6.54 acres of which 2.28 are within the right-of-way reservation area. The rear parcel is physically separated from the front parcel by a drainage canal and consists of approximately 4.25 acres. The rear parcel is not within the reservation map area, but access to this parcel can only be gained by U.S. Highway 1 through the front property. The property owned by Petitioners Mark C. Walters and David J. Gonzalez (hereinafter referred to as the "Walters' property") measures approximately 55,450 square feet of which approximately 46,000 square feet are within the right-of-way reservation area. The Sloan and Walters' properties are located at the easternmost end of the proposed East-West Expressway and front the east side of U.S. Highway 1 in Ft. Pierce, Florida. Both properties were purchased in 1984 as investment property and are presently vacant, unimproved acreage. The front parcel of the Sloan property is zoned commercial general and the rear parcel is zoned multifamily residential at five units per acre. The Walters' property is zoned commercial general and is adjacent to the Florida Power and Light transmission lines. The St. Lucie County Expressway Authority intends to use the property within the reserved area for the construction of the entrance and exit ramps of the proposed expressway. The engineering design of the East-West Expressway was done with as little intrusion upon Petitioner's properties as practical and only that property absolutely necessary for construction will ultimately be taken. Pursuant to the right-of-way reservation maps, all of the highway frontage on U.S. Highway 1 for both properties has been reserved for the expressway construction. Because of existing regulations, the St. Lucie County zoning office will not issue any development permits for property which has no access to a public highway. Therefore, the local zoning office will not issue any development permits for any portion of the Petitioners' properties, whether included in the reservation area or not. Thus, all of the property owned by Petitioners has been affected by the right-of-way reservation maps. The Sloan property was listed for sale prior to the recording of the right-of-way reservation maps. The Walters' property was purchased with the intent to build a gun shop which is now operated by the present owners at another location. After the recording of the reservation maps, the Walters' property was actively listed for sale. After the recording of the reservation maps, purchase inquiries regarding the Sloan property began to rapidly decrease. Inquiries regarding the Walters' property have also been extremely slow. No written offers to purchase the subject properties have been submitted to any of the Petitioners. David Fuller, a real property appraiser called as a witness by Petitioners, prepared an appraisal estimating the effects of recording the right-of-way reservation maps on the Sloan and Walters' property. The testimony of Mr. Fuller is accepted as more credible and pertinent to the issues involved in this cause than the testimony presented by Mr. Davis, the Respondent's expert appraiser. Mr. Davis admitted that the purpose of his appraisal was to estimate the fair market value of the property in fee simple, the part "taken" and damages to the remainder for the purpose of eminent domain. Mr. Davis' analysis is more appropriate for an action sounding in eminent domain. Mr. Fuller used the Sales Comparison or Market Approach combined with a discounted cash flow method of appraisal in determining the difference in the value of the properties before the recording of the right-of-way reservation maps, and the market value of the properties immediately after recording of the reservation maps. The value of real property is directly related to the use to which it can be put. Thus, a particular parcel may have several different value levels under alternative uses. In determining what, if any, substantial impact the record of the right-of-way reservation maps had on the market value of the Sloan and Walters' property, Fuller evaluated the difference in the value of the properties utilizing their highest and best use before the filing of the right- of-way reservation maps and the highest and best use after the recording of the maps. The highest and best use for the Sloan property without the encumbrance of the right-of-way maps would be to improve the front commercial zoned parcel with a commercial use consistent with neighborhood use trends (i.e., strip shopping centers, rental storage buildings and/or automobile dealerships) and improve the rear multifamily zoned parcel with a support use for the front commercial property. The highest and best use of the Sloan property after filing of the right-of-way reservation maps would be to hold the property as vacant until the right-of-way reservation map filing expires. Although the Sloan property could be sold with the right-of-way reservation, a majority of the potential market would be eliminated and the remaining market would require a discount to purchase the property knowing that the restrictions exist. The potential market in the neighborhood consists of generally three types of investors; (1) the owner occupant; (2) the real estate investor seeking income from an improved property; and (3), the short term land speculator. The owner occupant seeking to immediately build would not consider the property in question because the potential to immediately construct a new improvement is not available. Likewise, the investor seeking to build an income producing improvement, either immediately or in the next three years, would not be interested in the property. The short term land speculator would not be interested because there is no certainty that the property would be able to be developed to its highest potential market value within the next two to three years. The highest and best use for the Walters' property without the encumbrance of the right-of-way reservation maps would be to improve the parcel in approximately one to two years with a commercial use consistent with the neighborhood trends (i.e., owner occupied small business and/or mini-storage property). Improved uses such as an automobile dealership or shopping center could not be physically constructed on a site the size and shape of the Walters' property. The highest and best use of the Walters' property after filing of the right-of-way reservation maps would be to hold the parcel vacant until the reservation filing expires. As with the Sloan property, although the parcel could be sold, a majority of the potential market would be eliminated and the remaining market would require a discount to purchase the property knowing that the restrictions exist. Mr. Fuller stated that in his opinion, using the discounted cash flow model of appraisal, the Sloan properties suffered a total loss in value of approximately $441,450.00 on the date the reservation maps were filed. As to the Walters' property, the loss was calculated at $78,480.00. Mr. Fuller's financial calculations as to loss are misleading and not very useful because they were specifically calculated for a period of time of ten years. In other words, Mr. Fuller's total loss of value calculations are based on the assumption that the reservation map restrictions would exist for the full initial five (5) year period and that they would be extended for an additional five (5) year period. The ability to develop vacant and unimproved commercial property and to put the land to its highest and best use is a substantial beneficial ownership interest arising out of the ownership of commercial property. Both of the properties owned by Petitioners are fully capable of development and no other impediments to development exist except for the reservation maps. Substantial payments on the mortgages for the properties are being made by Petitioners each year totalling over $58,000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the St. Lucie County Expressway Authority enter a Final Order in favor of Petitioners after which the Authority shall have 180 days from the date of said order to acquire the Petitioners property or initiate appropriate acquisition proceedings pursuant to the requirements of Section 337.241, Florida Statutes. DONE and ORDERED this 2nd day of December, 1987, in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 2nd day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-2279, 87-2517 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 to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Findings of Fact 7 and 8. Adopted in Finding of Fact 7. Adopted in Findings of Fact 11, 12 and 13. Adopted in Findings of Fact 11, 12, 13 and 14. Adopted in Finding of Fact 15. Adopted in Finding of Fact 16. Adopted in Findings of Fact 9, 17 and 18. Adopted in substance in Findings of Fact 23, 25 and 27. Partially adopted in Findings of Fact 6 and 26. Matters not contained therein are rejected as misleading and/or argument. Adopted in substance inn Finding of Fact 27. Addressed in Conclusions of Law section. Addressed in Conclusions of Law section. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 8. Adopted in Finding of Fact 7. Adopted in Finding of Fact 7. Adopted in Finding of Fact 13. Adopted in Finding of Fact 10. Adopted in Finding of Fact 3. Adopted in Finding of Fact 9. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Findings of Fact 13 and 14. Adopted in Findings of Fact 13 and 14. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 18. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 15. Adopted in substance in Finding of Fact 10. Partially adopted in Finding of Fact 26. Matters not contained therein are rejected as misleading and/or not supported by the weight of the evidence. Rejected as contrary to the weight of the evidence. Adopted in substance in Finding of Fact 6. Rejected as misleading. The Petitioners' expert projected that "completion" and not "construction" could possibly take 10 years. Adopted in substance in Finding of Fact 9. COPIES FURNISHED: John T. Brennan, Esquire Post Office Box 3779 Ft. Pierce, Florida 33448-3779 Frank J. Lynch, Jr., Esquire Post Office Box 4027 Ft. Pierce, Florida 33448-4027 David Stuart Chairman St. Lucie County Expressway Authority Post Office Box 4027 Ft. Pierce, Florida 33448-4027
The Issue Whether Respondent committed fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction as alleged in the Administrative Complaint in violation of Subsection 475.25(1)(b), Florida Statutes (2006).1
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.165 and Chapters 120, 455 and 457, Florida Statutes. Petitioner has jurisdiction over disciplinary proceedings before the Florida Real Estate Commission (FREC) and is authorized to prosecute administrative complaints against licensees within FREC’s jurisdiction. At all times material, Respondent was a licensed Florida real estate broker, license number 684990, under Chapter 475, Florida Statutes. The last license issued to Respondent was as a broker at Florida’s Best Buy Realty & Mortgage Lender, LLC, Post Office Box 551, Winter Park, Florida 32793. On or about February 15, 2007, Respondent entered into a contract to manage the single-family dwelling owned by Jacqueline Danzer. The property is located at 2979 Krista Key Circle, Orlando, Florida 32817 (Subject Property). The agreement was for the period February 15, 2007, until February 15, 2008. Respondent was authorized, under the management agreement, to seek a tenant for the property. Said management agreement authorized Respondent to be compensated at the rate of 10 percent of the rent due during each rental period. On or about March 27, 2007, Respondent negotiated a lease agreement with Veronica Valcarcel to rent the Subject Propery. The tenant applied through the federal Section 8 program, administered by the Orange County Housing and Community Development Division (Agency), for rental assistance in order to rent the Subject Property. Section 8 assists low-income families with their rent. A tenant who qualifies for Section 8 assistance is prohibited from paying more than 40 percent of his or her income for rent and utilities. On April 26, 2007, Respondent, acting on behalf of the landlord for the Subject Property, entered into and signed a “Housing Assistance Payment Contract” or “HAP” contract with the Agency as part of the Section 8 program. The HAP contract provided that for the initial lease term for the Subject Property (for the period April 1, 2007, until March 31, 2008), the initial monthly rent was $1,150 per month. This was determined to be the maximum payment the tenant could pay without exceeding 40 percent of her income. The HAP contract explicitly provides in its terms that “[d]uring the initial lease term, the owner may not raise the rent to tenant.” Respondent knew that he was prohibited from charging more than the monthly rent stated in the HAP contract. Respondent has had experience in the past with other tenants who participated in the Section 8 program. Respondent has previously signed other HAP contracts which contained the same restrictive language. Under the lease contract that the tenant Veronica Valcarcel signed with the property owner Jacqueline Danzer, the monthly rent would be $1,150 per month. The signature page in the lease contract is not the same page on which the monthly rental amount is written. The property owner Jacqueline Danzer asserts that the initials in the lease contract reflecting a monthly rental of $1,150 were not all her initials. Under the terms of the Exclusive Property Management Agreement, Respondent was being compensated at the rate of 10 percent per month after the first month. A monthly rental amount of $1,500 indicates that the property owner would receive a net of $1,350 per month. The property management agreement provided that Respondent would make payments to the property owner by direct deposit. The property management agreement lists a 12-digit bank account number, with the last four digits of “6034,” into which Respondent was to make direct deposits. At the hearing, property owner Jacqueline Danzer testified that she had received payments from Respondent for the Subject Property to her Bank of America savings account, with the account number ending in “6034.” The last four digits of the account number on the Bank of America Statement match the last four digits on the account number found on the Property Management Agreement. According to the Bank of America records, Respondent made the following payments to the property owner: a) $1,550 on May 9, 2007 b) $1,000 on May 9, 2007 c) $850 on June 12, 2007 d) $1,350 on July 11, 2007 e) $1,350 on September 10, 2007 On September 12, 2007, property owner, Jacqueline Danzer went to see Lois Henry, the manager of the Section 8 department for the Agency. During the course of that meeting, Dnazer advised that Respondent was collecting $1,500 a month rent from the tenant instead of $1,150 a month. On September 12, 2007, during the course of a telephone conference with Jacqueline Danzer and Lois Henry, Respondent admitted that he had been collecting $1,500 monthly rent for the Subject Property, retaining a commission of $150 and depositing the balance in Danzer’s account. Respondent denied making an admission during the telephone conference on September 12, 2007. He also denied that he was collecting $1,500 from the tenant, and further denied that he was violating Section 8 regulations. Respondent’s testimony is not credible. The witness Danzer’s testimony is credible. Petitioner has proven by clear and convincing evidence that Respondent violated the Housing Assistance Payments Contract. The total amount of investigative costs for the Petitioner for this case, not including attorney’s time, were $874.50.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Florida Real Estate Commission, enter a final order: Finding Respondent guilty of violating Subsection 475.25(1)(b), Florida Statutes; Revoking Respondent’s license, and imposing an administrative fine of $1,000.00; and Requiring Respondent pay fees and costs related to the investigation in the amount of $874.50. DONE AND ENTERED this 26th day of August, 2009, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 26th day of August, 2009.
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 Whether Sing Oil Company has demonstrated by a preponderance of evidence that development rights in certain real property it owns have vested against the provisions of the Tallahassee-Leon County 2010 Comprehensive Plan.
Findings Of Fact Procedure. On November 9, 1990, Sing Oil filed an Application for Vested Rights Determination with the TLCPD. The following information concerning the development of the property was contained on the Application. "Sing Oil Company" is listed as the "owner/agent." Question 3 lists the name of the project as "Sing Oil Company-Woodville." Leon County Environmental Management Permit, DER General Permit, DOT Drainage Connection Permit, DOT Connection Permit, Leon County Septic Tank Permit, and expired Leon County Building Permit are included in Sing Oil's Application as forms of government approvals and as the actions of government relied on by Sing Oil. On March 11, 1990, a hearing was held to consider the Application before the Staff Committee comprised of the County Attorney, the Director of Planning for the Tallahassee-Leon County Planning Department, and the Director of Growth Management for the County. By letter dated March 19, 1991, Mark Gumula, Director of Planning of the TLCPD, informed Sing Oil that the Application had been denied. By letter dated March 19, 1991, to Mr. Gumula, Sing Oil appealed the decision to deny the Application. On April 12, 1991, the Division of Administrative Hearings received the request for a hearing to review this matter. The Property. Sing Oil currently owns approximately 1.97 acres of property (the Property) located at the Northwest corner of Woodville Highway (SR 363) and Lawhon Road. At the time Petitioner purchased it, the Property was zoned to permit construction of a convenience store. Sing Oil contracted to purchase the property on August 24, 1988, and obtained title to the property by Warranty Deed executed December 22, 1988, recorded in O.R. Book 1354, Page 2081 of the Public Records of Leon County, Florida for the purchase price of $160,000. At the time Sing Oil purchased the Property, there was an occupied residence located on the Property. Development Activity. The project Sing Oil proposed to develop is a 3,250 square foot Sing convenience store, with 38 parking spaces, on a 48,000 square foot site, and with total impervious surface being 25,650 square feet. After acquisition of the site, Sing Oil had the residential structure removed in preparation for site improvements. Prior to acquisition of the Property, the Property was surveyed by Bobby A. Presnell & Associates, and Broward Davis & Associates had performed a substantial amount of on-site work to determine feasibility for development and absence of any environmental or other site problems which would impair development. The Property was purchased for the specific purpose of building a convenience store. Governmental Approvals. On December 23, 1988, one day after acquisition of the site, Sing Oil filed its Application for an Environmental Management Permit with Leon County, and obtained Permit #89-0076 on January 5, 1989. On February 7, 1989, Sing Oil obtained Florida Department of Environmental Regulation Permit #RC37-160284. On March 13, 1989, Sing Oil filed its application with the Florida Department of Transportation for a Drainage Connection Permit and Application #15880 was approved on March 15, 1989. On April 5, 1989, Florida Department of Transportation Connection Permit #55-898-19 was issued to Sing Oil. On May 8, 1989, Sing Oil applied for and obtained a State of Florida, Department of Health and Rehabilitative Services On Site Sewage Disposal System Permit. On June 22, 1989, Sing Oil was issued Leon County Building Permit #89- 01392. The Leon County Environmental Management Permit has as an attached exhibit the Sing Oil Company Site and Grading Plan prepared by Broward Davis & Associates, Inc. and approved by Leon County. Page 2 of the Site Plan which is an Exhibit to the Environmental Permit contains the following notes: Lot Area: 1.97 Ac. Site Area: 48,000 sq. feet Proposed Building Area: 3,250 sq. feet Proposed Use: Convenience Store Parking Reqd.: 17 spaces Parking Provided: 38 spaces Vehicle Use Area: 21,000 sq. feet Landscape Islands Reqd.: 4 Landscape Islands Provided: 4 Area of Walks & Dumpster Pad: 1,064 sq. feet Total Impervious Area: 25,650 sq. feet Total Green Area: 22,350 sq. feet (47%) Total Interior Green Area: 17,560 sq. feet (37%) Development Expenses. The cost of purchase of the Property was $160,000.00. At the time of purchase, a residential structure was located on the Property. The structure was removed from the Property and sold for $7,000.00. Therefore, the net cost to Sing Oil for the original purchase of the Property was $153,000.00. These costs were incurred by Petitioner in reliance on the zoning classification of the property at the time of purchase. Prior to closing on the Property, Petitioner expended approximately $1,000.00 on survey and preliminary engineering work. After closing, Sing Oil expended $1,568 in engineering fees in connection with the Application for the Environmental Management Permit, and an additional $1,140.00 for the permit. These costs were incurred by Petitioner in reliance on existing zoning and permissible uses at the time of purchase of the Property. Subsequent to the issuance of the Environmental Management Permit, Petitioner expended $143,179.39 in engineering work permit fees, application fees and impact fees. These costs were incurred by Petitioner in reliance on existing zoning and permissible uses, the Environmental Management Permit, approved exhibits to the permit and other permits and approvals obtained from State and local government. Current Status of the Development. The Property is a fairly level site, with no severe grading or environmentally sensitive features and is ready for construction. Other than the removal of an existing residential structure, no site development or vertical construction has occurred on the site. The Building Permit. On June 16, 1989, Petitioner made payment to Leon County for a county- wide impact fee and for a building permit. Leon County issued a building permit for the site on June 22, 1989. In July 1989, Petitioner and Amoco Oil Company executed a confidentiality agreement. In February 1990, Petitioner and Amoco executed a purchase agreement, and the merger of the Petitioner with Amoco was completed in October 1990. At the time of the execution of the confidentiality agreement leading to its merger with Amoco, Petitioner placed development activity on hold pending the merger. By the time the merger was accomplished in October 1990, Petitioner's building permit had expired and Leon County had adopted the 2010 Comprehensive Plan. At no time during the course of the merger nor at any time after the issuance of the building permit in June 1989, did the Petitioner request an extension of the building permit. Had a request for extension of the permit been received, the County would have routinely granted an extension for at least 90 days, with no limit on further extensions. Application of the 2010 Comprehensive Plan. At the time Petitioner purchased the Property, existing zoning would have permitted development of the Property for Petitioner's intended use, a convenience store and gasoline station. The current land use designation for the Property pursuant to the 2010 Comprehensive Plan prohibits development for retail commercial purposes. The Comprehensive Plan does permit multi-family residential and office uses of certain sizes on the Property. Petitioner has presented no evidence that application has been made to Leon County for any Comprehensive Plan concurrency or consistency determinations for any other proposed use for the site. Detrimental Reliance. Petitioner has established that it relied on existing zoning and permits that it obtained from State and local government in incurring costs associated with its intended development of the Property. The "detriment" Petitioner suffers as a result of such reliance is occasioned by Petitioner's admittedly inadvertent failure to extend or renew the previously issued building permit. Therefore, Petitioner's inability to proceed with its development as planned, due to the interim adoption of the 2010 Comprehensive Plan, is a result of its own omission and not the result of any act or omission on the part of the Leon County government.
The Issue The issue for consideration in this case is whether Respondent should be subject to an administrative fine for failing to submit a timely change of ownership notice to the Agency, and, if so, in what amount.
Findings Of Fact At all times pertinent to the issues herein, the Agency for Health Care Administration was the state agency responsible for the licensing and regulation of assisted living facilities in Florida. Respondent, Long Shadow Retirement Home, Inc., operated the Long Shadow Inn, an assisted living facility, in Palm Harbor, Florida. Rozsi Bogdan and her husband contracted to purchase the Long Shadow Inn from the prior owners, Long Shadow, Inc., a Florida corporation, sometime before January 10, 1997. The closing actually took place on January 10, 1997. Thereafter, on January 27, 1997, Respondent submitted to the Agency an application for change of ownership re-licensing of the facility. This was not in conformity with the provisions of Section 400.412(1), Florida Statutes, which requires that the prior owner submit to the Agency a notice of intent to transfer ownership to another and that the prospective new owner submit a change of ownership license application, at least sixty days before the date of transfer of ownership. When the application was received, however, a provisional license was issued by the Agency, and there is no indication of any intent to discipline that license. The Agency’s consultant, Mr. Strazulla, justified the administrative fine of $3,000, as proposed by the Agency, on the basis that a maximum fine of $5,000 was authorized, and due to the size of the resident population, the proposed figure was deemed appropriate. Ms. Bogdan admits the change of ownership license application was not timely filed. She asserts, however, that neither she nor her husband was aware of the requirement to file such an application for the change in ownership before their real estate agent advised them of the requirement at the time of closing. She also asserts, however, that even had she known of the filing requirements, she did not know whether the transaction would be consummated until just three days before closing, and, therefore, could not have filed the application before knowing that the sale would be consummated. That is no justification for failing to file the required notice. If the proposed transfer did not go through, notice of that fact thereafter could have been submitted. Ms. Bogdan also contends that due to the deplorable condition of the facility when they took ownership, she and her husband spent as much as twenty hours per day for several weeks to correct the identified deficiencies and did not have time to file the change of ownership license application. Condition of the facility at the time the Bogdans took over is supported by the summary statement of deficiencies prepared as a result of a survey conducted on June 7, 1995, long before the Bogdans took over.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a Final Order finding Respondent guilty of a Class “IV” violation for failing to file a timely change of ownership application and impose an administrative fine of $200. DONE AND ENTERED this 12th day of August, 1997, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1997. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 7827 North Dale Mabry Highway Tampa, Florida 33614 Rozsi Bogdan, Administrator Long Shadow Inn 2275 Nebraska Avenue Palm Harbor, Florida 34683 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox, Building 3 2727 Mahan Drive Tallahassee, Florida 32309 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive, Building 2 Tallahassee, Florida 32309
Findings Of Fact On or about March 29, 1988, Applicants filed their application for conditional use approval for on premises consumption of beer and wine at 1218 Cleveland Street, Clearwater, Florida. The property is located at the northeast corner of Cleveland Street and Jefferson Avenue, and a restaurant and lounge known as "Sandpiper's" is located on the subject property. The property is zoned urban center - eastern corridor (UC-E). The subject property also uses the mailing address of 1214A and 1214 Cleveland Street, but the property and business operated thereon is the same as described in Finding of Fact 1. At all times material hereto, Applicant Kallivokas has owned the subject real property. On or about March 31, 1988, Applicant McCabe acquired ownership of Gulf Coast Rathskeller, Inc., and all assets pertaining to the restaurant and lounge known as "Sandpiper's" located on the subject property. Gulf Coast Rathskeller, Inc., has been the lessee of the premises, and has operated the Sandpiper at all times material hereto, both before and after the transfer of ownership to Applicant McCabe on March 31, 1988. This transfer was accomplished through a 100 percent sale of stock in Gulf Coast Rathskeller, Inc., to the Applicant McCabe. This sale and stock transfer constitutes a "change of business ownership" as that term is used in the Land Development Code. The Planning and Zoning Board considered this application on April 19, 1988, and by a 5-2 vote approved the application with the following conditions: That the occupational license be obtained by the current owner (McCabe) within 6 months; That the closing hours be 10 p.m. on week nights, and midnight on Friday and Saturday nights; That the kitchen remain open until closing; That no outside speakers be permitted and That the doors be kept closed during live entertainment. Although the Applicants timely appealed all conditions, at hearing only the hours of closing were in dispute, and Applicant McCabe stated he is complying with all other conditions without any adverse impact on his business. He is not complying with the condition on hours of closing, pending this appeal. He estimates that the closing condition would reduce his business by 40 percent. John W. Homer, the owner of commercial property across Jefferson Avenue from the subject property, has also timely appealed the action of the Planning and Zoning Board, but he urges that the application be denied in its entirety, notwithstanding the conditions placed upon its approval by the Board. The City's Planning Director, Paula Harvey, testified without contradiction, and it is therefore accepted as fact, that the location of "Sandpiper's" was specifically approved by an ordinance adopted by the City Commission pursuant to designation procedures set forth in former Section 72.01, Code of Ordinances. As such, the subject property, and the alcoholic beverage establishment known as "Sandpiper's" have been grandfathered under the separation requirements set forth in Section- 136.024(d), Land Development Code, as enacted by Ordinance Number 4420 on January 21, 1988. Although "Sandpiper's" has closed from time to time, and was specifically closed for a period of time between October, 1987 and April, 1988, when it was reopened by Applicant McCabe, it has never been closed for a continuous period of one year or more. It is, therefore, uncontroverted that "Sandpiper's" has been an "existing alcoholic beverage establishment" at all times material hereto. No other restaurant and lounge is currently operating in the City subject to the same closing hour condition as was imposed on this Applicant by the Planning and Zoning Board. Such businesses are allowed to, and do in fact, stay open until 2:00 a.m. on all days, except Sunday. The City's Traffic Engineering and Police Departments have expressed no opposition to this application. The City's Planning Director supports the approval of this application. Public testimony and evidence in opposition to this application is primarily directed to the operation of this establishment by its former owner, prior to October, 1987. Numerous police reports involving incidents at the Sandpiper occurring prior to October, 1987 while the business was operating under prior ownership are irrelevant to this application. Applicant McCabe has made improvements in the Sandpiper, and is now attracting a higher class clientele than under the former owner. Outside litter has been reduced. No outside speakers are used, the door is closed during live entertainment, and the kitchen stays open each night until the Sandpiper closes. There has been only one police report of any incident at the Sandpiper since April, 1988, while under McCabe's ownership.
Findings Of Fact On or about August 11, 1987 an application for conditional use approval to allow on-premises consumption of alcoholic beverages (4COP) was filed on behalf of Joseph W. McGoldrick for property located at 2848 Gulf to Bay Boulevard in Clearwater, Florida. The property is zoned general commercial (CG) and multiple family residential (RM-12). A public hearing before the Planning and Zoning Board was held on September 1, 1987. The Planning and Zoning Board voted 5-1 to grant conditional use approval for this application. A timely appeal was taken by Petitioners on September 15, 1987. Petitioners are surrounding property owners whose property is located within five hundred feet of the subject property. With this application, McGoldrick seeks approval for on-premises consumption of alcoholic beverages since he intends to convert the use of the property to a nightclub. The parties stipulated that the property in question is within five hundred feet of several residences, including Petitioners'.
