Recommendation It is RECOMMENDED that the Homeowners' objection to the issuance of the final site approval order permitting the helistop at Joe Robbie Stadium as requested in the Airport Site Approval and License Application filed on October 20, 1987 by Joe Robbie Stadium Corporation be dismissed. DONE and ENTERED this 29th day of August, 1989, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings, The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1989. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0450 Robert L. Shevin, Esquire 200 South Biscayne Boulevard Suite 3300 Miami, Florida 33131-2385 George F. Knox, Esquire 4770 Biscayne Boulevard Suite 1460 Miami, Florida 33137 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue Whether Respondent raced an animal that was impermissibly medicated or determined to have a prohibited substance present, in violation of section 550.2415(1)(a), Florida Statutes (2016),1/ as alleged in the Administrative Complaint; and, if so, what sanction is appropriate.
Findings Of Fact The Division is the state entity charged with regulating pari-mutuel wagering in the state of Florida, pursuant to chapter 550. Mr. Dawson is the holder of Pari-Mutuel Wagering Occupational License number 333293-1021, authorizing him to train greyhounds pursuant to section 550.105. At all times relevant to the Administrative Complaint, Mr. Dawson was subject to chapter 550 and the implementing rules in Florida Administrative Code Chapter 61D-6. Palm Beach Kennel Club is a facility operated by a permitholder authorized to conduct pari-mutuel wagering in this state under chapter 550. Mr. Dawson trained and raced greyhounds at the Palm Beach Kennel Club facility from September 3 to 17, 2016, the time period relevant to the Administrative Complaint. Mr. Dawson was the trainer of record for the racing greyhound "BOB'S SEAHAWK" on September 3, 2016. Mr. Dawson was the trainer of record for the racing greyhound "PJ HO HEY" on September 4, 2016. Mr. Dawson was the trainer of record for the racing greyhound "JIM'S GRAND SLAM" on September 5, 2016. Mr. Dawson was the trainer of record for the racing greyhound "BS ANGEL" on September 7, 2016. Mr. Dawson was the trainer of record for the racing greyhound "PJ SMOKE EM OUT" on September 9, 2016. Mr. Dawson was the trainer of record for the racing greyhound "CENTEX WIZARD" on September 17, 2016. Under rule 61D-6.002(1), "[t]he trainer of record shall be responsible for and be the absolute insurer of the condition of the . . . racing greyhounds he/she enters to race." Mr. Dawson is substantially affected by the Division's intended action. As Ms. Jessica Zimmerman testified, the ginny pit is the area at the Palm Beach Kennel Club where employees of the Division collect urine samples from racing greyhounds prior to the races. At the time each urine sample is collected, the veterinary assistant checks the number tattooed on the ear of the dog and completes a PMW 503 Form. The PMW 503 Form shows that it was prepared for the Palm Beach Kennel Club and contains the date, the race and post number of the dog, the dog's name, the tattoo number, the time the sample was collected, the trainer's name, the collector's initials, and a unique sample number. The top portion of a sample tag containing the sample number is attached to the container holding the collected urine sample, and the container is sealed with evidence tape to maintain the integrity of the sample. The bottom part of the sample tag is retained by the Division. Ms. Zimmerman signed each PMW 503 Form, indicating the dogs named in the Administrative Complaint, identifying Mr. Dawson as the trainer, and assigning a unique sample number to the urine sample collected from each dog. At hearing, Ms. Zimmerman identified the PMW 503 Form that was completed for each of the six races in the Administrative Complaint. The sealed urine samples are kept in a freezer in a restricted area at the track until they are picked up for shipping to the University of Florida racing laboratory. The PMW 503 Form indicates the time and date samples were picked up. As Ms. Margaret Wilding testified, the laboratory receives only the information on the urine label with samples and does not know the identity of the dog or trainer. The samples are checked to ensure the seal is intact and are then assigned a number internal to the lab for processing, associated with the sample number. The Association of Racing Commissioners International creates Uniform Classification Guidelines for Foreign Substances. Classes range from class I drugs, which are stimulants without therapeutic value and are most likely to affect the outcome of a race, to class V drugs, which have the most therapeutic value and the least potential to affect the outcome of a race. Caffeine is a central nervous system stimulant and class II drug; theobromine is a diuretic, smooth muscle relaxant, and class IV drug; and theophylline is a bronchodilator, smooth muscle relaxant, and class III drug. As Ms. Wilding testified, the urine samples received at the laboratory were analyzed by liquid chromatography-mass spectrometry and sample 097442 was found to contain a concentration of caffeine of 1.946 +/- 0.03 mcg/mL, a concentration of theobromine of 859 +/- 90 ng/mL, and a concentration of theophylline of 2.462 +/- 0.08 mcg/mL. Sample 097466 was found to contain a concentration of caffeine of 4.555 +/- 0.03 mcg/mL, a concentration of theobromine of 1.23 +/- 0.09 mcg/mL, and a concentration of theophylline of 3.235 +/- 0.08 mcg/mL. Sample 104694 was found to contain a concentration of caffeine of 3.911 +/- 0.03 mcg/mL, a concentration of theobromine of 1.107 +/- 0.09 mcg/mL, and a concentration of theophylline of 2.881 +/- 0.08 mcg/mL. Sample 097486 was found to contain a concentration of caffeine of 4.551 +/- 0.03 mcg/mL, a concentration of theobromine of 3.056 +/- 0.09 mcg/mL, and a concentration of theophylline of 8.05 +/- 0.08 mcg/mL. Sample 104746 was found to contain a concentration of caffeine of 2.392 +/- 0.03 mcg/mL, a concentration of theobromine of 1.893 +/- 0.09 mcg/mL, and a concentration of theophylline of 4.169 +/- 0.08 mcg/mL. Sample 106083 was found to contain a concentration of caffeine of 2.457 +/- 0.03 mcg/mL, a concentration of theobromine of 664 +/- 0.09 ng/mL, and a concentration of theophylline of 1.69 +/- 0.08 mcg/mL. Under rule 61D-6.007(3), levels of caffeine at a urinary concentration less than or equal to 200 nanograms per milliliter and levels of theophylline and theobromine at urinary concentrations less than or equal to 400 nanograms per milliliter are not reported to the Division. The levels found by the laboratory tests and testified to by Ms. Wilding exceeded these amounts. A Report of Positive Test Result was sent to the Division regarding each of the urine samples. After the Division received the laboratory report on each sample, the report was matched to the retained sample tag. It was determined that sample 097442 had been obtained from BOB'S SEAHAWK, sample 097466 from PJ HO HEY, sample 104694 from JIM'S GRAND SLAM, sample 097486 from BS ANGEL, sample 104746 from PJ SMOKE EM OUT, and sample 106083 from CENTEX WIZARD. Each of the samples with the sample numbers corresponding to the dogs listed in the Administrative Complaint, therefore, tested positive for levels of these three drugs in excess of permitted amounts. The trainer for each of these dogs was Mr. Dawson. The urine test results proved that each of the six dogs listed in the Administrative Complaint carried the drugs caffeine, theobromine, and theophylline in their bodies on their respective race days. Ms. Wilding later testified that the three drugs are frequently found together, and that although theobromine and theophylline could be administered separately, in some concentrations they can be detected as metabolites of caffeine. She indicated that it was possible they were metabolites in this case. Mr. Henry Chin and Mr. Anthony Calvo, experienced trainers, testified convincingly that it is impractical for a trainer to remain with one of his dogs undergoing urine sample collection to witness the procedure, because a trainer is responsible for many dogs and is unaware of the exact time that a sample will be collected. Even though trainers have a right to sign indicating that they witnessed the sample collection and sealing, both indicated they do not do so. Both indicated they preferred sample collection to be conducted after the races, as has been done at certain times in the past, rather than before the races. Mr. Calvo also testified that he has often seen trash and spilled liquids, including coffee, in an area the leadouts take the dogs through prior to their urine collection. Mr. Arthur Agganis, who has worked in the racing industry for 41 years, and has been Mr. Dawson's employer for the last 20 of those, agreed that trainers cannot realistically be with their dogs for testing prior to the races. He testified that he proposed to the Division that closed circuit cameras be installed in the ginny pit area to improve monitoring and that "we would pay for it,"3/ but that the Division never agreed to do so. It is noted that the violations occurred close together in time, and that it is clear that Mr. Dawson was not informed of the violations in one race before the samples were taken in the next. This may be considered a mitigating factor because Mr. Dawson would not have had a reasonable opportunity to increase security, adjust medication levels, or alter routines in response to earlier violations. Mr. Andre Tribble convincingly testified that he could not recall ever finding any caffeine in Mr. Dawson's kennel. Mr. Dawson has been licensed by the Division for some 37 years, since 1980. The Division presented no evidence that Mr. Dawson has had previous discipline against his license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order: finding Robert G. Dawson guilty of 18 counts of violating section 550.2415(1)(a), Florida Statutes, and Florida Administrative Code Rule 61D-6.002(1); imposing an administrative fine of $3,000; and suspending his license for six months. DONE AND ENTERED this 26th day of July, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 July, 2017.
The Issue The issue is whether the Respondent's license as a registered pool contractor should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact At all times material hereto, Respondent, William Losciale, was a licensed registered pool contractor in the State of Florida, having been issued license number RP-0032951, by the State of Florida, and was the qualifier of Lynn Pools. On or about October 2, 1987, John J. Kerry entered into a contract with Respondent d/b/a Lynn Pools for the Respondent to construct a pool and screen enclosure on Mr. Kerry's property located at 633 South Little John Street in Inverness, Florida. The total cost of the pool and enclosure was $19,600.00. During construction various problems developed. Among them were delays in completion, the failure to obtain the proper permits, the installation of an inadequate and improper filter, the delayed removal of excavated dirt, the gouging up of the homeowner's yard, and the improper positioning of the septic tank after relocation. At the time the pool deck was being designed, the homeowner told the Respondent that it appeared to the homeowner that the deck was slanted towards the house and would cause flooding problems. The Respondent told the homeowner that the Respondent knew what he was doing and no such problem would develop. During construction of the pool, the homeowner pointed out to the Respondent that it appeared that the pool was being constructed higher than the patio which, if true, would also cause flooding problems. Again, the Respondent denied that the pool was being constructed higher than the patio and that flooding problems would occur. During construction, Respondent removed a rain downspout which, prior to construction, was located between the patio and the screen enclosure. The pool patio was then poured without replacing the downspout underneath the patio. As a result of one or more of the foregoing conditions, the homeowner's house was almost flooded on one occasion. Thereafter, the homeowner had to put a drain hole in the patio in an attempt to prevent future flooding. Since completion of the pool, when it rains, rainwater flows down the patio towards the house. Additionally, rainwater is directed from the roof through the gutter onto the patio towards the house and occasionally water overflows from the pool towards the house. While the house has not been flooded, the pool deck floods during certain rains. During construction, the Respondent removed all of the ground wires off electrical fixtures located in the homeowner's yard without replacing them after being requested to replace them by the homeowner. After the deck was poured, it was covered with kool deck. The kool deck was soft and had indentations in it. The Respondent agreed with the homeowner that the deck was bad and that the homeowner should not accept it. The Respondent the replaced the kool deck with river rock. The deck now has ripples in it. The Respondent tried to charge the homeowner an additional $1,200 for the river rock. The homeowner had the river rock installed for an additional $850.00 by a third party. Prior to entering into the contract for the pool and enclosure with Respondent, the home owner told the Respondent that he wanted the biggest water heater available to heat the pool water instantly. When the water heater was being installed, the homeowner questioned the Respondent whether or not the water heater was big enough to meet the homeowner's requirements. The Respondent said that it was. After installation, the heater did not come close to meeting the home owner's requirements. The homeowner then called the manufacturer of the heater and was told that the installed heater was too small. The Respondent, at the homeowner's request, then changed the heater to one that would supposedly heat the pool water faster. It did not. The homeowner then called the heating company again and was told that the new heater was only one size up from the original heater and still would not meet the homeowner's requirements. That heater remains on the homeowner's property and does not meet the homeowner's requirements. Mr. Kerry paid the Respondent $5,500.00 on December 7, 1987, which made a total of $19,000.00 the homeowner had paid the Respondent. The homeowner has paid more than $600.00 in repairing and/or correcting work that was the obligation of the Respondent. Correction of all these problems has been to the homeowner's financial detriment. In the latter part of December, 1987, the Respondent entered into an oral contract with All Wright Aluminum to have All Wright Aluminum install an L- shaped pool enclosure over the pool at the Kerry residence. The total contract price was $5,185.10. Payment for the construction was due within ten days of completion which occurred on January 6, 1988. All Wright Aluminum received a $1,000.00 payment from the Respondent on or about February 2, 1988. That payment was a check from a customer of the Respondent, made payable to the Respondent's order in partial payment on pool repairs which the Respondent made for that customer. The Respondent endorsed that check and made it payable to All Wright Aluminum. On February 15, 1988, All Wright Aluminum in compliance with the mechanic's lien law, filed a valid claim of lien against Mr. Kerry's property in the amount of $4,185.10 for failure of the Respondent to pay All Wright for the construction of the pool enclosure. On May 10, 1988, the Respondent paid All Wright Aluminum $1,000.00 towards that lien. On September 16, 1988, the Respondent paid All Wright $2,000.00 towards the satisfaction of that lien from his personal account. On September 16, 1988, the Respondent gave All Wright Aluminum a personal promissory note in the amount of $1,135.10 for the balance of the lien amount. On that date All Wright Aluminum satisfied its previously filed claim of lien. Respondent has previously been disciplined by the Florida Construction Industry Licensing Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order and therein penalize the Respondent, William Losciale, as follows: Assess a fine of $750 for the violation of Section 489.129(1)(h) Assess a fine of $750 for the violation of Sections 489.129(1)(j) , 489.105(4), and 489.119. Assess a fine of $1500 for the violation of Section 489.129(1)(m) Suspend the license of Respondent for a period of six (6) months. DONE and ENTERED this 19th day of October, 1989, in Tallahassee, Florida. DIANE K. KIESLING 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 19th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3296 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation, Construction Industry Licensing Board 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-20 (1-20). COPIES FURNISHED: Jack M. Larkin Attorney at Law 806 Jackson Street Tampa, Florida 33602 William Losciale 6491 Mobile Street Inverness, Florida 32652 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue Whether the Campus Master Plan Amendments adopted by Respondent, University of Central Florida's, Board of Trustees, on November 30, 2004 (2005-2015 Campus Master Plan), complies with the requirements of Section 1013.30, Florida Statutes,1/ and Florida Administrative Code Chapter 6C-21; Whether Petitioner, Ronald M. Brooke, was provided a clear point of entry to the administrative process, but failed to timely file the Petition challenging the 2005-2015 Campus Master Plan Amendments; and Whether Respondent should be awarded reasonable attorneys' fees and costs under either Subsection 120.569(2)(e) or 1013.30(8)(d), Florida Statutes. AS TO CASE NO. 06-0327 Whether the Campus Master Plan Amendments adopted by Respondent, University of Central Florida's, Board of Trustees, on November 9, 2005 (the 2005 Stadium Amendment), complies with the requirements of Section 1013.30, Florida Statutes, and Florida Administrative Code Chapter 6C-21; and Whether Respondent should be awarded reasonable attorneys' fees and costs under either Subsection 120.569(2)(e) or 1013.30(8)(d), Florida Statutes.
Findings Of Fact On July 12, 2005, UCF held a workshop regarding the 2005 Stadium Amendment, as required by Subsection 1013.30(6), Florida Statutes. The workshop included a gallery-style presentation of each portion of the proposed Stadium Amendment with appropriate UCF staff available to answer questions posed by attending agencies and the public. On July 25, 2005, and November 9, 2005, UCF held public hearings regarding the proposed 2005 Stadium Amendment, as required by the statute. At the conclusion of the second public hearing on November 9, 2005, a meeting of the BOT was convened and UCF's BOT voted to adopt the proposed 2005 Stadium Amendment, as revised. As originally proposed, the 2005 Stadium Amendment included the following: (a) addition of Policy 1.2.8 to the Recreation and Open Space Element, which provided, "A football stadium shall be located on lands in the northern portion of the UCF main campus, in the area generally bounded by Orion Blvd. to the east and McCulloch Rd. to the north"; (b) addition of the football stadium to the Capital Improvements List in the Capital Improvements Element; (c) addition of the football stadium and associated surface parking to the Urban Design Element, Figure 3-1, entitled, "Urban Design/Capital Improvements"; and (d) addition of the football stadium and associated surface parking to the Transportation Element, Figure 2.11-13, entitled, "Existing and Planned Parking Structure." The 2005 Stadium Amendment was supported by data and analysis, which included: a Summary of Impact and Need Data Analysis; Conceptual Financing Structure; Feasibility Analysis; Physical Review/Renderings; Construction Concept; Opinion on Cost; Traffic and Parking Impacts; Transportation and Parking Concept Plan; Stormwater, Potable Water and Sanitary Sewer Impacts; Noise Study; Sight Line Study; permits from the SJRWMD; and additional data and analysis provided to DCA. The data and analysis for the stadium also included an evaluation of the need for an on-campus football stadium. As a result of comments made by the DCA, the East Central Florida Regional Planning Council, Orange County, and the public, UCF staff proposed that the new Policy 1.2.8 to the Recreation and Open Space Element be amended to read as follows: Recreation and Open Space Element Goal 1.2.8 A football stadium shall be located on lands in the northern portion of the UCF main campus, in the area generally bounded by Orion Blvd. to the east and McCulloch Rd. to the north. The University shall develop a Traffic Management Program that will include Traffic Demand Management strategies, such as the SCOOT System, parking management program, game day traffic management techniques, public transit/park-and-ride mode share, pre-trip traveler information, bicycle accommodations, guide signing, one- way reversible travel lanes on campus, on- campus post-games activities, and the creation of a local traffic stakeholder group, all as described in the Final Traffic and Parking Study, prepared by PBS&J, dated July, 2005, in order to minimize game day traffic and parking impact. UCF will work with Orange and Seminole County staff to address lighting and noise mitigation during the design and construction phase of the stadium. This was the version of Policy 1.2.8 that was ultimately adopted by UCF's BOT on November 9, 2005. Petitioner asserts that UCF may convert the proposed 45,000-seat football stadium to a 65,000-seat facility at any time. Although the construction concept envisions the possibility of a 65,000-seat facility, UCF must amend its CMP in order to expand the facility beyond 45,000 seats and comply with the requirements of the statute for a "major" amendment, if and when such expansion should occur. Petitioner contends that there is inadequate data and analysis to support the 2005 Stadium Amendment in the following areas: transportation and parking; land use compatibility, including noise and lighting impacts; height and compatibility with single-family residential homes; and consistency with the land uses and intensities of use allowed on the Future Land Use Map within the CMP. Noise Prior to the adoption of the 2005 Stadium Amendment, UCF contracted with Acoustic Dimensions to conduct an analysis of the sound expected to be generated by the proposed football stadium, as well as the level of noise currently existing in the area surrounding the proposed football stadium site ("Noise Study"). It is proposed that the sound system for the proposed football stadium will utilize a new technology that directs sound into the stadium seats, keeping as much sound as possible away from the outside of the stadium. Excess noise would be directed out of the stadium in a southerly direction, toward the center of campus, and away from the residential neighborhoods to the east and north. Although UCF is not subject to the noise regulations in the Orange and Seminole County Ordinance Codes, the anticipated noise levels at the proposed stadium were compared to the levels deemed acceptable within Orange and Seminole County. Both Orange and Seminole County exempt sporting events from their noise codes. However, even if sporting venues, such as the proposed football stadium, were subject to Orange and Seminole County noise regulations, the Noise Study predicted that noise generated by a public address system, crowd noise, and marching bands within the proposed stadium would each fall below the levels set forth in the Orange County Code, selected at three locations close by the proposed stadium. Based on the Noise Study, which appears to be reliable, the sound coming from the proposed football stadium would not be overly intrusive into the residential neighborhoods to the east and north. There is anecdotal evidence that intrusive noise will impact the surrounding neighborhoods, and additional noise mitigation measures should be considered during the design and construction phase of the stadium. However, the projected noise levels are not incompatible with the surrounding area. Lighting Prior to the adoption of the 2005 Stadium Amendment, it was determined that lighting technology has improved dramatically, particularly over the past five years. UCF has chosen lighting for the football stadium, which requires 40 percent less lighting fixtures than older technology, uses less electricity, directs more light toward the field, and results in less increase in light in surrounding areas (also known as "spill light"). A computer modeling analysis of the spill light was created at 300 feet, 600 feet, and 900 feet from the outer wall of the proposed football stadium modeling the type of lights UCF plans to use for the football stadium. This includes 36 light fixtures mounted on 140-foot poles located at the four corners of the stadium, for a total of 144 fixtures. In addition, the spill analysis assumed there were no trees or other physical barriers to block any light emanating from the football stadium. The spill analysis predicted both horizontal and vertical foot candles. Horizontal foot candles are measured light that falls on a horizontal surface. Vertical foot candles are light measured by directing a light meter toward the light source, so vertical foot candles are more relevant to the amount of light capable of being seen from outside the stadium. Based on the spill analysis, average vertical foot candles at 900 feet from the edge of the stadium would be .0004 foot candles. The amount of spill light decreases by one-fourth (one-quarter) as the distance from light is doubled. Therefore, without any trees or other barriers, the amount of spill light created by the football stadium lights in the closest residential community (University Estates)(which is more than 900 feet from the wall of the proposed stadium) would be nearly immeasurable. Light measurements in University Estates were taken around 8:00 p.m., during the week prior to the hearing, in front of 4632 Warrington Drive, which is a home owned by Petitioner. The light measurements at this location were 1.1 foot candles and 0.6 foot candles at the north end of the property. Therefore, the amount of light currently existing in University Estates during the normal evening hours will exceed any minuscule increase in ambient light generated by the football stadium. Orange County's lighting standards do not apply to UCF. However, they are instructive in determining whether the lighting at the football stadium will be compatible with the surrounding community. Orange County Ordinance Article XVI, s. 9-649(a)(5), provides that illumination levels at the property line should not be more than 0.5 foot candles, where the project is next to a residential use, and 1.0 foot candles, where the project is next to any other use. Considering, the worse case scenario, the vertical light at 900 feet from the stadium, which is well within the UCF campus boundaries, would be a maximum of .01 foot candles. Therefore, the light produced by the proposed UCF stadium is not incompatible with the standards set by Orange County for the surrounding community. UCF staff also prepared a Sight Line Study to determine the ability of residents in University Estates and Carillon subdivision to view the stadium lights themselves given the amount of treed buffer which lies between these neighborhoods and the proposed football stadium location. The Sight Line Study is determined not to be reliable. However, the ability to see the stadium lighting fixtures from their property does not mean that such lights are incompatible with the surrounding uses. Traffic and Parking Prior to the adoption of the 2005 Stadium Amendment, UCF commissioned a transportation study ("Transportation Study") by PBS&J consultants and a parking analysis ("Parking Plan") by Gameday Management Group, to assess the transportation and parking impacts of the proposed football stadium. The Transportation Study evaluated the onsite transportation impacts within the "Context Area" surrounding UCF, as is required by Florida Administrative Code Rule 6C-21.205(1) and (2). The Context Area used in the Transportation Study was the same Context Area identified in the Transportation Element of the CMP. Because a football stadium is not one of the standard uses studied and evaluated by the Institute of Transportation Engineers ("ITE"), the football stadium was analyzed as a "special generator." Carlin and his staff collected all of the available data regarding transportation impacts from other football stadiums in order to develop a methodology to evaluate the impacts of the proposed UCF football stadium. The methodology was independently peer reviewed by a company called Rizzo and Associates. Rizzo and Associates was qualified in peer review methodology as they had performed similar analyses for the recently constructed Boston College and New England Patriots football stadiums. The Boston College football stadium is located in a suburban area similar to the proposed location for the UCF football stadium. The methodology for assessing the impacts from the proposed football stadium was also reviewed and approved by the Florida Department of Transportation, Orange County, Seminole County, and the City of Oviedo. The Transportation Study analyzed the impacts on onsite and offsite roadways from the inbound peak traffic and outbound peak traffic for a 45,000 attendee Saturday football game. This was a worse-case scenario, as the inbound peak traffic and the outbound peak traffic would not actually occur at the same time. The Transportation Study concluded that, with the exception of only two roadway segments and intersections, roadway conditions would remain at or below the levels of service set for the onsite and offsite intersections and roadways with the Context Area. The Transportation Study also recommended a variety of Traffic Demand Management strategies, which would mitigate overall transportation impacts, as well as the impacts to the few roadway segments and intersections which exceeded the level of service in the analysis. Examples of Traffic Demand Management techniques recommended in the Transportation Study include: the "SCOOT" System, parking management program, game day traffic management techniques, public transit/park-and-ride mode share, on-campus post-game activities, pre-trip traveler information, bicycle accommodations, guide signing, one-way reversible travel lanes on campus, and the creation of a local traffic stakeholder group. The "split cycle offset optimization timing technique" or "SCOOT" System would be particularly helpful because the two primary roadways that access the UCF campus are constrained, meaning that they cannot be widened any further. The SCOOT system effectively expands the capacity of existing roads by improving the timing of signals based on actual use. Therefore, the SCOOT system alone could bring several of the roadway links and intersections back to their designed levels of service. Orange County is one of the few local governments in the United States that already utilizes the SCOOT system, and it, along with Seminole County, supports the use of the SCOOT system for UCF football games. Although the Transportation Study did not specifically address transportation impacts for a weekday game, the Traffic Demand Management strategies recommended in the Transportation Study would mitigate roadway impacts for UCF football games, which may occasionally be scheduled on weekdays. As a result of the Transportation Study and recommendations from various government entities, UCF added specific requirements to Policy 1.2.8 of the Recreation and Open Space Element that UCF implement the Traffic Demand Management strategies recommended in the Transportation Study. Based on the Transportation Study and the specific requirements set forth in Policy 1.2.8 of the Recreation and Open Space Element, the proposed football stadium will be compatible with the surrounding community from a transportation perspective. The Parking Plan was based on the parking inventory data assessed through the Transportation Plan and assumed a 45,000 attendee football game. The Parking Plan divides the UCF campus into parking zones and identifies primary and secondary ingress and egress routes, dedicated traffic control points, and law enforcement needs for each zone. In addition, the Parking Plan identifies ways in which to tie parking to ticket purchases by assigning parking areas at the time of ticket purchases. For those who do not have an assigned parking area prior to game day, media releases, open house sessions, and coordination with the stakeholder groups would be used to inform the attendees of parking areas. Based on the Parking Plan, there would be adequate parking for football games. The Parking Plan will be refined through review by a stakeholders group that is being formed as one of the Traffic Demand Management strategies to be implemented by UCF. The Parking Plan will minimize parking impacts on surrounding communities. Petitioner did not present any expert testimony or other evidence regarding transportation or parking impacts from the proposed football stadium. Petitioner did present several fact witnesses who testified generally regarding their concerns about traffic and parking impacts in the future. However, as fact witnesses, their opinions regarding potential future impacts do not have probative value. Policy 1.2.8 of the Recreation and Open Space Element contains reasonable transportation demand management techniques to minimize offsite impacts. Overall Onsite and Offsite Land Use Compatibility Petitioner contends generally that the proposed football stadium is incompatible with residential land uses adjacent to the UCF campus. In support of this allegation, Petitioner cites to letters from the East Central Florida Regional Planning Council, Florida Department of Community Affairs and Orange County commenting on the proposed stadium amendment. However, each of these agencies, through both follow-up letters and expert testimony at the final hearing, indicated that they were satisfied with the analysis provided by UCF and that there were adequate measures in place so that the proposed football stadium would be compatible with the surrounding community. In addition, UCF staff analyzed several alternative sites for the proposed stadium. This alternative analysis, although not exhaustive, included a review of roadways and access, proximity to residential neighborhoods, and proximity to other athletic operations and student housing. By contrast, Petitioner Brooke did not present any expert testimony as to this allegation. Through the matrix submitted as Petitioner's Exhibit 35, Petitioner alleged that UCF had concluded that the currently proposed stadium location was incompatible with residential neighborhoods. However, testimony from UCF witnesses clearly show that the matrix merely identified compatibility with neighborhoods as a concern and did not establish incompatibility. As with traffic and parking impacts, Petitioner also presented several fact witnesses who testified regarding their concerns about potential future compatibility issues. However, as fact witnesses, their opinions regarding potential future incompatibilities is not probative and is certainly outweighed by the expert testimony presented by UCF. Therefore, the preponderance of the evidence shows that the proposed 2005 Stadium Amendment is compatible with the surrounding community and that the data and analysis relied upon adequately addresses the offsite and onsite impacts. Conflicts With the Orange and Seminole County Comprehensive Plans Petitioner contends that the 2005 Stadium Amendment is in conflict with the Orange County Comprehensive Plan. However, all but one of the provisions of the Orange County Comprehensive Plan cited by Petitioner in the 2005 Stadium Amendment Petition were stricken as being wholly irrelevant to the 2005 Stadium Amendment challenge. The only remaining provision of the Orange County Comprehensive Plan with which Petitioner contends the 2005 Stadium Amendment conflicts is Policy 3.2.13 which provides: "The full retail/general commercialization of an intersection shall be avoided unless sufficient justification of need is provided. Office, hotel, and multi-family uses can be used to avoid the full commercialization of an intersection." Petitioner presented no evidence to support this allegation. In fact, expert testimony was that the 2005 Stadium Amendment is not in conflict with the Orange County Comprehensive Plan. Petitioner did not make any allegations regarding conflict with the Seminole County Comprehensive Plan, and accordingly, no evidence was allowed during the hearing regarding this topic. Consistency with the State Comprehensive Plan Petitioner contends that the 2005 Stadium Amendment is not consistent with the State Comprehensive Plan set forth in Section 187.201, Florida Statutes. In the 2005 Stadium Amendment Petition, Petitioner cites to the following subsections of the State Comprehensive Plan, in which Petitioner alleges is in conflict with 2005 Stadium Amendment: (5) health; (6) public safety; (7) water resources; (9) natural systems; (10) air quality; (11) energy; (13) mining; (14) property rights; (15) land use; (16) urban and downtown revitalization; (17) public facilities; (19) transportation; (20) governmental efficiency; (21) economy; and (25) plan implementation. The State Comprehensive Plan is intended to be a direction-setting document and is to be construed as a whole. See § 187.101, Fla. Stat. No specific goal or policy in the plan is to be construed or applied in isolation from the other goals or policies of the plan. The plan does not create regulatory authority. Id. See also Fla. Admin. Code R. 6C-21.213(4). In addition, the policies of the State Comprehensive Plan may be implemented only to the extent that financial resources are provided pursuant to appropriations of a public entity, such as UCF. See § 187.101(2), Fla. Stat. The decision regarding which particular State Comprehensive Plan goals or policies will be furthered by the expenditure of a university's financial resources in any given year is a decision which rests with the university's board of trustees. See Fla. Admin. Code R. 6C-21.213(5). Petitioner did not present any expert planning testimony regarding the consistency of the 2005 Stadium Amendment with the State Comprehensive Plan. Respondent did present testimony by an expert in planning. Todd Peetz testified that the 2005 Stadium Amendment is compatible with and furthers various goals and policies of the State Comprehensive Plan. For example, the 2005 Stadium Amendment provisions regarding traffic demand strategy are compatible with and further subsection (19) of the State Comprehensive Plan relating to transportation. No evidence was presented by Petitioner which showed that the 2005 Stadium Amendment was in conflict with the State Comprehensive Plan. Moreover, not every goal and policy must be furthered by a CMP. That decision is within the jurisdiction of a university itself. See § 187.101, Fla. Stat., and Fla. Admin. Code R. 6C-21.213(5). Based on the preponderance of the evidence, the 2005 Stadium Amendment is consistent with the State Comprehensive Plan. Other Allegations Petitioner contends that 2005 Stadium Amendment does not contain all of the required elements as established by Section 1013.30, Florida Statutes, and Florida Administrative Code Rules 6C-21.201, 6C-21.203, 6C-21.204, 6C-21.208, 6C-21.209, 6C-21.210, and 6C-21.213. However, there is no requirement that "major" amendments to CMPs involve changes to every element or that the amendments themselves contain all of the elements required by Section 1013.30, Florida Statutes, and Florida Administrative Code Chapter 6C-21. The 2005 Stadium Amendment amended four portions of the 2005-2015 CMP Amendment, and all other provisions in the 2005-2015 CMP Amendment remained the same. Therefore, the 2005-2015 CMP Amendment contains all the elements required by Section 1013.30, Florida Statutes, and Florida Administrative Code Chapter 6C-21. Petitioner contends that significant land-clearing and construction projects were conducted prior to the adoption of the 2005 Stadium Amendment that were solely in support of, and only required because of the proposed football stadium. The evidence supports the counter-assertion that said land-clearing and construction were not part of the 2005 Stadium Amendment process. Therefore, it cannot be challenged by Petitioner through the 2005 Stadium Amendment Petition. However, even if Petitioner could challenge such actions through the 2005 Stadium Amendment Petition, the preponderance of evidence adduced at the hearing was that the land-clearing and construction projects complained of by Petitioner were part of other duly-adopted amendments to the CMP. Petitioner presented evidence regarding two such actions. The first construction project that Petitioner argued was improper was the movement of the Women's Softball Stadium from the Athletics Node to a location on the southeast side of Orion Boulevard. This action was adopted as a "minor" amendment to the 2005-2015 CMP Amendment on January 18, 2005. Even if Petitioner could challenge the "minor" amendment through this proceeding, the adoption package from the BOT meeting adequately shows that the Softball Field Stadium Amendment was below the thresholds set forth in Subsection 1013.30(9), Florida Statutes, and was appropriately adopted as a "minor" amendment. Thus, the preponderance of the evidence demonstrates that the use of the "minor" amendment process was appropriate and that the related land-clearing and construction were properly authorized. Second, Petitioner also complained of land-clearing in the area where the football stadium was ultimately proposed. However, this area was cleared to accommodate the athletic practice fields which were planned for that area prior to the consideration of the football stadium. UCF obtained permits from SJRWMD for both the grading of the area, as well as the stormwater system for the athletic practice fields. The clearing of land itself does not require a change to the CMP. Petitioner contends that the construction of the football stadium and the additional construction which will be associated with the football stadium is inconsistent with the study and information set forth in the Executive Summary for the 2000-2010 CMP. Petitioner presented no evidence to support this allegation other than his personal belief that all amendments must be consistent with the Executive Summary from the 2000-2010 CMP. The purpose of an Executive Summary is to briefly describe the CMP. The Executive Summary of the 2000-2010 CMP was superseded by the Executive Summary in the 2005-2015 CMP Amendment. The 2005 Stadium Amendment amended the 2005-2015 CMP Amendment. Therefore, it only needs to be consistent with the Executive Summary in the 2005-2015 CMP Amendment. Petitioner alleges that the construction projects undertaken by UCF through the 2005-2015 CMP Amendment and the 2005 Stadium Amendment have and will violate the standards and requirements of stormwater management as established by SJRWMD. UCF obtained an Environmental Resource Permit for the proposed football stadium. This permit was not challenged by Petitioner. Petitioner cannot collaterally challenge the SJRWMD football stadium permit through this proceeding. Petitioner provided no evidence that the SJRWMD has issued any notices of violation to UCF regarding its football stadium permit. In fact, the evidence supports Respondent's position that the UCF stormwater system is currently in compliance with SJRWMD rules. Petitioner also provided no evidence that UCF is violating this permit. Even if Petitioner had provided such evidence, this proceeding is not the appropriate forum for a determination of whether such allegations can be challenged through an administrative remedy, under Florida's Administrative Procedures Act. Petitioner alleges that the procedures followed during the public hearings on the 2005 Stadium Amendment, held on July 25, 2005, and November 9, 2005, violated Administration Commission Final Order AC-05-002, Subsections 1013.30(3), (5) and (6), Florida Statutes, and Florida Administrative Code Chapter 6C-21. Compliance with Final Order AC-05-002 is outside the scope of this proceeding. Nevertheless, Final Order AC-05-002 merely states that UCF has agreed to follow the "major" amendment process with respect to the addition of a football stadium on the UCF campus. It is undisputed that UCF has attempted to adopt the 2005 Stadium Amendment pursuant to the "major" amendment requirements set forth in Subsections 1013.30(6) through (8), Florida Statutes. It is also undisputed that Petitioner appeared at both of the public hearings regarding the 2005 Stadium Amendment and was permitted to present oral statements and written comments. Petitioner presented no evidence that he, or any other individual, was prevented from attending or providing oral or written comment at either one of the public hearings. Petitioner is upset that the BOT did not engage in a verbal discussion with the citizenry who were in attendance at the public hearing and did not explain themselves prior to their vote. This is not required as part of the public hearing process. Petitioner also alleged that UCF's BOT did not consider all the information provided by the public in making its decision. However, what each member of UCF's BOT considered prior to the vote on the 2005 Stadium Amendment is not relevant in this de novo proceeding, and this tribunal will not go behind the vote of a legally constituted public body. In addition to the statutorily required workshop and public hearings, the UCF staff conducted numerous meetings to discuss the 2005 Stadium Amendment and answer questions from the public. These meetings included Orange County, Seminole County, homeowner associations, and the Florida Department of Community Affairs. FINDINGS OF FACT AS TO RESPONDENT'S MOTION FOR ATTORNEYS' FEES AND COSTS As to Case No. 06-0328 Based on the testimony of Petitioner during the eight- day hearing and during his deposition in this proceeding, as cited to and described in Respondent's Motion for Attorneys' Fees and Costs, the undersigned ALJ hereby finds that although the Petitioner filed his initial Petition, as well as the Amended Verified Petition in this proceeding, late, nevertheless, he vigorously and determinedly presented his case without the assistance of an attorney, sometimes inartfully, but always sincerely and not for a frivolous or improper purpose. As to Case No. 06-0327 Petitioner timely filed his initial Petition and Amended Verified Petition in this proceeding, and with great effort of time and expense presented his case, without the assistance of counsel, before this tribunal. The evidence does not support the position that Petitioner filed this proceeding, or pursued it, for a frivolous or improper purpose.
Conclusions Jurisdiction The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.569 and Subsections 120.57(1) and 1013.30(8), Florida Statutes. (See Preliminary Statement, pps. 4-5 above.) Section 1013.30, Florida Statutes (both the 2004 and 2005 versions), contains provisions for campus planning and concurrency management that supersede the requirements of Part II of Chapter 163, Florida Statutes. Each university BOT is required to prepare and adopt a CMP for the university, as set forth in the statute, and must update the CMP at least every five years. An "affected person" is defined as one who "submitted oral or written comments, recommendations, or objections to the university during the period of time beginning with the advertisement of the first public hearing under subsection (6) and ending with the adoption of the campus master plan or plan amendment." § 1013.30(2)(b), Fla. Stat. "Any affected person who files a petition under [Fla. Stat. s. 1013.30(7)] may challenge only those provisions in the plan that were raised by that person's oral or written comments, recommendations, or objections presented to the university board of trustees." § 1013.30(7), Fla. Stat. Petitioner is an "affected person" pursuant to Subsection 1013.30(2)(b), Florida Statutes, with respect to the 2005-2015 CMP Amendment and the 2005 Stadium Amendment since he owns a residence near the campus and submitted oral and written comments to Respondent. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in any proceeding before DOAH. Young v. Department of Community Affairs, 625 So. 2d 831 (Fla. 1993); Florida Department of Transportation v. J.W.C. Company, 396 So. 2d 778 (Fla. 1st DCA 1981). Subsection 1013.30(7), Florida Statutes, requires that any affected person who files a petition challenging a CMP or CMP amendment, "may challenge only those provisions in the plan that were raised by that person's oral or written comments, recommendations, or objections presented to the university board of trustees." In each of his Amended Verified Petitions, Petitioner has not raised issues which were not presented to UCF's BOT prior to its vote on either of the amendment petitions. Subsection 1013.30(7), Florida Statutes, further requires that a petition filed by an affected person must "state each objection, identify its source and provide a recommended action." Based on the allegation requirements in Section 1013.30, Florida Statutes, petitioners who challenge CMPs or CMP amendments are the parties who must affirmatively assert the sections of the proposed CMPs or CMP amendments which are not in compliance with Section 1013.30, Florida Statutes, or the rules implementing said statute. Therefore, it is clear that Petitioner has diligently attempted to do so in these proceedings. All proceedings under Subsection 120.57(1), Florida Statutes, are de novo. (Findings of fact shall be based upon a preponderance of the evidence . . . or except as otherwise provided by statute, and shall be based exclusively on the evidence of record and on matters officially recognized.") § 120.57(1)(j), Fla. Stat. What a legally constituted public body considered or did not consider prior to its vote on a matter is irrelevant in a de novo hearing. See generally Zemel v. Lee County, 15 F.A.L.R. 2735 (Department of Community Affairs, June 22, 1993), aff'd 642 So. 2d 1367 (Fla. 1st DCA 1994). CMPs and CMP amendments are governed by Section 1013.30, Florida Statutes, and Florida Administrative Code Chapter 6C-21. Section 1013.30, Florida Statutes, does not specifically establish the standard of proof for challenges to CMPs or CMP amendments. Therefore, the standard of proof set forth in Subsection 120.57(1)(j), Florida Statutes, applies to this proceeding. CMPs "must not be in conflict with the comprehensive plan of the host local government and the comprehensive plan of any affected local governments. A CMP must be consistent with the [S]tate [C]omprehensive [P]lan." § 1013.30(5), Fla. Stat.; see also Fla. Admin. Code R. 6C-21.213(1). "A campus master plan is consistent with the State Comprehensive Plan if the master plan is compatible with and furthers such plan." Fla. Admin. Code R. 6C-21.213(1). "The term 'compatible with' means that the campus master plan is not in conflict with the State Comprehensive Plan or appropriate local government comprehensive plans. The term 'furthers' means to take action in the direction of realizing goals or policies of the state or local plans." Fla. Admin. Code R. 6C-21.213(2). "A campus master plan is in conflict with the adopted comprehensive plans of the host local government and any affected local governments if the master plan promotes an intrinsic or essential lack of harmony with the local government comprehensive plan." Fla. Admin. Code R. 6C-21.213(3). "For the purpose of determining whether campus master plans are consistent with the State Comprehensive Plan and not in conflict with appropriate local comprehensive plans, the state or local plan shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from other goals or policies in the plans." Fla. Admin. Code R. 6C-21.213(4). "Each campus master plan shall address State Comprehensive Plan goals and policies which are relevant to the circumstances or conditions in its jurisdiction. The decision regarding which particular State Comprehensive Plan goals and policies will be furthered by the expenditure of the university's financial resources in any given year is a decision which rests with the [Board of Trustees of the University]. Fla. Admin. Code R. 6C-21.213(5); Board of Governors Resolution dated January 7, 2003. The CMP must "contain elements relating to future land use, intergovernmental coordination, capital improvements, recreation and open space, general infrastructure, housing, and conservation." § 1013.30(3), Fla. Stat. "Campus master plans may contain additional elements at the discretion of the Board of Governors; however, such elements are not subject to review" pursuant to Section 1013.30, Florida Statutes. § 1013.30(4), Fla. Stat.; see also Fla. Admin. Code R. 6C-21.108(2) and 6C-21.212(3). Each element of a CMP "must address compatibility with the surrounding community." § 1013.30(3), Florida Statutes. CMPs must consist of goals, objectives and policies; requirements for capital improvements implementation; procedures for monitoring and evaluation of the CMP; and required maps showing future conditions. "All other documentation may be considered as support documents. Support documents do not have to be adopted." Fla. Admin. Code R. 6C-21.203(1)(c). "Data or summaries thereof which are not part of the adopted campus master plan shall not be subject to the compliance review process." Fla. Admin. Code R. 6C-21.203(2)(a). "The transportation element must address reasonable transportation demand management techniques to minimize offsite impacts where possible." § 1013.30(3), Fla. Stat. "'Transportation demand management' means strategies and techniques that can be used to increase the efficiency of the transportation system. Demand management focuses on ways of influencing the amount and demand for transportation by encouraging alternatives to the automobile and altering local peak hour travel demand. These strategies may include, but not be limited to, ridesharing programs, flexible work hours, telecommuting, shuttle services and parking management." Fla. Admin. Code R. 6C-21.202(16). "Data are to be taken from professionally accepted existing sources. Data shall be the best available existing data, unless the university desires original data or special studies. Where data augmentation, updates, or special studies or surveys are deemed necessary by the university, appropriate methodologies shall be clearly described or referenced and shall meet professionally accepted standards for such methodologies." Fla. Admin. Code R. 6C-21.203(2)(c). Universities are not required to collect original data unless specifically required to do so. Fla. Admin. Code R. 6C-21.203(2)(b). Campus [m]aster plans must be updated at least every 5 years." § 1013.30(3), Fla. Stat.; see also Fla. Admin. Code R. 6C-21.203(7)(b). Amendments to CMPs must be reviewed pursuant to Subsections 1013.30(6) through (8), Florida Statutes: If such amendment, alone or in conjunction with other amendments, would: Increase density or intensity of use of land on the campus by more than 10 percent; Decrease the amount of natural areas, open space, or buffers on the campus by more than 10 percent; or Rearrange land uses in a manner that will increase the impact of any proposed campus development by more than 10 percent on a road or on another public facility or service provided or maintained by the state, the county, the host local government, or any affected local government. § 1013.30(9), Fla. Stat.; see also Fla. Admin. Code R. 6C-21.108(3). CMP amendments exceeding the thresholds set forth in Subsection 1013.30(9), Florida Statutes, are commonly referred to as "major amendments," while those below the thresholds set forth in Subsection 1013.30(9), Florida Statutes, are commonly referred to as "minor amendments." The "minor" amendment adopted by UCF's BOT on August 27, 2004, relating to the addition of housing in the athletic mode, was adopted as a "minor" amendment and is not subject to review under Subsections 1013.30(6) through (8), Florida Statutes, pursuant to Subsection 1013.30(9), Florida Statutes. The "minor" amendment adopted by UCF's BOT on January 18, 2005, relating to the relocation of a softball stadium was adopted as a "minor" amendment and is not subject to review under to Subsections 1013.30(6) through (8), Florida Statutes, pursuant to Subsection 1013.30(9), Florida Statutes. As to the 2005-2015 CMP Amendment Amendments to Section 1013.30, Florida Statutes, requiring referral of CMP challenges to DOAH were effective on July 1, 2005. The amendments in Section 1013.30, Florida Statutes, changed the process and procedure related to challenges of CMPs. Florida law is clear that, absent a clear legislative intent, a statutory amendment that relates to procedure or remedy is applied immediately upon its effective date whether or not a proceeding is pending at that time. Rothermel v. Florida Parole and Probation Commission, 441 So. 2d 663, 664-65 (Fla. 1st DCA 1983), approved by Griffith v. Florida Parole and Probation Commission, 485 So. 2d 818, 820 (Fla. 1986). In this instance, Petitioner's challenge was not filed until more than five months after Section 1013.30, Florida Statutes, became effective. Therefore, the Amended Verified Petition relating to the 2005-2015 CMP Amendment must be governed by Section 1013.30, Florida Statutes. Petitioner alleges that the UCF general counsel did not have the authority under Section 1013.30, Florida Statutes, to dismiss the initial Petition without prejudice. Despite this allegation, Petitioner did, in fact, comply with the UCF general counsel's Order by submitting an amended petition for the 2005 Stadium Amendment Petition and 2005-2015 CMP Amendment. Assuming by these actions that Petitioner has not waived his ability to question the authority of the UCF general counsel, Section 1013.30, Florida Statutes, and the rules implementing that statutory provision which set forth the authority for the UCF general counsel's actions, include the authority to dismiss an insufficient Petition. Florida Administrative Code Rule 6C-21.108(7) provides that "[i]f a petition is filed that does not substantially comply with the requirements of . . . this rule, the Board's General Counsel shall issue an order dismissing the petition with leave to file an amended petition." By resolution dated January 7, 2003, the Board of Governors for the Florida State University System adopted the rules of the State of Florida Board of Regents set forth in Florida Administrative Code Chapter 6C-21 and delegated all authority under said rules to the individual BOTs for each State university. Therefore, the UCF general counsel had adequate authority to dismiss the initial Petition without prejudice. Respondent is required to provide an affected person a "clear point of entry" to administrative proceedings. See § 120.569(1), Fla. Admin. Code R. 28-106.111 and McIntyre v. Seminole County School Board, 779 So. 2d 639 (Fla. 5th DCA 2001). When an agency provides a party with notice and a point of entry, failure to file a petition may waive the right to a request for a hearing. See Fla. Admin. Code R. 28-106.111(4); State Department of Environmental Regulation v. Puckett Oil Company, 577 So. 2d 988 (Fla. 1st DCA 1991). Subsection 1013.30(6), Florida Statutes, states, "[i]t is the intent of the Legislature that the university board of trustees comply with the notice requirements set forth in s. 163.3184(15) to ensure full public participation" with respect to the adoption of CMPs and CMP amendments. Subsection 163.3184(15), Florida Statutes, clearly states that it is the responsibility of Petitioner (as a member of the public) to provide a correct address in order to receive information. "It is the responsibility of the person completing the form or providing written comments to accurately, completely, and legibly provide all information needed in order to receive the courtesy informational statement." Based on the language in this section, the Legislature did not intend for notice requirements to be more than a courtesy, nor did the Legislature intend for agencies, such as UCF, to expend resources confirming addresses of affected persons. See, e.g., Kidder v. Cirelli, 821 So. 2d 1106, 1107 (Fla. 5th DCA 2002) (property owner bore burden of having correct address listed on tax roles, and tax deed would not be overturned because property owner did not receive notice due to incorrect address). Moreover, Petitioner received actual notice of the adoption of the 2005-2015 CMP Amendment because he attended the adoption hearing for the 2005-2015 CMP Amendment on November 30, 2004 and, therefore, was not prejudiced. See Sutterfield v. City of Rockledge, 2002 WL 31125197 (DOAH Case No. 02-1630GM) (adopted in toto.) (City's failure to comply with the seven-day advertising requirement under Subsection 163.3184(15)(b)1., Florida Statutes (2002), was not fatal due to Petitioner's attendance at the transmittal hearings and presentation of comments at these hearings.) See also Edmond J. Gong and Dana L. Clay v. Department of Community Affairs and City of Hialeah, 1994 WL 1027737 (DOAH Case No. 94-3506GM)(When a person asserts that statutory notice requirements have not been satisfied, he bears the burden of showing prejudice occasioned by the procedural error, a task made much more difficult when, as here, Petitioner had actual notice of the relevant hearings and agency action and participated throughout the proceeding). Failure to file a Petition in a timely manner without justification is not acceptable. See Fla. Admin. Code R. 28-106.111(4). Subsection 1013.30(7), Florida Statutes, required Petitioner to file his petition "within 30 days after receipt of the notice of adoption of the campus matter plan, or 30 days after the date the adopted plan is available for review, whichever is later, . . . ." Petitioner filed his initial Petition challenging the adoption of the 2005-2015 CMP Amendment more than one year after the BOT's action. There was no evidence presented that would show that Petitioner was misled or lulled into inaction by some conduct of Respondent. Therefore, Petitioner has not demonstrated that he is entitled to invoke the doctrine of equitable tolling under Machules v. Department of Administration, 523 So. 2d 1132, 1134 (Fla. 1988). Accordingly, the Amended Verified Petition challenging the 2005-2015 CMP Amendment Petition was not timely filed and should be dismissed. Assuming, arguendo, that the 2005-2015 CMP Amendment Petition was timely filed as set forth in the Findings of Fact above, Petitioner has failed to show by the preponderance of evidence that the 2005-2015 CMP Amendment does not comply with the requirements of Section 1013.30, Florida Statutes, or Florida Administrative Code Chapter 6C-21. As to the 2005 Stadium Amendment For the reasons set forth in the Findings of Fact and based on the foregoing Conclusions of Law, Petitioner has failed to show by a preponderance of the evidence that the 2005 Stadium Amendment does not comply with the provisions of Section 1013.30, Florida Statutes. As to Respondent's Motion for Attorneys' Fees and Costs The evidence does not support a finding that attorney's fees and costs should be awarded under either Subsection 120.569(2)(e) or 1013.30(2)(d), Florida Statutes.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Secretary of the Department of Community Affairs enter a final order determining: (1) as to Case No. 06-0328, the Petition filed by Petitioner, Ronald M. Brooke, challenging the 2005-2015 CMP Amendment was not timely filed; (2) the 2005-2015 CMP Amendment and the 2005 Stadium Amendment comply with the requirements of Section 1013.30, Florida Statutes, and Florida Administrative Code Chapter 6C-21; (3) as to Case No. 06-0327, the Amended Verified Petition be dismissed; (4) as to Case No. 06-0328, the Amended Verified Petition be dismissed; and (5) Respondent's Motion for Attorney's Fees and Costs in both cases be denied. DONE AND ENTERED this 4th day of April, 2006, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2006.
Findings Of Fact The following relevant facts are undisputed: The Division is the arm of the Department of Business and Professional Regulation with the duty and responsibility to permit and regulate pari- mutuel wagering facilities throughout the state. §§ 550.002(7) and 550.01215, Fla. Stat. Petitioner is a pari-mutuel permittee that owns and operates the Daytona Beach Racing and Card Club in Volusia County, located at 1 Unless otherwise noted, all references to the Florida Statutes are to the 2020 version, which was in effect when the Petition was filed. 2 Petitioner waived the requirement in section 120.56(1)(c) that the final hearing be conducted within 30 days after assignment of the case. 960 South Williamson Boulevard in Daytona Beach, Florida (“Petitioner’s facility”). Intervenor is a pari-mutuel permittee doing business as St. Johns Greyhound Park in St. Johns County, at a leased facility located at 6322 Racetrack Road, St. Johns, Florida (“Bayard’s facility”), approximately 75 miles north of Petitioner’s facility. On July 8, 2020, Bayard filed with the Division a “Notice of Relocation” of Bayard’s facility to an eight-acre parcel in St. Augustine, Florida, which it is under contract to purchase. Bayard’s Notice of Relocation was filed pursuant to section 550.054(14)(b), Florida Statutes, which reads, in pertinent part, as follows: The holder of a permit converted pursuant to this subsection or any holder of a permit to conduct greyhound racing located in a county in which it is the only permit issued pursuant to this section who operated at a leased facility pursuant to s. 550.475 may move the location for which the permit has been issued to another location within a 30-mile radius of the location fixed in the permit issued in that county, provided the move does not cross the county boundary and such location is approved under the zoning regulations of the county or municipality in which the permit is located, and upon such relocation may use the permit for the conduct of pari-mutuel wagering and the operation of a cardroom. On September 11, 2020, the Division issued its Notice regarding Bayard’s relocation. Finding that Bayard had satisfied all the criteria for relocation pursuant to section 550.045(14)(b), the Division approved the relocation of Bayard’s permit to 2493 State Road 207 in St. Augustine, St. Johns County, Florida. On December 2, 2020, Petitioner filed the Petition challenging the Notice as an unadopted rule in violation of section 120.56(4). The Petition alleges, in pertinent part, as follows: 10. As part of the [Notice], the Division included a statement summarizing its application of the § 550.054(14)(b) relocation factors, yet failed to set forth any analysis of the conditions for relocation of greyhound permits set forth in § 550.0555(2). Based on this incomplete analysis of Bayard’s Notice of Relocation, the Division approved Bayard’s request to relocate. 12. Consequently, Petitioner is entitled to request a hearing challenging the Division’s agency statement interpreting the applicability of § 550.054(14)(b), and lack of applicability of § 550.0555(2), in the [Notice] as an unpromulgated rule. 21. When analyzing whether to approve Bayard’s request to relocate [Bayard’s facility], the Division reviewed the factors listed in § 550.054(14)(b), but wholly disregarded the factors listed in § 550.0555(2). In other words, the Division determined, that a request, “pursuant to § 550.054(14)(b)” need not satisfy the requirements of § 550.0555(2), despite the fact that such an interpretation finds no support in the relevant statutes themselves. This interpretation of law represents an “agency statement of general applicability that implements, interprets or prescribes law or policy[.]” § 120.52(16), Fla. Stat. Since the Division did not properly adopt this interpretation as a rule, this means it is an invalid unpromulgated rule that cannot support agency action. The crux of Petitioner’s argument is that the Notice reflects an unwritten policy of the Division to apply only the factors in section 550.054(14)(b) to applications to relocate which are filed “pursuant to that section,” and not apply the factors in section 550.0555(2).3 The Notice does not cite, analyze, or otherwise refer to, section 550.0555.
The Issue Whether Respondent has committed a discriminatory act with respect to public accommodations in violation of Chapter 760, Florida Statutes, and if so, what remedy should be provided.
Findings Of Fact Petitioner is an African-American woman living in the Gainesville area. She is married and has children. On November 15, 2006, Petitioner went to the Days Inn at 7516 Newberry Road to make a reservation for her mother and sister. She was dressed casually and had her children with her. When she arrived at the Days Inn, she spoke with John Osley, who was later identified as the manager of the hotel, and asked if all the rooms were entered from the outside. He told her that the Newberry Road hotel had outside rooms only but that the Days Inn on Archer Road had internal corridors. Mr. Osley asked what dates she wanted to reserve. She told him November 23-24, which was Thanksgiving Day and the day after. Mr. Osley told her there were no rooms available those days because the hotel was the host hotel for a race-car event. She asked about cancellations and he told her to call back closer to the dates she needed the room to see if there were any. He gave her a business card for a person at the front desk. Upon her request, he allowed her to look at one of the rooms. Petitioner thanked Mr. Osley and left. After she left the hotel, she felt that she had not been treated appropriately. That evening, she checked on the Days Inn internet website to see if any rooms at the Newberry Road location were available online for November 23-24. She was able to make a reservation for the desired days via the internet. Ultimately, her mother opted to stay at another hotel. As a result, the reservation at the Days Inn was canceled. Petitioner was angry because she felt she had been mistreated at the hotel, and wrote to Joseph Kante, whom she identified as being in a management position for Days Inn. She also e-mailed him and within 24-hours, she received an apology from him. However, according to Petitioner, Mr. Kante indicated that each Days Inn is responsible for itself and the person she needed to speak to regarding the Days Inn on Newberry Street was John Osley. Petitioner returned to the Days Inn on Newberry Road in an effort to speak with Mr. Osley, and also called the hotel. Each time, Mr. Osley was not present and she never spoke with him about her concerns. After her attempts to reach him were unsuccessful, she filed her complaint with the Commission. No evidence was presented regarding any other person of any race seeking a room at the same time as Ms. Henderson who was able to reserve a room when she could not. No evidence was presented indicating that Mr. Osley was not being truthful when he stated that no rooms were available when Ms. Henderson originally sought to reserve a room.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered that dismisses Petitioner's claim. DONE AND ENTERED this 27th day of September, 2007, in Tallahassee, Leon County, Florida. S Hearings Hearings LISA SHEARER NELSON Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative this 27th day of September, 2007. COPIES FURNISHED: Burnita Henderson 5010 Southwest 63rd Boulevard Gainesville, Florida 32608 John Osley Days Inn I-75 7516 Newberry Road Gainesville, Florida 32606 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Robert C. Channell is a registered pool contractor holding License No. RP0024653 issued by the Florida Construction Industry Licensing Board. A copy of the Circuit Court of the Thirteenth Judicial Circuit finding that Robert C. Channell had violated Section 501.204, Florida Statutes, and the rules and regulations adopted pursuant to Chapter 501, Florida Statutes, was introduced to prove that he had violated Section 468.112(2)(a), Florida Statutes. An order of contempt was also introduced to show that Robert C. Channell had violated the Court's original injunctive order. Robert Berndt contracted with Robert C. Channell for the construction of a pool at his residence. Subsequently, employees of Robert C. Channell cleared trees from the back of Berndt's residence and construction of a pool was begun by excavation of a hole in Berndt's backyard. Eli Jackson indicated that he had contracted with Robert C. Channell to build a pool at Tyrone Mobile Home Park which Jackson owned. Robert Channell did not apply nor obtain a building permit for the construction of pools at the residence of Robert Berndt or at the Tyrone Mobile Home Park. Robert Thomas indicated that he had inspected the pool constructed at Tyrone Mobile Home Park and determined that no permit had been obtained for construction of said pool, and further that the pool was constructed to residential standards. From the location of the pool it was clearly for the use of residents of Tyrone Mobile Home Park. There were eighty (80) or more families residing in Tyrone Mobile Home Park. On September 30, 1976, Robert C. Channell's license as a pool contractor in Hillsborough County had expired and was not renewed by the county. Subsequently, Channell contracted to build a pool for Randall Harris, who obtained the permit to construct a pool as owner of the property. Although Harris did some work on the pool, Channell was paid $7,200 to remove trees, work on the pool and construct a fence. Electrical work was done by an electrical contractor. Berndt complained that Channell was slow in starting his pool and did not receive many extras for which he had contracted with Channell. The delay in construction was the apparent result of Channell's attempts to finish projects underway in compliance with the requests of Mr. Shaw, the Building and Zone Director of Hillsborough County. Eli Jackson, the owner of Tyrone Mobile Home Park, and Randall Harris were both pleased with the pools Channell constructed for then.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Construction Industry Licensing Board revoke the license of Robert C. Channell until he has reestablished himself as a licensed pool contractor in Hillsborough County, Florida. DONE and ORDERED this 5th day of July, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Bearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David Linn, Esquire Post Office Box L386 Tallahassee, Florida 32302 Mr. Robert C. Channell 309 Jennal Place Tampa, Florida 33612 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
