Findings Of Fact Petitioner is the general partner of Marstof, Ltd., which owns certain property located at Section 24, Township 28, Range 17, Hillsborough County, Florida, and consisting of approximately thirty acres. Its specific location is on the west side of Twelve Oaks Boulevard, and 400 feet north of Heatherfield Drive. Respondent is an expressway authority created under Chapter 348, Florida Statutes, with eminent domain authority pursuant to Chapter 74, Florida Statutes. The property in question is surrounded on the north by a railroad, vacant land, and a strip of commercial property. To the east and west is vacant land, while to the south are single family residences, with some environmentally sensitive areas. There are some trees on the site, but there is no significant vegetation. Petitioner signed a contract to purchase the subject property for $953,000 on September 27, 1985. The property was zoned "Agricultural" at that time, and since Petitioner intended to develop this property for residential uses, he immediately began preliminary lot layout for marketing, and preliminary layout of a proposed waste water treatment facility. These preliminary layouts were submitted to the Hillsborough County Department of Development Coordination in December, 1985. In early 1986, surveys were ordered, a well as soils and environmental studies, and final subdivision design began. By mid-1986, side and environmental plans, as well as plans for a temporary waste water treatment plant were submitted to state and local permitting agencies. In the fall of 1986, revised plans were prepared and submitted, as required. Petitioner began discussions in December, 1986, with General Homes Corporation for their purchase of all residential lots on the subject property. On December 22, 1986, Petitioner received a letter of intent from General Homes, and on March 4, 1987, General Homes executed a contract to purchase all lots in Petitioner's proposed subdivision for a total of approximately $2.5 million. On March 9, 1987, Petitioner filed an application for rezoning of the subject property from "Agricultural" to "Planned Development, Housing" This rezoning was approved on June 23, 1987. However, General Homes had canceled their contract with Petitioner on or about March 25, 1987. Other developers did express an interest in purchasing Petitioner's lots, but no subsequent purchase contract was executed. As part of the rezoning approval, Petitioner conveyed a portion of the subject property, without monetary consideration, to the County for an extension of Twelve Oaks Boulevard, as well as an additional portion used for environmental mitigation. Following approval of his rezoning application, Petitioner filed his revised site plan and request to use an interim waste water treatment plant, to which there was no objection. By October 10, 1987, Petitioner had obtained all necessary approvals and permits, as well as the rezoning of the subject property, to begin pulling permits for development of this residential subdivision consisting of 128 approved lots with a wholesale value of approximately $2.68 million, or $21,000 per lot. He did not begin development, however, because of concerns about the possible impact of the Northwest Expressway on his development. Although no map reservation had been filed, it appeared to Petitioner that it was likely that the proposed route of the Expressway would be through his property. He did not proceed because he was concerned about the marketability of homes next to, or near, the eventual site of the Expressway, the possibility of default on any development loan he would have to obtain if the Expressway was located through his property, and he also wanted to avoid inflating the eventual cost of the property if it had to be taken through eminent domain. The map of reservation filed on July 8, 1988 by Respondent shows that the Expressway right of way crosses directly through the subject property in an east-west direction. The right of way varies from approximately 250 to 290 feet in width. To the south of the Expressway right of way is a portion of the subject property owned by Petitioner of approximately 10 acres on which 34 residential lots could be located. To the north of the right of way is an area that the parties agree is not developable because the Expressway will cut off all access to this northern parcel. The developable southern parcel of approximately 10 acres cannot be profitably developed with only 34 lots. Petitioner testified that no more than 34 lots can be developed on this parcel, and this testimony is supported by a revised site prepared by his consulting engineer and land surveyor. There is no evidence to the contrary. It is not economically feasible to develop this southern parcel due to the original land cost, and the deflating impact which the location of the Expressway next to this parcel will have. Petitioner has invested a total of approximately $1.15 million in the acquisition of the subject property, including its rezoning, site plans, and obtaining all necessary permits and approvals to commence development. He estimates that he could reasonably receive $2.75 million through the bulk sell- out of 128 finished lots at current market conditions, if it were not for the proposed location of the Expressway through his property. Due to the filing of the map of reservation by Respondent for the Northwest Expressway, Petitioner cannot proceed with any portion of the development of residential lots on the subject property. The only evidence in the record is that Petitioner has been deprived of a substantial portion of the beneficial use of the subject property.
Recommendation Based upon the foregoing, it is recommended that the Respondent enter a Final Order granting Petitioner the relief sought, and within 180 days either acquire Petitioner's property, amend the map, withdraw the map, or file appropriate proceedings. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of December, 1988. DONALD D. CONN 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 21st day of December, 1988. COPIES FURNISHED: A. Broaddus Livingston, Esquire One Harbour Place Post Office Box 3239 Tampa, Florida 33601 William C. McLean, Esquire 707 Florida Avenue Tampa, Florida 33602 Ray Speer, Executive Director Tampa-Hillsborough County Expressway Authority 412 East Madison, Suite 802 Tampa, Florida 33602
Other Judicial Opinions A party who is adversely affected by this order closing file is entitled to Judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Department of Management Services, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950, and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE IHEREBY CERTIFY that this Order Closing File was filed in the official records of the Department of Management Services and copies were furnished to: Larry D. Scott, Assistant General Counsel, Department of Management Services, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950; Jane M. Letwin, Esquire, 5426 SW 25 Avenue, Fort Lauderdale, Florida 33312, and Judge Claude B. Arrington, Division of Administrative Hearings, the DeSoto aa: = Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060, this \o- day of ‘ ‘ ( X MGause £ , 2009. {De Mag \ ‘shewp OS) Debbie We Ms Clerk Department of Management Services (850) 487-1082 2 of 2 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS JOAN BROMANTE, Petitioner, v. CASE NO. 08-6047 DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, Respondent. / PETITIONER’S NOTICE OF WITHDRAWAL OF PETITION Petitioner, Joan Bromante, through undersigned Counsel, hereby files this Petitioner’s Notice of Withdrawal of her Petition without prejudice. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on JuLY 21*, 2009, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. | also certify that the foregoing document is being served this day on all counsel of record identified in the attached service list via transmission of Notice of Electronic Filing generated by CM/ECF and via e-mail to Larry D. Scott, Esq., Asst. Gen’] Counsel, DMS, Division of Retirement, 4050 Esplanade Way, Suite 160, Tallahassee, FL 32399- 0950. By: s/Jane Letwin, Esq, FLA.BAR NO. 990329 Law Office of Jane M. Letwin Attorney for Plaintiffs 5426 SW 25" Avenue, Fort Lauderdale FL 33312 Tel: 954 297 4057; Fax: 954 301 8401 EXHIBIT Filed July 21, 2009 8:00 AM Division of Administrative Hearings. "a" SERVICE LIST Marylin Batista- McNamara, Esq. Office of the School Board Attorney 600 SE Third Avenue, 11'" Floor Fort Lauderdale Fl 33301
The Issue As stated by the parties in the joint stipulation to limit issues: whether the costs of $70,455.00 associated with the Moore Haven office of Petitioner are eligible costs under the Community Services Block Grant (CSBG) administered by Respondent.
Findings Of Fact At all times material to the issues of this matter, the Petitioner was the grantee of a community services block grant. Generally, the Department enters into CSBGs for a defined period of time for defined work to be performed by the grantee. The work normally entails defined services to low income people. In this case, the COFFO was to provide personnel, materials, services, and facilities as set forth by their agreements to low income persons in Collier, Dade, Glades, Okeechobee, Polk, Hardee, Indian River, DeSoto, Highlands, Hendry, Lee, and Palm Beach Counties. At all times material to this matter, COFFO acknowledged that it is governed by applicable laws and rules related to CSBGs, including, but not limited to: The Omnibus Budget Reconciliation Act of 1981 (P.L. 97-35, as amended), 45 C.F.R. Part 96, and Chapter 9B-22, Florida Administrative Code. Rules governing CSBGs require written documentation both as to the person served and the activity or service provided to such individual. On September 14, 1995, the Department notified COFFO that an audit had determined a lack of justification for funds to continue operation of the COFFO Moore Haven field office Such notice claimed that the field work performed by an independent audit firm found "no documentation to support the expensing of CSBG funds at the Moore Haven field office." The Department invited COFFO to provide the needed documentation to support its claim for reimbursement. For the three year period at issue, COFFO was unable to provide documentation for the individuals served at the Moore Haven office. While COFFO claimed twenty-seven persons appeared at that office for service, it also maintained that such persons would have been routed to the COFFO office at Immokalee for services. Regardless, neither office produced records to verify that eligible individuals received eligible services. COFFO maintains that since it met the overall terms of its agreements, whether at the Moore Haven office or elsewhere, it should be entitled to all funds claimed. Additionally, COFFO claims that since the Department did not cite inadequate records at Moore Haven to them at an earlier time, they were unable to correct any deficiencies timely and thus avoid the issue inherent in this case. Normally, exit interviews conducted by Department staff incidental to a monitoring visit alert grantees of any deficiencies noted during the visit. In this case, Department staff attempted a monitoring visit at Moore Haven, but an exit interview was not conducted. COFFO did not have staff or anyone at the location at the time of the visit. At all times material to this case, the major programs for COFFO were implemented at its main office in Homestead and a field office at Immokalee. The office at Moore Haven did not have equipment or other resources to provide services. In the past, although not documented as to time, the Moore Haven office had been used to distribute emergency food, for job and budget counseling, and for recreation.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Community Affairs enter a final order determining the costs associated with the Moore Haven office of Petitioner to be ineligible under the community services block grant program. DONE AND ENTERED this 23rd day of September, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 23rd day of September, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5694 and 95-5695 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 2, 3, 5, and 9 are accepted. With regard to paragraph 1, with the clarification that it is accepted that COFFO provided services to migrant and seasonal farmworkers but could have provided services to any eligible recipient; the paragraph is otherwise accepted. The first three sentences of paragraph 4 are accepted; the remainder is rejected as contrary to the weight of the evidence or argument of law. With the clarification that forms were not maintained at the Moore Haven office demonstrating eligible services were rendered to eligible recipients, paragraph 6 is accepted. Paragraphs 7 and 8 are rejected as irrelevant or immaterial to the issue of this case, or not supported by reference to the record. The first two sentences of paragraph 10 are accepted; the remainder is rejected as contrary to the weight of credible evidence or irrelevant as stated. With regard to paragraph 11, the first sentence is accepted. The remainder of the paragraph is rejected as irrelevant or contrary to the weight of the credible evidence as stated. Paragraph 12 is rejected as contrary to the weight of the credible evidence. Rulings on the proposed findings of fact submitted by the Respondent: None submitted. COPIES FURNISHED: Arturo Lopez Coalition of Florida Farmworker Organizations, Inc. Post Office Box 388 Homestead, Florida 33090 Pedro Narezo Coalition of Florida Farmworker Organizations, Inc. Post Office Box 388 Homestead, Florida 33090 Barbara Jo Finer Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Carol Soliz, Board Chairperson Coalition of Florida Farmworker Organizations, Inc. P.O. Box 1987 Sebring, Florida 33871-1987 James F. Murley Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Stephanie M. Gehres General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100
The Issue The issue in this case is whether the application filed by the Florida Department of Environmental Protection (DEP) for abandonment of a segment of Mission Road, from the Ocala Drive intersection to a point east of Yonview Drive, should be granted; and, if so, what conditions should be placed on the abandonment.
Findings Of Fact Proposed Abandonment and Vicinity The eastern terminus of Mission Road is at Ocala Road. At one time, Mission Road intersected Ocala Road and extended farther east along the alignment of Tennessee Street. However, when Tennessee Street was extended farther west, the intersection of Tennessee Street and Ocala Road was moved slightly south of the juncture of Ocala Road and Mission Road. Now at the junction of those roads, Mission Road is designed to have only a right turn in from Ocala Road southbound, and a right turn out from Mission Road onto Ocala Road, headed south. Mission San Luis (Mission) is bisected by Mission Road near its eastern terminus at Ocala Road. While the Mission is accessible from Mission Road, its main entrance is on Tennessee Street just west of Ocala Road. The Mission has administrative offices and an archeological laboratory on the south side of Mission Road, while the re-created Mission and Apalachee Village, along with most of the archeological remains, and visitor parking, are on the north side of Mission Road. Yonview Drive joins Mission Road from the south. The juncture of those two roads marks the western terminus of the part of Mission Road that is the subject of the application for abandonment; Ocala Road marks the eastern terminus of the proposed abandonment. All of the land on either side of this part of Mission Road is owned by the State and is part of the Mission. Proceeding west from Yonview, the Mission is on the northeast side of Mission Road, which provides access to the current parking lot for the Mission and the current visitor center, which is an adaptive use of a house built in 1938. Along that stretch of Mission Road, The Timbers condominium development is on the southwest side of Mission Road. Just west of the Mission property, San Luis Road intersects Mission Road. To the north of Mission Road, San Luis is a public road that proceeds north, past Leon County's San Luis Park (which is on the east side of the road), and residential neighborhoods to the west side, to where San Luis Road intersects Tharpe Street. To the south of Mission Road, aligned with San Luis Road, is an entrance to The Timbers. Sometimes referred to as an extension of San Luis Road, the roadway within The Timbers actually is private and serves as access to The Timbers condominium units; it continues through The Timbers and continues between other properties to the development's other entrance on White Drive. As Mission Road proceeds west from San Luis Road, the rest of The Timbers is on its south side; on its north side, Solana Drive joins it from the residential neighborhood to the north. Solana Drive is a short street between San Luis Road and Mission Road. The northern terminus of Solana Drive is near the southern end of the County Park. Petitioners and Their Interests Petitioners are The Timbers Homeowners’ Association, Inc. ("HOA"), and Brian Moran and Christy Baldwin, individually. The individual Petitioners each own one or more units within The Timbers. Ms. Baldwin has resided there for nearly ten years. The HOA is charged with representing the interests of the owners and residents of The Timbers. It owns and has responsibility for the repair, maintenance, and improvement of the common areas within the development. Mr. Moran and Ms. Baldwin are officers of the HOA. The Timbers is a 223-unit condominium community that fronts, along its entire length, the south side of Mission Road between White Drive and Yonview Drive. A portion of this frontage is located directly across Mission Road from what is now Mission San Luis. The private road within The Timbers between Mission Road and White Drive is how The Timbers connects to the public road system. As it fronts Mission Road, The Timbers is a pleasant, wooded community of multiple condominium structures, each of which fronts on a side street connected to its private "San Luis Road." The Timbers is conveniently located for easy access to Florida State University, Florida A&M University, and other points to the south or east of The Timbers (including downtown Tallahassee). A significant number of residents of The Timbers use Mission Road by turning right onto Mission Road, which takes them to a right turn onto Ocala Road, with no stop sign, stop light, or significant intersection in between. From there, they can go straight south on Ocala Road or turn east or west on Tennessee Street. If the abandonment application is granted, that route would be eliminated, and there would be two remaining ways to leave The Timbers--via the White Drive exit, or by making two left turns, one onto Mission Road and the second, after a stop sign, onto White Drive. Meanwhile, drivers traveling east (toward town) on Mission Road from virtually all points west of The Timbers (and thus west of White Drive) on Mission Road, would take a right curve onto White Drive from Mission Road but they would do so with the right-of-way or, if signalized, a traffic light timed to give them a “longer green” preference. Those Timbers residents, owners, and visitors exiting at White Drive would have to negotiate their left turn without the right-of-way and against whatever increased traffic might be introduced onto White Drive if Mission Road were closed. From there, depending on the ultimate destination, traffic could either go straight on White Drive towards Pensacola Street or turn left onto Tennessee Street to reach the Tennessee Street/Ocala Road intersection. The intersection at White Drive and Tennessee Street is signalized but is not consistent with current design standards in that it has an offset center line. According to the planned unit development documents for The Timbers, the White Drive entrance was supposed to be the main entrance to the development. However, the Mission Road entrance has come to function more like the actual “main” and is more attractive aesthetically. Petitioners have spent significant effort and money in beautifying and otherwise maintaining its private extension of San Luis Road through curbing, landscaping, signage, etc. The part of the road that joins The Timbers to White Drive is not as well constructed and is not bounded by The Timbers but rather by other properties. It also is where the garbage dumpsters for the development are located. (On the other hand, the mailboxes for the development also are located off that part of the private road.) The closure of Mission Road probably will shift some internal Timbers traffic from the Mission Road entrance to the White Drive entrance. It also is possible that some external traffic coming south on San Luis Road might use the private extension of the road within The Timbers as a "short-cut" to White Drive. However, the road through the Timbers may not prove to be a desirable "short-cut" because it is a lower-quality road, has potholes, and is not designed for through-traffic but rather as a feeder road for the parking areas of the development. There are three stop signs; the turns are tight; and cars sometimes are parked along the side of the road. As a result, "friction" would slow through-traffic and discourage use of the road as a cut- through. The design of San Luis Road also makes it less likely that The Timbers would be used as a short-cut to White Drive. There is a hard right turn in the road signed for 15 miles per hour that people tend to avoid by turning onto right onto Solana Drive. Many residents walk within The Timbers, including to the mailboxes, to the tennis courts, and to the dumpsters, or to walk their dogs (perhaps in the green space created by an abandoned railroad right-of-way in the vicinity) on the western side of The Timbers. If traffic increases on that side of the private extension of San Luis Road, both the safety and the subjective experience of those pedestrians would be adversely affected to some extent. However, those effects are speculative. A resident-controlled gate system for the Mission Road entrance to prevent cut-through traffic likely would cost The Timbers HOA in the neighborhood of $15,000. Associated costs for telephone connections to each of the units, electrical service, and maintenance would likely range from $75 to $80 per residential unit per year. But such a gate is not desired by Petitioners as it would constitute a significant inconvenience for Petitioners and others who reside in or visit The Timbers. Should the Timbers elect to install sidewalks along its San Luis Road to accommodate increased or shifted traffic within The Timbers, the costs associated with that could reasonably exceed $110,000, including engineering, permitting, utilities, and remediation. The owners of units within The Timbers would ultimately bear the costs of any needed improvements or additional maintenance that would result from a closure of Mission Road. However, it is speculative whether such measures will be needed or actually undertaken. It is possible that the owners of units in The Timbers might suffer some diminution in property value as a result of the proposed abandonment. According to a property appraiser, Richard Boutin, there will be diminution in value of approximately one percent of the value of units, which ranges between $120,000 and $150,000, that would materialize over time, taking two-to-five years to occur. Whether such a diminution in value actually will occur is uncertain. As described above, due to the location of The Timbers, the proposed abandonment will adversely affect Petitioners more than it will adversely affect most of the rest of the general public. Most of the greater adverse effects on Petitioners will be similar in kind to the adverse effects on most of the general public. At least one of the greater effects on Petitioners also is different in kind -- namely, some drivers probably will use Petitioners' private road as a cut-through. See Findings 9-10, supra. Standards for Abandonment Applications A guiding principle for all City Commission action is to act in the public interest. The City Commission must act in the public interest, whether stated in a regulation or not, including when acting on an application for abandonment of right- of-way. City Commission Policy 410 has been used as a guide for reviewing abandonment applications. Policy 410 provides: The City of Tallahassee will not consider any application for right-of-way abandonment, if the subject right-of-way is currently being used by the City, or if the City has any plans to use the right-of-way at some point in the future. Abandonment of a right-of-way must be demonstrated to be in the best interest of the general public. Neither abandonment of a right-of-way solely for the purpose of placing it on the tax rolls in its current state, nor abandonment of a right-of-way solely to benefit an abutting property owner, is considered to be sufficient to meet the test of "in the public’s best interest". Abandonment of right-of-way automatically reverts only to abutting property owners with one-half of the right-of-way going to each owner by operation of law upon adoption of a City ordinance. Provide applicant with a Quit [sic] Deed for recording, if the right-of-way is abandoned. Unlike ordinances, policies can be waived. Notwithstanding paragraph 1 of the Policy, the evidence was clear that the City abandons right-of-way that is in use, either explicitly or implicitly waiving paragraph 1. Over 90 percent of the abandonment applications processed by the City have been for rights-of-way that are currently being used, including some that were being used heavily. The actual standards for determining whether to abandon a road have been found in the other parts of Policy 410, especially in paragraph 2. Although Policy 410 had a sunset date of March 25, 1997, it has not been replaced, and the Planning Department continued to use it as a guide for review of abandonment applications. On February 23, 2005, the City Commission reviewed proposals from the Planning Department for modifications to the City’s abandonment policies, procedures, and fee requirements. The proposed modifications included revised procedures, added definitions, and added the following specific review criteria: The approval of the application shall not create any safety or public health hazard, including any environmental health hazard; The approval of the application shall not result in the preclusion of right-of-way or fee simple access to any existing parcel/lot of record; The approval of the application shall not result in the preclusion of access to any publicly-maintained facility or infrastructure; The approval of the application shall not create any condition inconsistent with the Tallahassee-Leon County Comprehensive Plan, including the Long Range Transportation Plan included therein; The approval of the application would not eliminate or preclude a street or bicycle/pedestrian interconnection that the City Commission intends to retain; The approval should not adversely affect service access required for any official public safety, utility service, waste collection service provider; the United States Postal Service; Leon County Schools (school buses); or TalTran. On February 23, 2005, the City Commission approved the modifications and approved the Planning Department's recommendation to repeal Policy 410 since the modification would be more definitive. The City Commission approved the Planning Department’s recommendations, and directed staff to draft an ordinance incorporating the proposed modifications to the abandonment policies, procedures, and fee requirements and to bring the ordinance back before the Commission for adoption. As of this date, due to staffing constraints, the Planning Department has not taken an ordinance back to the City Commission for review and action. Conditions of Abandonment The City's Planning Department has placed several conditions on the proposed abandonment to address issues raised by the reviewing departments during the processing of abandonment applications. Placing conditions on abandonment of right-of-way is authorized and common. A standard condition for abandonment is that easements be retained by the City for any utilities. It also is standard to require the maintenance of adequate emergency access for the fire and police departments. Also standard, a vehicular turn- around will have to be constructed at the new eastern terminus of Mission Road. To connect with other bicycle-pedestrian trails in the area and enhance these modes of transportation and the City's Bicycle-Pedestrian Master Plan, the Planning Department recommends that a bicycle/pedestrian easement around the perimeter of the Mission be dedicated to the public as a condition of the abandonment. Finally, the Planning Department recommends that the proposed abandonment be conditioned on payment by the State for signalization at the Mission Road and White Drive intersection if, within 12 months of the abandonment, traffic increases to a point where signalization there is warranted. In testimony, the Executive Director of the Mission, Dr. Bonnie McEwan, supported the idea of a bicycle/pedestrian easement for the City, and DEP did not oppose either the standard or recommended conditions of abandonment. Effects of New Mission Visitor Center on Pedestrian Safety The building that currently functions as a Visitor Center for the Mission is an adaptive use of a 1938 house. Limited restrooms are in a separate building next to the house. Currently, due to the lack of accommodations, frequent requests to hold major events, weddings, receptions, and special functions must be denied. Currently, Mission staff must cross Mission Road between their offices and the public northern section. Staff crossings are a cause for concern because of the limited sight- line distance around the curve in Mission Road to the west. They are warned regularly to use caution, but no other measures to protect staff have been implemented or requested to date. Currently, visitors to the Mission drive to the public parking area on the northern portion of the site. Visitors then remain on the north side of Mission Road until they return to their vehicles to leave. In 2006, the Florida legislature appropriated funds to build a new Visitor Center at the Mission. This Center will be in excess of 20,000 square feet and will include public classrooms, a place to show orientation films, exhibits, 20 public toilets, and a meeting room accommodating 250 people. The new Visitor Center will be a vast improvement over the current facility. The evidence was that the best location for the new Visitor Center is on the western portion of the Mission property south of Mission Road. The site was selected because it is relatively flat and because the relatively few archaeological remains there have been mitigated. The plans are to have people enter the Mission using the driveway entrance on Tennessee Street, park around the new Visitor Center, proceed through the Visitor Center for their orientation, and then walk to the main area of the park, where the re-created Fort, Mission, Apalachee Village, and rich archeological sites are located. If Mission Road is not abandoned, the visitors would be crossing just east and quite close to a sharp curve in the relatively narrow, canopy-like road, which has deep-cut banks. Petitioners suggest that the new Visitor Center could be put on the northern part of the site. Indeed, before the State acquired the land on the south side of Mission Road where it now intends to build the new Visitor Center, the State was planning to build it on the north side of the road. However, the evidence was that the recently acquired site on the south side of the road is better suited and would be a much greater benefit to the general public. In any event, the evidence was that the State is going forward with its plans for the new Visitor Center and already has proceeded with obtaining environmental and building permits for construction on the preferred site. A conservative count of on-site visitation at the Mission last year was 30,239. There are activities year-round, including costume interpretation, a living history program, special events, and camps, including every teacher planning day and break. Most of the Mission programming is geared towards children, and approximately ninety percent of the visitors are children. The State hopes and expects that visitors to the Mission will increase dramatically with construction of the new Visitor Center. The State continues to expect that a high percentage of these visitors will be children. The application for abandonment is based on the reasonable prospect of increased future use of the facility. The application for abandonment seeks to protect the expected increased number of visitors, including many groups of children, and staff from the danger of having to cross back and forth across Mission Road. Pedestrian safety in connection with the use of the planned Mission facilities is a clear benefit to the general public. The abandonment application also would enable the State to optimize the functioning of the Mission, which also benefits the general public. Negative Effects of Abandonment At the same time, granting the application for abandonment would cost the general public in other ways, which the Petitioners point out. The segment of Mission Road proposed to be abandoned has a "canopy-road-like feel" (although it is not officially designated as a canopy road). The public no longer would be able to experience driving on it. A traffic study done by Wilson Miller on behalf of the State confirmed that traffic on the segment of Mission Road in question is relatively light. Traffic count data from 2008 showed that the annual average daily traffic ("AADT") was 1,500 vehicles a day, including both directions. Approximately 57 percent of the 1,500 cars move in an easterly direction. By comparison, the AADT for other area roads in the vicinity is significantly higher: 9,000 vehicles for White Drive; 34,000 for Ocala Road; and 42,500 for Tennessee Street. Mission Road is classified as a minor collector road. The capacity of a minor collector is between 13,000 and 14,000 AADT. The AADT established by the Wilson Miller study is only about 10% of the road's capacity, which is very light for a minor collector road. If the application for abandonment is granted, traffic will shift to other roads. However, the Wilson Miller study was not an origin and destination study and was not sufficient to determine with any precision how the traffic would shift. For that reason, Petitioners' attempt to use the traffic study to identify and quantify the costs associated with such travel shifts was not convincing. Some increase in traffic on other area roads will occur, but it is speculative based on this record where the increases might occur, how large they will be, and whether they will result in the need for taxpayer-funded road and traffic construction. Petitioners contend that the proposed abandonment will shift some eastbound traffic on Mission Road to White Drive. If it does, White Drive is a major collector with recent improvements and excess capacity. Any additional traffic on White Drive would not be significant from a traffic planning standpoint. It might make the road network more efficient overall (even though certain trips may become less efficient). It is possible that the re-routing of traffic from the Mission Road and Ocala Road intersection may be significant enough to warrant a traffic signal at White Drive and Mission Road. For this reason, the City staff recommends, as a condition for abandonment, that the State pay for signalization at that intersection if the need arises within a 12-month period after the abandonment. Based on the evidence, it should not be anticipated that other road and traffic improvements will be necessary as a result of the abandonment, except perhaps reversal of the stop condition at Mission Road and San Luis Road and possibly a turn lane on Solana Drive at its Mission Road junction. Petitioners also contend that the value of the 1.34 acres of road right-of-way to be abandoned is a cost to the general public that should be considered. The appraised value of the 1.34 acres was $240,000, using an "across the fence" appraisal methodology and assuming high-density residential property "across the fence" even though the property on either side of the proposed abandonment would be park land, and the transfer of use from road to park would be from one public purpose to another public purpose. In any event, the City cannot legally "charge" for abandoning right-of-way, and the value of abandoned right-of-way is never a consideration in the City's review of an abandonment application. See Conclusion 77, infra. Petitioners also contend that the proposed abandonment will have the negative effect of hampering emergency response in the area. Any road closure could result in a longer emergency response time by a matter of minutes in a particular circumstance and, depending on the emergency, it is possible that a delay of mere minutes could be significant and even mean the difference between life and death. But the evidence was clear that, from any reasonable planning perspective, the proposed abandonment would not present significant difficulties to fire, hazardous material, or police responders, assuming that maintaining adequate emergency access into the Mission itself is made a condition of the abandonment. Geographic areas are assigned to Fire Department stations for primary response. The response routes of drivers are not assigned, but are instead discretionary on the part of the driver based on the time of day, traffic patterns, nature of the road, and possible school zones. The primary station is called as the First Due, with the secondary being Second Due, and so forth. Station 4, located at the corner of Pensacola Street and Appleyard Drive, is the First Due Station, or engine company, for the area of the proposed abandonment, including The Timbers. The typical route for Station 4 would be to travel from its location at Appleyard Drive and proceed to Tennessee Street, turn right and proceed east to White Drive, then turn left and proceed north to Mission Road. This route would not be affected by the proposed abandonment. The Second Due Station for this area is the Main Fire Station located at 327 North Adams Street. The probable emergency response route for a fire truck coming from this Station would be to travel west on Tennessee Street, go through the Ocala Road intersection with Tennessee Street, turn right and proceed north on White Drive, and turn right and proceed east on Mission Road. The alterative route of proceeding north on Ocala Road at the Tennessee Street intersection and turning left onto Mission Road would be extremely difficult to navigate for a large fire truck, particularly in light of traffic, and typically would not be the preferred route. The typical route from the Second Due station is not affected by the proposed abandonment. The Third Due station for this area is Station 8, which is located on Hartsfield Road. This Station is situated to the west of the Timbers and the Mission. A typical route from this Station to the Timbers would be to drive east on Hartsfield Drive and take one of several southerly connections to Mission Road, and then drive east on Mission Road to access The Timbers or the Mission. Another consideration for Fire Department emergency access is the specialized functions of certain stations in two areas--Urban Search and Rescue, and the Hazardous Material Response. The Urban Search and Rescue team provides specialized services including searching through collapsed buildings and piles of debris. The primary station response for Urban Search and Rescue is Station 4, and its access is unaffected by the abandonment. The primary Hazardous Material Response team is Station 2, located on Sharer Road. There is a secondary specialized station for hazardous materials response, Station 3, which is located on South Monroe Street at Paul Russell Road. In addition, all of the stations have some ability to provide hazardous materials response. Currently, a possible route from Station 2 to the Timbers eventually would take Ocala Road to Mission Road. However, this route is only available for single engine fire trucks. Due to the nature of the equipment it uses, the hazardous materials team may instead proceed along Interstate 10 to Capital Circle and head back east to the area. During a response to an incident, this specialized team would be driving en route, meaning with traffic and not in emergency mode, and the First Due station would already have sent a truck to the site along a route unaffected by the proposed abandonment. As for the Police Department, the main type of call from The Timbers has been for public disturbances, which are frequently related to parties and generally not emergencies. In the three years of calls, only one call received could be considered an emergency response, which was for a young lady who had erratic breathing after passing out from drinking too much alcohol. In contrast to the Fire Department, police patrol cars have no fixed locations but rather are constantly on patrol. Dispatch for police prioritizes current needs and locations of vehicles. The Police Department has a number of methods it can use to access an area in case of an emergency. In addition to the standard method of reaching an area by car, potential options to reach an area include by foot, bike, and helicopter. Even deployment of an armored car/tank type vehicle would be possible if the situation warranted it. If the abandonment occurs, there will be three main routes to access the area, including San Luis Road, White Drive, and Mission Road from the west. With the two entrances to The Timbers, these routes provide at least five different ways to access The Timbers. Some locations in the City, such as cul-de- sacs, have only one access route. The various approaches to the area in question provide more than sufficient access. The proposed abandonment would result in the elimination of a less-than-ideal intersection at Mission Road and Ocala Road. Resulting from the extension of Tennessee Street to the west of Ocala Road, the intersection at Mission Road and Ocala Road does not meet current design standards because it is too close to Tennessee Street. It is not unusual for cars turning right from Mission Road onto Ocala Road to cross two or three lanes within a very short distance in order to turn left onto Tennessee Street. This maneuver is dangerous and illegal. Of six accidents at the intersection over four years, five involved oncoming traffic striking a vehicle turning onto Ocala Road from Mission Road. In a three-month period in 2006 alone, there were three such collisions. One reason there are not more similar accidents appears to be that the danger is so obvious that most drivers--both those attempting the maneuver and those driving south on Ocala Road--use caution. In addition, many of the local residents have become quite skilled at negotiating the intersection. Another illegal maneuver at this less-than-ideal intersection is sometimes used by cars heading north on Ocala Road and crossing Tennessee Street. Since it is not possible to make a legal turn left onto Mission Road, some turn left into a business parking lot on the northwest corner of Tennessee Street and Ocala Road, drive through the business parking lot, and then turn left onto Mission Road. Petitioners contend that the proposed abandonment will shift traffic from the Mission Road/Ocala Road intersection to the White Drive/Tennessee Street intersection, which also is inconsistent with design standards due the centerline offset, making the left turn onto Tennessee Street from White Drive potentially dangerous. However, whether and how much traffic would be shifted to that intersection was not proven. In addition, most of the traffic experts who testified were more concerned about the dangers inherent in the Mission Road/Ocala Road intersection and thought elimination of the Mission Road/Ocala Road intersection would make the Ocala Road/Tennessee Street intersection more efficient. Comprehensive Plan The evidence was that, with the conditions recommended by the City's Planning Department, the proposed abandonment does not create any condition that is inconsistent with the Tallahassee-Leon County Comprehensive Plan, including the Long- Range Transportation Plan. Goal 2 of the Historic Preservation Element of the Comprehensive Plan is to “[e]nsure that all municipal and county actions encourage and promote the preservation of this community’s historic resources.” Closing the proposed portion of Mission Road will serve Goal 2 by supporting and satisfying Policy 2.1.3 (mitigate the impact of development on historic resources), Policy 2.1.5 (property listed in the Florida Master Site File), and Objective 2.4 (develop a land conservation program to protect historic resources). The proposed abandonment also is consistent with other parts of Goal 2, namely: Objective 2.5 (establish a program to protect significant archaeological resources); Policy 2.5.1 (mitigation of adverse impacts to significant sites); Policy 2.5.2 (archaeological sites to be filed with Florida Master Site File and Archaeological Sensitivity Zone Maps of Leon County); Objective 3.2 (provide for the interpretation of local government-owned historic resources in parks and other public lands); Policy 3.2.1 (support and encourage local projects involving walking, bicycling and driving tours through historic areas); and Policy 3.2.2 (include the existence of historic resources as a criterion in the acquisition of public parks). The recommended bicycle/pedestrian path easement condition is consistent with Goal 6 of the Conservation Element of the Comprehensive Plan, which encourages the City/County to "implement a county-wide greenways network . . . to provide for . . . educational and historical interpretive opportunities and increased opportunities for alternative modes of transportation." Goal 6 of the Conservation Element of the Plan and supporting Policies 6.1.1 through 6.1.4 were the origin of the Tallahassee-Leon County Greenways Master Plan. The intent was to link historic and natural resources throughout the community, linking them to residential, work, and business areas. The bicycle/pedestrian easement link San Luis City Park trails with an existing trail at the intersection of Tennessee and Ocala. The proposed abandonment is consistent with the Parks and Recreation Element of the Comprehensive Plan in that state facilities may be included to meet state-required levels of service. Parks are essential to a sustainable community. The Land Use Element of the Comprehensive Plan has the general goal of protecting natural and aesthetic environments and residential areas. One way to protect residential areas is not to route collector roadways through them. Everything adjoining the western boundary of the Mission is classified as Residential Preservation. Closing Mission Road will force traffic away from this area and protect 18 homes on San Luis Road from cut-through traffic. The Planning Department would downgrade area street classifications to "local streets" to reflect their true use and provide better neighborhood protection. Studies performed by the Planning Department resulted in a multi-modal transportation district and a greenways master plan. The City operates under the Tallahassee/Leon County Multimodal Transportation District Plan. That Plan focuses on bike paths, mass transit, and sidewalks to facilitate greater mobility with fewer roads. Service levels for bicycle paths in the San Luis area are close to critical. The bicycle/pedestrian easement will provide greater connectivity, thereby improving service levels. Many students reside in the vicinity of the proposed road closure and provision of a bike path connecting the areas north of Mission Road with the Ocala Trail south of Tennessee Street would attract more bicycle traffic in the hopes of changing the mode of transportation for college students. The City has a Tallahassee-Leon County Greenways Master Plan (Greenways Plan). The abandonment application provides an opportunity under the Greenways Plan. The bicycle/pedestrian easement will connect an existing trail at the intersection of Tennessee Street and Ocala Road to San Luis City Park. This is consistent with the Greenways Plan. The City has adopted the Bicycle and Pedestrian Master Plan (Bike/ped Plan). The purpose of the Bike/ped Plan is to facilitate greater awareness of bike and pedestrian facilities and to promote construction of new facilities. The bicycle/pedestrian easement would provide greater accessibility to existing amenities and infrastructure and meet the intent of the Bike/ped Plan. Petitioners argued that there already exists a better connection between the existing trail at the intersection of Tennessee Street and Ocala Road to San Luis City Park via Ocala Road and Continental Avenue. However, the evidence did not prove that the existing route would be safer or better than the connection that would become available as a result of the bicycle/pedestrian easement condition on the proposed abandonment. Even if it would be, an additional route and connection still would serve a public benefit. Petitioners also pointed out that State could dedicate an easement through its property for purposes of a bicycle/pedestrian connection without applying for abandonment of right-of-way and that the City never asked for such a dedication before the State applied for application of the right-of-way. But it is typical to consider such matters in the context of an application for abandonment. Alternatives to Abandonment Petitioners concede that pedestrian safety at the Mission San Luis "would be rendered perfect if the road were abandoned, closed, and eliminated." However, they contend that other steps could be taken to protect the pedestrians as well or better without abandoning the road. First, Petitioners suggest the alternative of a pedestrian crossing with a pedestrian-controlled stop light and advance warning flashers. This suggestion was supported by the testimony of Petitioners' traffic expert, Wayne Coloney. But he assumed there would be 360 feet between the pedestrian crossing and the curve in Mission Road. Actually, the pedestrian crossing would be only approximately 210 feet from the curve, which is less than the 330 feet that Mr. Coloney considered to be safe. The other traffic experts also believed that it would be unsafe to design a pedestrian-crossing that close to the curve, even with advance warning flashers--a design that works best on straight roads with long sight-line distances, such as Meridian Road. Next, Petitioners suggest the construction of an overpass. This would be a more expensive proposition. It would require the construction of ramps, stairs, and elevators to comply with the Americans with Disabilities Act. In addition, to be effective in protecting pedestrians, fencing would have to be installed for a considerable distance on both sides of the road to discourage pedestrians from crossing the road instead of using the overpass. According to Mr. Coloney, all of this would cost between $300,000 and $390,000 to install and between $20,000 and $30,000 to maintain. Both the overpass and the fencing would be at odds with the environment the State would be trying to re- create and maintain on the Mission property. Petitioners also suggest digging a tunnel under the road, which would be less obvious than an overpass. However, this also would require fencing to be effective and would be the most expensive of the suggested alternatives--costing between $450,000 and $690,000 to install. In addition, it would require digging a tunnel through artifact-rich earth, which would be contrary to the a primary purpose of Mission San Luis. Application of Findings to Standards Paragraph 2 of Policy 410 requires a demonstration that an abandonment of right-of-way is "in the best interests of the general public." It is clear that the proposed abandonment is not in any private interest since the abandonment is to the State for incorporation in its Mission San Luis, a public facility. The abandonment is not for the sole purpose of placing property on the tax rolls, or for the benefit an abutting private property owner. It is to benefit the public. It also is primarily to protect the safety of pedestrians working at and visiting the facility, including many school children. For these reasons, the abandonment clearly is in the public interest, as opposed to any private interest. Whether it is in the best interest of the general public is a more difficult judgment to make. But, on balance, the abandonment application, with the standard and recommended conditions, probably is in the best interest of the general public. The proposed abandonment also meets the new policy criteria for abandonment of right-of-way. It does not create any safety or public heath hazard, including environmental health hazard. It does not preclude access to any existing parcel or lot of record. It does not preclude access to any publicly- maintained facility or infrastructure. It does not create any condition inconsistent with the Comprehensive Plan, including the Long-Range Transportation Plan. It does not eliminate or preclude a street or bicycle/pedestrian interconnection that the City Commission intends to retain. It does not adversely affect any required service access for any official service provider.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Planning Commission recommend to the City Commission that DEP's application for abandonment of right- of-way be granted, with the standard and recommended conditions. DONE AND ENTERED this 2nd day of June, 2008, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 2nd day of June, 2008. COPIES FURNISHED: Deepika Andavarapu Tallahassee-Leon County Planning Department 300 South Adams Street, Fourth Floor Tallahassee, Florida 32301-1721 William H. Davis, Esquire Dobson, Davis & Smith 610 North Duval Street Tallahassee, Florida 32301 Jonathan P. Sanford, Esquire Office of the City Attorney 300 South Adams, Box A-5 Tallahassee, Florida 32301 Lisa M. Raleigh, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399
Findings Of Fact Respondents are each property owners in a subdivision known as the revised plat of Sunset Cove which was recorded in plat book 2, page 20, of the Public Records of Monroe County, Florida. All of the properties owned by Respondents have front property lines adjacent to a 20-foot wide road which runs parallel to State Road 5, the old Florida East Coast Railroad right-of-way, more commonly known as C. S. 1. This 20-foot wide road was dedicated by the platters of the subdivision using the following language: And that we hereby dedicate to the public for proper uses the roads shown thereon, reserving to ourselves, our heirs, successors or assigns the reversion or reversions thereof whenever discontinued by law. (Joint Exhibit 1) There was no evidence to indicate that the dedicated property was ever used as a road. The evidence did establish that it has not been used as a road for at least sixteen years. In the past, and up to the date of the hearing, adjacent property owners have crossed the dedicated property for ingress and egress purposes, have constructed improvements encroaching upon the dedicated property and Respondents have erected advertising signs on the property. In 1938, the State of Florida acquired, by deed, the right-of-way of the Florida East Coast Railroad In the Section, Township and Range in question. That right-of-way adjacent to the dedicated property is known as State Road 5 and U.S. 1. The railroad right-of-way did not include the 20-foot road which was dedicated as a part of the revised plat of Sunset Cove. The right-of-way map issued by the State of Florida, State Road Department (the predecessor of the Department of Transportation), reflects that the 20-foot dedicated road has been included as part of the right-of-way of State Road 5. The map is dated April, 1969. (See Joint Exhibit 2) At the hearing it was stipulated by counsel that the signs in question are within a strip of land lying within a distance of 50 feet and 70 feet from the center line of State Road 5, U.S. 1, and that the issue in this case is whether such 20-foot strip is part of the right-of-way of State Road 5 and whether the signs are thereby subject to removal.
Conclusions This cause is before the Department of Community Affairs on an Order Closing File, a copy of which is appended hereto as Exhibit A. On November 19, 2008, Respondent Monroe County (County) adopted an amendment to its comprehensive plan by Ordinance No. 029-2008 (Amendment). The Department reviewed the Amendment, determined that it did not meet the criteria for compliance set forth in Section 163.3184(1) (b), Florida Statutes, and caused to be published a Notice of Intent to find the Amendment not ‘in compliance.” The Department then instituted this administrative proceeding against the County pursuant to Section 163.3184(10), Florida Statutes. On May 19, 2010, the County repealed the Amendment by Ordinance No. 016-2010. By virtue of this rescission, the FINAL ORDER No. DCA10-GM-121 instant controversy has been rendered moot, and this proceeding must be dismissed. See Department of Highway Safety & Motor Vehicles v. Heredia, 520 So. 2d 61 (Fla. 3d DCA 1988) (dismissing case on appeal as moot where suspension of driver’s license was rescinded by the Department).
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1)®) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. 3 of 5 FINAL ORDER No. DCA10-GM-121 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to each of the persons listed below on this day of , 2010. Paula Ford Agency Clerk By U.S. Mail The Honorable Donald R. Alexander Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Robert B. Shillinger, Jr., Esquire Monroe County Attorney’s Office Post Office Box 1026 Key West, Florida 33041-1026 Derek V. Howard, Esquire Monroe County Attorney’s Office Post Office Box 1026 Key West, Florida 33041-1026 Christine Hurley, AICP Growth Management Director Monroe County 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 4 of 5 By Hand Delivery Richard E. Shine Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, FL 32399-2100 FINAL ORDER No. DCA10-GM-121
The Issue Whether the Ochlocknee Management Corporation has demonstrated that development rights in certain real property it owns have vested against the provisions of the 2010 Comprehensive Plan?
Findings Of Fact The Initial Purchase. In January, 1986, Ochlocknee Management Corporation (hereinafter referred to as "Ochlocknee"), began negotiations for the purchase and development of land located on Buck Lake Road (hereinafter referred to as the "Buck Lake Property"). On January 25, 1986, a document indicating an intent to sell 100 acres of the Buck Lake Property to Ochlocknee was executed. On October 31, 1986, a Contract for Sale was entered into between Ochlocknee and the owners of the Buck Lake Property. Pursuant to the Contract for Sale, Ochlocknee agreed to purchase 100 acres of the Buck Lake Property (hereinafter referred to as the "100 Acres"). The 100 Acres were to be developed in three phases by Ochlocknee. The development was named Avondale. In February of 1987, the 100 Acres were rezoned and platted. The Development of Units I, II and III. Development of Avondale Unit I began in March, 1987. In August, 1987, the Unit I plat was recorded. All roads, utilities and storm water for Unit I were complete. In April, 1988, development of Avondale Unit II began. The development of Unit II began approximately 8 months after the Unit I plat was recorded. In October, 1988, the Unit II plat was recorded. All roads, utilities and storm water for Unit II were complete. In May, 1989, development of Avondale Unit III began. The development of Unit III began approximately 7 months after the Unit II plat was recorded. In November, 1989, the Unit III plat was recorded. All roads, utilities and storm water for Unit III were complete. During the construction of Unit III Ochlocknee intended to purchase an additional parcel of the Buck Lake Property. This property was to be developed as additional phases or units of the Avondale development, including Avondale Unit IV, the development which is the subject of this proceeding. When constructed, the main road running through Units I, II and III was intended to continue through, and serve, Avondale Unit IV. The road is the only road providing access between Unit IV and Buck Lake Road. Utilities for Unit III were designed and stubbed to serve Unit IV. The weight of the evidence failed to prove that any action which Leon County took in approving the development of Units I, II, or III could have been reasonably relied upon by Ochlocknee in its development of Unit IV. Most of Leon County's actions in approving the development of Avondale were taken before the Unit IV property was even purchased. Additionally, the evidence failed to prove that Leon County specifically reviewed any plans concerning Ochlocknee's plans to develop Unit IV until after the preliminary plat for Unit IV was filed for approval. The Second Purchase. In November, 1988, Ochlocknee began negotiations for the purchase of the additional parcel of the Buck Lake Property to be developed as Unit IV. The property consisted of 40.5 acres and was to be developed as Unit IV, the development at issue in this proceeding, and Unit V. In March, 1989, the owners of the 40.5 acres applied for rezoning of the 40.5 acre parcel from A-2 (agricultural use) to R-1 (residential use). In March, 1989, Ochlocknee entered into a Contract for Sale and Option, pursuant to which Ochlocknee was to purchase the 40.5 acres. Unit IV was to consist of 10 acres of the parcel. The 10 acres abut Unit III. The remaining 30.5 acres of the parcel were to be developed as Unit V. In May, 1989, the 40.5 acre parcel was rezoned as R-1, limited use. The zoning limited septic tanks on the property to 2.2 units per acre. On June 27, 1989, Ochlocknee purchased the 10 acres to be developed as Unit IV. The Regional Stormwater Facility. In April, 1988, Poole & Associates, Inc. (hereinafter referred to as "Poole"), prepared plans and designs for a regional stormwater facility for 126 acres of the Buck Lake Property. Poole provided the engineers for Avondale. The plan developed by Poole was intended to handle stormwater for all of Units II and III, all of what was to be Unit IV, part of what was to be Unit V and part of the Buck Lake Property which was not to be developed by Ochlocknee. This regional stormwater facility will hereinafter be referred to as the "Stormwater Facility". The plans and designs for the Stormwater Facility were completed before Unit IV was purchased by Ochlocknee and before Unit IV was rezoned from A-2 to R-1. In July, 1989, Ochlocknee began construction of the Stormwater Facility. Ponds used in the Stormwater Facility are located on Unit III. In November, 1989, when the Unit III plat was recorded, the Stormwater Facility was substantially completed. The Stormwater Facility was generally approved upon the recording of the Unit III plat. Recording of the Unit III plat and the approval of the Stormwater Facility only applied to the use of the Stormwater Facility for Unit III. The use of the Stormwater Facility for Unit IV was not approved or even reviewed by Leon County in November, 1989. Ochlocknee was required to maintain the Stormwater Facility for an additional year after it was approved for Unit III. After approval of the Stormwater Facility for Unit III, problems arose with the Stormwater Facility. These problems began as early as August, 1989 based upon an August 31, 1989, letter from Broward Davis & Assoc., Inc., to Ochlocknee. In a letter dated November 22, 1989, from the Respondent's engineering inspectors, Poole was provided with a "punch list" of problems associated with Units I, II and III, including problems associated with the Stormwater Facility. The punch list was developed during a meeting held on November 21, 1989. Ochlocknee informed Leon County that the problems raised in the letter referred to in finding of fact 29 would be resolved in 30 days. The problems continued, however, into 1990. Efforts continued during the remainder of 1989 and early 1990 to resolve the problems. On January 17, 1990, a new Environmental Management Act became effective in Leon County. Ochlocknee was required to insure that its proposed use of the Stormwater Facility for Unit IV complied with the Act. In a letter dated February 22, 1990, Leon County notified Poole that preliminary plans for the development of Unit IV which had been submitted to Leon County had been reviewed. Poole was informed that additional information concerning the preliminary site plans was needed before Unit IV could be approved for development. Among other things, Leon County informed Poole that additional information concerning the use of the Stormwater Facility for Unit IV would have to be submitted. Unit IV Development. In October, 1988, Poole prepared a preliminary site plan for the development of Unit IV. These plans were prepared before the property which constitutes Unit IV was purchased or rezoned from A-2 to R-1. On June 27, 1989, Ochlocknee purchased the 10 acres of Unit IV for $104,956.50. In November, 1989, Ochlocknee entered into an agreement with Poole to design roadways, utilities and obtain construction approvals for Unit IV. On December 1, 1989, preliminary plat approval for Unit IV was applied for. The preliminary plat was approved by the Tallahassee-Leon County Planning Department on January 10, 1990. On January 17, 1990, the City of Tallahassee approved the water distribution plans for Unit IV. On January 12, 1990, the City of Tallahassee agreed to provide water and electrical service for Unit IV. On February 2, 1990, a commitment for a construction loan for Unit IV was received by Ochlocknee. The Leon County comprehensive plan was submitted to the Department of Community Affairs on February 1, 1990. Ochlocknee should have been aware of the drafting of the comprehensive plan and the fact that it had been provided to the Department of Community Affairs for approval. 41 In March, 1990, Poole completed final construction drawings for the Unit IV roadways. In April, 1990, Ochlocknee received contracts for the construction of roadways and utilities for Unit IV. In May, 1990, Poole held an onsite pre-construction conference with Leon County officials, utility providers and construction personnel. Poole placed stakes for clearing limits on Unit IV during May, 1990. On June 29, 1990, Leon County approved roadway construction plans for Unit IV. At the time that the preliminary plat for Unit IV was filed by Ochlocknee for approval, Ochlocknee knew that the Stormwater Facility needed to be modified before development of Unit IV would be approved. Despite this knowledge, Ochlocknee chose to continue to propose that the Stormwater Facility be used for Unit IV. These problems continued throughout the time after the preliminary plat for Unit IV was filed. In May, 1990, Leon County informed Ochlocknee that a permit for clearing and grading, the last permit needed to begin construction, would not be issued until the Stormwater Facility proposed for Unit IV was modified and the problems previously identified by Leon County with the Stormwater Facility in 1989, were corrected. Construction on Unit IV has not commenced. Costs Associated with Unit IV. The cost of rezoning the 10 acres of Unit IV was $2,911.25 plus a $300.00 fee. The $300.00 fee was incurred in March, 1989, before the Unit IV property was purchased or the rezoning had taken place. Therefore, the fee was not incurred in reliance upon any representation from Leon County. The $2,911.25 cost was incurred between October, 1988 and May, 1989. This amount was incurred before the purchase of the Unit IV property or the approval of the rezoning. Therefore, this cost was not incurred in reliance upon any representation from Leon County. The cost of purchasing the 10 acres which are to be developed as Unit IV was $104,956.50. This cost was incurred in June of 1989. The only action taken by Leon County concerning any possible development of Unit IV prior to the time this cost was incurred was to approve rezoning Unit IV from A-2 to R-1. The cost of purchasing the 10 acres of Unit IV was not, therefore, incurred in reliance upon any action of Leon County other than approval of the rezoning of Unit IV. The cost of constructing the Stormwater Facility attributable to Unit IV was approximately $8,000.00. This cost was incurred between July, 1989, and November, 1989. Therefore, the cost was incurred after the Unit IV property was rezoned but before the preliminary plat and the development plans for Unit IV were approved by Leon County. Therefore, the cost of the Stormwater Facility attributable to the Unit IV property was not incurred in reliance upon any action of Leon County other than approval of the rezoning of Unit IV. Ochlocknee failed to present sufficient evidence to conclude what expenses were incurred by it in stubbing the road and utilities that run through Units I, II, and III are attributable to Unit IV. The weight of the evidence also failed to prove when any such expenses were incurred. These expenses were incurred sometime after the development of Unit I began (before the Unit IV property was acquired or rezoned) and sometime before Unit III was completed (before the preliminary plat for Unit IV was approved). Therefore, any expenses attributable to Unit IV for the road and utilities were incurred before Leon County took any action with regard to the development of Unit IV or were incurred only in reliance upon the rezoning of the Unit IV property. Engineering, surveying and permitting costs associated with Unit IV totalled $13,384.49. These costs were incurred between January, 1990 and May, 1990. Prior to the expenditure of these funds Leon County had approved the rezoning of Unit IV, the preliminary plat and some of the other plans for the development of Unit IV. All of these costs were incurred after Ochlocknee had been informed that there was a problem with the Stormwater Facility. All of the engineering costs were incurred before Leon County had indicated that it would approve the development of Unit IV. On April 25, 1990, Ochlocknee refinanced the note for the 10 acres of Unit IV. The new note was for $219,750.00. This amount was borrowed to refinance the cost of purchasing the 10 acres and to pay construction costs for the development of Unit IV. The funds intended for construction costs for Unit IV have not, however, been expended. The weight of the evidence failed to prove what costs Ochlocknee incurred in obtaining the $219,750.00 note. All of the costs incurred by Ochlocknee relating to the development of Unit IV were incurred in an effort to obtain approval from Leon County for the development of Unit IV. The costs were incurred before any representation from Leon County that development of Unit IV would be allowed to proceed. Some of the costs were incurred before the Unit IV property was rezoned from an agricultural use to R-1. Leon County had taken no action before approval of the rezoning. Some of the costs were incurred only in reliance upon the rezoning of the Unit IV property. Finally, all of the costs were incurred in an effort to obtain approval to develop Unit IV and before Leon County indicated through any action that development of the property would be allowed to proceed. These costs were incurred at a time when Ochlocknee should have known that the development of Unit IV would probably have to be consistent with the 2010 Comprehensive Plan. Procedure. On or about August 1, 1990, Ochlocknee filed an Application for Vested Rights Determination (hereinafter referred to as the "Application"), with Leon County. The following information concerning the development of Unit IV was contained on the Application: "Ochlocknee Management" is listed as the "Owner/Agent." Question 3 of the Application requests the name of the project, including the name and address of each owner of, and interested party in, the project or property. "AVONDALE UNIT IV" was included as the response to question 3. The project is described as "22 Residential Lots on 10 acres, Proposed with Public Road, Water, and Recorded Plat." The project location is described as "AVONDALE WAY, SOUTH OF AVONDALE III." Total project costs are estimated at "$226,205.95" and it is estimated that "$126,952,24 " have been expended to date. "Progress . . . Towards Completion" is described as: (1) all utility site, drainage plans completed as of May 4, 1990; (2) preliminary plat approval 1/10/90, water plans approved 2/1/90 and environmental permit 6/27/90; and (3) the drainage facility located in Unit III is complete. "Preliminary Plat, Water Plan Approval, Environm. Permits" are included as forms of "government approval." The response to question 10 of the Application, which requests information concerning government action relied upon prior to committing funds towards completing the project, was "[s]ubdivision Ordinance for Preliminary Plat, The Letter of Agreement, Policy & Procedures Manual for Utilities and the Environmental Management Act for the Stormwater Permits." In a letter dated August 7, 1990, Ochlocknee was informed that its Application was being referred to a Staff Committee comprised of Jim English, Mark Gumula, Howard Pardue, Buddie Holshouser and Herb Thiele. By letter dated August 24, 1990, Ochlocknee provided additional information for the Staff Committee to consider. On August 27, 1990, a hearing was held to consider the Application before the Staff Committee. Barry Poole, of Poole, and Jody Elliott, of Ochlocknee, testified. By letter dated August 27, 1990, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department informed Ochlocknee that the Application had been denied. By letter dated September 5, 1990, to Mr. Gumula, counsel for Ochlocknee appealed the decision to deny the Application. By letter dated October 5, 1990, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter. By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on October 25, 1990. During the hearing before the undersigned Ochlocknee stipulated that it had sought approval of its Application based upon "common law vesting" and not "statutory vesting" as those terms are defined in Leon County Ordinance 90- 31.
Findings Of Fact Two signs are located 0.8 mile west of State Road, 79 on Interstate 10, and 0.8 mile east of State Road 79 on Interstate 10. Both signs do not have permits attached to them. Both signs bear messages which are visible from the traveled way of Interstate 10. Neither sign is located within an incorporated municipality or town. Both signs advertise in part Simbo's Restaurant. Mr. Jim Williams, Outdoor Advertising Inspector for the Department of Transportation, testified that he had spoken with Mr. Simms on June 28, 1978. Williams stated that he asked Simms if Simms would remove the signs; however, Williams did not identify the signs to which he was referring. According to Williams, when Simms was asked if he would take the signs down, Simms stated he would leave them up and go to court. There was no substantial and competent evidence introduced that Simms was referring to the signs in question in this case. Both signs were measured by Charles Averitt, a surveyor with the Department of Transportation, and the sign 0.8 mile west of State Road 79 on Interstate 10 was determined to be 16 feet from the edge of the right-of-way of Interstate 10. The sign 0.8 mile east of State Road 79 on Interstate 10 was determined to be 16.5 feet from the edge of the right-of-way of Interstate 10. Gene Simms testified that he was the owner and operator of Simbo's Truck Stop and Restaurant. Simms testified the signs in question were the property of Simms' Enterprises, Inc., and had been at all times pertaining to this complaint. Simms stated that he owned 50 percent of the stock in Simms Enterprises, Inc., and the remainder was owned by his brother, Jimmy Simms. The notice of violation in this cause names Gene Simms as the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation take no action regarding the subject DONE and ORDERED this 22nd day of March, 1979, in Tallahassee, Leon County, Florida STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1979. COPIES FURNISHED: Phillip S. Bennet, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Richard C. Hurst, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. Gene Simms Simbo's Auto-Truck Stop and Restaurant Route 1, Box 186 Bonifay, Florida 32425
Findings Of Fact General. The Respondent, Cliff Hayden, Jr., served as the Executive Director of the Hillsborough Area Regional Transit Authority (hereinafter referred to as the "Authority"), from January, 1985, until January 19, 1990. Stipulated Fact I. 3. The Respondent was the Executive Director of the Authority at all times pertinent to the Complaint at issue in this proceeding. Stipulated Fact II. 4. The Authority was established pursuant to Part V of Chapter 163, Florida Statutes, which provide for the establishment of regional transportation authorities. Stipulated Fact I. 2. The Respondent was employed by the Authority for 13 years prior to his employment as the Executive Director. John King served as a member of the Board of Directors of the Authority (hereinafter referred to as the "Board"), the governing body of the Authority, from 1982 through 1987. From 1987 through 1989, Mr. King served as Chairman of the Board. Stipulated Fact I. 16. Expenditures at the Tampa Club. During the 1980's the Authority began efforts to build a bus terminal on Marion Street in Tampa, Florida. Initially, the Authority was not sensitive to the concerns about the proposed terminal of business owners on Marion Street. This insensitivity caused the Authority to have difficulties with business owners in the area which the Board believed needed to be rectified in order to effectively carry out the responsibilities of the Authority. During 1985 or 1986, as a result of the difficulties with Marion Street business owners, the Chairman of the Board, Charles Banks, suggested that a membership be established at a Tampa social club that served meals. Stipulated Fact I. 4. As a result of Mr. Banks' suggestion, the Respondent checked into the cost of joining several Tampa social clubs that served meals, including one known as the Tampa Club. See Stipulated Fact I. 4. Following discussion of the Board at a Board meeting, the Board unanimously approved the opening of an account for use by the Executive Director at the Tampa Club. Stipulation of Fact I. 4. and 5. The Board authorized and directed the Respondent to open an account at the Tampa Club. The Board also authorized and directed the expenditure of Authority funds to reimburse the Respondent for the initial membership fee of the Tampa Club, monthly charges for the membership in the Tampa Club and the cost of meals incurred by the Respondent at the Tampa Club for meals at which Authority business was discussed by the Respondent. The Respondent was authorized by the Board to use the Tampa Club for personal purposes if he reimbursed the Authority for any such expenditures. Stipulated Fact I. 7. The Respondent did not use the Tampa Club for any personal purposes. The Respondent was a member of the Tampa Club from February, 1986, until September 30, 1989, his entire term as Executive Director. Stipulated Fact I. 8. and 11. Membership in the Tampa Club was an employment benefit and part of the Respondent's economic compensation from the Authority. Stipulated Fact I. 12. This finding of fact was stipulated to by the parties, although evidence was presented by the Advocate suggesting a different conclusion. That evidence is rejected because of the agreement of the parties that Stipulated Fact I. 12. is an established fact. The Board also established and approved a public-relations account during 1985 or 1986. The public-relations account was to be used by the Executive Director and Authority Board members in furtherance of Authority business. Funds were to be paid out of this account for Authority business- related social activities, including expenditures incurred by the Respondent at the Tampa Club. Stipulated Fact I. 14. The public-relations account, like the membership in the Tampa Club, initially was established because of the difficulties with Marion Street business owners. The Respondent was directed by the Board to "hold hands" with the Marion Street business owners and to use the Tampa Club and the public-relations account for that purpose. Pursuant to the direction of the Board, the Respondent paid the Tampa Club $1,500.00 as a membership entrance fee. The Respondent was reimbursed by the Authority for this expenditure. Stipulated Fact I. 6. During the three years and seven months that the Respondent was a member of the Tampa Club the Authority paid a total of $5,854.08 for food and beverages charged by the Respondent at the Tampa Club. Stipulated Fact I. 8. and 9. The Authority also paid monthly membership charges of the Tampa Club during the time that the Respondent was a member. Monthly charges ranged from $40.00 to $65.00 per month. Stipulated Fact I. 10. Amounts expended out of the public-relations account, including amounts paid to the Tampa Club, were included in the Authority's Board-approved budget. During the fiscal year ending September, 1988, the amount of the public-relations account approved by the Board was $3,023.47. During the fiscal year ending September, 1989, the amount of the public-relations account approved by the Board was $4,215.89. Stipulated Fact I. 15. The Authority's budget was prepared by the staff of the Authority. The public-relations account was included as a separate item in the budget. The particular expenditures to be paid from the public-relations account, including amounts to be paid for the Tampa Club, were not specifically identified in the budget submitted to the Board for approval. Information concerning the specific expenditures to be covered by the public-relations account was, however, available to Board members. The weight of the evidence failed to prove that the manner in which the public-relations account was presented to the Board for approval and review was inconsistent with generally accepted accounting principles. The Board reviewed and approved the Authority's budget, including the public-relations account. Although the Board did not closely scrutinize the budget, the weight of the evidence failed to prove that any attempt was made by the Respondent or any other person on his behalf to conceal information about the public-relations account or his use of the Tampa Club from the Board or the public. The Board's failure to closely review the Authority's budget was a problem of the Board and not the Respondent. All expenditures made by the Authority out of the public-relations account, including amounts paid to the Tampa Club, were part of the records of the Authority and constituted public records available to the public and the members of the Board. Each month, approximately three to four days before each Board meeting, Board members were provided with a monthly summary of Authority expenditures. This summary included the total amount expended from the public- relations account, including amounts paid to the Tampa Club. The Board was not provided with a detailed break-down of each expenditure from the public- relations account. The weight of the evidence failed to prove, however, that the manner in which the account was reported was inconsistent with generally accepted accounting principles or that any attempt was made by the Respondent or any other person on his behalf to conceal information about the public-relations account or his use of the Tampa Club from the Board or the public. All expenditures from the public-relations account, including those for the Respondent's use of the Tampa Club, were reviewed by the Respondent. The expenditures were paid by the Authority's accounting staff after approval by the Respondent. Expenditures from the public-relations account for lunch and breakfast charges at the Tampa Club made by the Respondent were also authorized by the John King, Chairman of the Board. Stipulated Fact I. 17. In 1989, John King was alleged in Commission Complaint No. 89-58, to have misused his office by charging to a credit card issued to him by the Authority meals taken with business associates. This Complaint was dismissed by the Commission with a finding of no probable cause. Stipulated Fact I. 18. The Respondent's membership in the Tampa Club was used solely for business lunches and breakfasts by the Respondent. Stipulated Fact I. 13. The Respondent only charged food and beverages to the Tampa Club for payment by the Authority for food and beverages consumed while discussing Authority business with members of the Board and staff members, or guests of the Authority and staff members. Staff members only accompanied the Respondent to the Tampa Club if a Board member or guest of the Authority was present with the Respondent. The Respondent took Board members to the Tampa Club approximately 30% of the time and guests of the Authority approximately 70%. The weight of the evidence failed to prove that the Respondent charged any amount to the Authority for use of the Tampa Club that was not directed and authorized by the Board. Although the Respondent benefited from the food and beverages he consumed at the Tampa Club, the weight of the evidence failed to prove that the Respondent used of the Tampa Club with the intent of securing a special privilege, benefit or exemption for himself or others or that his action was taken with a wrongful intent. The Respondent was carrying out the instructions of the Board concerning how the Tampa Club was to be used. Expenditures for Golf. Randolf Kinsey is a member of the Authority's Board. Mr. Kinsey has been a member of the Board since approximately 1987. Mr. Kinsey has, as a member of the Board, been an advocate for the use of Black businesses by the Authority and the hiring of Blacks by the Authority. At times Mr. Kinsey has advocated for Blacks to the exclusion of other minorities. During all times relevant to this proceeding, Mr. Kinsey and the Respondent did not get along. A great deal of friction has developed between Mr. Kinsey and the Respondent. Following a Board or committee meeting in 1988, John King and legal counsel for the Authority met with the Respondent concerning the problems between Mr. Kinsey and the Respondent. During this meeting Mr. King, who was then the Chairman of the Board, told the Respondent to resolve the problem with Mr. Kinsey. It was suggested by Mr. King that the Respondent "get Mr. Kinsey in a more relaxed environment" and "mend the broken fences between them." The weight of the evidence failed to prove that Mr. King specifically suggested that the Respondent play golf with Mr. Kinsey. The Respondent contacted Mr. Kinsey and suggested lunch. When Mr. Kinsey declined lunch, the Respondent invited Mr. Kinsey to play golf. Mr. Kinsey accepted. On November 10, 1988, the Respondent and Mr. Kinsey played golf together at Northdale Golf Course in Tampa. Stipulated Fact II. 1. The greens fees charged to play golf for the Respondent and Mr. Kinsey totalled $69.01. Stipulated Fact II. 2. The Respondent charged the greens fees for himself and Mr. Kinsey on a credit card issued to him by the Authority. Stipulated Fact II. 4. The greens fees were ultimately paid by the Authority as a charge to the public-relations account. During the golf outing the Respondent and Mr. Kinsey discussed Authority business, including the hiring of a Black at the administrative level by the Authority. The Respondent is an avid golfer. The Respondent played golf approximately 10 to 15 times with other members of the Board. The Respondent did not, however, charge any of the fees attributable to these golf outings to the Authority. This fact supports a finding that the golf outing with Mr. Kinsey was not a social occasion. Because of the animosity between the Respondent and Mr. Kinsey, the only reason the Respondent played golf with Mr. Kinsey was to attempt to resolve their differences. This fact further supports a finding that the golf outing with Mr. Kinsey was not a social occasion. The weight of the evidence failed to prove that the Respondent attempted to conceal the fact that he had charged the golf outing with Mr. Kinsey to the Authority. The charges were public records. Although the Respondent benefited from the free golf outing, the weight of the evidence failed to prove that the Respondent played golf with Mr. Kinsey or charged the outing to the Authority with the intent of securing a special privilege, benefit or exemption for himself or others or that his action was taken with a wrongful intent. The Respondent reasonably believed that he was carrying out the instructions of the Chairman of the Board to resolve a problem between the Executive Director of the Authority and a Board member which was adversely impacting on the Authority.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the evidence failed to prove that the Respondent, Cliff Hayden, Jr., violated Section 112.313(6), Florida Statutes, as alleged in Complaint No. 89-127. DONE and ENTERED this 16th day of August, 1991, in Tallahassee, Florida. LARRY J. SARTIN 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 16th day of August, 1991. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32399-1050 David M. Carr, Esquire 600 Madison Street Tampa, Florida 33602 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Tallahassee, Florida 32399
