The Issue Whether Respondent violated the Florida Fair Housing Act by discriminating against Petitioner based on her sex, national origin, and/or handicap by the manner it enforced its vehicle parking rules.
Findings Of Fact Petitioner is an 81-year-old female who is a native of Peru. Petitioner does not speak, write, or read English. Petitioner and her late husband were owners and residents of a condominium unit managed by Respondent. Petitioner continued to own and reside in the unit after her husband's death in September 2009. Petitioner and her husband had ten children, two of whom are Patricia Ramirez and Gloria Silva. At the time of his death, Petitioner's husband owned an automobile that he had properly registered with Respondent. Following her husband's death, Petitioner inherited the automobile he had owned. Petitioner does not drive and does not have a driver's license. On September 17, 2009, the title to the car was changed into the names of Petitioner and Gloria Silva. Gloria Silva has not been recognized by Respondent as a "resident" of Petitioner's unit.2 Respondent's rules and policies are set forth in a "Handbook of Rules and Regulations" (the Handbook). Respondent's vehicle parking policies begin on page 28 of the Handbook. Respondent's parking policies for a "Resident Parking Decal" provide, in relevant part, as follows: A "Resident" as set forth in these regulations is a person who has been registered at the Management Office and has been approved by the Association to live in the Unit whether it is an owner or a tenant. All vehicles of Residents parked in the Condominium Property must have a "Resident PARKING DECAL" [sic]. This permit consists of a decal containing a number that is placed on the outside top or bottom left- side corner of the rear glass of the vehicle. For your protection, this decal shall be applied to the glass by an Association Representative only. Only Residents actually living all year round in the Condominium Property and owning a valid driver's license will be issued a Resident Parking Decal. . . .. Only one vehicle is allowed per Resident with a valid driver's license and a Vehicle Registration to such vehicle issued in the Residents' name. There will be a $25.00 refundable deposit for every Resident Parking Decal issued. Failure to return the Decal to the Management Office upon selling and/or disposing of his/her vehicle (including total loss due to an automobile accident) or moving out of the Property, such $25.00 shall be forfeited. . . . If the Resident sells or in any other way disposes of a vehicle to which a Resident Parking Decal was previously issued, that Resident must remove and bring to the Management Office such Resident Parking Decal before a new Resident Parking Decal is issued for a new vehicle. Gary Mars, an attorney representing Respondent, advised Petitioner by letter dated September 10, 2009, that she was in violation of Respondent's vehicle parking policy and its occupancy policy. As to the parking policy, the letter provided, in relevant part, as follows: The Rules and Regulations state that "[o]nly Residents actually living all year round in the Condominium Property and owning a valid driver's license will be issued a Resident Parking Decal. Absentee owners who lease their units are not entitled to having a Resident Parking Decal. Only one vehicle is allowed per Resident with a valid driver's license and a Vehicle Registration to such vehicle issued in the Resident's name. " . . . This correspondence serves as . . . demand that any and all guests of your Unit cease and desist utilizing a resident parking decal immediately upon receipt of this communication and secure the appropriate parking decals from the Property Management Office. Mr. Mars wrote a second letter to Petitioner on November 9, 2009, containing the following demand: This letter is being provided in order to notify you as to a recently recognized violation of the Declaration of Condominium which requires your immediate attention. Specifically, the Association has recognized that the vehicle registered to your deceased husband continues to maintain a residents [sic] parking decal even though the vehicle is utilized by your daughter, Ms. Gloria Silva, who is not a resident of the Condominium. Therefore, this use of a decal is improper and in violation of the Association's controlling documents. The Rules and Regulations state that "[o]nly Residents actually living all year round in the Condominium Property and owning a valid driver's license will be issued a Resident Parking Decal. Absentee owners who lease their units are not entitled to having a Resident Parking Decal. Only one vehicle is allowed per Resident with a valid driver's license and a Vehicle Registration to such vehicle issued in the Resident's name. " Notice is hereby provided of this violation. Specifically, the Association is demanding that your guest permanently cease and desist utilizing a resident parking decal, and remove and return the decal within seventy-two hours of this communication to the Property Management Office. In the event you and your guests fail to comply with the request as set forth herein, the Association may have no alternative but to enforce the Rules and Regulations which may include the towing and removal of the vehicle . . . By letter dated December 31, 2009, Mr. Mars wrote to Petitioner a third and final letter, styled "Final Demand," repeating his notice that the vehicle would be towed if she did not comply with the resident parking policy. On the following dates Respondent had Petitioner's vehicle towed from the condominium property: January 19, January 22, and February 9, 2010. At all times relevant to this proceeding, Petitioner was out-of-compliance with Respondent's resident parking policy. There was no evidence that Petitioner ever surrendered the Resident Parking Decal that remained on the vehicle after her husband died. There was no evidence that Petitioner filed an application reflecting the change of ownership of the vehicle following her husband's death or paid the application fee for a new decal.3 There was no evidence that Respondent knew or should have known that Petitioner was handicapped or disabled.4 There was no evidence that Respondent's enforcement of its parking policies was motivated by Petitioner's sex, national origin, or handicap.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 21st day of March, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2011.
Findings Of Fact Based upon the parties' stipulations of fact, the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: For the past 31 years, Petitioner has owned and operated a small grocery store (hereinafter referred to as the "store" or "Payfair") on the bay side of Plantation Key. The store is open for business from 8:00 a.m. to 9:00 p.m. seven days a week. Payfair is situated on a block that is bounded on the north by Palm Avenue, on the south by Royal Poinciana Boulevard, on the east by U.S. 1 (or State Road 5, as it is also known), and on the west by Gardenia Street. On this same block, to the south of the store, are a restaurant and the office of an insurance agency. All three businesses face U.S. 1. A paved driveway running parallel to U.S. 1 passes in front of all three establishments. The property on which Payfair is located consists of ten platted lots, six of which abut U.S. 1 (for a total distance of approximately 300 feet). U.S. 1 is a north-south roadway that is part of the State Highway System. In this area of the Upper Keys, it serves not only as a through highway linking the Upper Keys with the Middle and Lower Keys to the south and with the rest of the State to the north, but it also must carry local traffic because of the absence of any other major through streets in the area. The remaining four lots of Petitioner's property abut Gardenia Street. On the other (western) side of Gardenia Street are residences. There are no street lights on Gardenia Street. Gardenia Street dead ends several blocks to the south of Petitioner's property at Wood Avenue, where an elementary school is located. Plantation Key High School is also nearby. School children living in the residential area behind Payfair walk or ride their bikes on Gardenia Street past the store on their way to and from school. There are signs on the street that warn motorists that there are "children at play." It is desirable to minimize the amount of traffic, particularly commercial traffic, on streets in residential areas where there are school-aged children. Motorists can enter the Payfair parking lot from either U.S. 1 or Gardenia Street. Until recently, both southbound and northbound motorists on U.S. 1 could turn directly from U.S. 1 onto the Payfair property anywhere along the 300 feet the property fronted the roadway. Likewise, upon leaving the property, from anywhere along the frontage of the property, they could turn right and head south on U.S. 1 or turn left and go north on U.S. 1. Such unrestricted, direct access to and from U.S. 1 is no longer available to Petitioner and its customers as a result of work that has been done as part of Department Project No. 90060-3557 (hereinafter referred to as the "project"). The project, which is nearly finished, has converted a portion of U.S. 1 from a two-lane roadway without curbs, gutters or a restricted median to a four-lane roadway with these features which, at its southern terminus, makes the transition to a two-lane roadway. That portion of U.S. 1 on which work either has been or will be done in furtherance of the project extends from Station 379, on Key Largo, south to Station 298, on Plantation Key. 1/ (The project plans call for the restrictive median to run only as far south as Station 308, which is immediately north of Royal Poinciana Boulevard.) Station 298, the southern terminus of the project, is north of Wood Avenue. The issue of where the southern terminus of the project should be located was raised at a public meeting held by the Department at Plantation Key High School on March 14, 1991. Stan Cann, the Department's District 6 Director of Operations, following the meeting, wrote a letter to the Monroe County Superintendent of Schools in which he provided the following sound and reasonable explanation as to why the Department, in designing the project, had selected Station 298, rather than some point to the south of Wood Avenue, as the southern terminus of the project: A major concern of most of the meeting participants was where the final location of the southern transition from four lanes to two would be. Currently our plans call for that to occur prior to the signalized intersection at Woods Avenue. It was the overall opinion, however, that the four laning should be continued through the intersection and transition somewhere farther south. After considerable review, the Department feels strongly that the current design for the transition is the best alternative for pedestrian safety. We understand the tendency of some drivers to attempt passing as many vehicles as possible before entering a two lane section. This tendency makes it preferable for all opportunities for passing to be complete before coming to the pedestrian crossing. The current design accomplishes this. Extending the four-lane section farther south would result in these drivers continuing their passing movements through the intersection thereby increasing the likelihood of vehicles running a red light which, of course, is when pedestrians are told to cross. In addition, with the increased length of the crossing to traverse the four lanes, pedestrians would be in the roadway itself twice as long. We believe that placing the transition to the south where there is no signal indicating to drivers that they may have to stop ahead, will tend to increase vehicle speeds in order to make passing movements, thus endangering the elementary school students. With due consideration of the parents' concerns and recommendation, the Department must pursue what it firmly believes provides the most pedestrian safety. Completing all passing opportunities prior to the approach to the intersection, as currently designed, is the safest alternative. The focus of the instant case is on that portion of the project between Station 308 (at or near the intersection of U.S. 1 and Royal Poinciana Boulevard) and Station 315 (at or near the intersection of U.S. 1 and Palm Avenue). This segment of U.S. 1 (hereinafter referred to as the "subject roadway segment") has a design speed of 45 miles an hour. As a result of the project, it now has four lanes instead of two. Its two southbound lanes are separated from its two northbound lanes by a raised concrete, restrictive median, which is six feet in width at its southern end just north of Royal Poinciana Boulevard. 2/ The project also added curbs along the right side of the outer lanes which separate the subject roadway segment from the abutting property. There are, however, on the western side of the subject roadway segment, four driveways (curb cuts) that provide access to and from the southbound lanes. 3/ Two of these driveways lead to the Payfair parking lot. Another driveway is located between Payfair and the restaurant next door. The remaining driveway services the insurance agency's parking lot to the south of the restaurant. 4/ Accordingly, while the installation of the raised concrete median and curbing has restricted access to and from U.S. 1 in this area, it has not eliminated such access entirely. Southbound motorists on U.S. 1 still have direct access to the Payfair parking lot from U.S. 1; however, they must use one of the driveways that have been installed as part of the project. Similarly, motorists departing the Payfair parking lot can still turn right onto to U.S. 1 and go south; however, they can do so only from one of the aforementioned driveways. Because of the restrictive median that divides the subject roadway segment, northbound motorists on U.S. 1 can no longer turn left and directly access the Payfair parking lot from U.S. 1, nor can motorists leaving the Payfair lot any longer turn left onto U.S. 1 and head north. Reasonable, although somewhat more inconvenient, alternatives remain for these motorists, however. The Department has constructed left turn lanes on U.S. 1 so that northbound traffic can turn left (west) onto either Royal Poinciana Boulevard 5/ or Palm Avenue. Since both Royal Poinciana Boulevard and Palm Avenue connect U.S. 1 with Gardenia Street, vehicles travelling north on U.S. 1 can enter the Payfair parking lot through the rear entrance on Gardenia Street by turning left onto either Royal Poinciana Boulevard or Palm Avenue, travelling one block west, and then turning onto Gardenia Street. Alternatively, some northbound vehicles on U.S. 1 will be able to make a U-turn at Palm Avenue and then travel southbound on U.S. 1 to one of the store's front driveways. 6/ Motorists leaving Payfair and desiring to travel north on U.S. 1 can exit the parking lot via the store's rear driveway, get to U.S. 1 by taking Gardenia Street to either Royal Poinciana Boulevard or Palm Avenue, 7/ and then turning left onto U.S. 1. 8/ They can also exit the parking lot via the front driveways, turn right onto U.S. 1, travel southbound to Fontaine Drive, turn eastbound onto Fontaine Drive, 9/ travel a very short distance on Fontaine Drive before turning northbound onto S-905, travel northbound on S-905 to Sunshine Boulevard, make a left onto Sunshine Boulevard, and then, at the intersection of Sunshine Boulevard and U.S. 1, turn northbound onto U.S. 1. Another option they have available is to drive southbound on the paved driveway that runs parallel to U.S. 1 in front of the businesses on the block, exit via the driveway that connects the insurance agency's parking lot with Royal Poinciana Boulevard, make a left onto Royal Poinciana Boulevard, and then turn northbound onto U.S. 1. From a traffic engineering and safety perspective, it was prudent to install a restrictive median on the subject roadway segment, notwithstanding that its existence may result in some inconvenience to the travelling public. The subject roadway segment is south of where southbound motorists are first warned that the two southbound lanes of U.S. 1 will merge into one southbound lane (hereinafter referred to as the "warning point"). Therefore, although the subject roadway segment is before the actual merger and it has two southbound lanes like that portion of the roadway to its north, 10/ it is in a transition area where motorists can be expected to begin jockeying for position in anticipation of the elimination of one of the two lanes of traffic. It is more appropriate to have a restrictive median than a painted or non-restrictive median on a segment of a through highway which has a design speed of 45 miles per hour and serves as a transition area as does the subject roadway segment. A restrictive median on such a roadway segment helps to channelize traffic that will soon have to merge. More importantly, it minimizes the conflicts and dangers that motorists in the transition area must face as they jockey for position in anticipation of the merger. The fewer the openings a restrictive median has the more effective it will be in accomplishing these objectives. Prior to the installation of the restrictive median on the subject roadway segment, Petitioner requested that the Department provide an opening in the median across from Payfair. The Department's District 6 Director of Operations, Stan Cann, addressed this request as follows in his aforementioned letter to the Monroe County Superintendent of Schools: We have investigated the request of a median opening between [Royal] Poinciana Boulevard and Palm Avenue and are unable to grant this for two reasons. First, the median width is inadequate to safely provide for the left turn storage lane. Secondly, the minimum distance between median openings is 660 feet unless they serve publicly dedicated roadways. The distance between Poinciana and Palm is approximately 700 feet or just over the minimum. An intermediate opening would certainly introduce operational problems to US-1. Truck traffic serving the commercial establishments on the bay side of US-1 will continue to use Poinciana or Palm to re-enter US-1 as they do today. We will recommend to Monroe County that they post No Trucks signs on those residential streets behind this area, particularly south of Poinciana. The District 6 Secretary, Charles W. Baldwin, Jr., by letter dated September 11, 1991, formally advised Petitioner of the Department's intention to deny its request for a median opening. In his letter, Baldwin stated the following regarding the matter: The second issue you raised concerns a median cut on US-1 so as to provide access for Northbound traffic to your client's property. The Department must deny this request because of safety factors which include but are not limited to 1) the physical infeasibility of constructing a median opening because of the width of the median and 2) the placement of a median opening would violate the Department's minimum design criteria. The Department proceeded to install a restrictive median, in accordance with the project plans, without the "intermediate opening" sought by Petitioner, or any other "intermediate opening," between the openings at Royal Poinciana Boulevard and at Palm Avenue. The work was completed in December, 1992. The distance from the centerline of the median opening at Royal Poinciana Boulevard to the centerline of the median opening at Palm Avenue (approximately 700 or 800 feet) is such that it is not possible to have an "intermediate opening" with a centerline that is 660 or more feet from the centerlines of both the Royal Poinciana Boulevard and Palm Avenue openings. Furthermore, as Cann also noted in his letter, any such "intermediate opening would certainly introduce operational problems to US-1." While the Department's decision to install a restrictive median without any "intermediate openings" may have certain undesirable consequences, such as increasing the vehicular traffic on Gardenia Street, on balance, having such a restrictive median is safer than having one with an "intermediate opening" or having a non-restrictive median like the one proposed by Petitioner's expert witness, Ralph Aronberg. The Department has provided median openings on other portions of U.S. 1, north of the subject roadway segment, which service intersecting public roadways, notwithstanding that the centerlines of these openings are less than 660 feet from the centerlines of other openings. Other median openings provided by the Department on U.S. 1 include one that services an office building, the Turek Building, which is a block and a half north of Payfair, and another that services a shopping center in Tavernier.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order denying Petitioner's request that the Department either provide Petitioner an opening in the restrictive median on the subject roadway segment across from Payfair or, alternatively, replace the restrictive median with a non-restrictive median which would provide Petitioner with direct access to and from the northbound lanes of U.S. 1. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of May, 1993. STUART M. LERNER 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 4th day of May, 1993.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Thomas P. Crapps, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice Of Dismissal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. Filed May 29, 2013 9:27 AM Division of Administrative Hearings DONE AND ORDERED this Ay day of May, 2013, in Tallahassee, Leon County, Florida. Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this QQ day of May, 2013. tes Vorecvcte Nalini Vinayak, Dealer Ficense AE NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jdc Copies furnished: A. Edward Quinton, III, Esquire Adams, Quinton and Paretti, P.A. Brickell Bayview Center 80 Southwest 8" Street, Suite 2150 Miami, Florida 33130 equinton@adamsquinton.com John C. deMoulpied, Esquire Barack, Ferrazzano, Kirschbau, Perlman & Nagelberg LLP 200 West Madison Street Chicago, Illinois 60606 john.demoulpied@pbfkn.com James R. Vogler, Esquire Barack, Ferrazzano, Kirschbau, Perlman & Nagelberg LLP 200 West Madison Street Chicago, Illinois 60606 Jim.vogler@bfkn.com Thomas P. Crapps Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS LOKEY OLDSMOBILE, INC. d/b/a LOKEY VOLKSWAGEN, Petitioner, Case No.: 13-0007 vs. VOLKSWAGEN OF AMERICA, INC., Respondent. / NOTICE OF VOLUNTARY DISMISSAL WITH PREJUDICE COMES NOW Petitioner, LOKEY OLDSMOBILE, INC. d/b/a LOKEY VOLKSWAGEN, by and through its undersigned counsel and hereby files this Notice of Voluntary Dismissal with Prejudice regarding its pending Petition Protesting Charge-back of Incentive Payments, pursuant to settlement of this matter. I HEREBY CERTIFY that a true and correct copy of the foregoing was served on the parties as reflected on the attached Service List, this 13" day of May, 2013. s/ A, Edward Quinton, III (Florida Bar No. 464074) ADAMS, QUINTON & PARETTI, P.A. Attorneys for Petitioner 80 SW 8™ Street, Suite 2150 Miami, Florida 33130 PH: (305) 358-2727 Email: equinton@adamsquinton.com Filed May 13, 2013 3:24 PM Division of Administrative Hearings SERVICE LIST Jennifer Clark Office of the Hearing Officer Florida Highway Safety & Motor Vehicles Neil Kirkman Bldg. - Room A-308 Tallahassee, Florida 32399-0635 jenniferclark@flhsmv.gov James R. Vogler, Esquire John C. deMoulpied, Esquire Barack Ferrazzano Kirschbaum & Nagelberg LLP 200 West Madison Street, Suite 3900 Chicago, IL 60606 jim.vogler@bfkn.com john.demoulpied@bfkn.com STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS LOKEY OLDSMOBILE, INC., d/b/a LOKEY VOLKSWAGEN, Petitioner, vs. Case No. 13-0007 VOLKSWAGEN OF AMERICA, INC., Respondent. ~~~ rere rere re rere rr ORDER CLOSING FILE AND RELINQUISHING JURISDICTION This cause having come before the undersigned on Petitioner’s Notice of Voluntary Dismissal with Prejudice, filed May 13, 2013, and the undersigned being fully advised, it is, therefore, ORDERED that: 1. The final hearing scheduled for June 18 through 21, 2013, is canceled. 2. The file of the Division of Administrative Hearings is closed. Jurisdiction is relinquished to the Department of Highway Safety and Motor Vehicles. DONE AND ORDERED this 21st day of May, 2013, in Tallahassee, Leon County, Florida. va bay THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 2013. COPIES FURNISHED: Jennifer Clark, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-430 2900 Apalachee Parkway, Mail Stop 61 Tallahassee, Florida 32399 A. Edward Quinton, III, Esquire Adams, Quinton and Paretti, P.A. Brickell Bayview Center 80 Southwest 8th Street, Suite 2150 Miami, Florida 33130 equinton@adamsquinton.com John C. deMoulpied, Esquire Barack, Ferrazzano, Kirschbaum, and Nagelberg LLP 200 West Madison Street Chicago, Illinois 60606 john.demoulpied@bfkn.com James R. Vogler, Esquire Barack, Ferrazzano, Kirschbaum, Perlman & Nagelberg, LLP Suite 3900 200 West Madison Street Chicago, Illinois 60606 jim.vogler@bfkn.com
The Issue Whether Respondent is in violation of the Driveway Permit issued to him October 11, 1984, in having more RV parking spaces than authorized by the permit.
Findings Of Fact Respondent is the owner of the Peace Creek RV Park located on the east side of U. S. 27 in Polk County, Florida. He also owns the land immediately surrounding the RV Park. In 1984, Respondent was granted highway connection permit No. B-1698 to provide ingress and egress to the RV Park (Exhibit 1). Although Respondent initially applied for a highway connection permit for a 110 space RV Park, this was modified to 98 spaces and approved for 98 spaces. In 1984, the DOT regulations for highway connection permits required the applicant to provide a left-turn lane into RV parks having 100 or more spaces. For RV parks with less than 100 spaces, no left-turn lane was then required. Although Respondent contends he was unaware that the RV park was approved for only 98 spaces instead of the 110 provided, it is found as a fact that in 1984 Respondent was aware that the plans for parking spaces at the RV park were reduced from 110 to 98 to avoid the additional expense of providing for a left-turn lane, and at the present time he does not recall his acquiescence in that determination (Exhibits 1 and 12). This RV park is equipped for 110 spaces. Traffic along U. S. 27 has increased in the vicinity of the Peace Creek RV Park from an average rate of approximately 8700 vehicles per day in 1985, to 13,600 in 1989 (Exhibit 3). Driveway permit requirements have changed over the years to require more and/or greater safety features. The latest change occurred effective in 1990, and permit requirements now include the requirements for curbs, longer left-hand turn lanes (more storage space) and wider openings in the median than existed in prior years. Respondent does not really object to the requirement to install a left- turn lane, but feels the width of the opening and curb requirements are excessive. Respondent submitted no credible evidence to show the 1990 requirements of DOT for driveway permits are arbitrary, capricious or unnecessary to provide a safe entrance to or exit from U. S. 27 by vehicles entering or leaving Respondent's RV park. Respondent presented evidence that other highway entrances both north and south of the Peace Creek RV Park were approved without curbs and with smaller openings than the 1990 regulations require. However, these highway connections were approved when U. S. 27 was less busy and when the regulations were less demanding than they are at the present time. Respondent also presented evidence that he has provided rights of way and borrow pit easements for DOT in the past at no cost or for a nominal amount.
Recommendation It is recommended that G. W. Mann's existing highway connection permit be revoked and, if he modifies the existing entrance to comply with the current requirements, that, upon completion of this modification, G. W. Mann be granted a new highway connection permit. ENTERED this 17th day of July, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1990. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire 605 Suwannee Street Tallahassee, FL 32399-0458 G. W. "Buck" Mann, Jr. Box 348B Buck Mann Road Winter Haven, FL 33884 Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0458 Attn: Eleanor Turner, MS 58 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
Findings Of Fact Petitioner, Flamingo Lake RV Resort, Inc., operates a camping facility located in Duval County, Florida, located at the interchange of 1-295 and SR 115 or Lem Turner Road. The Petitioner applied to the Department pursuant to Section 479.26, Florida Statutes, and Chapter 14-85, Florida Administrative Code, to participate in the logo program at the interchange. The logo program is the means by which businesses, located within a specified distance from an interstate highway exit, are permitted to display their logo sign on information panels placed on the interstate highway near the applicable exit. Such panels identify motorist services available at the exit categorized by "Food," "Gas," "Lodging" or "Camping." The Petitioner applied to place the logo of Flamingo Lake RV Resort on a "Camping" information panel. There are no logo panels currently at the interchange of 1-295 and SR 115. The only signage at that interchange located on the interstate right-of- way consists of a small generic sign displaying a picture of a camper underneath the exit ramp sign. The small generic camper sign is not readily noticeable. The generic sign neither identifies the particular campground which it references, nor supplies directions to the campground. Signage on a logo panel is important because it assists a traveler in finding a particular campground and provides directions to the campground. By letter dated October 17, 1990, the Department notified Petitioner that its application was denied, because: The interchange on 1-295 is "excluded from the program." The interchange does not fit the definition of "rural interchange" in that it is located in an urban area or is bordering the urbanized area of Jacksonville, and the number of eligible businesses at the interchange exceeds the logo sign's panel capacity. Pursuant to unpublished policy, the Department has excluded all of 1- 295, the interstate beltway around Jacksonville, Florida, from participating in the logo program. The policy was adopted at some point in time in 1987, by the Department's District Secretary. The policy was established because 1-295 is in close proximity to the core city and anticipated that development would move in that direction. 1-295 is a circumferential route with crossroads that radiate into and out of the City of Jacksonville. Exiting 1-295, you can head toward Jacksonville and encounter an increasing number of services. There has been no logo signing on 1-295 in Duval County, and other areas excluded from the logo program in the District are U.S. 441 in Alachua County and 1-75, 39th Avenue and 1-75 in Alachua County, State Road 26, 24, and 121 (at 1-75). Areas surrounding the interchange, including Petitioner's property, are classified as "rural areas" by the Census Bureau. The characteristics of the interchange are marked by farming, pine forests containing abundant wild life, and a large lake located on Petitioner's campground. Other than Petitioner's campground facility, there is no commercial or significant residential development located at or near the interchange, and the area is designated open-rural for zoning purposes. Petitioner's property is not serviced by city water or sewer lines. The interstate speed limit at the interchange is 65 mph, and the speed limit along Lem Turner Road at the interchange is 55 mph. Such speed limits are characteristic of a rural, rather than an urban location. The interchange of 1-295 and SR 115 is located in a rural setting. Traveling in a northerly direction along the Lem Turner (SR 115) crossroad from the interchange, no commercial or residential development is encountered until the traveler reaches Callahan, Florida, a distance in excess of ten miles from the interchange. Traveling in a southerly direction along the Lem Turner (SR 115) crossroad from the interchange, no commercial or significant residential development is encountered until reaching the Lem Turner Road/Dunn Avenue intersection, a distance of approximately one mile from the interchange. Within 1.5 miles of the interchange, there are only two gas station businesses potentially eligible to participate in the logo program. Both gas stations are located at the Dunn Avenue/Lem Turner Road intersection, at a distance of 1.2 miles from the interchange. Within three miles of the interchange, the only business eligible for the restaurant logo program is a McDonald's restaurant located on Lem Turner Road just south of its intersection with Dunn Avenue. None of the other restaurants located within a three mile distance of the interchange meet the restaurant eligibility requirements due to limited seating capacity or the limited hours of business. McDonald's desires to participate in the logo program at the interchange. Other than Petitioner's campground, there are no other campgrounds located within three miles in either discretion along the Lem Turner crossroad from the interchange. There are no lodging facilities located within three miles of the interchange. Lodging facilities are located at the Dunn Avenue/I-95 intersection, a distance over three miles but less than six miles of the 1-295 and SR 155 interchange. To reach these facilities, however, the northbound traveler must drive south on Lem Turner Road for approximately 1 mile, then turn east on Dunn Avenue and travel approximately three miles to reach the interchange of 1-95 and Dunn Avenue. For persons traveling south, the more direct route to the I- 95/Dunn Avenue interchange is to continue south on 1-95 approximately one mile rather than to turn onto 1-295. The District Logo Coordinator did a survey of the volume of business in each category and determined that the panel capacity for two of the types of mother board would be exceeded within the six-mile distance. In reaching this conclusion, the Department considered businesses within six miles because the Department did not feel that there were enough qualifying businesses within three miles. However, within six miles, the Department determined there would be so many qualifying businesses that the logo mother board would be exceeded and when the logo mother board capacity is exceeded, all logo panels must come down. Therefore, the Department denied all logo panels. There were qualifying or qualifiable gas station(s), restaurant(s), and campground(s) accessible from the intersection. Of the three logo categories, only lodging lacked a qualifier within three miles. Only when the radius of inquiry extended to six miles and left Lem Turner Road to go to the Dunn Avenue/I-95 interchange was a lodging qualifier found. At this point, the Department determined that there were too many lodgings and precluded all logo signs in all categories. Respondent's Exhibit 1 is a map of the urbanized area in the vicinity of Jacksonville, Florida. This designation of urbanized area by the Department was approved by the Federal Highway Administration. This exhibit reveals that the 1-295/SR 115 interchange is located in the urbanized area. On November 30, 1990, the Department published notice in the Florida Administrative Weekly announcing a proposed change to Chapter 14-85 of the Florida Administrative Code. Notice of the proposed rule change was not given to Petitioner individually; however, individual notice was not required. The amendments to Chapter 14-85 became effective March 20, 1990. This administrative hearing was held on March 19, 1991. The effect of the amendments to the rules under Chapter 14-85 removes the exception to the "Rural Interchange" definition found in Rule 14- 85.003(10)(b), and would deny Petitioner the right to erect a logo sign at the interchange if the interchange is found to be located within an urban or urbanized area. The amendment would make any interchange located within an urban or urbanized area ineligible to participate in the logo program, regardless of whether the number of eligible businesses at the interchange exceed the logo sign's capacity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner's application for eligibility in the logo program for a location at Exit 13 on Interstate 295 be denied because said location does not qualify as a rural interchange under the current rule DONE and ENTERED this 24th day of April, 1991, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 File with the Clerk of the Division of Administrative Hearings this 24th day of April, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-7304T Petitioner's Proposed Findings of Fact 1-4. Adopted. 5-6. Adopted in part and combined with paragraph 4. The part rejected was irrelevant. Adopted. Adopted and divided into paragraphs 7 and 8. 9-10. Adopted and restructured. 11-12. Adopted. 13-14. Conclusion of law. 15-21. Adopted. Respondent's Proposed Findings of Fact 1-3. Adopted. COPIES FURNISHED: John S. Ball, Esq. Michael W. Fisher, Esq. Fisher, Trousey, Leas & Ball 2600 Independent Square Jacksonville, FL 32202 Vernon L. Whittier, Jr., Esq. Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams, Esq. General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
Findings Of Fact Donna Brown, Petitioner herein, has been employed by the Division of Drivers License since approximately November, 1971. During the period from her initial employment until the date in which she resigned in lieu of a transfer on 11/30/77, her employment evaluations were always satisfactory or above. While employed, she requested transfers on approximately three occasions and they were all granted by the Department. On November 14, 1977, she was advised by C. W. Keith, Division Director of Driver Licenses that effective December 1, 1977, she would be transferred from the Madison office to the new drivers license office in the Sing Office Mall, Tallahassee, for initial staffing. On November 18, 1977, Petitioner timely filed an appeal of this transfer citing, inter alia, that she was given inadequate notice, and that no concern was given to the needs of her family concerning planning involved toward selling her home and changing schools for her ten-year-old son. The appeal of the transfer fell within the guides of Chapter 22A-7.09, Florida Administrative Code, which provides for such appeals when a transfer necessitates a move in excess of 50 miles from an appellant's work location by use of a secondary state road or better. Richard A. Weaver, Bureau Chief of the Division of Driver Licenses, testified that the Petitioner was transferred to the Tallahassee office to perform financial responsibility functions which were given the Division pursuant to the Legislature. In the past, a large number of small offices only performed functions involved with the issuance of drivers licenses whereas when the additional function of the Financial Responsibility matters were given to each office, regardless of size, it was estimated that the Madison office needed one additional employee, as well as the Quincy office. However, when a time study was made of the work activity in the Madison, Quincy, and Perry offices (all offices of similar size), it was noted that the Financial Responsibility functions in the Madison office were not as great as had been anticipated. Some time during October or November, 1977, Respondent acted upon an opportunity to open a new office in the Tallahassee area to be located in the Sing Mall. A study was done as to how this office would be staffed and based on examinations of Respondent's "Examiner Workload System Report", it was determined that the new Tallahassee office could be opened by utilizing existing personnel. The offices located in Madison, Perry, and Quincy are classified as small low-volume stations by the Respondent. See Respondent's Exhibit No. 3. In analyzing the staffing requirements, Respondent studied the staff of these three locations and contrasted the workload in terms of the staff size. In the Quincy office, which is staffed by three employees who also rove between the Chattahoochee and Bristol offices, the gross receipts for an eleven-month period are in excess of $60,000. For the same period, the Madison office, which has a staff of two employees, had gross receipts of approximately $29,000. Similarly, the Perry office, which only has one employee, had gross receipts in excess of the $29,000 amount generated by the Madison office. It was based on this analysis and study that the Respondent effected the transfer of the Petitioner. Messr. Keith, Division Director, testified that Petitioner had never been a discipline problem, and when the decision to transfer was made, consideration was given to the fact that Petitioner's husband who also resides in Madison, presently works for the Division in Tallahassee. Thus, it appeared that there would be no additional transportation cost thrust upon Petitioner by this transfer. James Herndon, a District Supervisor for Troop 8 whose duty assignment also includes the Madison office, also substantially corroborated the foregoing testimony of Division Director Keith. Messr. Bill McDaniel, a trooper of the Florida Highway Patrol for approximately 21 years, expressed a need and desire of the residents in the Madison area to retain the Petitioner in the Madison office. He testified that there is high illiteracy in the Madison area and in terms of the 67 counties statewide, Madison County ranks 64th in the state in mental preparedness. He indicated that the Petitioner ofttimes performed duties over and above working assignments in assisting customers to pass the oral and written portions of the driver examination. He, as well as Sheriff Joe Peavy of Madison County and who had formerly been a trooper for approximately 16 years, testified that the needs of his constituents are not being served by the staffing of the Madison office with only one employee. He states that customers are inconvenienced by delays when road tests are given and that he had received numerous complaints due to Petitioner's absence. He testified that inconveniences would also increase as road tests increase and when the office is temporarily closed for lunch time and during emergencies such as sick leave.
Conclusions The evidence compiled herein reveals that the Petitioner has established a creditable work record and has always attempted to do her utmost in assisting the Madison area residents. On the other hand the Respondent has always attempted to accommodate Petitioner by granting her transfer requests when she submitted same. The Department, in allowing Petitioner to transfer to the Madison office, overprojected its work load and was forced to initiate her transfer due to this overprojection. While it is true that Madison County would perhaps be better served if the Madison office were staffed by two employees, the evidence herein reveals that Petitioner's transfer was made on priorities based on a more recent and accurate assessment of the workload of all area offices of similar size. The Petitioner in no manner challenged the statistical data adduced by the Respondent. Evidence also reveals that the Respondent was operating with limited resources which prompted it to make a "management decision" to transfer her to better utilize existing staff. This being the status of the record, the undersigned concludes that such a management decision should not be second-guessed and therefore will recommend, based thereon, that there is competent and substantial evidence to substantiate the Department's transfer of Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the appeal filed herein be dismissed and the Respondent's action, in transferring Petitioner be sustained. RECOMMENDED this 24th day of February, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1978. COPIES FURNISHED: Lee Bishop Rt. 3, Box 296 Madison, Florida 32340 Enoch J. Whitney, Esquire Neil Kirkman Building Tallahassee, Florida 32304 A. D. Cochran Assistant Director Division of Driver Licenses Neil Kirkman Building Tallahassee, Florida 32304 Mrs. Dorothy Roberts Appeals Coordinator Division of Personnel & Retirement Department of Administration 530 Carlton Building Tallahassee, Florida 32304
The Issue The issue for determination is whether the Florida Department of Labor and Employment Security illegally rejected Petitioner's bid as nonresponsive.
Findings Of Fact Fred Boozer, Sr., (Boozer), the Petitioner, owns Boozer Properties, a family business which includes a building at 2235 South Babcock Street, Melbourne, Brevard County, Florida. The building is currently occupied by staff of the Florida Department of Labor and Employment Security (LES) and other tenants. In south Brevard, LES staff also occupies another building in Palm Bay. Because of staff expansion and the need to co-locate its offices, LES issued a Request for Proposal (RFP) for Lease No. 540:0904 on January 28, 1992. The RFP had been previously advertised but was successfully challenged on issues unrelated to the issues in this proceeding. The January 1992 RFP sought approximately 11,474 to 11,818 square feet of office space. The RFP also specified that 95 off-street parking spaces be provided for the exclusive use of LES employees and clients. The spaces were to be suitably paved and lined, and under the control of the bidder. The RFP advertised a pre-proposal conference on February 4, 1992. No bidder attended, and no objections to the RFP were filed. Six responses were received on the February 28th deadline, one of which was immediately determined to be nonresponsive. The remaining bid proposals were evaluated, and Boozer's bid, offering his Babcock Street site, and 95 parking spaces, received the highest points from the evaluation committee. During a recent LES bidding process for office space in West Palm Beach, a problem arose with a bidder's ability to provide the required parking spaces. Cognizant of this, the LES leasing manager contacted the City of Melbourne to determine whether the apparent bid winner, Boozer, could meet his obligation to provide 95 spaces. The written response dated March 20, 1992, from Dominic Mauriello, a Melbourne city planner, provides his estimation that, for the various uses in the Babcock Street building, 207 parking spaces would be required. The memo states that a site plan on file at the city planning office reflects that there are 165 spaces. The site plan attached to Boozer's bid proposal submitted to LES indicates that 175 spaces are available. LES staff person, Lynne Mobley, telephoned Fred Boozer on March 24, 1992, informing him of the memorandum from the city. He responded with a request that he be allowed twenty-four hours to provide additional information. By March 27, 1992, the LES leasing office had not received further information from Boozer. The RFP had advertised a 30-day deadline for the bid award, which deadline fell on a weekend. The agency considered that it needed to make the award on Friday, the 27th. After contacting the City of Palm Bay to assure that the next highest rated response could deliver the requisite parking spaces, a letter was sent notifying Woodlake S.W. No. 1, Ltd., (Woodlake) of its award. In a letter dated March 27, 1992, LES notified Boozer that its bid was determined nonresponsive based on the outcome of investigation and consultation with the city regarding his inability to produce the required 95 exclusive spaces. In the meantime, Fred Boozer had contacted Peggy Bray, the City's Planning and Zoning Administrator, who provided an amended estimation stating that 190 spaces would be required for the Babcock Street site, and that the site currently includes 184 parking spaces. Ms. Bray's letter, dated March 27, 1992, states that in order to provide 95 spaces for the Department of Labor, 1800 square feet of office space would need to remain vacant. The Bray letter was immediately sent by facsimile transmission to LES, and was received the afternoon of March 27th, after the award and rejection notices were sent. Boozer's building is approximately 39,000 square feet. Several tenants are month to month lessees, and another tenant is expected to move prior to the beginning of the LES lease term. Boozer is willing to keep vacant the 1800 square feet and contemplated that necessity when he submitted his bid proposal. He did not include this agreement in his written bid response, but neither did LES specifically ask, either in the bid form or at the time of the committee's site walk-through prior to the bid award. Boozer contends that he responded on the bid proposal that he would provide 95 exclusive spaces and he remains willing to provide those spaces. At hearing, Boozer disclosed that 20 additional parking spaces are located adjacent to the subject property and are available for use by HRS' County Health Services, another tenant in the Babcock Street building. The spaces would reduce by 20 the spaces required by the city code, but their existence was not disclosed in the bid proposal as they are not part of the attached site plan. Boozer's onsite parking spaces range from one-half to one foot short of the eleven-feet width required by the city code. No evidence was presented with regard to any pending or contemplated enforcement action, and LES did not base its decision on this defect. LES did base its decision on a good-faith reliance on the communication by a member of the City of Melbourne planning staff. Even when that initial communication was corrected by the planning administrator, the number of spaces available were still less than needed for LES purposes and to comply with the City's code. LES did not anticipate, nor was it informed prior to bid award, of Boozer's ability and willingness to keep space vacant to comply with his commitment to provide 95 parking spaces to LES.
Recommendation Based on the foregoing, it is hereby, recommended that a final order be entered dismissing Petitioner's protest of intended bid award. RECOMMENDED this 18th day of June, 1992, in Tallahassee, Leon County, Florida. MARY CLARK 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 18th day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2372BID The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings of Fact Adopted in paragraphs 2, 3 and 4. Adopted in paragraphs 4 and 9. Adopted in paragraph 6. Adopted in substance in paragraph 7. Rejected as unnecessary. The testimony of Ms. Mobley is that she did not receive the message. Adopted in paragraph 10. Adopted in paragraphs 8 and 9. Adopted in paragraphs 10 and 13. Rejected as unnecessary. 10-13. Adopted in paragraph 11. Rejected as unsubstantiated by competent evidence. Adopted by implication in paragraph 5. Rejected as irrelevant, except as to Intervenor's spaces, which is adopted in paragraph 8. 1718. Rejected as unnecessary and irrelevant. Respondent's Proposed Findings of Fact 1. Adopted in paragraph 3. 2. Adopted in paragraph 1. 3. Adopted in paragraph 2. 4-5. Adopted in paragraph 4. 6-7. Adopted in paragraph 5. 8. Adopted in paragraph 6. 9. Adopted in paragraph 7. 10-11. Adopted in paragraph 8. 12. Adopted in paragraph 10. 13. Adopted in paragraph 12. 14. Adopted in paragraph 9. Intervenor's Proposed Findings of Fact 1-2. Adopted in substance in paragraph 3. 3. Rejected as unnecessary. 4-5. Adopted in paragraph 4. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 11. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 10. Adopted in paragraph 9. 15-16. Adopted in paragraph 8. Rejected as unnecessary. Adopted in Preliminary Statement. 19-28. Rejected as unnecessary. COPIES FURNISHED: Howard M. Swerbilow, Esquire Post Office Box 541271 Merritt Island, FL 32954-1271 Edward A. Dion, Esquire Department of Labor and Employment Security Suite 307, Hartman Building 2012 Capital Circle Southeast Tallahassee, FL 32399-2189 Jack Spira, Esquire 5205 Babcock Street N.E. Palm Bay, FL 32905 Alan Taylor Elizabethan Development Corporation 245 Avenue O S.W. Winter Haven, FL 33880 Frank Scruggs, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle S.E. Tallahassee, FL 32399-2152 Cecilia Renn Chief Legal Counsel Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle S.E. Tallahassee, FL 32399-2152
The Issue Whether Respondent violated Sections 112.3143(3)(a), 112.3143(4), and 112.313(7)(a), Florida Statutes (1993), by committing the acts alleged in the Order Finding Probable Cause and, if so, what penalty is appropriate.
Findings Of Fact All times pertinent to this proceeding, Respondent served as a member of the Mexico Beach Planning and Zoning Board (Zoning Board). Respondent began his service on the Board in mid-April, 1994. In that public position, Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees. In late 1993, Respondent contracted with the owners of Toucans Restaurant (Toucans) to build an additional story on the existing building. Toucans is a bar/restaurant located on Highway 98 in Mexico Beach, Florida. The Zoning Board is empowered to make decisions relative to zoning and rezoning matters, including the granting of parking variances. In furtherance of his work for Toucans, Respondent sought a parking variance from the Zoning Board. To this end, Respondent appeared before the Zoning Board on three separate occasions. The last time Respondent appeared before the Zoning Board regarding the parking variance for Toucans was April 19, 1994, shortly after his appointment to the Zoning Board. At that meeting, Respondent was representing Toucans before the Zoning Board and attempting to secure a parking variance for Toucans. At the April 19, 1994 meeting, when Respondent presented the Toucans parking variance issue before the Zoning Board, he participated in the Zoning Board's discussion of the matter. Prior to his participating in the Zoning Board's discussion of the Toucans matter on April 19, 1994, Respondent failed to formally announce his interest in the Toucan project. Respondent failed to file a written memorandum disclosing his interest in the matter prior to the April 19, 1994 meeting. Respondent failed to orally disclose the nature of his interest in the Toucans project at the April 19, 1994 Zoning Board meeting. At its April 19, 1994 meeting, the Zoning Board voted on the Toucans project. Respondent abstained from voting on the Toucans parking variance request at that meeting, but did not file a written memorandum disclosing his interest in the project within fifteen days of the vote. Respondent filed a Memorandum of Voting Conflict with respect to the Toucans parking variance request on May 27, 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Final Order and Public Report be entered by the Florida Commission on Ethics finding that Respondent, Jim McCoullough, violated Sections 112.3143(3)(a), 112.3143(4) and 112.313(7)(a), Florida Statutes (1993), and imposing a civil penalty of $300.00. DONE and ENTERED this 30th day of April 1997, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April 1997. COPIES FURNISHED: Eric Scott, Esquire Department of Legal Affairs The Capitol PL-01 Tallahassee, Florida 32399-1050 Kerrie Stillman Complaint Coordinator Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Mr. James Naus 115 Fifth Street Mexico Beach, Florida 32410 Bonnie Williams Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact On November 19, 1987, Plymouth, by and through its representative, Todd Pressman, filed an application for a variance of 1'4" in the parking standards of the Clearwater Land Development Code to permit some double row 90-degree parking with an aisle in between having an overall width of 60'8" in Plymouth's parking garage located at 2590 U.S. 19 North, Clearwater, Florida 33575. The variance would reduce the size of 28 out of 500-520 parking spaces in the garage from 19' to 17'8". On February 11, 1988, a public hearing on Appellant's application was held before the DCAB. Minutes of the hearing were kept and a tape recording of the hearing was made. The tape recording and minutes of the February 11, 1988, hearing reveal that the DCAB heard the testimony of John Richter, the Clearwater Land Development Code Administrator; Todd Pressman, representing the Applicant; and Keith Crawford, the Director of Traffic Engineering. The Building Department Official did not comment on the variance application. No letters were introduced in support of the application and no letters were introduced in opposition. At the conclusion of said public hearing, DCAB unanimously voted to deny Plymouth's application for the requested variance. The parking garage in question, the only totally private parking garage in Clearwater, was designed and approved as part of plans to build two office buildings. During planning, Plymouth's New Jersey architect made a mistake which resulted in some 28 parking spaces being substandard. Large columns supporting the structure were designed to be placed in the end of parking stalls along the wall, reducing the useful length of these parking stalls by 1'4". The City Traffic Engineer brought the matter to Plymouth's attention. Plymouth asked to be allowed to designate the 28 spaces for compact cars only but was informed that Clearwater's code did not recognize compact car parking spaces. Plymouth proceeded with full knowledge that the parking garage would be built with 28 substandard spaces. Plymouth compromised and agreed with the City of Clearwater during construction of its twin-tower office buildings and parking garage to preserve green space on the property, to provide a park-like effect around the three structures, and to preserve the green space and park-like effect of the property fronting on U.S. Highway 19. The parking garage, even without the 28 spaces, can accommodate the entire parking needs of the two buildings that already have been approved. So far, only one has been built, and only 25 percent-30 percent of it is occupied. As a result, roughly 85 percent of the usable parking spaces (i.e., excluding the 28 substandard spaces) are not being used at this time. Plymouth's primary concern is not for the parking needs of the existing building, or even for the needs of the second building which has been approved but not built, but for yet a third building which a prospective customer is interested in having Plymouth build. Without the 28 spaces, some land planned to be kept as open space might have to be used for additional parking. Plymouth is concerned that complications involving parking might cause it to lose the prospective lessee. On-site covered parking has been a selling point for Plymouth and is particularly important in Plymouth's north Clearwater/Dunedin market. A parking garage co-owned by the City on Park Street has columns in some parking stalls which the City is using as parking spaces without a variance. But the columns are in the corners of the affected parking stalls and do not reduce the effective length of the stalls in the judgment of the City Engineer.
