Findings Of Fact Biscayne Boulevard through the municipality of Miami, Florida, is a state highway, State Road 5 (U.S. 1,) which is operated and maintained by the State of Florida through its Department of Transportation. The state owns the right of way areas adjacent to Biscayne Boulevard. The Petitioner, Marina Park Associates ("Marina Park") is the owner of the Marina Park Hotel (the "Hotel") located at 340 Biscayne Boulevard, Miami, Florida. The Hotel is situated adjacent to the Department's right of way. Petitioner has applied to the Department of Transportation for approval to construct a canopy extending from the entrance of the Hotel over the state's right of way adjacent to Biscayne Boulevard. There is an existing canopy in front of the Hotel which was installed approximately 11 years ago. At the time the existing canopy was installed, the Hotel obtained a permit from the city. However, it does not appear that the State Department of Transportation was ever notified or considered the application for the existing canopy. Petitioner is seeking to replace the existing canopy with a new improved canopy at approximately the same location. The Hotel recently underwent renovations and the Petitioner is seeking to make the property more attractive by installing a new canopy. The plans for the proposed canopy were submitted by Petitioner to Respondent. Those plans indicate that the proposed canopy would violate at least three aspects of the Respondent's rules regarding canopies over state right of way areas. These rules were adopted to establish uniform safety standards, to limit or prevent obstruction of the sidewalks and to further emergency vehicle access. There is no provision in the rules for variances or exceptions to these requirements. While the evidence established that there are several obstructions along the right of way which contravene these rules, there is no evidence that the Department has ever approved such obstacles. The plans for the proposed canopy do not provide for a set back of at least two feet from the outside edge of the canopy to the face of the curb as required by the existing rules. This defect can be cured quite easily by adjusting the length of the canopy. However, the other problems with the canopy cannot be cured so easily. The Hotel has a recessed entrance. The proposed canopy would extend into the recessed area. As a result, there will not be a nine foot clearance between the bottom of the canopy and the sidewalk as required in the existing rules. Even more importantly, the building design provides insufficient support to cantilever the canopy out from the entraceway without columns. Therefore, the proposed canopy requires supports at the end of the canopy on the sidewalk. The existing rules prohibit any such supports and there is no provision for a variance from this requirement. Canopy supports extending below the nine foot clearance are prohibited because of the resulting obstruction of the sidewalk impairing pedestrian traffic and inhibiting access from passenger vehicles parked on the roadway. The existing canopy is apparently not in compliance with all of the provisions of the Respondent's rules. Respondent never reviewed or permitted the existing canopy nor has it cited the existing canopy for being in violation of the rules. There is no provision in the rules to grandfather in an existing canopy and/or to replace or improve an existing canopy.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Transportation enter a Final Order finding Petitioner's proposed canopy does not meet the requirements of Rule 14-43 and denying Petitioner's request for a variance by means of through application for a special permit. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24th day of June, 1991. J. STEPHEN MENTON 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 D Division of Administrative Hearings this 24th day of June, 1991. APPENDIX The Respondent has filed a Proposed Recommended Order. The following constitutes my rulings on the proposed findings of fact submitted by the parties. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 7, 8 and 9. Adopted in substance in Findings of Fact 9. Adopted in substance in Findings of Fact 4. COPIES FURNISHED: Russell A. Waldon Assistant General Counsel Department of Transportation Haydon Burns Building 605 Suwanee Street, M.S. #58 Tallahassee, FL 32399 M. L. Dayton Marina Park Associates 340 Biscayne Boulevard Miami, FL 33132 John Reilly Miami Awning Company 282 Northwest 36th Street Miami, FL 33127 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
The Issue Whether Respondent's Leasing Manual HRS M 70-1 is a rule and, if so, is it an invalid exercise of delegated legislative authority?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Department's Leasing Manual HRS M 70-1 (Manual) sets out the procedure to be followed when the Department is seeking to lease space of 2,000 square feet or more in privately owned buildings. Within this manual are the forms to be utilized for this purpose and, among other forms, is an Invitation to Bid (ITB) For Existing Facilities packet that contains a Bid Submittal Form (BSF) and, within the BSF is a page entitled Evaluation Criteria. The Department followed the procedure set forth in the manual in advertising for competitive bids on Lease No. 590:2029 for office space in Inverness, Florida service area of District Three and, in doing so, used the ITB For Existing Facilities packet that contained the BSF with the Evaluation Criteria page. The BSF, including the Evaluation Criteria page, is a slightly modified version of the Department of General Services' (DGS) Request For Proposal Submittal Form - BPM 4136, incorporated by reference in Rule 13M-1.015(3)(e), Florida Administrative Code, as a suggested format. The Evaluation Criteria page of the Department's BSF contains nine of the eleven evaluation criteria set forth on the evaluation criteria page of the BPM 4136, but does not place any limit on the weight of award factor as does BPM 4136 on two of the same criteria used by the Department. Both the BSF and BPM 4136 are used in bidding for space in existing facilities and, therefore, require a scaled floor plan showing present configuration, with measurements that equate to the net rentable square footage using the Standard Method of Space Measurement. The BSF does not attach a "floor plan for suggested configuration of offices and rooms" as does the BPM 4136 but does provide the number, types and sizes of rooms to be placed in the existing facility. Both forms leave the final configuration of the floor plan to the successful bidder and the lessee. The Department's reasoning for not including a "suggested floor plan" is that this may reduce the number of prospective bidders due to the varied configuration of existing facilities in the bid area. In accordance with the procedure set forth in the Manual an Evaluation Committee (Committee) was appointed to determine, among other things, the award factor (weight) to be placed on the nine evaluation criteria set forth on the Evaluation Criteria page of the BSF. The Committee determined the significance of the nine criteria on the Evaluation page to the Department's needs in regard to Lease No. 590:2029 and awarded a weight factor in accordance with the significance of the criteria. Those criteria most significant to the Department's needs received the highest weight. These award factors were added to the Evaluation page of the BSF at the time the ITB was advertised. The procedure and the forms set forth in the Manual and used by the Department, including the procedure followed by the Evaluation Committee, in putting together the ITB for Lease No. 590:2029 comports substantially with all substantive provisions of Rule 13M-1, Florida Administrative Code, and more specifically Rule 13M-1.015, Florida Administrative Code, adopted by DGS pursuant to Section 255.249(2), Florida Statutes. The differences, such as they are, are not substantial, nor is there any extrinsic or intrinsic divergence from the substance of the rule such as to mislead any potential bidder who sought to address the ITB. The Manual, including the ITB and BSF, sets forth the Department's policy and describes the procedure to be followed by the Department, including each Evaluation Committee selected, and all prospective bidders, in its leasing practices when the Department seeks to lease 2000 square feet of office space or more in privately owned buildings and, although the Manual has been reduced to writing, it has not been promulgated or adopted as a rule.
The Issue The issue in this case is whether the land development regulations (LDRs) adopted through Ordinance 07-11 by Islamorada, Village of Islands (Islamorada), are consistent with the Principles for Guiding Development in the Florida Keys, set forth in Section 380.0552(7), Florida Statutes (2007).2
Findings Of Fact The Lodging Association is a trade association with an office in Key West, Florida. The Lodging Association is a not- for-profit association, created to monitor, initiate, advance, support or oppose legislation, policies and other governmental regulations that affect the lodging industry in Monroe County, including Islamorada. Membership in The Lodging Association includes owners and operators of the hotels and motels in Islamorada. Islamorada is a municipality within Monroe County which has adopted a comprehensive plan and LDRs. The Department is the state land planning agency with the power and duty to exercise general supervision of the administration and enforcement of the Area of Critical State Concern program, and to approve or reject LDRs adopted by local governments within areas of critical state concern. The Florida Keys were designated an Area of Critical State Concern by the Administration Commission in 1975 and re- designated by the Legislature in 1986 pursuant to Section 380.0552, Florida Statutes. Ordinance 07-11, would make the following changes to the existing LDRs regulating hotels and motels: Room, hotel or motel, - means a unit in a public lodging establishment as defined by F.S. Section 509.013(4)(a) intended for transient lodging only for periods not exceeding 30 days. Transient occupancy shall conform to the definition contained in F.S. Section 509.013(8) as to transient occupancy. For the purposes of density restriction under this chapter: A hotel or motel room may be a single room or a suite and may include a kitchen but no more than 1 1/2 bathrooms. An existing hotel or motel room may be redeveloped to a unit no less than 150 square feet and not exceeding 2,000 square feet of habitable floor area and consisting of no more than two (2) full bathrooms and three (3) bedrooms, one (1) kitchen, one- half bathroom and one (1) additional living area (excluding bedrooms), provided that the average habitable floor area of all hotel or motel units on the property does not exceed 1,500 square feet and that the rates of redevelopment set forth in (3) below are met; and All entrances to a hotel or motel room shall share the same key or means of controlling access so that the hotel or motel room as defined herein is not divisible into separately rentable units; and Suites containing more than one bedroom and 1½ baths may be constructed; however, each bedroom/full bath combination shall be considered a hotel/motel unit. A property with existing hotel or motel units may be redeveloped pursuant to the following equivalency rates: Ordinance 07-11 also amended Section 30-852 of Islamorada LDRs which establishes the required parking spaces for various uses. Ordinance 07-11 changes the parking space requirement for hotel rooms from 1.0 spaces per unit (without regard to numbers of bedrooms) to 1.0 space for a one-bedroom unit, 1.2 spaces for a two-bedroom unit, and 1.5 spaces for a unit with three or more bedrooms. Evidence was presented by The Lodging Association to show that the principal objective of the ordinance is to respond to the trend in the hospitality industry for larger hotel and motel rooms to accommodate families for longer stays. The Department reviewed Ordinance 07-11 to determine whether it is consistent with the Principles for Guiding Development (Principles) set forth in Section 380.0552(7), Florida Statutes: To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. To limit the adverse impacts of development on the quality of water throughout the Florida Keys. To enhance natural scenic resources, promote the aesthetic benefits of the natural environment, and ensure that development is compatible with the unique historic character of the Florida Keys. To protect the historical heritage of the Florida Keys. To protect the value, efficiency, cost- effectiveness, and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities; Sewage collection and disposal facilities; Solid waste collection and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks, wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Electric Co-op; and Other utilities, as appropriate. To limit the adverse impacts of public investments on the environmental resources of the Florida Keys. To make available adequate affordable housing for all sectors of the population of the Florida Keys. To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or manmade disaster and for a post-disaster reconstruction plan. To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. In its Amended Final Order and in the parties’ Joint Pre-hearing Stipulation, the Department asserted that Ordinance 07-11 is inconsistent with four of the Principles, which are repeated below: To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. * * * (d) To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. * * * (j) To make available adequate affordable housing for all sectors of the population of the Florida Keys. * * * (l) To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. Principle (a) - Managing Land Use and Development The Department asserts that Ordinance 07-11 is inconsistent with Principle (a) because the ordinance is inconsistent with five policies of the Islamorada Comprehensive Plan and, therefore, fails to properly manage land use and development. Policy 1-2.1.10 The Department contends that Ordinance 07-11 is inconsistent with Policy 1-2.1.10 which states, “Islamorada, Village of Islands shall cap the number of new transient units at the number of current and vested hotel and motel rooms, campground and recreational vehicle spaces existing within the Village as of December 6, 2001.” Much of the confusion in this case surrounding the issue of the cap on hotel/motel rooms arises from the practice in Islamorada and elsewhere in Monroe County of defining a hotel or motel room in a manner that differs from its common meaning to the general public, which is the space that one rents from the clerk at the desk, with one entrance and one key. Instead, a room is defined according to the number of bedrooms and bathrooms, so that the space one rents with a single entrance and key can be defined in the LDRs as one, two, or even three hotel rooms. An analogy would be if a vehicle were defined for regulatory purposes according to its output of emissions, so that if your vehicle had relatively high levels of emissions, it might be counted as two or three vehicles. Although much testimony was devoted to this disputed issue, it is clear that Ordinance 07-11 would allow for the creation of more hotel and motel rooms in Islamorada (as “room” was previously defined). There are many examples that could be given of how Ordinance 07-11 would allow for more hotel and motel rooms, but one example is that a room with two bedrooms and two bathrooms counts as two units under the existing ordinance, but is only one unit under Ordinance 07-11. Ordinance 07-11 allows a hotel owner to enlarge a hotel room in a manner that under the former ordinance would have been treated as creating another hotel room – a violation of Policy 1-2.1.10. Without changing the policy, Ordinance 07- 11 defines away the violation. When Islamorada adopted Policy 1-2.1.10 to cap the number of hotel/motel rooms at the number of “current” rooms, the policy could only mean the number of rooms that existed under the definition of hotel/motel room that was then in effect. Otherwise, the policy would be ineffectual as a cap.3 Despite the findings made above, the determination of whether Ordinance 07-11 should be rejected is complicated by the fact that, in 2005, the Department approved a similar ordinance of the City of Marathon. Like Islamorada, Marathon had formerly counted one bedroom and one and one half bathrooms as one hotel/motel unit. Marathon Ordinance 2004-017 redefined hotel/motel rooms so that a room with three bedrooms and two and a half bathrooms now counts as one unit. Marathon’s comprehensive plan also has a cap on hotel/motel rooms. The Department’s approval of Ordinance 2004-17 appears to have been based in large part on the “density reduction” provisions in the Marathon ordinance. For example, one-bedroom units may be redeveloped as two-bedroom units “at the rate of 90 percent,” and one-bedroom units may be redeveloped as three- bedroom units “at the rate of 85 percent.” The density reduction provisions in Ordinance 2004-017 are easiest to understand with an example using ten existing units. Applying the 90 percent rate, ten existing one-bedroom units can be redeveloped into nine two-bedroom units. There is no practical way to apply the reduction rates when just one or a few units are redeveloped, because applying the rate results in fractional units. For example, using the 90 percent reduction rate, 1 one-bedroom unit cannot be redeveloped as .9 two-bedroom units, and 2 one-bedroom units cannot be redeveloped as 1.8 two-bedroom units. In these two examples, the hotel owner would be allowed to create 1 and 2 two-bedroom units, respectively. Therefore, the density reduction rate has no effect in these (and other) scenarios. Marathon’s density reduction provisions do not prevent more hotel and motel rooms from being created. In the example given above, the nine redeveloped two-bedroom units would have counted as 18 units under the definition in Marathon’s former ordinance. With admirable candor, the Department’s expert planner testified that it was her opinion that Marathon Ordinance 2004-17 is inconsistent with Marathon’s cap on hotel/motel rooms. However, it does not take an expert planner to see the inconsistency. Counsel for the Department argued that Marathon Ordinance 2004-017 materially differs from Village Ordinance 07- 11 because the density reduction provisions in the Marathon ordinance created an “equivalency” with regard to the additional vehicles associated with larger hotel/motel units. Islamorada Ordinance 07-11 also has similar density reduction provisions, but the Department does not think they create a similar equivalency. However, the Department’s argument about equivalency is not persuasive because it requires that the cap on hotel/motel rooms be read as a cap on the traffic generated by hotel/motel rooms, which is contrary to the plain wording of Policy 1-2.2.10. Furthermore, as explained above, the density reduction rates do not apply to many redevelopment scenarios that can result in larger hotel/motel rooms that generate more traffic. Unlike the Marathon ordinance, Village Ordinance 07-11 also allows for the creation of new hotel/motel rooms through “disaggregration.” This term was used by the Department to describe how the ordinance can be applied in reverse to create smaller, separate hotel/motel rooms which could later be enlarged. For example, an existing two-bedroom/one-bathroom unit (defined as one unit under the former ordinance) could be redeveloped under Ordinance 07-11 as two separate one- bedroom/one-bathroom units, and then redeveloped again as two separate two-bedroom/two-bathroom units (defined as four units under the former ordinance). The Department demonstrated that Ordinance 07-11 allows for new hotel/motel rooms to be created beyond the current number of hotel/motel rooms. Therefore, it is not fairly debatable whether Ordinance 07-11 is consistent with Policy 1-2.1.10. Because the ordinance is inconsistent with the comprehensive plan, it is also inconsistent with Principle (a). Policy 1-2.2.4 Policy 1-2.2.4 provides that nonconforming uses (due to their density) may only be redeveloped to the same density. There are hotel and motels in Islamorada that are nonconforming because their density is greater than is currently allowed. The Department contends that Ordinance 07-11 is inconsistent with Policy 1-2.2.4 because the ordinance would allow more rooms and thereby increase the density at nonconforming hotels and motels. The Lodging Association argues that Ordinance 07-11 does not increase density, but merely allows more bedrooms and bathrooms. The prohibition against increasing nonconforming uses is a general provision found in all local government codes. It does not prevent the periodic redefinition of what constitutes a nonconforming use. In other words, the policy has the same meaning as if it read, “However nonconforming uses are defined, do not make them worse.” The cap on hotel/motel rooms in Policy 1-2.1.10 is different in this respect. It is a unique policy that is expressly tied to a specific condition and time – “the number of current hotel and motel rooms . . . existing within the Village as of December 6, 2001.” A density limit and the cap on hotel/motel rooms serve different purposes. It was not explained by the Department and it is not apparent how the purpose served by the density limit for hotel/motels is thwarted if a bedroom or bathroom is added to a single hotel unit. On the other hand, the purpose served by the cap on the number of hotel/motel rooms that existed on December 6, 2001, is clearly thwarted by a re-definition of “room” that allows more hotel/motel rooms than existed on that December 6, 2001. The disaggregation of hotel/motel rooms can create more separate units (greater density), not just larger units. Nevertheless, the Department did not adequately explain why Policy 1-2.2.4 could not be applied by Islamorada as a limit on any disaggregation that would result in the creation of additional units at a nonconforming hotel or motel. It is fairly debatable whether Ordinance 07-11 is consistent with Policy 1-2.2.4. Policy 1-2.2.6 Policy 1-2.2.6 prohibits the enlargement or extension of non-conforming structures. The Department asserted that Ordinance 07-11 “creates a possibility of redeveloping and expanding the size of hotel/motel units to a previously existing non-conforming structure,” but the evidence presented by the Department on this issue was insufficient to explain what kinds of non-conforming structures would be affected by the ordinance, or to demonstrate how the ordinance would require noncompliance with Policy 1-2.2.6. Ordinance 07-11 is not facially inconsistent with the policy. The Department did not adequately explain why Policy 1- 2.4.6 could not be applied by Islamorada as a limit on any application of Ordinance 07-11 that would result in a nonconforming structure. It is fairly debatable whether Ordinance 07-11 is consistent with Policy 1-2.2.6. Policy 2-1.6.3 Policy 2-1.6.3 establishes a 24-hour hurricane evacuation time. Hurricane evacuation is a major issue for Islamorada and for all local governments in the Florida Keys because of their low elevation, exposure to storm surge, flooding, and high winds, and limited evacuation routes. The hurricane evacuation model used for the Florida Keys predicted in 2001 (the last time the model was run) that more than 24 hours would be needed to evacuate the Keys. Therefore, Islamorada and other local governments in the Keys developed “staged” evacuation plans whereby transient units are evacuated 48 hours prior to the arrival of hurricane force winds, then mobile home residents 36 hours prior to that time, and other residents are evacuated 24 hours prior. These staged evacuation plans have been accepted by the Department as consistent with the requirement for 24-hour hurricane evacuation. Despite the prediction of the hurricane evacuation model, the Department allows local governments in the Florida Keys to add new residences and associated vehicles every year; 28 each year in Islamorada. The Department contends that Ordinance 07-11 is inconsistent with Policy 2-1.6.3 because the ordinance allows for the creation of more hotel/motel units and larger units which will generate more traffic and make hurricane evacuation more difficult. It is undisputed that Ordinance 07-11 will increase the need for parking spaces at hotels and motels in Islamorada. The Department showed there would be an unquantified increase in the number of vehicles associated with larger hotel and motel rooms. More vehicles means more time would be needed to evacuate transient units in Islamorada. However, the Department did not show that Ordinance 07-11 would prevent Islamorada from evacuating transient units in conformance with the staged evacuation plan. The Department points out that, for fast-forming and fast-approaching hurricanes, Islamorada will not always have time to evacuate residents and visitors in the time frames called for in the staged evacuation plan. However, the Department could have used the occurrence of fast-forming and fast-approaching hurricanes as a rationale to oppose the adoption of staged evacuation plans by Islamorada and other local governments in the Florida Keys. Instead, the Department determined that staged evacuation plans are consistent with the statutory requirement and the comprehensive plan policies calling for 24-hour hurricane evacuation, despite the possibility of fast-forming and fast-approaching hurricanes. Therefore, to prove that Ordinance 07-11 is inconsistent with Policy 2-1.6.3, it is not enough for the Department to merely show that Ordinance 07-11 would lead to more vehicles associated with transient units. The Department must prove that Ordinance 07-11 would prevent Islamorada from evacuating transient units under the time frames of the staged evacuation plan. Insufficient competent evidence was presented about the hurricane evacuation model, about the model’s assumptions, and whether the model’s assumptions are still relevant to current circumstances, to assist the Administrative Law Judge to make findings regarding the potential effects of Ordinance 07-11 on the modeled evacuation times. William Wagner, formerly an emergency management coordinator for Monroe County and currently the chief for emergency services for Islamorada, testified that the staged evacuation plan has been implemented two or three times since its adoption and there have been no problems evacuating the transient population within the time frames of the plan. It was his opinion that doubling the current number of hotel/motel units in Islamorada would not prevent evacuation of the Florida Keys in compliance with the goals of the staged evacuation plan. It is fairly debatable whether Ordinance 07-11 is consistent with Policy 2-1.6.3. Policy 3-1.1.8 Policy 3-1.1.8 requires Islamorada to adopt LDRs “that establish a fair and equitable method for requiring developers of new and expanded businesses and private developers of housing to provide or subsidize housing for employees.” The Department contended that Ordinance 07-11 is inconsistent with this policy because the ordinance creates a need for more employees without providing affordable housing for them. However, Islamorada recently adopted an LDR which requires developers to provide at least 30 percent affordable housing on site or pay a fee which Islamorada will use to provide affordable housing elsewhere. Based on Islamorada’s adoption of the affordable housing LDR, the Department changed its position and now states that Ordinance 07-11 is “neutral” with respect to affordable housing. It is fairly debatable whether Ordinance 07-11 is consistent with Policy 3-1.1.8. Principle (d) - Sound Economic Development In its Proposed Recommended Order, the Department asserts that Ordinance 07-11 is inconsistent with Principle (d), but does not explain why. The Department makes a general reference to protection of natural habitat and provision of affordable housing, but no evidence was presented to demonstrate that Ordinance 07-11 would result in adverse impacts to the natural environment, and the Department withdrew its contention that affordable housing was an issue. The Department failed to prove by a preponderance of the evidence that Ordinance 07-11 is inconsistent with Principle (d). Principle (j) – Affordable Housing As discussed above, the Department changed its initial position and now states that Ordinance 07-11 is neutral with regard to affordable housing. The Department failed to prove by a preponderance of the evidence that Ordinance 07-11 is inconsistent with Principle (j). Principle (l) – Health, Safety, and Welfare The principal basis for the Department’s contention that Ordinance 07-11 is inconsistent with Principle (l) is the Department’s allegation that the ordinance will increase the traffic associated with hotels and motels and, therefore, adversely affect hurricane evacuation. For the reasons already discussed in the context of Policy 2-1.6.3 of the Islamorada Comprehensive Plan, the Department failed to prove by a preponderance of the evidence that Ordinance 07-11 is inconsistent with Principle (l) with regard to hurricane evacuation. Another basis for the Department’s contention that Ordinance 07-11 is inconsistent with Principle (l) is the ordinance’s alleged effect on potable water supply in Islamorada. In the Department’s Amended Final Order, there was one passing reference to the lack of data and analysis regarding “potential impacts on potable water supply.” There was no mention of a potable water supply issue in the parties’ Joint Pre-Hearing Stipulation. In its Proposed Recommended Order, the Department simply asserts that “Ordinance 07-11 fails to address the impacts on potable water supply.” The burden was on the Department to prove that Ordinance 07-11 would create potable water supply problems. It failed to meets its burden. The Department did not prove by a preponderance of the evidence that Ordinance 07-11 is inconsistent with Principle (l).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Community Affairs enter a Final Order rejecting Ordinance 07-11 as inconsistent with the Principles for Guiding Development set forth in Section 380.0552(7), Florida Statutes. DONE AND ENTERED this 22nd day of October, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER 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 22nd day of October, 2008.
Findings Of Fact The project at issue. Respondent, Department of Transportation (Department), proposes to construct a new four-lane bascule (movable span) bridge, with a vertical clearance in the closed position of 25 feet, to span the Intracoastal Waterway (ICW) between the City of Boynton Beach (Boynton Beach), situated on the mainland, and the Town of Ocean Ridge (Ocean Ridge), situated on the adjacent barrier island. The purpose of the project is to replace the existing two-lane 50 year-old bascule bridge, with a vertical clearance in the closed position of 10 feet, that currently connects Boynton Beach and Ocean Ridge. The existing bridge, which is located approximately 700 feet south of the proposed project, is slated for removal as soon as the new bridge is built. As proposed, the approach structure and bridge spanning the ICW will be approximately 1350 feet long and 87 feet in width, and will intersect a mangrove forest on both sides of the ICW. These forests are among the few remaining mangrove forests of significance in Palm Beach County, are healthy and well flushed, and provide the benefits to the community normally associated with their presence: a source of food and shelter for fish, birds and other wildlife; a buffer from wind and water in time of hurricane and other storm events; a natural filter that maintains or improves water quality; and an ideal area to observe and study the native biota. Construction of the proposed bridge will result in the direct elimination of one acre of the 40-acre mangrove forest on the east side of the ICW, and will further adversely impact that ecosystem by bisecting that forest and thereby preventing the free exchange of waters and wildlife. Further adverse impacts to the forests on both sides of the ICW may be expected from the "shadowing" caused by the bridge structure, and by run-off if not properly contained and treated. Overall, the impacts to the forests by construction of the proposed bridge may be termed significant and adverse. In addition to the bridge, the project will require the construction of an approach road consisting of a continuation of Boynton Beach Boulevard (State Road 804) from its intersection with US1 to the proposed bridge and from the eastern terminus of the bridge to State Road A1A in Ocean Ridge. Overall, the bridge and approach road will require the acquisition of a 110-foot right-of-way for the length of the project, approximately 3200 feet. In Boynton Beach, lying on the west bank of the ICW, the impact suffered by those in the immediate area of construction will be minimal. Currently, the area surrounding the intersection of Boynton Beach Boulevard and US1 is commercially developed, and the only displacement that would occur would be a partial taking of the Boynton Lodge Motel, located at the southeast corner of Second Avenue (the continuation of Boynton Beach Boulevard) and US1. While of minimal impact to Boynton Beach, the proposed project will have substantial impacts to Ocean Ridge and its residents. Ocean Ridge, with a population of approximately 1400 people, is a "bedroom community" composed almost exclusively of single family residences and a few condominiums. Currently, some commercial development does exist in the town (a few motels and one restaurant) but those properties were rezoned some years ago to eliminate such use and within a few years the town will be exclusively residential in character. As proposed, the new bridge and approach road would traverse the mangrove forest on the east side of the ICW, which is within the territorial limits of Ocean Ridge, and continue east, parallel to and north of Coconut Lane, a residential street, until it connected with State Road A1A at the south side of the Ocean Ridge Town Hall. State Road A1A, which runs north and south, is a two-lane "scenic highway," and all relevant land-use plans call for it to remain a two-lane road. Built as proposed, the new four-lane road would end at a "T"- intersection with State Road A1A at the south side of the Ocean Ridge Town Hall, and require signalization. There, new approaches for the proposed road from State Road A1A traveling south would require the taking of property from the front of the town hall. If taken, the sidewalk, lawn and shrubbery that separate the town hall from State Road A1A would be removed and the new roadway would be within 10 feet of the town hall. Further, if queued because of the signalized intersection, traffic traveling south on State Road A1A could block ingress and egress to the town hall from State Road A1A. The Department has, however, proposed an alternate access to the town hall from the new road which would ameliorate the access problems. 1/ In addition to impacting the mangrove forest and town hall, the new road will also impact the residents of Coconut Lane. Coconut Lane is a residential street comprised of single family homes, including that of petitioners, Dr. and Mrs. Augusto Lopez-Torres. Dr. Lopez-Torres is a practicing physician and his wife a sculptress. The Lopez-Torres' home, purchased in approximately 1979, is located on the north side of Coconut Lane and is surrounded on the west and north by mangrove forest. The house, which faces Coconut Lane, is a two-story spanish style home built in 1922. From the back sun room, which is used as a studio by Ms. Lopez-Torres, the home overlooks a swimming pool and the surrounding mangrove forest. 2/ Built as proposed, the right-of-way for the approach structure and road would require the taking of a substantial portion of the Lopez-Torres' property at the rear of their home, including their garage apartment and up to one-half of their swimming pool and would encroach to within 20 feet of the back of their house. Under such circumstances, their interests, as well as the interests of the other residents on the north side of Coconut Lane, would be substantially and adversely affected by the proposed project. 3/ The existing alignment Currently, Boynton Beach and Ocean Ridge are connected by a two-lane bridge at Ocean Avenue, approximately 700 feet south of the proposed project. That bridge, built in 1936, is in poor condition and in need of replacement. 4/ In 1961, anticipating that a four-lane bridge would be built on Ocean Avenue, the Department four-laned Ocean Avenue from State Road A1A to US1, and provided an additional lane on each side for parking. Currently, such road provides a 90-foot right-of-way that does not impact any environmentally sensitive areas. East of the ICW, Ocean Avenue connects with State Road A1A in Ocean Ridge. Along this stretch, Ocean Avenue is currently fronted by single family residences, which are built on deep lots and set well back from the street. West of the ICW, after about 2 blocks, Ocean Avenue connects with US1, a four-lane north-south artery. Development within this area is predominately commercial, as the intersection of Ocean Avenue and US1 was the historic center of the Boynton Beach business district. Located at the north side of the bridge is a restaurant and marina and at its south side is a five-story condominium complex. The remainder of the two-block stretch of Ocean Avenue is occupied by a small regional shopping center and smaller commercial buildings. From Ocean Avenue, access to State Road 804 (Boynton Beach Boulevard), the main east-west artery in the area, can be had by traveling north on US1 to its intersection with State Road 804, a distance of approximately 700 feet. Development through this area is likewise commercial. The Department's initial evaluation. In 1975, the Department commenced its project development/environmental study to evaluate alternatives available upon replacement of the Ocean Avenue bridge. 5/ At that time, a study team, consisting of an environmentalist, noise and air quality expert, land planner and engineer was assembled to prepare preliminary plans and a Draft Negative Declaration. 6/ Pertinent to this case, the Department considered two alternatives for a replacement bridge: a four-lane 25-foot clearance bascule bridge at Ocean Avenue or one at Second Avenue (the continuation of Boynton Beach Boulevard). 7/ Both bridges would have four 12-foot wide traffic lanes and substantially the same "footprint," but the Second Avenue bridge would be somewhat longer with a slower rise; 5 percent as opposed to 6 percent at Ocean Avenue. The bridges would be symmetrical in design, with the Second Avenue bridge having the design characteristics heretofore noted. The Ocean Avenue bridge would be an 80-foot wide structure built within the existing 90-foot right-of-way. On the east side of the waterway, an embankment approach was to be constructed. This would have required the acquisition of additional right-of-way, but at the time these proposals were considered (1977) the impacted lands were vacant. On the west side of the waterway, the structure would continue to grade at a point short of 6th Street. Direct access to Ocean Avenue for the businesses and condominiums lying east of 6th Street would be eliminated, but each would, under the Department's proposal, be accorded assess to Ocean Avenue via 6th Street. Total construction and right-of-way costs for the Ocean Avenue alignment were estimated in 1977 to be $5.5 million, and for the Second Avenue alignment to be $6.8 million. Following the study team's review, the Department submitted a Draft Negative Declaration to the Federal Highway Administration (FHWA) recommending that the bridge be built at the Second Avenue alignment. FHWA approved the Draft Negative Declaration in September 1976. Consistent with existent law, the Department held a public hearing in Boynton Beach on February 9, 1977, to accord the public an opportunity to express its views regarding the proposed project. By far, the majority of public input favored retention of a bridge at its current location. Favoring such retention were Ocean Ridge, residents of Ocean Ridge, and the businesses along Ocean Avenue. Opposing such retention, and favoring the Second Avenue alignment, were Boynton Beach and residents of Ocean Avenue on the Ocean Ridge side of the ICW. In August 1977, the Department issued its Final Negative Declaration, and concluded that a new 25-foot bascule bridge should be built at the Second Avenue alignment and that no significant adverse environmental impact would result from such alignment. The Final Negative Declaration concluded: Alternative Location B, the 25 foot clearance bascule bridge on new location along the line of NE Second Avenue was selected for the following reasons: The old Ocean Avenue bridge could remain in use during the construction period. This was important both for emergency access, especially during a hurricane, and in terms of inconvenience and user cost. Location B avoids the potential damages to the condominium apartments and the restaurant and three other businesses on Ocean Avenue east of 6th Street. Noise impacts and loss of view would have affected the condominium, and the loss of direct access to Ocean Avenue would have adversely affected the businesses. Conditions would have been even more difficult during the construction period. The following considerations also favored Alternate B, although they were secondary to and b). The Alternate B Location results in the improvement in the traffic flow patterns on the Boynton Beach side of the waterway. This is not of great importance because the traffic projections show that only 25% of the vehicles crossing the bridge intend to proceed across U.S. 1, the others turn onto U.S. 1. The businesses in the general area of downtown Boynton Beach would not be subject to the loss of trade which might result if the facility were closed during the construction period, and all traffic detoured to SE 15th Street. It was recognized that Alternate Location B had certain disadvantages (listed below), but these were overridden by the above noted considerations. Alternate B has some environmental impacts on a natural area on the east side of the waterway which contains some wetlands and mangroves. Impacts here may be mitigated by extending the bridge structure to eliminate some approach fill, and by replanting of mangroves. This will be investigated in the design and permitting stage. It was claimed that Alternate B would be the cause of additional traffic into the Town of Ocean Ridge because it would make travel from I-95 via NE Second Avenue more convenient. The Department of Transportation does not feel that an improvement of this type will materially influence a driver in his choice of destination. It was claimed that Alternate B would cause additional pressures for development in Ocean Ridge. The Department of Transportation will consider the use of a limited access right-of-way in Ocean Ridge to avoid this possibility. It was claimed that the relocation of the bridge from Ocean Avenue would damage the businesses on Ocean Avenue by removing the traffic from their street. The construction and right-of-way acquisition costs of Alternate Location B are greater. The Department's avowed rationale for selecting the Second Avenue alignment over the Ocean Avenue alignment, as set forth in its Final Negative Declaration, lacks substance. The fact that the Ocean Avenue bridge could remain in use during construction of the new bridge is of little import since there are numerous bridges that connect the barrier island with the mainland, the closest of which is at 15th Avenue in Boynton Beach, one mile south of Ocean Avenue. Considering the available access and the limited population of the barrier island, the need for continued maintenance of the bridge during the replacement period for emergency access, as well as inconvenience and user cost, is de minimis. The Department's conclusion that noise impacts and loss of view would have affected the condominium, and the loss of direct access to Ocean Avenue would have adversely affected the restaurant and three other businesses on Ocean Avenue east of 6th Street does not bear scrutiny. First, while the Final Negative Declaration does conclude that if the new bridge is built with a steel grid floor having noise characteristics similar to the existing bridge, which was built in 1936, that adverse noise impacts will occur, it also concludes: During the detailed design phase, an investigation could have been made to determine if steel gird flooring with lower noise characteristics is available, or if it is feasible to substitute a smooth steel plate deck with an asphaltic overlay... Why the Department would defer until the design phase this consideration is not explained of record. It is, however, apparent that the Department made no investigation during the site selection process to ascertain whether or at what cost alternative materials or designs were available that would have obviated any noise impact to the condominium. Loss of view to the condominium is, at best, minimal since its view is predominately east, across the ICW, to the Atlantic Ocean. While loss of access to Ocean Avenue may have impacted the subject businesses, the Department's plan for the Ocean Avenue alignment included the acquisition of an alternate accessway that would have provided them access to Ocean Avenue at 6th Street. More importantly, the removal of the Ocean Avenue bridge would have had a lasting adverse impact to those same businesses, as well as all others fronting Ocean Avenue. The "improvement in the traffic flow patterns on the Boynton Beach side of the waterway" (the elimination of the "jog" between Ocean Avenue and State Road 804) is, by the Department's own admission and the proof at hearing, of no significant import. The Department's final basis for selecting the new alignment, that: ... business in the general area of downtown Boynton Beach will not be subject to the loss of trade which might result if the facility were closed during the construction period, and all traffic detoured to SE 15th Street... is likewise unpersuasive. The Department undertook no study that would demonstrate what businesses existed in the "general area" of downtown Boynton Beach or how, if at all, they would be affected by the closure of the Ocean Avenue alignment during construction. While the businesses along Ocean Avenue would be affected if the bridge was closed during construction, the permanent removal of that structure is by far more significant to their enterprises than its temporary closure. In selecting the Second Avenue alignment, the Department did note "certain disadvantages," but felt they were "overridden by the above noted considerations." Among those disadvantages was the adverse impact to one acre of the mangrove forest. The Department undertook, however, no meaningful evaluation of the impacts its project would have on the environment, and failed to address the impact of "shading" and other adverse impacts that could occur from construction of the bridge. Rather, the Department deferred all considerations to the design stage to see if impacts could be mitigated. Such approach does not comport with the Department's obligation to assess the environmental impacts of its project during site selection, and leaves its analysis wanting. In all, the Department's decision in 1977 to relocate the bridge to the Second Avenue alignment did not include a balanced consideration of the factors it was charged by law with evaluating. The Department's second evaluation. Following the Department's issuance of it Final Negative Declaration in 1977, nothing was done on the project until 1980 due to a lack of funding. Following that time, the Department employed a consultant to prepare the construction and right-of-way maps. These plans were completed in June 1982. In August 1983, the Department's right-of-way acquisition agents performed a routine review of the project in order to activate the right-of-way acquisition phase. They reported that the updated right-of-way costs had substantially increased on the Second Avenue alignment, that future average daily traffic did not justify the need for a major improvement, and that a reassessment of the project was justified since a number of years had elapsed since the previous impact was assessed. 8/ Notably, in the intervening years since the Department's Final Negative Declaration, Coconut Lane had changed from a street with one vacant house on its north side to a street that was substantially built-out. Ocean Avenue, east of the waterway, had likewise built-out, and some of the lots the Department had proposed in 1977 to acquire for an embankment approach, if the Ocean Avenue alignment had been selected, were then occupied by houses. In the intervening years, Ocean Ridge had also adopted a comprehensive plan which, pertinent to this case, sought to preserve the mangrove forests, "scenic" A1A, and the bridge at its existent location. Considering the significant changes that had occurred between 1977 and 1984, a reassessment of the project was justified. The Department, following the report of its right-of-way acquisition agents, did not, however, reassess the project or address the comprehensive plan of Ocean Ridge. Rather, it relied on its Final Negative Declaration of 1977 as having adequately assessed the propriety of its choice between the two alignments. For the reasons heretofore discussed, such reliance was misplaced. Instead of reevaluating the project, the Department directed its Bureau of Value Engineering to simply undertake a study of the feasibility of replacing the bridge and providing improvements on the existing alignment within existing right-of-way, without new takings, to minimize impact. That bureau's report, issued in March 1984, concluded that while it was possible to build a four-lane bridge on the existing alignment, without new takings, that the apparent savings of $5.3 million envisioned by such an option over the Second Avenue alignment was offset by the accumulation of performance and design compromises that needed to be made. 9/ The bureau, as a consequence of Governor Graham's Executive Order No. 81-105, issued September 4, 1981, also considered whether two or four lanes were needed for the bridge over the waterway. It concluded that, if the Department's traditional practice of assessing need for a road or bridge based on average daily traffic (ADT) were utilized, the "future road network, population, growth, attraction, travel patterns and forecasts of the Palm Beach County Metropolitan Planning Organization [MPO]" do not justify widening to four lanes. The bureau suggested, however, that the four-lane alignment at Second Avenue should be retained because peak hour traffic is much heavier than ADT. Its report did not, however, quantify peak hour traffic, and, as discussed infra, such traffic does not justify widening to four lanes. By memorandum of March 16, 1984, the Department's Secretary proposed "to go with the Boynton Beach Boulevard plans," and concluded: It is my professional opinion that realignment to Boynton Beach Boulevard will better serve the transportation and economic needs of the citizens and merchants with the City of Boynton Beach.... No mention was made of the needs of the citizens of Ocean Ridge or the region. On March 26, 1984, Lopez-Torres filed a petition for a section 120.57(1) hearing to contest the Department's decision, and the matter was referred to the Division of Administrative Hearings. Subsequently, petitions to intervene were granted on behalf of Ocean Ridge, Boynton Beach and the Audubon Society of the Everglades. The Audubon Society of the Everglades is a Florida nonprofit corporation whose purpose is to protect environmental resources and to promote the use, enjoyment and public awareness of environmental resources. Its membership uses, enjoys and frequents the mangroves forest and adjoining waters that would be affected by the proposed project. Adequacy of the Department's evaluation. While the proof at hearing demonstrated that the existent Ocean Avenue bridge needed to be replaced, it also demonstrated that the Department's evaluation of the four-lane alignment was deficient, as heretofore discussed, and that the need for four lane improvements on either the Second Avenue alignment or Ocean Avenue alignment could not be justified by average daily traffic or peak-hour traffic. Rather, a two-lane configuration would be adequate to handle traffic within the Department's 25-year planning horizon or within any other reasonably reliable horizon. Further, it is not necessary to eliminate the 700-foot "jog" on US1. Rather, a simple extension in the length of the turn lanes can cure any existing or foreseeable traffic engineering problems at that location. In evaluating alternatives upon replacement of the existing structure, the Department overlooked or failed to seriously address a two-lane configuration. At hearing, conceding that a two-lane structure would provide adequate capacity, the Department sought to buttress its decision to utilize a four-lane structure by alluding to other factors that could lead one to elect such configuration over a two-lane configuration, such as: the existence of four-lane approach roads and "Q" build up. Such proof is not, however, compelling in this case because the record demonstrates that the Department did not address the design of a two-lane structure and, therefore, never evaluated or attempted to conform such structure to the existent site. Other testimony offered by the Department, that the "footprint" of a two-lane structure would not substantially vary from that of a four-lane structure is likewise not persuasive. Rather, the two-lane structure would require less right-of-way than a four-lane structure, and its construction costs would be less. 10/ In evaluating the replacement of the bridge, the Department has established a 25-foot clearance ostensibly because it is mandated by the Coast Guard or Corps of Engineers, and because it will reduce the bridge openings experienced by the current 10-foot clearance bridge by two thirds. While such clearance will reduce bridge openings, and thereby increase the life of bridge machinery and reduce inconveniences to motorists, it is not mandated by the Coast Guard or the Corps of Engineers. Since the movable bascule bridge provides unlimited clearance in the open position, those agencies do not normally mandate the closed vertical clearance; however, they do seek to obtain as much clearance as possible during their permitting process. Such agencies have recently permitted 21-foot clearances. Considering the fact that the height of the replacement structure may reasonably bear some relationship to the adverse impacts to the area on Ocean Avenue east of 6th Street, the Department erred in failing to consider alternative elevations for the replacement structure. While relocation of the bridge to Second Avenue is consistent with the MPO and the comprehensive plans of Palm Beach County and Boynton Beach, it is contrary to the comprehensive plan of Ocean Ridge and the Department made no attempt to harmonize such plans. Conclusion Based on the findings heretofore set forth, it is concluded that in electing to site the subject bridge at Second Avenue the Department abused its discretion because it failed to appropriately take into account future as well as present needs, all pertinent local government comprehensive plans, and the total environment of the community and region, including land use, entrepreneurial decisions, population, travel patterns, traffic control features, ecology, stormwater management plans, pollution effects, aesthetics, safety, or social and community values.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which vacates the Department's decision to relocate the bridge between Ocean Ridge and Boynton Beach. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of June 1989. WILLIAM J. KENDRICK 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 2nd day of June, 1989.
The Issue The issue here concerns the entitlement of the Petitioner, Hernstadt Broadcasting Corporation to be granted certain environmental permits from the Respondent, State of Florida, Department of Environmental Regulation, which would allow the Petitioner to construct a radio transmitter tower and access dock within the Biscayne Bay which is located in Dade County Florida. 1/
Findings Of Fact The Petitioner in this action, Hernstadt Broadcasting Corporation, owns and operates radio station WKAT, which is located in Miami Beach, Dade County, Florida. The Petitioner is licensed by the Federal Communications Commission to pursue this enterprise. On April 30, 1980, the State of Florida, Department of Environmental Regulation received an application from the Petitioner, which application requested permission to construct a radio transmitter tower and access dock in Biscayne Bay, Dade County, Florida. (The tower end dock are part of a proposed station complex in which the radio station building is to be constructed upland from the Bay.) The project, if allowed, would be located off the north side of the Julia Tuttle Causeway which connects the City of Miami and the City of Miami Beach via the Biscayne Bay. The tower and access dock, if constructed, would be located in submerged lands owned by the State of Florida. In view of the location of this apparatus in Biscayne Bay, it would be subject to the provisions of the Biscayne Bay Aquatic Preserve Act found in Chapter 258, Florida Statutes, together with other provisions of statute and rule. To place the access dock in the Bay, the Petitioner proposes to drive pilings into the Bay bottom to support the access dock which is 200 feet long and four (4) feet wide. The support mechanism for the radio tower would also be constructed by the driving of pilings into the Bay bottom and the radio transmitting tower, once built, would be 400 feet tall and would have attached stabilizing guy wires connected to anchors driven into the Bay bottom. As the pilings are driven into the floor of the Bay, the displaced soils will be compressed into lower elevations or redistributed against the pilings. Respondent's Exhibit No. 15, admitted into evidence, is a copy of the original application for permit, which was modified by site plans and sketches depicted in Respondent's Exhibit No. 16, admitted into evidence, shortening certain dimensions related to the access dock. (These modifications came about subsequent to the Department of Environmental Regulation's permit application appraisal found as Petitioner's Exhibit No. 10, which is dated June 23, 1980.) After review of the project, in the face of the aforementioned modifications, the Department of Environmental Regulation issued a letter of intent to deny the permit request. This letter of intent was dated September 9, 1980, a copy of which may be found as petitioner's Exhibit No. 11, admitted into evidence. The authority stated for such denial are these provisions of Subsection 258.165(3)(b), Florida Statutes (Supp. 1980), and Rule 17-4.242(1), Florida Administrative Code. Subsequent to the issuance of the letter of intent to deny, a further modification was made on the project increasing the length of the proposed access dock to the presently requested 200 feet. This modification is depicted in petitioner's Exhibit No. 12, admitted into evidence, which shows site plans and other pertinent information related to the project. Another modification to the project which the Petitioner claims is not subject to permit review by the Department of Environmental Regulation, and for which the Department of Environmental Regulation takes a contrary point of view, concerns the use of a grid of nickel-plated copper straps, approximately 40 feet by 40 feet, constituted of a mesh of approximately 1/4 inch in diameter by 1 inch sections to be placed underneath the tower and on the Bay bottom for purposes of grounding the tower. This item was not made known to the Respondent until September 30, 1980, at a time subsequent to the letter of intent to deny. The Petitioner in this action pursues the project on the basis of a joint use agreement entered into with the State of Florida, Department of Transportation, in which the Department of Transportation, in return for the ability to use the radio tower for communications in connection with a surveillance and traffic control system for Interstate Highway-95 and for the ability of the City of Miami, Florida, to use the facility for a tactical communication repeater installation, would grant to the Petitioner the Department of Transportation's rights and opportunities as easement holder in the area where the subject project would be constructed. See Petitioners' Exhibit No. 3, admitted into evidence. The Department of Transportation's rights stem from an easement grant from the Trustees of the Internal Improvement Trust Fund. See Petitioner's Exhibit No. 13, admitted into evidence. The rights of the Petitioner, by assignment from the Department of Transportation, do not relieve Petitioner of the obligation to gain the necessary approval of the Trustees of the Internal Improvement Trust Fund in the person of the State of Florida, Department of Natural Resources for permission to use those submerged lands over which the access walkway and tower would be constructed, notwithstanding any rights and privileges assigned to the Petitioner by the Department of Transportation as easement from the Trustees of the Internal Improvement Trust Fund. This is true because the perpetual easement granted from the Trustees to the Department of Transportation for right-of-way and dredging purposes related to the roadway which is constituted of the Julia Tuttle Causeway and to the adjacent Bay bottoms related to construction and maintenance of that roadway, does not envision assignment of the submerged lands to an entity in the position of the Petitioner, which entity does not have as its purpose the construction or maintenance of the roadway; hence, the necessity to gain permission from the Department of Natural Resources if the access dock and tower are to be constructed on the submerged land of the State. The easement held by the Department of Transportation is specific in nature and does not contemplate the construction of a radio station. (It is not necessary to comment on the question of whether a joint use agreement between the Department of Transportation and Hernstadt as that Department's assignee for rights and privileges bestowed upon the Department from the Trustees based on the easement rights granted on October 2, 1941, would allow the construction of the building of the radio station building which would be at the upland terminus of the access dock which also adjoins the radio tower, the Department of Environmental Regulation having offered no claim for permitting jurisdiction over the radio station building.) The Petitioner proposes to move its radio station from the existing location in Miami Beach because buildings in the general area of the radio station interfere with the radio signal and, in addition, there is interference caused by radio transmissions from Cuba. The terms of the license held by Petitioner on issuance from the Federal Communications Commission limit the movement of the station's transmitter tower to a location no more than four (4) miles from the current location. At the time of the hearing, the Petitioner had not located an alternative tower site, other than the proposed site. As stated before, if the tower were constructed, the State of Florida, Department of Transportation would utilize the tower in its communications network and the City of Miami Fire and Police Departments would likewise desire to use the tower. The Florida Marine Patrol and the Florida Highway Patrol would also be interested in using the proposed tower for communications purposes. The City of Miami Planning and Advisory Board and the City Commission of that municipality would be in favor of the construction of the proposed radio tower. Dade County, Florida, has adopted a Comprehensive Master Plan, copies of which may be found as Respondent's Exhibit No. 19, admitted into evidence. Within that document is a discussion of environmental concerns within the county to include Biscayne Bay and, in particular, concern for protection of environmentally sensitive areas such as Biscayne Bay and an interest by the County to provide a wide range of public water oriented opportunities for the populace. Subsequent to the time of the submission of the permit application, and specifically, in October, 1980, Dade County, through its Metropolitan Planning Department and in conjunction with the Metropolitan Dade County Environmental Resources Management Department prepared a proposed Biscayne Bay Management Plan, a copy of which may be found as Respondent's Exhibit No. 17, admitted into evidence. This plan was approved by the Board of County Commissioners of Dade County, Florida, by an Ordinance, a copy of which may be found as the Respondent's Exhibit No. 18, admitted into evidence. The Biscayne Bay Management Plan encourages the enhancement of public access to the Bay for uses such as fishing, boating, shoreline wading and view in and the preservation and enhancement of the environmental, chemical and aesthetic qualities of the Bay. Furthermore, if the necessary permission could be obtained, Dade County, has future plans to use the subject Julia Tuttle Causeway as a public access to the Bay. The location of the radio tower and associated facilities would interfere with the proposed use by Dade County. The Department of Environmental Regulation, in keeping with Section 403.0615, Florida Statutes, 2/ through a program in conjunction with Dade County is attempting the restoration of the biological and chemical characteristics of the Biscayne Bay. Some of the items included in this program would be enhancement of aquatic vegetation, including seagrasses and mangroves and the promotion of aesthetics and public access to Biscayne Bay, to include the area of the Julia Tuttle Causeway. Radio station WKAT presents public service programs; is a part of the Emergency Broadcasting System and broadcasts emergency information in times of natural disaster. On the question of environmental implications of this project, the placement of the pilings would cause the destruction of certain seagrasses in that area, while at the same time promoting the introduction of marine life along the surfaces of the tower and dock supports. Seagrasses in the area where the grounding system would be placed may be destroyed and although the copper to be used would be nickel plated, thereby inhibiting the release of the toxic properties of the coated copper, eventually the nickel plating would break down and the marine life communities adjacent to the mesh would be harmed by the copper. The loss of seagrasses under the grid could cause a reduction in fish population. The installation of the radio tower and access dock in the Biscayne Bay is an impediment to navigation; however, the Petitioner intends to place channel markers to divert boat traffic away from the tower and its environs. There is no expected difficulty with run-off, discharges or other forms of pollution related to the construction or operation of the tower facility, although there will be some turbidity caused in the construction phases of the project. The project would be located in a State Aquatic Preserve within the meaning of Chapter 258, Florida Statutes; would be located in waters of the State within the meaning of Chapters 253 and 403, Florida Statutes; would be in navigable water within the meaning of Chapter 253, Florida Statutes, end would be in an Outstanding Florida Water within the meaning of Rule 17-4.242(1), Florida Administrative Code.
The Issue Whether the respondent committed the violations alleged in the Administrative Complaint dated December 19, 1995, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Criminal Justice Standards and Training Commission is the state agency responsible for certifying and revoking the certification of correctional officers. Section 943.12(3), Florida Statutes. Ms. Davis was certified by the Commission on May 18, 1993, and was issued Corrections Certificate Number 137735. She is currently certified as a corrections officer. Incident at the Royal Palm Beach K-Mart. In the Administrative Complaint, the Commission charged that On or about September 16, 1994, the Respondent, Dorothy B. Davis, did knowingly obtain, use, or did endeavor to obtain or to use a bread maker and a breadmixer of the value of $300.00 or more, the property of K-Mart, with the intent to either temporarily or permanently deprive the owner of a right to the property to her own use. On the morning of September 16, 1994, Timothy Meyers, a K-Mart employee of 16 years, was working as manager of the Royal Palm Beach K-Mart. Mr. Meyers observed Ms. Davis in the kitchen appliance aisle of the store with a shopping cart containing a Black and Decker bread maker and a Kitchen Aide mixer. The bread maker was priced at about $160.00 and the mixer at about $200.00. Moments later, Mr. Meyers observed another woman and a man push a shopping cart into the kitchen appliance aisle and, without looking at the various models available, put into their cart the same model Black and Decker bread maker and the same model Kitchen Aide mixer that Ms. Davis had in her cart. Mr. Meyers found it unusual that a shopper would choose these items without looking at the prices or at the other models available because the items were so expensive. Consequently, he followed the couple to the front of the store, where he observed them pay for the two items with cash. Mr. Meyers observed the couple leave the store by the front exit and put the bread maker and the mixer into a blue Ford Bronco. The man handed the woman what appeared to be the sales receipt for the bread maker and the mixer, and he then got into the Bronco and drove to the west side of the shopping center parking lot. Mr. Meyers observed the woman return to the store. She located Ms. Davis and handed her a piece of paper which Mr. Meyers believed was the receipt for the bread maker and the mixer. Mr. Meyers observed Ms. Davis push the cart containing the Black and Decker bread maker and the Kitchen Aide mixer toward the garden center, which is located on the east side of the store and has a separate exit and check-out register. He asked another store employee to follow Ms. Davis, and he went out the front exit to a location where he could observe the garden center exit but could neither see inside the garden center nor be seen by someone inside the store. When Mr. Meyers saw Ms. Davis push the cart containing the bread maker and the mixer through the garden center exit and onto the ramp leading into the parking lot, he stepped out and stopped her. He asked her if she had paid for the items in her cart at the front register, and she said yes and handed him a receipt for items of the same make and model as those she had in her cart. Mr. Meyers looked at the receipt, told Ms. Davis that she had not paid for the items, and told the cashier in the garden center to call the police. At this point, Ms. Davis left the cart on the sidewalk and walked away. Although Mr. Meyers told her to stop, she continued walking until she reached the Taco Bell restaurant located on the east side of the parking lot, about two hundred feet from the K-Mart store, where she waited until the police arrived. The K-Mart cash register detail tapes, which are the records of every transaction at the store, were checked and showed that, on the morning of September 16, 1994, only one Black and Decker bread maker and one Kitchen Aide mixer were sold. The evidence presented is clear and convincing that, on September 16, 1994, Ms. Davis took property belonging to K-Mart out of the store without paying for it. The property was valued at more than $300. These acts fall within the definition of grand theft found in section 812.014(1) and (2)(c)1, Florida Statutes, which constitutes a third degree felony pursuant to section 812.014(2)(c)1. Incidents involving Sandra Carey. In its Administrative Complaint, the Commission alleged that On or about October 18, 1994, Respondent, Dorothy B. Davis, did unlawfully commit a battery upon Sandra Carey, by actually touching or striking her or intentionally causing bodily harm to her against her will. On or about October 26, 1994, Respondent, Dorothy B. Davis, did unlaw- fully commit an assault upon Sandra Carey, by threatening by word or act to do violence to said person, coupled with an apparent ability to do so, and by doing an act which created a well- founded fear in Sandra Carey that said violence was imminent, by swerving toward her with deadly weapon, to wit: a motor vehicle. On or between October 20 and October 26, 1994, Respondent Dorothy B. Davis, did unlawfully commit an assault upon Sandra Carey, by threatening by word or act to do violence to said person, coupled with an apparent ability to do so, and by doing an act which created a well-founded fear in Sandra Carey that said violence was imminent, by throwing at her or in her direction a deadly weapon, to wit: beer bottles. On or between October 20 and October 26, 1994, Respondent Dorothy B. Davis, did knowingly use intimidation or physical force, threats, or attempts thereto, or offered pecuniary benefit or gain to Sandra Carey with intent to influence that person’s testimony or to cause or induce that person to withhold testimony from an official proceeding or be absent from an official proceeding to which such person has been summoned by legal process. On or between October 20 and October 26, 1994, Respondent, Dorothy B. Davis, did unlawfully, with intent to place Sandra Carey in reasonable fear of death or bodily injury, willfully and maliciously, follow or harass said person and make a credible threat, by assaulting her with a motor vehicle, throwing beer bottles at her, and/or making verbal threats of bodily harm, which caused said person substantial emotional distress and served no legitimate purpose. (The allegations in the Administrative Complaint are set out in paragraph form for clarity.) On October 18, 1994, in Belle Glade, Florida, a fight took place in or near a grocery store parking lot in the 400 block of Southwest Avenue B Place between an unidentified man and a woman named Shirkia Webb. Ms. Webb was apparently not the winner of this fight, and the fight apparently ended when Ms. Webb was knocked to the ground. Ms. Davis drove into the parking lot at about the time Ms. Webb was knocked to the ground. She was driving her Ford Bronco, and her children, including her seven- month-old baby, were in the back seat. When Ms. Davis stopped the car and opened the door, Ms. Webb ran over to her and began talking to her. Ms. Davis then left her children in the vehicle and walked into the grocery store, leaving the keys in the ignition. While Ms. Davis was in the grocery store, Ms. Webb got into the Bronco and ran it into the vehicle owned by the unidentified man with whom she had been fighting. This vehicle was apparently parked in the grocery store parking lot at the time. When Ms. Davis came out of the grocery store, a crowd of people had gathered. She saw that her Bronco had been involved in an accident, and she learned that Ms. Webb had been driving the vehicle. She spoke with one of the police officers on the scene and told him that Ms. Webb had stolen her Bronco with her children inside. She later filed grand theft charges against Ms. Webb. Ms. Carey either overheard Ms. Davis telling the police officer that Ms. Webb had stolen her Bronco or someone told Ms. Carey that Ms. Davis had done so. Ms. Carey then went to one of the police officers and told him that Ms. Davis had given Ms. Webb her Bronco knowing that Ms. Webb intended to use it to hit the man’s vehicle. Someone in the crowd told Ms. Davis what Ms. Carey told the police officers. Ms. Davis was upset at the time because her children were in the Bronco when Ms. Webb hit the other vehicle. When she learned that Ms. Carey told the police that she had given Ms. Webb permission to drive the Bronco, she rushed up to Ms. Carey and struck her in the chest, yelling at her to stop telling lies. This incident was observed by several police officers, and Ms. Davis does not deny that she struck Ms. Carey on this occasion. On October 20, 1994, Ms. Davis was driving her Bronco down 5th Street in Belle Glade, and she speeded up when she saw Ms. Carey crossing the street ahead of her. Ms. Carey was carrying her child, whom she had just picked up from the baby sitter, and she hurried across the street because she believed Ms. Davis would hit her if she did not move out of the way of the Bronco. Ms. Carey reported this incident to the police on October 20. In a second incident, Ms. Carey was at the Glades Wash House when Ms. Davis pulled up in her Bronco and told Ms. Carey she was going to “mess her up” for telling the police that she had given Ms. Webb permission to drive her Bronco during the altercation which took place on October Ms. Carey reported this incident to the police on October 21, 1994. On October 26, 1994, Ms. Davis was driving her Bronco on 4th Street in Belle Glade and she swerved toward Ms. Carey as she was walking along the side of the road. Ms. Carey moved out of the way to avoid being hit; Ms. Davis was laughing as she drove past Ms. Carey. Ms. Carey reported this incident to the police on October 26, 1994. Ms. Carey feared that Ms. Davis would hurt her or her baby, and she experienced some emotional distress until after the October 26 incident. After this incident, she did not think about it anymore and went on with her life because she had no further contact or problem with Ms. Davis. The evidence presented is clear and convincing that Ms. Davis struck Ms. Carey in the chest on October 18, 1994. This act falls within the definition of battery found in section 784.03(1), Florida Statutes, which constitutes a first degree misdemeanor pursuant to section 784.03(2). The evidence presented is clear and convincing that Ms. Davis threatened Ms. Carey with bodily harm both by trying to run her down on the street on October 20 and October 26 and by her words at the wash house on October These threats fall within the definition of assault found in section 784.011(1), Florida Statutes, which constitutes a second degree misdemeanor pursuant to section 784.011(2).1
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, issue a final order finding that Dorothy B. Davis has failed to maintain good moral character and revoking her certification as a corrections officer. DONE AND ENTERED this 6th day of February, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1997.
The Issue The issues are whether Respondent committed the several violations of Sections 489.129(1)(h)2.,(h)3.,(j),(k), and (n), Florida Statutes (1997), for the reasons stated in the respective Administrative Complaints and, if so, what, if any, penalties should be imposed. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of contracting. Respondent is licensed as a certified general contractor pursuant to license number CG C059414. At all relevant times, Respondent was the qualifying agent for Fred T. Garrett Construction, Inc. ("FTG"). As the qualifying agent, Respondent was responsible for all of FTG's contracting activities in accordance with Section 489.1195, Florida Statutes. Respondent failed to obtain a certificate of authority for Fred T. Garrett Construction, Inc., as required by Section 489.119(2), Florida Statutes. The St. Cyr Case On or about August 21, 1998, Respondent entered into a contract with Louis L. St. Cyr to construct an addition to the residence located at 201 South Bel Air Drive, Plantation, Florida. The contract price was $50,000. Although Mr. St. Cyr paid $2,500 to Respondent, Respondent failed to commence work and canceled the project, thereby abandoning it without just cause and without proper notification to Mr. St. Cyr. The contract did not permit Respondent to keep the $2,500 paid by Mr. St. Cyr, and Respondent failed to refund the payment within 30 days after abandonment. Out of the $2,500 he received from Mr. St. Cyr, however, Respondent paid $1,600.00 to the architect before abandoning the project. Thus, the net amount that Respondent owes to Mr. St. Cyr is $900. Petitioner incurred a total of $1,092.28 in investigative costs relating to the St. Cyr case. The Forney Case On May 22, 1998, Respondent, who was doing business as FTG, entered into a contract with Mr. Warren Forney for the construction of a two-bedroom, one-bath addition to the residence located at 1698 Northeast 33rd Street, Oakland Park, Florida. The contract price was $32,500. The contract with Mr. Forney did not contain a written statement explaining the customer’s rights under the Construction Industries Recovery Fund, as required by Section 489.1425(1), Florida Statutes. On July 7, 1998, Respondent obtained permit number 98-050297 from the Oakland Park Building Department. Construction commenced on or about July 7, 1998, and continued sporadically until October 29, 1998, when Mr. Forney dismissed Respondent for failure to timely complete the project. The Oakland Park Building Department issued notices of violation against the project on August 3, September 11, and October 14, 1998, for various building code violations. Mr. Forney was forced to obtain a homeowner’s permit and subsequently hired a subcontractor to complete the work. Mr. Forney paid Respondent approximately $29,250 before relieving Respondent of his duties. To complete the project, Mr. Forney paid a total of $48,746.52, which was $15,396.52 over and above the original contract price. Petitioner incurred a total of $2,190.78 in investigative costs relating to the Forney case. The Kong Case In or around January 1998, a contractor named Lakeview Concepts hired Respondent to perform demolition work for the Kong dry cleaning store project on the property located at 5171 South University Drive, Davie, Florida. On or about June 17, 1998, permit 98-00002349 was issued to Respondent to perform alterations on commercial property located at 5171 South University Drive, Davie, Florida. Respondent, however, did not yet have a contract with the owner for this work. The next month, on or about July 30, 1998, Respondent, who was doing business as FTG, entered into a contract with Shek Kong to complete the dry cleaning store project at 5171 South University Drive, Davie, Florida, for the contract price of $22,300. Shek Kong made payments to Respondent totaling $16,000. Respondent’s work was of poor quality, however, and on or about November 6, 1998, he ceased work, though the project had not been completed. On or about November 14, 1998, Douglas Frankow, license number CB C052960, gave Mr. Kong an estimate of $20,562 to complete the project. Thereafter, on or about June 30, 1999, Mr. Kong contracted with George Settergren, another licensed contractor, to complete the project for a contract price of $27,956. On December 9, 1999, in Case No. 98-020065 08, the Circuit Court, Seventeenth Judicial Circuit, Broward County, Florida, rendered a Final Judgment against Respondent and in favor of Mr. Kong. This judgment awarded Mr. Kong the total amount of $28,693.30, plus 10 percent interest per annum. Petitioner incurred a total of $2,502.78 in investigative costs relating to the Kong case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Sections 489.129(1)(h)2., (h)3., (j), (k), and (n), Florida Statutes, imposing administrative fines in the aggregate amount of $3,700, assessing investigative costs in the aggregate amount of $5,785.84, placing Respondent's license on probation for a period of four years from the date the Final Order is entered by the Board, and awarding payment of restitution to each customer as follows: (1) to Warren Forney, the amount of $15,396.52; (2) to Shek Kong, satisfaction of the unpaid civil judgment in the amount $28,693.30, plus 10 percent interest accrued thereon; and (3) to Louis L. St. Cyr, the amount of $900. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. _________________________________ JOHN G. VAN LANINGHAM 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 15th day of February, 2002.
