The Issue Whether Petitioners are "affected persons" entitled to pursue the instant challenge to the City of Miami Beach's Year 2000 Comprehensive Plan pursuant to Section 163.31B4(9), Florida Statutes? If so, whether the City of Miami Beach's Year 2000 Comprehensive Plan is not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes, as alleged by Petitioners?
Findings Of Fact Based upon the record evidence and the stipulations of the parties, the following Findings of Fact are made: City of Miami Beach: An Overview The City of Miami Beach is an incorporated municipality located within the jurisdictional boundaries of Dade County, Florida. It is governed by a seven member City Commission. The City consists of a main island and a number of smaller natural and man-made islands that lie to the east of the Dade County mainland. They are separated from the mainland by Biscayne Bay. To their east is the Atlantic Ocean. The City is now, and has been for some time, virtually fully developed. Less than 2% of the land in the City is vacant. Those parcels that are vacant are generally small in size and they are scattered throughout the City. The City is situated in the most intensely developed area in Dade County. Approximately 100,000 permanent residents live on the City's seven square miles of land area. In addition, the City has a sizable seasonal population Tourism is the backbone of the City's economy. Golf is among the activities visitors to the City are able to enjoy. There are two public 18-hole golf courses and one private 18-hole golf course in the City. The City also has a public 9-hole golf course, hereinafter referred to as the Par 3 Golf Course. Par 3 Golf Course and Surrounding Area The Par 3 Golf Course is owned by the City and leased to the American Golf Corporation, which operates the course. The course consists of nine relatively short holes. The longest of these holes is 180 yards. The shortest is 100 yards. The remaining holes average 150 yards in The course has been completely renovated and is currently in excellent condition. Since the renovation work, the number of players has increased significantly. Nonetheless, the course is still under-utilized. The land upon which the golf course is built is not environmentally sensitive. There are, however, a number of large, mature trees on the property. The Par 3 Golf Course is located on a 25 acre tract of land in the south central part of the City. It is bounded by 28th Street on the north, Dade Boulevard and Collins Canal on the south, Pine Tree Drive on the east, and Prairie Avenue on the west. All of these roadways are classified as "urban" by the Florida Department of Transportation Pine Tree Drive is one of the major north-south thoroughfares in the City. It is part of the Dade County Road System and has been assigned a Level of Service of "D" by the County. That portion of the roadway which borders the golf course has four lanes of through traffic, plus two parking lanes, and is divided by a median strip. The area surrounding the golf course is entirely developed. The development is primarily, but not exclusively, residential in nature. Residential structures are particularly predominant to the north and to the west of the golf course. Among the nonresidential structures found in the immediate vicinity of the golf course are: the Youth Center to the north; the Hebrew Academy's elementary school building, Miami Beach High School, and a City fire station, maintenance yard and fuel facility to the south; and the Fana Holtz Building, a five story building, with a basement parking garage, which currently houses the Hebrew Academy's junior and senior high school program, to the east on the other side of Pine Tree Drive. Parking is inadequate in the area of the golf course. The City is currently investigating ways to alleviate the parking problems in the area. Option to Exchange Property On June 7, 1989, at a regularly scheduled meeting, 1/ the City Commission voted to give the Hebrew Academy, a private educational institution, an option to purchase from the City a 3.87 acre portion of the Par 3 Golf Course located immediately adjacent to and north of the Hebrew Academy's elementary school building, in exchange for the Fana Holtz Building and the land on which it is situated. The Hebrew Academy has plans to construct a new junior and senior high school building, which will be able accommodate more students than the existing facility, on the land it will acquire if it exercises its option. The Hebrew Academy's acquisition of the land and its construction of a building on the site will disrupt the operations of the golf course. In addition, at least some of the large, mature trees that presently stand on the site will have to be removed. The course's third and fourth holes now occupy the land that the Hebrew Academy has been given the option to purchase. The course therefore will have to be redesigned to eliminate or relocate these holes if the Hebrew Academy purchases the land and constructs a building on it. Golfers playing the Par 3 Golf Course generally have the benefit of cool breezes that blow from the southeast. A multistory building situated on the land now occupied by the third and fourth holes will block some of these breezes that golfers playing other holes now enjoy. If the City acquires the Fana Holtz Building, it may move the offices of several City departments into the building. Such a move, coupled with an increase in the size of the Hebrew Academy's enrollment, would create a need for additional parking spaces in an area where parking is already a problem. Petitioners Falk and Miami Beach Homeowners Association Mildred Falk is now, and has been for the past 53 years, a resident of the City of Miami Beach. The Miami Beach Homeowners Association (Association) is a nonprofit organization of Miami Beach homeowners. Its primary purpose is to educate the public concerning matters of local interest in the City. For the past 15 years, Falk has been the President of the Association. Falk does not require formal permission from the Association's Board of Directors to address the City Commission on behalf of the Association. Falk has an understanding with the members of the Board that, if they take a position on an issue that will come before the City Commission, she will represent their collective views at the City Commission meeting in question without being formally requested to do so. Falk regularly appears before the City Commission in her capacity as a representative of the Association. As a general rule, though, she does not expressly state during her presentations that she is representing the Association. She considers it unnecessary to provide such an advisement because the persons she is addressing already know of her role as a spokesperson for the Association. On April 5, 1989, Falk Submitted a completed Lobbyist Registration Form to the City Clerk. On the completed form, Falk indicated that she had been employed by the Association to engage in lobbying activities with respect to a particular item, unrelated to the instant controversy, that was then before the City Commission. On February 5, 1990, Falk submitted another completed Lobbyist Registration Form to the City Clerk. On this completed form, she indicated that she had been employed to lobby with respect to "[a]ll issues that affect Miami Beach before the City Commission, Authorities or Boards." There was no indication on the form, however, as to what person or entity had employed her to engage in such lobbying activity. These are the only completed Lobbyist Registration Forms that Falk has filed with the City Clerk. Adoption of the City's Comprehensive Plan The City Commission considered the matter of the adoption of the City's Year 2000 Comprehensive Plan at public hearings held on September 7, 1989, and September 21, 1989. Notice of these adoption proceedings was published in the "Neighbors" section of the Miami Herald. 2/ The Miami Herald is a newspaper of general paid circulation in Dade County. The "Neighbors" section of the Miami Herald is circulated twice weekly along with other portions of the Herald in the following towns and municipalities: Miami Beach; Bal Harbour; Surfside; Bay Harbor Islands; Golden Beach; North Bay Village; Sunny Isles; and Indian Creek Village. The "Neighbors" section of the Miami Herald is: (a) published at least on a weekly basis; (b) printed in the language most commonly spoken in the area within which it circulates; (c) not a newspaper intended primarily for members of a particular professional or occupational group; (d) not a newspaper whose primary function is to carry legal notices; and (e) not given away primarily to distribute advertising. At the close of the public hearing held on September 21, 1989, the City Commission unanimously passed Ordinance No. 89-2664 adopting the City's Year 2000 Plan. On the future land use map (FLUM), adopted by the City Commission as part of the plan, that portion of the Par 3 Golf Course which the Hebrew Academy has the option to purchase is designated PFE (Public Facility- Educational). The property that the City will receive if the Hebrew Academy exercises its option has a land use designation of PF (Public Facility- Fire, Police, Other) on the FLUM. Policy l.2q. of the plan's future land use element contains the following discussion concerning the land use designation of these parcels of property: On June 7, 1989, the City Commission approved an option with the Hebrew Academy to exchanged [sic] private land for a portion of the Par 3 Golf Course. At the exercise of the option, the affected portion of the Par 3 Golf Course shall automatically be designated as Public Facilities [sic]- Educational. The property that the City will obtain will be designated as Public Facility- Other. 3/ During the public hearings that culminated in the City Commission's adoption of the City's Year 2000 Comprehensive Plan, Falk made oral presentations to the City Commission. She criticized the decision that had been made to allow the Hebrew Academy to purchase, at its option, the "affected portion of the Par 3 Golf Course" referenced in Policy 1.2q. of the plan's future land use element. It was her contention that, in accordance with a restrictive covenant entered into between the City, the Alton Beach Realty Company and the Miami Beach Improvement Company on June 17, 1930, the City was prohibited from allowing any portion of the land on which the golf course was built "to be used for any purpose whatsoever, other than for a golf course and/or golf links." At no time during her remarks did she contend that the plan ultimately adopted by the City Commission was contrary to any requirements dealing with the subject of urban sprawl. Nor did she argue that the notice of the adoption hearings that the City had provided was in any way deficient or inadequate. Falk did not identify herself at the adoption hearings as a representative of the Association. 4/ Nonetheless, in presenting her remarks to the City Commission, she was expressing not only her own views, but those of the Association as well. Prior to these hearings, she had informally polled the members of the Association's Board of Directors and they had each indicated to her that they opposed the "land swap" between the City and the Hebrew Academy. While they did not formally request that she appear before the City Commission to voice their concerns, it is not their standard practice to issue such requests. Neither Falk nor the Association submitted any written comments concerning the City's Year 2000 Comprehensive Plan during the City's review and adoption proceedings Urban Sprawl In November, 1989, the Department of Community Affairs published a Technical Memorandum (Volume IV, Number 4) which was designed "to help local governments and interested parties understand the requirements for discouraging urban sprawl that must be met to comply with Florida's planning requirements." The memorandum defines "urban sprawl" a- "scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental and natural resource protection." According to the memorandum, "urban sprawl typically manifests itself in one or more of the following inefficient land use patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low- density, single-dimensional development." These land use patterns are described in the memorandum as follows: Leap frog development occurs when new development is sited away from an existing urban area, bypassing vacant parcels located in or closer to the urban area that are suitable for development. It typically results in scattered, discontinuous growth patterns in rural areas which are frequently not appropriate for urban development * * * Strip or ribbon development involves the location of high amounts of commercial, retail, office and often multi-family residential development in a linear pattern along both sides of major arterial roadways. * * * Low-density, Single-dimensional development consists of single land uses, typically low-density residential, spread over large land areas. Frequently, the land is in rural, forestry, agricultural, or environmentally sensitive areas should be protected from urban development. The memorandum's description of "urban sprawl" is consistent with the definition most commonly employed by professional planners. In order to ascertain whether development meets the definition of "urban sprawl" used by the Department, it is necessary to determine whether the area involved is "rural" or on the "urban fringe." The memorandum suggests that such a determination may be based upon the area's population density. According to the memorandum, areas should be classified as follows based upon their population densities per square mile: Density Classification 0-200 Rural 201-500 Exurban 501-1000 Suburban 1001-2000 Medium [Urban] Density 2001-5000 High [Urban] Density 5000+ Highest Urban Density Among the techniques recommended in the memorandum to curb "urban sprawl" is "[p]romoting urban infill development and redevelopment." The construction of a multistory building on the Par 3 Golf Course and the conversion of the Fana Holtz Building to government use would not constitute any of the three types of development that the Department has indicated in its memorandum are characteristic of "urban sprawl." Rather, these activities would be in the nature of "infill development and redevelopment" inasmuch as they would occur, not in a "rural area" or on the "urban fringe," as those terms are used in the memorandum, 5/ but rather in the heart of an area of the "highest urban density."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Community Affairs issue a final order in the instant case declining to find the City of Miami Beach's Year 2000 Comprehensive Plan not "in compliance" on the grounds urged by Petitioners. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of August, 1990. 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 13 day of August, 1990.
The Issue The issue in this case is whether Respondent, Hawaiian Inn Beach Resort, COA (the “Resort”), discriminated against Petitioner, Hanan Aysheh, on the basis of her national origin and/or handicap, in contravention of the Florida Fair Housing Act.
Findings Of Fact Hanan Aysheh (also known as Nikki) is a woman of Palestinian descent who is a United States citizen, having been born in California. She also claims a disability, post- traumatic stress disorder (PTSD), but did not provide any documentary proof for that assertion at final hearing. The Commission’s Determination of No Cause report includes reference to a medical document submitted to the Commission by Ms. Aysheh, but neither the medical document nor any other supporting evidence was introduced at final hearing. Based upon the ultimate finding herein, Ms. Aysheh will be presumed to have a disability for purposes of this Recommended Order. No persuasive evidence was presented that the Resort had any knowledge of Ms. Aysheh’s alleged PTSD. The Resort is a Florida condominium owners’ association that operates and maintains the common areas of the property known as the Hawaiian Inn. The Hawaiian Inn is located at 2301 South Atlantic Avenue, Daytona Beach, Florida. It consists of a five-story building containing 208 condominium units of different sizes, a large swimming pool and deck, and a parking lot. The units are privately owned by individuals rather than by the Resort. An overseer, John Witherow, loosely manages the property and maintains communications with a hired company which provides safety and security around the premises. The Resort provides a rental office on the ground floor where some 80 of the privately owned units are rented out to interested individuals on a short-term basis, much like a hotel. The other units are leased out by their owners directly to third-party lessees; the Resort does not get involved in the lease arrangements. Unit 323 at the Resort is owned by the Owners, who reside in Jensen Beach, Florida. Unit 323 is a small, efficiency apartment-style residence. Mrs. Caroline Dunn is employed as a housekeeper by several people who own units at the Hawaiian Inn, including the Owners. She will sometimes agree to act as an informal agent for the owners of units who want to lease them to third parties. She is not a licensed real estate agent and does not receive remuneration for her “agent” services. Mrs. Dunn and her husband are paid $50 each time they clean one of the units, but receive no other compensation related to the units. In August 2015, Ms. Aysheh approached Mrs. Dunn about the possibility of leasing a unit at the Resort. Mrs. Dunn checked with the Owners, who said they would rent Unit 323 for $1000 a month, with a term of August 15 through November 15 (or, possibly, December 15), 2015. No security deposit or other security was requested by the Owners. Ms. Aysheh, who had just lost her previous living arrangements, was excited to find the unit and was ready to move in immediately. Neither party prepared or offered a written contract or lease to express the agreed terms for rental of the unit. Ms. Aysheh testified that after negotiating this arrangement with Mrs. Dunn, Mrs. Dunn inquired about Ms. Aysheh’s nationality. (Ms. Aysheh has dark hair, olive skin, and Middle Eastern features.) When she replied that she was Middle Eastern, Mrs. Dunn allegedly responded, “Well, you’re not going to start blowing shit up are you?” Ms. Aysheh said she was so shocked by the comment that she did not immediately respond, but then just said, “No.” Mrs. Dunn laughed and left, presumably with an agreed oral rental agreement in place. About 20 minutes later, Ms. Aysheh says that Mrs. Dunn sent her a text message saying that the Owners now wanted $2000 per month for the unit and required a $500 deposit before she could move in. Mrs. Dunn denies ever saying such a thing and the evidence does not support the accusation; after all, Ms. Aysheh moved into the apartment as planned, with a rental amount of $1000 per month. Mrs. Dunn and/or the Owners allowed Ms. Aysheh to move in on the thirteenth of August rather than the fifteenth, the first two days free of charge. When Ms. Aysheh came to move in on the thirteenth, she told Mrs. Dunn she only had $500 and so she could pay for only half of the month. Mrs. Dunn contacted the Owners to report this fact. There is some, but not sufficient, evidence that the Owners at that point said the lease price would be raised to $2000 per month. Even if so, Ms. Aysheh was ultimately allowed to move in and pay $500 for the remainder of August, with $1000 due on September 1 for the next month’s rent. Ms. Aysheh moved into the unit under those conditions. When she moved in, Ms. Aysheh was given one or two “long term” parking permits, issued to persons who rented units at the Hawaiian Inn from private owners. Mrs. Dunn remembered Ms. Aysheh asking for several more parking permits, but no competent evidence was presented to prove how many permits Ms. Aysheh was given (and it is totally irrelevant to the issues herein anyway). As the rent for September was coming due, Mrs. Dunn contacted Ms. Aysheh via text on August 28, 2015, to remind her. Mrs. Dunn suggested Ms. Aysheh make the rent payment on August 31, 2015, but Ms. Aysheh replied that she would be out of town that day. Mrs. Dunn said that it would be okay to deliver payment on September 1, but Ms. Aysheh remembered telling Mrs. Dunn that September 1, 2015, was a holiday (although the Labor Day holiday in 2015 was actually celebrated on September 7, the first Monday of the month that year). Ultimately, Mrs. Dunn’s husband, Mr. Dunn, told Ms. Aysheh he would come by the unit to pick up the check on the fourth, a Thursday. Mr. Dunn also agreed to bring a receipt of some kind to acknowledge the payment. Ms. Aysheh maintains that the rent check was always due on the fourth anyway because her Social Security disability check arrived in her checking account on the third day of each month. She remembered clearing that date (the fourth) with Mrs. Dunn and/or the Owners during the initial conversation regarding the unit. Mrs. Dunn does not remember that being discussed; the Owners did not testify at final hearing. Prior to September 4, 2015, Mr. Dunn advised the Owners that a plumber was coming to do work on the unit. Because the plumbing work was a cost to the Owners, they instructed Mr. Dunn to use the proceeds from Ms. Aysheh’s payment to cover the plumbing cost. Mr. Dunn told the Owners that Ms. Aysheh was planning to make her payment on September fourth, so the money might not be available when the plumber arrived. The Owners told Mr. Dunn that Ms. Aysheh needed to pay her rent immediately so the money would be available to pay the plumber. On September 3, Mr. Dunn contacted Ms. Aysheh to tell her she must pay her rent immediately after all. Ms. Aysheh said Mr. Dunn refused her offer of payment that same day at 6:30 p.m. Mr. Dunn said that Ms. Aysheh told him at that time that she had put the rent money into an escrow account. But inasmuch as Ms. Aysheh said that her money was not deposited into her account until midnight on the third day of each month, it is unlikely she was able to offer payment to Mr. Dunn or that she placed the money in an escrow account on that day. In fact, Ms. Aysheh’s own exhibit shows that $1000 was placed in a Wells Fargo Bank account on September 4, 2015. The assertion by Ms. Aysheh concerning escrow of the rent payment led Mr. Dunn to believe she was trying to avoid paying the rent. When Mr. Dunn advised the Owners of this fact, they directed him to tell Ms. Aysheh to vacate the premises immediately. So Mr. Dunn planned to show up on September 4, 2015, as planned, but for the purpose of telling Ms. Aysheh to leave the unit rather than to pick up her rent check. Mr. Dunn asked Ms. Sheriffe, a contracted on-site security guard, to accompany him to the unit and “observe” while he talked to Ms. Aysheh. Ms. Sheriffe did not know what Mr. Dunn was going to tell Ms. Aysheh, only that he wanted a witness to the conversation because Ms. Aysheh was a single woman and he did not want anything misconstrued. Ms. Sheriffe went with Mr. Dunn but did not get involved in the discussion; she simply heard Mr. Dunn tell Ms. Aysheh she had to move out of the unit. Ms. Aysheh did not object nor did she ask to pay the rent at that time so that she could stay in the unit. She did not mention the escrowed funds at that time. Ms. Aysheh did ask if she could have until 3:00, about four hours, to remove her belongings and Mr. Dunn agreed. Ms. Aysheh then began moving her property out of the unit. Ms. Sheriffe went about her duties, but came back later to see that Ms. Aysheh was indeed moving out of the unit. The process took almost the entire four hours. Later, Ms. Sheriffe spoke with the building manager, Mr. Witherow, about what had happened at Unit 323. She had no previous discussions with Mr. Witherow about the situation. Ms. Aysheh vacated Unit 323 and had no further direct contact with the Owners, the Resort, or the Dunns. There was no competent evidence presented that the Resort was in any fashion aware of the arrangement between Ms. Aysheh and the Owners nor that the Resort was involved in the process at all. The only contact by Ms. Aysheh with the Resort was a short telephone conversation with Mr. Witherow after she had been told to vacate the unit. Mr. Witherow told Ms. Aysheh there was nothing the Resort could do; the dispute was between her and the Owners. Upon hearing that, Ms. Aysheh became upset and terminated the phone call. Ms. Aysheh’s exhibits must be addressed: Exhibit 1 purports to be screen shots of alleged texts between Ms. Aysheh and Caroline and/or Richard Dunn. The alleged dates and times of the texts are handwritten on the copied screen shots, but there is no persuasive evidence that the dates and times are correct. The individual texts are disjointed and there is no way to verify whether they were modified or are complete. Nor do the texts support either party’s position in this matter in any substantive way. Exhibit 2, the banking account summary, shows only that Ms. Aysheh put $1000 into a Wells Fargo Bank checking account on September 4, 2015, and removed the funds on September 9, 2015. While that fact may somewhat support Ms. Aysheh’s contention that she put her rent payment into escrow, it does not explain why that money was not offered to pay rent on September 4 as she had agreed to do. The exhibit does not indicate the time of day the money was deposited. Exhibit 3 is a hearsay document, i.e., the Commission’s No Cause Determination, which supports the Resort’s position more than it supports Ms. Aysheh. The short-term lease between Ms. Aysheh and the Owners was an oral agreement. The Resort was not a party to the agreement and had no prior knowledge of its terms and conditions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Hanan Aysheh in its entirety. DONE AND ENTERED this 22nd day of December, 2016, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 22nd day of December, 2016. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Hanan Aysheh Unit 1411 2800 North Atlantic Avenue Daytona Beach, Florida 32118 D. Michael Clower, Esquire Suite 204 224 South Beach Street Daytona Beach, Florida 32114 (eServed) David B. Russell, Esquire Law Offices of Pappas, Russell and Rawnsley 213 Silver Beach Boulevard Daytona Beach, Florida 32118 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
Findings Of Fact Based on the evidence received at the final hearing, the following findings of fact are made. At all times material to this case the Respondent, Willie Whittington, was licensed as a certified general contractor in the State of Florida, holding license number CG C006966. At all times material to this case the Respondent was the sole qualifying agent for Whittington & Sons Builders, Inc. On May 15, 1987, Edwin W. Brown and Sandra J. Brown, husband and wife, contacted Respondent, in response to Respondent's advertising, to discuss the construction of a log house and an outbuilding on a lot owned by the Browns in Palm Beach County, Florida. The outbuilding was to be used as a combination garage and barn. During this initial meeting, the Browns described the project to Respondent. At the conclusion of the meeting on May 15, 1987, the Browns gave Respondent a $2,000.00 deposit to get started on the project. Respondent was to use that deposit to have plans drawn for the two buildings and to secure the necessary building permits. On June 23, 1987, Whittington & Sons Builders, Inc. entered into two contracts with the Browns, one for the house and the other for the outbuilding. Respondent signed both contracts on behalf of Whittington & Sons Builders, Inc. Both contracts were clear and unambiguous as to the work that was to be performed, as to the price that was to be paid for the work, and as to the schedules by which the construction draws would be made. The price for the house was set at $73,506.00. The price of the outbuilding was set at $11,665.00. Both contracts provided that construction would be completed within 130 days. On June 23, 1987, the Browns paid to Respondent the sum of $6,871.60 as required by the two contracts. Sandra Brown began keeping a log of her contacts with Respondent as of August 4, 1987, because she had experienced difficulty reaching Respondent by telephone and because no progress was being made on the project. Around August 4, 1987, Respondent told the Browns that he needed an additional $175.00 to pay to the architect to complete the plans. Because this was not provided for by their contracts, the Browns refused Respondent's request for this additional sum of money. On August 7, 1987, the Browns paid to Respondent the sum of $3,822.90 that Respondent was to use to order the logs. The building permits were not obtained until October 9, 1987. The permits were not obtained earlier than that date because Respondent did not diligently pursue his obligation to get the permits. As of early November 1987, the only work that had been done was the preparation of the lot for the foundation. On November 7, 1987, Respondent requested that the Browns advance him $5,000.00 so he could proceed with the construction. Respondent was financially unable to proceed because the Internal Revenue Service had garnished the account in which Respondent had placed the Browns' deposits. The Browns refused to advance Respondent this additional sum of money, but they remained willing to pay Respondent according to the draw schedules of the contracts. In December 1987 the Browns received a notice to owner form from Rinker Materials. In response to this notice, the Browns paid to Rinker Materials the sum of $2,664.77 and asked that no further materials be delivered on a credit basis to the job site. The Browns received a release of lien from Rinker Materials on December 28, 1987, for the materials Respondent had previously ordered on credit. In the middle of December 1987, the Browns learned that Respondent had neither ordered the logs for the construction nor determined the quantity of logs that would be required. On or about December 18, 1987, the foundation for the house was poured. Little work was done on the project between that date and January 4, 1988, the date Respondent told the Browns that his back was hurt and he could not work. The Browns filed a written complaint with the Palm Beach County Contractors Certification Board on January 8, 1988. As of January 13, 1988, Respondent was unable to account for the funds the Browns had deposited with him. At a meeting on January 19, 1988, among Respondent, the Browns, and a representative of Palm Beach County Contractors Certification Board, Respondent agreed to furnish receipts and an accounting of the construction funds by the next meeting on January 27, 1988. Respondent also agreed, during the meeting of January 19, 1988, to perform certain work on the project before the next meeting. At the next meeting, Respondent did not provide the Browns with receipts or with an accounting of the construction funds. Instead Respondent submitted a non-itemized bill in the amount of $18,131.20 for labor and materials supposedly expended by Respondent through January 27, 1988. The Browns refused to pay this bill. Respondent had worked only approximately 16 hours on the project between January 19 and January 27 and had not completed the additional work he had promised to have done January 27, 1988. The Browns fired Respondent and his company on January 27, 1988. At that time, Respondent had completed approximately 10% of the project `whereas it should have been approximately 60-70% completed. The delays by Respondent throughout his association with this project were not justified. After the Browns fired Respondent, they were forced to pay a materialman, MacMichael Lumber Company, to prevent the foreclosure of a lien against the property. This lien resulted because Respondent did not pay for certain materials he had ordered on credit before the Browns fired him. On February 4, 1988, Respondent agreed to repay the Browns the sum of $4,200.00. As of the date of the final hearing, Respondent owed the Browns $1,400.00. A subsequent contractor completed the project without undue delay in June 1988 for an additional $74,000. This price reflects changes the Browns made after the subsequent contractor began his work. Petitioner is the state agency charged with the regulation of contractors in the State of Florida. The Administrative Complaint filed by Petitioner against Respondent alleges, in pertinent part, the following: Respondent failed to perform in a reasonably timely manner, and or abandoned said job(s), in violation of 489.129(1)(m),(k). There was financial mismanagement and/or misconduct in connection with this matter, attributable either to Respondent directly, or to Respondent's failure to properly supervise, in violation of Section 489.129(1)(h) & (m), as generally exhibited by, but not limited to, the following: Subject double billed Customer on several occasions; failure to pay subcontractors and suppliers; and failure to buy materials. There was no allegation in the Administrative Complaint or evidence presented at hearing that Respondent has been the subject of prior disciplinary action. Respondent has been licensed as a certified general contractor by the State of Florida since 1973. Following receipt of the Administrative Complaint, Respondent denied the violations and timely requested a formal administrative hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which finds Respondent guilty of having violated Section 489.129(1)(h), Florida Statutes and which imposes a fine against Respondent in the amount of $1,500 for such violation and which further finds Respondent guilty of having violated Section 489.129(1)(m), Florida Statutes and which imposes a fine against Respondent in the amount of $1,500 for such violation so that the total fine to be imposed against Respondent is $3,000. DONE and ENTERED this 7th day of July, 1989, in Tallahassee, Leon County, Florida. CLAUDE ARRINGTON 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 7th day of July, 1989. APPENDIX CASE NO. 89-0743 The proposed findings of fact submitted by Petitioner are addressed as follows. Addressed in paragraph 1. Addressed in paragraph 27. Addressed in paragraph 3. 4-5. Addressed in paragraph 4. Addressed in paragraph 5. Addressed in paragraph 6. Rejected as being unnecessary to result reached. Addressed in paragraph 7. Addressed in paragraph 8. Addressed in paragraph 9. Rejected as being subordinate to the conclusions reached. Addressed in paragraph 10. 14-15. Rejected as being subordinate to the conclusions reached. Addressed in paragraph 12. Addressed in paragraph 17. Rejected as being unnecessary to result reached. Addressed in paragraph 14. Addressed in paragraph 15. Addressed in paragraph 15. Addressed in paragraph 16. 22-26. Rejected as being subordinate to the conclusions reached. Addressed in paragraph 17. Addressed in paragraph 19. Addressed in paragraph 23. Rejected as being subordinate to the conclusions reached. Addressed in paragraph 24. Rejected as being subordinate to the conclusions reached. Addressed in paragraph 22. 34-35. Rejected as being recitation of testimony and as being subordinate to the conclusions reached. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0729 Willie Whittington 342 Walker Street Greenacres City, Florida 34974 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Kenneth Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 =================================================================
Findings Of Fact At the time of final hearing the Respondent, Myron Lewis, was the holder of State Certified General Contractor's Licenses as follows: Myron Lewis d/b/a Interior Concepts of Palm Beach, Number CG C005282; Myron Lewis d/b/a Whitten Corporation South, Number CG CA05282; and Myron Lewis d/b/a Custom Pools of the Palm Beaches, Inc. Number CG CB05282. Respondent was engaged in the business of building swimming pools in the Palm Beach area. In connection with that business the Respondent entered into contracts for the construction of pools with several individuals, including the following: James Riley; Michael Belmonti; Walter Beasley; Jose Dorribo; Gerald Gottner; James Overton; and Ronald Malcolm. With regard to the first six names listed above, Respondent had failed to complete the pool and perform according to the contract and, apparently, abandoned the project after accepting a major portion of the contract price agreed upon. With regard to the seventh name listed above, Respondent accepted an initial deposit of $680.00 for construction of a swimming pool but never performed any work and did not return the deposit. Some efforts were made by the Respondent to settle each of the claims against him and to that end there was submitted into evidence general releases from Malcolm, Riley and Belmonti each reciting that the general release was a settlement and compromise of disputed claims and that the payments are not to be construed as admission of liability on the part of Custom Pools of the Palm Beaches, Inc. and/or Myron Lewis. (See Petitioner's Composite Exhibit 3) With regard to the projects set forth in Paragraph 2 above, Respondent apparently terminated because of financial difficulties he and his company were in, none of which was the fault or responsibility of the persons for whom Respondent had contracted to build pools. More than ninety days had elapsed from the time of termination of the project by Respondent and this final hearing. All of these projects occurred prior to 1978. The Palm Beach County Construction Industry Licensing Board, by action taken on January 23, 1978, suspended Respondent's license until further notice. That suspension was the result of the termination of the projects set forth above. The evidence presented indicates that an unspecified amount of money paid Respondent for the construction of specific pools was actually used for other obligations of Respondent and such funds were not used for the prosecution or completion of the project for which they were paid.
The Issue Did Respondent, Robert Skidmore, III, violate section 112.313(6), Florida Statutes (2011),1/ by using his position as county commissioner to ask a county staff member to approve a zoning application for Beach Road Boutique? Did Mr. Skidmore violate section 112.313(6) by asking a county employee to look for and selectively enforce code violations against J.J.'s Restaurant?
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: At all times relevant to this proceeding, Mr. Skidmore was a Charlotte County commissioner. Beach Road Boutique Zoning Scott and Jill Hemmes, constituents of Mr. Skidmore, owned a business known as Beach Road Boutique in Charlotte County. They sought to obtain a state alcoholic beverage sales license. In order to obtain a license, the applicant must demonstrate local zoning approval. Charlotte County Commission employees enforce and apply zoning regulations in the county. Erin Mullen-Travis is the licensing manager for Charlotte County Planning and Development. During 2011, she was the code compliance and licensing manager. Ms. Mullen-Travis has worked for Charlotte County over 26 years. One of Ms. Mullen-Travis's duties as code compliance and licensing manager was the review and approval of the zoning requirements on applications of establishments wanting alcoholic beverage licenses. Ms. Mullen-Travis first denied the zoning application of Beach Road Boutique on February 17, 2011. Mr. and Ms. Hemmes sought Mr. Skidmore's assistance getting approval for their zoning application. Mr. Skidmore called Ms. Mullen-Travis about the application. Mr. Skidmore told Ms. Mullen-Travis that he had some nice people in his office and that he needed help getting zoning approval for them. In her 26 years of employment with Charlotte County, Mr. Skidmore was the only county commissioner who had ever directly sought her assistance with constituent matters. Other commissioners had always gone through the chain-of-command. He identified the applicant, and Ms. Mullen-Travis explained why the zoning had not been approved. Ms. Mullen-Travis felt intimidated by Mr. Skidmore. Mr. Skidmore, however, did not threaten Ms. Mullen-Travis or explicitly offer any reward available to him because of his position as county commissioner. He did, however, implicitly offer a reward, if she helped the Hemmes. It is common knowledge in Charlotte County that Ms. Mullen-Travis is a NASCAR fan. Among other things, she drives a car with Dale Earnhardt and NASCAR badges and decals. During the call, Mr. Skidmore asked Ms. Mullen-Travis about her affinity for NASCAR. He also offered to get her an autographed photo of Rusty Wallace (a NASCAR driver) and tickets to a race. He told her that he had gone to school with Rusty Wallace's son. This is true. And Ms. Mullen-Travis could not have known it without Mr. Skidmore telling her. Given the context, Ms. Mullen-Travis accurately considered that the tickets and photo were offered in exchange for her approval of the application to the benefit of the Hemmes. Also, the call was made in Mr. Skidmore's official capacity. Charlotte County has a Home Rule Charter (Charter). Section 2.3(A)(1) of the Charter makes the county administrator responsible for all administrative matters and operations. Section 2.3(C)(1) states: "Except for purposes of inquiry and information, the members of the board of county commissioners shall not interfere with the performance of the duties of any employee of the county who is under the direct or indirect supervision of the county administration." Also, the long-established practice was for commissioners to only contact agency directors. Mr. Skidmore's call to Ms. Mullen-Travis was contrary to the Charlotte County Charter and the practice under it. Therefore, it was not an authorized act pursuant to his duties or authorities as a county commissioner. Mr. Skidmore and Ms. Mullen-Travis were the only participants in the call. He denies the conversation. Ms. Mullen-Travis's account is more credible. This is based upon her contemporaneous communications about the call, the common recollection of all witnesses of a NASCAR component to the conversation, the fact that she could not otherwise have known Mr. Skidmore went to school with Rusty Wallace's son, the relative personal interests of the witnesses in the outcome of the proceeding, and the demeanor of the witnesses, particularly of Mr. Skidmore's. Shonna Jenkins worked as a contractor licensing investigator for Charlotte County for a little over seven years. She held that position in 2011 and reported to Ms. Mullen-Travis. Mr. Skidmore had obtained Ms. Jenkins cell phone number. He had a practice of calling her directly to check on contractor licensing matters. He also contacted Ms. Jenkins to ask her to approve the Beach Road Boutique zoning application. J.J.'s Restaurant After a meeting held on March 3, 2011, Mr. Skidmore flagged Ms. Jenkins down in the parking lot. He asked her to "do him a favor," and "go shut them [J.J.'s Restaurant] down. I want them out of this f**ing town." Mr. Skidmore wanted Ms. Jenkins to find code violations for J.J.'s Restaurant. Mr. Skidmore said that he would make sure that Ms. Jenkins got a pay raise or a pay grade increase for this. Either the ex-boyfriend or ex-husband of Mr. Skidmore's wife and father of her child had an interest in J.J.'s Restaurant. There was conflict between the two families. Mr. Skidmore had also requested the Charlotte County director of Growth Management, Jeff Ruggieri, to take code enforcement actions against J.J.'s Restaurant. Ms. Jenkins was intimidated and feared her job with the county was in jeopardy if she did not do as Mr. Skidmore asked. Ms. Jenkins reported the conversation to Ms. Mullen-Travis and Joanna Colburn, a licensing investigator, immediately afterwards. Ms. Jenkins was visibly upset and shocked. She also contemporaneously documented the incident. Ms. Jenkins is and has been frank about her dislike for Mr. Skidmore. This hostility, as well as the mental and emotional difficulties Ms. Jenkins suffered as a result of her employment and dealings with Mr. Skidmore, does not undermine her testimony. In light of the witnesses' demeanor and corroborating evidence, her testimony is credible. In addition, although evidence established Ms. Jenkins was taking several medications, the record does not indicate that the medications in any way affect a person's memory or veracity. Mr. Skidmore's requests to Ms. Jenkins and Mr. Ruggieri to act against J.J.'s Restaurant were in violation of the Charlotte County Charter and, therefore, not authorized acts pursuant to his duties or responsibilities as a county commissioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order and public report be entered finding that Respondent, Robert Skidmore, III, twice violated section 112.313(6) and that he be fined $5,000 for each violation for a total of $10,000, together with public censure and reprimand. DONE AND ENTERED this 27th day of February, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 27th day of February, 2015.
The Issue The issue is whether Respondent, Department of Environmental Protection ("DEP"), should grant the applicant, Pelican Resort Developments, Inc., a coastal construction control line ("CCCL") permit. The applicant seeks to construct a condominium project in Destin, Florida. Portions of the project are seaward of the CCCL for Okaloosa County.
Findings Of Fact On March 28, 1994, DAG Architects and Pelican Resort Developments, Inc., as agents for Major Development Ltd., filed an application pursuant to Section 161.053, Florida Statutes with DEP for a coastal construction control line ("CCCL") permit in order to construct a condominium project, portions of which would be seaward of the coastal construction control for Okaloosa County, Florida. The application was assigned DEP number OK-115. The condominium project to be developed pursuant to Permit OK-115 is known as Pelican Beach Resort, and is being developed by Pelican Resort Developments, Inc., The Pelican Beach Resort project includes a 19-story building with 340 condominium units, two swimming pools, 595 parking spaces, and boardwalks to the beach. On August 13, 1993, Pelican Resort Developments, Inc., entered into a contract with Major Development, Ltd., to purchase from Major Development, Ltd., the property on which the Pelican Beach Resort condominium project is to be constructed. On September 8, 1994, DEP determined to grant the March 8, 1994, CCCL application for permit OK-115 subject to 10 special permit conditions. Issuance of that "Final Order" constituted intended final agency action by DEP. Special Permit Condition 3 required the permittee to provide DEP with written evidence that a public notice regarding DEP's approval of permit application number OK-115 was published in a newspaper. Before publication, a draft of the notice was to be provided to DEP for review and approval. The permittee provided DEP with a draft public notice. DEP approved the draft and the notice was published in the Northwest Florida Daily News, which is published daily. DEP was provided with proof of publication of the notice by the permittee. The public notice advised substantially affected persons of their right to request an administrative hearing in accordance with the provisions of Section 120.57, Florida Statutes, by filing such a request with the DEP Office of General Counsel. During the processing of application number OK-115, DEP received approximately 100 letters from neighboring property owners within the Regency Towers condominium, located adjacent to the project site, objecting to the CCCL permit for the Pelican Beach Resort condominium project. Adjacent property owners were well aware of the proposed Pelican Beach Resort condominium project as the CCCL application for it was processed by DEP. On September 21, 1994, Petitioner, Regency Towers Condominium Owners Association, Inc., filed a Request for Formal Administrative Hearing with DEP requesting that DEP withdraw its issuance of permit OK-115 for the Pelican Beach Resort condominium project. The members of the Regency Towers Condominium Owners Association, Inc., are the record owners of apartments within the Regency Towers condominium. The owners of the condominium apartments own their apartments plus an undivided interest in the common property. Regency Towers Condominium Owners Association, Inc., does not own any real property within the Regency Towers condominium. When the CCCL application was filed on March 28, 1994, Major Development, Ltd., was the owner of the property where the proposed condominium project is expected to be developed. That entity continued to own the property until October 13, 1994. On October 13, 1994, Pelican Resort Developments, Inc., which served as an agent for permit application OK-115, purchased from Major Development, Ltd., 10.9 acres of the property on which the Pelican Beach Resort condominium project is to be constructed. The land purchased by Pelican Resort Developments, Inc., includes all land seaward of the CCCL which is at issue in this proceeding and permit OK-115. Pelican Resort Developments, Inc., received a warranty deed for the property from Major Development, Ltd., and obtained title insurance from First American Title Insurance Company for the property. On November 8, 1994, Pelican Resort Developments, Inc., as the new owner of the property seaward of the CCCL subject to permit OK-115, filed a Permit Transfer Agreement with DEP, and as evidence of its ownership of the property, it provided DEP with a recorded copy of its warranty deed to the property along with the Permit Transfer Agreement. On November 8, 1994, DEP approved Pelican Resort Developments, Inc.'s request to transfer permit OK-115 from Major Development, Ltd., to Pelican Resort Developments, Inc. DEP's rules authorize the transfer of CCCL permits to new property owners. Rule 16B-33.016(1), Florida Administrative Code. Such transfers are not uncommon. CCCL PERMIT APPROVAL CRITERIA The CCCL The CCCL is a jurisdictional line, it is not a line of prohibition. DEP routinely authorizes the construction of structures seaward of the CCCL, and issues approximately 1,500 to 1,600 permits per year authorizing such construction. Evidence of Local Approval The Pelican Beach Resort project subject to permit OK the City of Destin. Therefore, written evidence provided by the City of Destin was given to DEP by the applicant for permit OK-115 showing that the proposed Pelican Beach Resort condominium project does not contravene local setback requirements, or zoning, or building codes. Evidence of Ownership During the processing of application OK-115, the applicant provided DEP with sufficient evidence that Major Development, Ltd., owned the property for which permit OK-115 was requested. From the time application OK-115 was filed with DEP on March 8, 1994, until October 13, 1994, Major Development, Ltd., was the owner of the property for which permit OK-115 was requested. On October 13, 1994, Pelican Resort Developments, Inc., purchased from Major Development, Ltd., the property for which permit OK-115 was requested. Pelican Resort Developments, Inc., has provided DEP with sufficient evidence of its ownership of the property for which permit OK-115 is requested. First American Title Insurance Company has insured Pelican Resort Developments, Inc.'s interest in that property as fee simple ownership. It is this property for which permit OK-115 was requested and which will be developed pursuant to permit OK-115. Public Access Construction of the Pelican Beach Resort condominium project pursuant to permit OK-115 will not interfere with public access along the beach. The portion of the beach used for public recreation is seaward of the primary dune and is of substantial width. The structures constituting the Pelican Beach Resort condominium project are substantially landward of the primary dune. By stipulation of the parties, the Pelican Beach Resort condominium project will not interfere with public access along the beach. Sea Turtles As admitted by the parties, reasonable assurance has been provided in relation to the Pelican Resort Developments, Inc., condominium project that nesting sea turtles and hatchlings will be protected. Further, permit OK-115 contains adequate conditions to provide protection to nesting sea turtles and hatchlings and their habitat. The parties have also stipulated that the project will not have an adverse impact on sea turtles, hatchlings, or their habitat. Structural Requirements The parties have stipulated that the proposed structures within the Pelican Beach Resort project comply with all applicable structural requirements, which includes those in Chapter 16B-33, Florida Administrative Code, and Chapter 161, Florida Statutes. Compliance with Siting Criteria An accreting shoreline The shoreline adjacent to the proposed Pelican Beach Resort condominium project is stable and in an accretional mode. The shoreline is propagating seaward over time, and the beach is accreting. Between 1985 and 1990, the beach adjacent to the proposed Pelican Beach Resort condominium project accreted at a rate of ten feet per year. The shoreline for a distance of 13,000 feet to the east of East Pass is accreting. The proposed Pelican Beach Resort condominium project is approximately 10,000 feet east of East Pass. Seasonal high water line The elevation of the seasonal high water line ("SHWL") for the site of the proposed Pelican Beach Resort condominium project is approximately 3.3 feet. All major structures within the proposed Pelican Beach Resort condominium project are several hundred feet landward of the seasonal high water line. Since the shoreline is accreting, it can be anticipated that the SHWL 30-years hence will be seaward of its current location. Despite the fact that the shoreline adjacent to the site of the proposed Pelican Beach Resort condominium project is accreting, DEP has assigned an erosion rate of one foot per year for the shoreline. Using the DEP erosion rate of minus one foot per year, the SHWL in 30- years will only be 30 feet more landward than where it currently is. All the major structures within the proposed Pelican Beach Resort condominium project will be at least 230 feet landward of the SHWL in 30-years. However, since the shoreline in the area of the site is accreting, the SHWL will actually move seaward of where it is today. The proposed Pelican Beach Resort condominium structure and all structures within the project except for minor structures will be landward of the seasonal high water line within thirty years of November, 1994. Vegetation Structures constituting the proposed Pelican Beach Resort condominium project are substantially landward of the vegetation line at the site, and DEP typically approves construction projects that are closer to the vegetation line than Pelican Beach Resort. Pelican Resort Developments, Inc., as the permittee, is required by special permit condition number 4 to implement a detailed dune restoration plan. Dune restoration will include the construction of a coastal barrier dune with a minimum crest elevation of + 15 feet NGVD, the planting of vegetation -- sea oats, railroad vine, cordgrass and Golden Aster -- on the dune in staggered rows 18" apart, and the long term maintenance of the dune and vegetation. The restored dune shall be a preservation area where no construction is allowed except for pedestrian dune crossovers. The dune/vegetation restoration plan will enhance the area. Dune line Structures constituting the proposed Pelican Beach Resort condominium project are approximately 150 feet landward of the primary dune system on the site. It is typical for DEP to approve major structures, such as those proposed for the Pelican Beach Resort condominium project, that are closer to the dune system than those proposed in permit OK-115. Beach/Dune Impacts The Pelican Beach Resort condominium project has been designed to have a minimum adverse impact on the beach-dune system, because the proposed structures are landward of the active beach; substantially landward of the primary dune; and the beach is accreting. The Pelican Beach Resort condominium project is located a sufficient distance landward to preserve dune stability, and to allow natural recovery following storm-induced erosion. Moreover, the shoreline is accretional; the beach stable and the structures within the Pelican Beach Resort condominium project are sited well landward of the dynamic portion of the beach to allow for recovery. Impacts on Adjacent Properties The Pelican Beach Resort condominium project will not have any adverse impact on the beach/dune system of adjacent properties. Structures within the project are too far landward of the dynamic portion of the beach to adversely affect adjacent properties. The unique dune/vegetation restoration and enhancement plan that will be implemented as part of the project will actually enhance the dune system in the area. Line of Construction The condominium building for the Pelican Beach Resort project is 40 to 55 feet landward of the adjacent Regency Towers condominium building. To establish the line of construction, DEP typically looks at the seaward location of structures 1,000 feet on each side of the proposed structure to be permitted. The line of construction represents the seaward limit of the encroachment of structures along the beach, not the landward alignment of such structures. There are a sufficient number of structures within the immediate area of the proposed Pelican Beach Resort condominium project to establish a continuous line of construction. The line of construction for the Pelican Beach Resort site corresponds closely to the 1978 CCCL. The line of construction for the Pelican Beach Resort site is accurately depicted by Respondents Map Exhibit 32. All of the major structures within the Pelican Beach Resort project are, at a minimum, 40 to 55 feet landward of the established line of construction for the site. The Regency Towers condominium building immediately to the west of the Pelican Beach Resort site is the most identifiable line of construction to the west. Within 1,000 feet of the Pelican Beach Resort site, there are a number of structures that are located much more seaward of the 1978 CCCL and establish a line of continuous construction that is even more seaward of the 1978 CCCL. The Holiday Beach Resort project immediately to the east of the Pelican Beach Resort site does not establish the line of construction because it is landward of the CCCL, is an anomaly, and is also landward of the seaward line of construction established by other existing high rise structures in the immediate area that are similar to the proposed Pelican Beach Resort project. The current CCCL does not establish the line of construction. The Pelican Beach Resort project complies with DEP's setback requirements and its line of construction requirements. Clear Justification Considering the potential impact of the Pelican Beach Resort project on the beach/dune system, issuance of a CCCL permit for the project is clearly justified. The Pelican Beach Resort project is consistent with all the requirements of Section 161.053, Florida Statutes, and Rule Chapter 16B-33, Florida Administrative Code. AGR-OK-003 DEP and Federal Deposit Insurance Company ("FDIC") entered into an agreement regarding the property to be developed by Pelican Resort Developments, Inc., pursuant to permit OK-115. The agreement was entered into under Section 161.053, Florida Statutes. Such agreements are entered into by property owners and DEP when the CCCL is being reestablished to give the property owner reasonable assurance of how it can develop its property after the CCCL is reestablished. The benefit of such agreements to DEP is that they lessen the chance that property owners will begin poorly designed hasty construction which adversely affects the beach/dune system in order to be grandfathered from DEP permit requirements. A property owner who enters into such an agreement must still obtain a CCCL permit from DEP before constructing on the property seaward of the CCCL. Special Permit Condition 2 of permit OK-115 requires that the permittee, Pelican Resort Developments, Inc., terminate the agreement before DEP will allow the permittee to proceed with construction. The permittee, Pelican Resort Developments, Inc., is committed to terminating the agreement pursuant to Special Permit Condition 2. DEP's intent to issue permit OK-115 was issued pursuant to Section 161.053 Florida Statutes, and DEP's rules, not the FDIC/DEP agreement. In order to approve a project where an agreement is involved, DEP looks for consistency with the overall intent of the agreement. However, when the project is finally permitted, it has to comply with DEP's rules. The Pelican Beach Resort project is consistent with all the requirements of Section 161.053, Florida Statutes, and Rule Chapter 16B-33, Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered granting Permit Number OK-115, subject to the special permit conditions set forth in DEP's September 8, 1994, order. DONE and ENTERED in Tallahassee, Florida, this 22nd day of December, 1994. DON W. DAVIS 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 22nd day of December, 1994. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings Accepted, not verbatim. Rejected, legal conclusion. 3.-6. Accepted, not verbatim. 7. Rejected, public notice was provided. 8.-12. Rejected, relevance. Rejected, weight of the evidence. Rejected, relevance. Rejected, subordinate to HO findings. 16.-23. Rejected, weight of the evidence. Respondent's Proposed Findings 1.-23. Accepted, not verbatim. 24. Rejected, legal conclusion. 25.-26. Accepted. 27. Rejected, legal conclusion, relevance. 28.-72. Accepted. 73. Rejected, redundant. 74.-76. Accepted. 77.-78. Rejected, relevance. 79.-80. Accepted. 81.-84. Rejected, redundant. COPIES FURNISHED: Virginia B. Wetherell Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dana M. Wiehle Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 John O. Williams James Alexander Lindsey & Williams, P.A. Renaissance Square 1343 East Tennessee Street Tallahassee, Florida 32308 James E. Alexander Attorney at Law No. 323, Stanford Pointe 2401 Stanford Road Panama City, Florida 32405 Thomas G. Tomasello Attorney At Law Oertel, Hoffman, Fernandez & Cole, P.A. 2700 Blair Stone Road, Ste. C Post Office Box 6507 Tallahassee, Florida 32314-6507
Findings Of Fact The Respondent Louis C. Eder (hereafter Respondent) is a registered building contractor holding license number RB 0010762. At all times pertinent to this proceeding, the Respondent was the qualifying agent for Lujack Construction Company. On September 11, 1979, Dennis Ecks, a complainant in this proceeding, entered into a written contract with Abco Contracting and Construction Company, through its agent Jack Greenblatt, for remodeling his residence for the sum of $5,200. The permit for the Ecks job was pulled by the Respondent in the name of Lujack Construction Company. Ecks paid $4,900 to Abco for the job. He withheld $300 to compensate for the failure of Abco to install a screen door. Ecks paid the $4,900 directly to Abco and never met or spoke to the Respondent during the time the contract was being negotiated and executed. After the job was started, the Respondent sent letters to Ecks rescinding the permit for the job and orally communicated his concern that Ecks should exercise caution in his business dealings with Abco. The Respondent received no monies from either Ecks or Abco for the Ecks' job. On January 21, 1980, Dominic Sicilian, the other complainant in this proceeding, entered into a written contract with Abco General Contracting and Construction Company, through its agent, Jack Greenblatt, to enclose a carport for $11,675. The permit for the Sicilian job was pulled by the Respondent in the name of Lujack Construction Company. Sicilian paid $9,000 of the contract sum directly to Abco. This job was abandoned after approximately fifty percent of the construction work was completed, Sicilian, like Ecks, had no discussions with the Respondent before the contract was executed. Approximately one year after the contract was executed, Sicilian spoke to the Respondent concerning his problems with Abco. At that time the Respondent offered to finish the job for the remainder of the contract price. Additionally, shortly after Abco started the job, the Respondent informed Sicilian, both orally and in writing, that he would not be working on the job because he had not been paid by Abco and Sicilian should exercise caution in his business dealings with Abco. Both Ecks and Sicilian believed that they were dealing with Abco and neither had any knowledge of Lujack Construction or its relationship to Abco. The Respondent did not enter into construction contracts with either Ecks or Sicilian. The Respondent began working for Abco in the capacity of foreman. Shortly after commencing employment with Abco, the Respondent was requested by Abco to obtain permits for pending jobs due to a problem Abco encountered in obtaining permits. The problem resulted from Abco maintaining a business in an area zoned noncommercial. Approximately two weeks after commencing employment with Abco, the Respondent's relationship with Abco changed and he became the contractor on the job under the name Lujack Construction Company, a name which the Respondent had used for many years. Shortly after commencing work at Lujack Construction, the Respondent quit when he was not paid from the first draw. The Respondent terminated his relationship with Abco and notified Ecks and Sicilian that he was no longer working on the job due to non-payment and was rescinding the permits which he had pulled. The Respondent attempted without success to as certain the proper procedure to terminate the permits by directing inquiries to the Cooper City Building Department, Broward County Building Department, Palm Beach County Building Department and the Palm Beach County Construction Industry Licensing Board and the Department of Professional Regulation. The Respondent has been a licensed general contractor for fourteen years. During that period of time, he has built hundreds of homes in the Palm Beach area. Other than the complaints filed in the instant case, the Respondent has not been the subject of any previous complaint or disciplinary proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the Petitioner Construction Industry Licensing Board dismissing the Administrative Complaint filed against Respondent Louis C. Eder. DONE and ENTERED this 15th day of March, 1983, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1983.
Recommendation Having found the Respondent technically guilty of a violation of Section 489.129(1)(d), and thereby guilty of violating Section 489.129(1)(m), Florida Statutes, and based upon the matters in mitigation, the Hearing Officer recommends that the Respondent receive a private letter of reprimand for his technical violation. DONE and ORDERED this 30th day of March, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1982. COPIES FURNISHED: Michael E. Egan, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Mr. David H. Otto 1527 C Road Loxahatchee, Florida 33470 J. K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
