The Issue The issue is whether Respondent has committed unlawful housing discrimination against Petitioner.
Findings Of Fact Waterford Crossing is a development comprising 80 townhomes in Broward County, Florida. Respondent is a homeowners' association consisting of the owners of the 80 townhomes. Respondent is governed by the homeowners and their elected Board of Directors and the officers appointed by the Board. At all relevant times, William Shaw has been the Vice President of Respondent. Diana Arguinzoni del Toro is a female who purchased a townhome at Waterford Crossing in 1997 and has lived there continuously since that time. At all relevant times, Mr. Shaw resided in a townhome across the street from the townhome of Ms. del Toro. Parking is limited at Waterford Crossing. Illegally parked cars, which may consist of vehicles parked outside of marked parking areas or vehicles in marked parking areas, but without the appropriate permit, pose a serious problem. At times, emergency vehicles have been unable to access parts of Waterford Crossing due to illegally parked vehicles. From time to time, Respondent hires a towing company to tow illegally parked vehicles from Waterford Crossing. Immediately after so-called "towing nights," residents and guests tend to comply with applicable parking rules, but, over time, compliance lessens. When the number of parking complaints rises sufficiently, Respondent hires a towing company to conduct another "towing night." It is unnecessary to consider in detail the parking rules of Waterford Crossing. On the evening of March 24, 2004, Ms. del Toro's car was legally parked, as the parking rules have been applied, in a guest space near her townhome. This happened to be a "towing night," although this fact was unknown to Ms. del Toro. As is its practice, Respondent's Board of Directors advised an employee of its property manager to conduct a towing night, and the property manager requested the towing company to tow illegally parked vehicles from Waterford Crossing that night. The diligence and care exercised by the towing company in conducting towing nights left something to be desired. Routinely, the company would tow fewer than all of the vehicles illegally parked at Waterford Crossing, as it proceeded to other sites to serve the towing needs of more profitable customers. From time to time, the company would tow a legally parked vehicle, such as a vehicle parked in a marked space and bearing a suitable parking permit. On the evening in question, towing company's lack of diligence and care combined to result in the towing of Ms. del Toro's car, despite the fact that it bore a suitable parking permit and was legally parked, and in the failure to tow other vehicles that were illegally parked. The removal of Ms. del Toro's car resulted from the failure of the tow truck operator to notice her parking sticker. The failure to remove illegally parked vehicles resulted from the operator's decision to begin and end towing night with the removal of Ms. del Toro's car. Ms. del Toro attributed the improper towing of her car to Mr. Shaw because, in the summer of 2002, he had made an unwelcome sexual advance to her while in her home. At that time, while they were alone, Mr. Shaw twice pulled the front of her blouse, in the vicinity of her breasts, in an apparent attempt to embrace or kiss her. Ms. del Toro firmly rebuffed him, and she and Mr. Shaw, who had previously maintained a neighborly relationship, no longer spoke to each other. Ms. del Toro subsequently perceived another instance of discriminatory treatment in the maintenance of her landscaping, but the evidence provides no basis to attribute this to Mr. Shaw. The evidence does not link Mr. Shaw to any shortcomings in the maintenance of vegetation on Ms. del Toro's lot, as compared to the maintenance of vegetation on the lots of other owners. Similarly, there is no more basis to attribute the towing incident to Mr. Shaw than to the incompetence of the tow truck operator, which was later fired by the property manager due to its inability to tow sufficient vehicles on "towing nights." Mr. Shaw was at work at Miami International Airport on the night of the towing incident. Additionally, the passing of nearly two years between the unwelcome sexual advance and the claimed retribution--without earlier proved instances of retribution by Mr. Shaw--militates strongly against the interpretation of the towing incident offered by Ms. del Toro and shared by Petitioner. However, Mr. Shaw's longtime status as an officer of Respondent, his unwelcome sexual advance, and his personal involvement in at least one previous "towing night," coupled with the incompetence of the towing company in improperly removing Ms. del Toro's car, constitute a reasonable basis in law and fact supporting the theory of Ms. del Toro and Petitioner that Mr. Shaw had discriminated against Ms. del Toro, Although their theory proved unsupported by the evidence, Petitioner's commencement of this proceeding was substantially justified, so as to preclude the award of attorney's fees against Petitioner.
Recommendation RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 13th day of January, 2006, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 13th day of January, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Vicki Denise Johnson Attorney for Petitioner Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Thomas F. Luken Attorney and Counselor at Law 1290 East Oakland Park Boulevard Suite 200 Fort Lauderdale, Florida 33334
Findings Of Fact Respondent, Circle K Corporation (Circle K), is the owner of a piece of property at mile marker 30.5, big Pine Key, Monroe County, Florida. As sited, the subject property is located within that part of Monroe County designated as an Area of Critical State Concern (ACSC). On June 26, 1986, Circle K applied to Monroe County for a building permit to construct a convenience store, with two service islands for the sale of gasoline, upon the subject property. As sited, the property occupies the southeast corner of the intersection of U.S. 1, also known as State Road 5, and Chapman Road. As proposed, the convenience store would face U.S. 1, and would accord its patrons direct access to U.S. 1 by way of a curb cut that was located 80 feet from the intersection of U.S. 1 and Chapman Road, and direct access to Chapman Road by way of a curb cut that was located 60 feet from the intersection of U.S. 1 and Chapman Road. Attached hereto as Appendix II is a copy of Circle K's site plan, which graphically depicts the proposed project and curb cuts. Pertinent to this case, that portion of Circle K's plan which sought approval to gain direct access to U.S. 1 by way of a curb cut that was located 80 feet from Chapman Road was denied by Monroe County's Planning Director. Circle K appealed that decision to the Monroe County Planning Commission which, on September 3, 1987, reversed the decision of the planning director and approved Circle K's proposal. In so doing, the planning commission articulated the following reasons for its action: The decision of the Planning Director is overturned and the appeal is granted pursuant to: (1. Section 9-1404 granting temporary parallel access on the basis that to deny this would create a safety hazard. AND (2. The FD0T permit is to be considered superior to local driveway permitting. The FDOT (Florida Department of Transortation) permit referenced in the Commission's decision was a connection permit issued by FDOT to Circle K on May 28, 1987. That permit authorized Circle K to connect its driveway to U.S. 1, provided the connection was constructed in accordance with existing FDOT regulations, and carried the following legend conspicuously stamped thereon: VALIDITY OF THIS PERMIT IS CONTINGENT UPON PERMITTEE OBTAINING NECESSARY PERMITS FROM ALL OTHER AGENCIES INVOLVED. On September 25, 1987, the Monroe County Building and Zoning Department, in accordance with the Commission's decision, issued Permit No. A18731 to Circle K. That permit approved Circle K's plan to construct a convenience store on the subject property, with direct access to U.S. 1 as initially proposed. Petitioner, Department of Community Affairs (Department), pursuant to Section 380.07, Florida Statutes, filed a timely appeal with the Florida Land and Water Adjudicatory Commission (Adjudicatory Commission) contesting the propriety of the aforesaid permit (development order) because it authorized development with direct access to U.S. 1 by way of a curb cut spaced less than 400 feet from an existing street on the same side of U.S. 1. Monroe County land development regulations Pertinent to this case, Monroe County Land Development Regulations (MCLDR) provide: ... ACCESS STANDARDS Sec. 9-1401. Major Road Access. No structure or land shall be developed, used or occupied unless direct access to U.S. 1 or County Road 905 is by way of a curb cut that is spaced at least 400 feet from any other curb cut that meets the access standards of the Florida Department of Transportation or an existing street on the same side of U.S. 1 or County Road 905. Sec. 9-1402. Parallel Access. Lots that cannot meet the major access standard in Section 9-1401 shall take access from platted side streets, parallel streets or frontage roads. Such access shall be acquired by installing a parallel street or frontage road, through combined parking lots or by combining lots by sharing drives, or the provision of easements of access. * * * Sec. 9-1404. Temporary Access. No applicant shall be denied development approval for the sole reason that the lot cannot meet the requirements of Sections 9-1401 or 9- 1402. To provide access the Director of Planning shall issue a temporary access permit provided that the landowner's site plan provides for the eventual connection to a parallel access on an adjoining property, and that the owners agree, with suitable legal documents to close the temporary access when connection to adjoining properties is feasible. The foregoing provisions of Monroe County's land development regulations have been found consistent with the Principles for Guiding Development for the Florida Keys Area of Critical State Concern, and constitute land development regulations for the Florida Keys Area of Critical State Concern in Monroe County.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order reversing Monroe County's decision to issue permit number A18731, and deny Circle K's application for such permit. It is further recommended that such final order specify those items set forth in paragraph 7, Conclusions of Law, as the changes necessary that would make Circle K's proposal eligible to receive the requested permit. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of December, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1988.
The Issue Whether Appellants were wrongfully denied a variance of 16-17 parking spaces that could allow an existing 2170 square foot restaurant to transfer and use its 2-COP State alcoholic beverage license at 201 South Gulfview Boulevard on Clearwater Beach, in the City of Clearwater.
Findings Of Fact Appellants own real property on the north corner of South Gulfview Boulevard and First Street on Clearwater Beach. The property is in a zoning district designated as CR-28 (Resort Commercial District/Commercial Tourist Facilities), and is primarily used by Appellants to operate a motel business. The surrounding land uses to the north, south and east are primarily motel. To the west is a public parking lot and the beaches. In May 1990, Appellants leased a portion of the ground floor to James B. Mayes so that he could operate a restaurant known as Britt's Beachside Cafe at that location. In order to build a restaurant on premises, 2170 square feet of gross floor area was improved by the lessee. Pursuant to code, 11 parking spaces were needed for the restaurant to meet parking space requirements for an eating establishment at this site. The parking space calculation was made according to the formula of one space per 100 square feet of gross floor area, the general parking formula for restaurants, with a 50 percent reduction allowed for Clearwater Beach locations. Prior to the opening of the business, only 9 off-street parking spaces were allocated to Britt's Beachside Cafe. During May 1990, a variance of 2 parking spaces was requested by Appellants and granted by the Development Code Adjustment Board. At that time, Britt's Beachside Cafe was involved with food and non-alcoholic beverage sales. With the approved variance, the restaurant was granted an occupational license and a certificate of occupancy for the operation of the restaurant at this location. Previously, Mr. Mayes operated his restaurant in a larger motel with a smaller parking lot and fewer parking spaces approximately 60 feet north of the subject property for almost four years. The former restaurant had 120 seats for patrons as opposed to the current 84 seats. Beer and wine was sold in the restaurant under a 2-COP State alcohol beverage license. The beverage license was acquired because this location was exempt from the current city parking requirements under a grandfathering provision of the Clearwater Code. In addition, Mr. Mayes' restaurant was exempt from the code requirement that 51 percent of sales had to be from food and non-alcoholic beverages because the business existed before the ordinance went into effect. When the restaurant moved, the exemption from current parking space requirements remained with the original location, and the exemption from the 51 percent sales from food and non-alcoholic beverages for the business was removed. The 2-COP State alcohol beverage license for Britt's Beachside Cafe, however, was attached to the business and could easily transfer to the new location if local zoning laws permitted its use there. In order to have the alcoholic beverage license transferred to the new business location, the state requires the business to continue with its compliance with local zoning and development laws. To accomplish this, the restaurant is required to have one parking space per 40 square feet of gross floor area, with the 50 percent reduction formulated and allowed for a Clearwater Beach location. As Britt's Beachside Cafe is currently operating under the 11 parking space requirement, 16-17 more parking spaces are needed for the business to transfer the beverage license to the new business location. The actual number of parking spaces for the restaurant on location is During site review prior to the granting of the certificate of occupancy, city staff improperly counted four illegal parking spaces along First Street as legitimate, non-conforming off-street parking spaces. The restaurant caters primarily to persons walking to the restaurant either from adjacent motels or the beach. Few automobiles are driven and parked at Britt's Beachside Cafe. Even when the business was located in the other motel with more seating and fewer parking spaces, parking was never a problem in the area. There is considerable public parking immediately adjacent to Appellant's property, both across the street, and approximately one block to the north. When restaurant patrons are unable to use the parking spaces on location, they park in these convenient public spaces. Since Mr. Mayes relocated his restaurant, he has served beer and wine on premises, without charge. It has always been his intent to transfer his 2- COP State alcoholic beverage license to this new location if permitted to do so through a parking space variance. The City's requirement that the restaurant acquire more off-street parking spaces is factually unnecessary if the sole purpose of the ordinance is to provide parking for the restaurant patrons. At the old location, parking was never a problem. Likewise, no problems exist at the new location. As the restaurant no longer seeks to expand, the major differences a parking variance would make are that Mr. Mayes could charge for the beer and wine served and use his 2-COP license. When Appellants proceeded through the first phase of the approval process to obtain a decision from the Planning and Zoning Board, their conditional use application met with approval. It was determined, however, that the preliminary approval would be subject to the obtainment of a parking space variance, which needed to be decided by the Development Code Adjustment Board. Accordingly, the application proceeded to the second phase. If granted in the second phase, Appellants would go to the City Commission for a variance from the separation requirement. The application for a variance that removes the requirement for 16-17 additional parking spaces to enable the sale of beer and wine on premises was denied by the Development Code Adjustment Board and this appeal followed. The appeal was filed based upon the allegation that the decision of the Development Code Adjustment Board departs from the essential requirements of law. The Code of Ordinances of the City of Clearwater requires additional parking for establishments with alcoholic beverage licenses, which by nature of their license only, can be converted from restaurants to taverns or night clubs. Mr. Mayes' restaurant, which is subject to the additional parking space requirement because of the type of alcoholic beverage license he seeks to transfer, is already prevented from converting to a tavern or a night club by virtue of the restaurant's location in the CR-28 zoning district. In the CR-28 zoning district, all alcoholic beverage sales for consumption on premises shall be located only within a hotel or motel in conjunction with a 4-COP license or within a restaurant deriving 51 percent or more of its gross revenue from the sale of food and non-alcoholic beverages. The restrictive requirement that a 2-COP license be used solely to accompany a restaurant business, as opposed to a tavern or night club in the special CR-28 zoning district, is balanced by the Clearwater Code provision that reduces the required number of parking spaces by 50 percent for Clearwater Beach locations and the opportunity to have a business that sells alcoholic beverages in a resort commercial district. The 2-COP license was acquired prior to the restaurant's move to its current location. If Appellants request for a parking space variance is denied, Mr. Mayes' application for transfer of his beverage license to a new location will likely be denied by the state, pursuant to Section 561.331, Florida Statutes. The request for the variance is based primarily on Mr. Mayes' desire for greater financial return on his business and to keep his 2-COP license attached to the restaurant. The Development Code Adjustment Board has granted parking variances to other 2-COP restaurants before and after Appellants' application in the same zoning district. These variances were based on applications and evidence presented at Board hearings.
The Issue Has Respondent's connection permit number C-16-095-93 (permit) expired under Section 335.185, Florida Statutes? Has Respondent timely complied with the requirements and conditions of the permit? If not, does Respondent's noncompliance cause safety or operational problems on State Road 555 (SR 555) which would require closing Respondent's connection to SR 555?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department was the state agency responsible for regulating vehicular access and connections to or from the State Highway System in accordance with Sections 335.18-335.188, Florida Statutes, known as the State Highway System Access Management Act. Respondent owns the property in issue which is located on the southwest corner of the intersection of SR 555 and SR 655 in Polk County, Florida. As a cure for the problem created by the eminent domain proceeding in FDOT v. Shaffer concerning the preexisting connections to SR 555 and SR 655, the Department agreed to provide connections to SR 555 and SR 655 for the property involved in the instant case. By letter dated September 27, 1993, the Department agreed to honor this agreement even though it was not included in the final order in FDOT v. Shaffer. In its letter, the Department agrees to issue a permit and construct the connections "on the condition that the remaining lands are reconstructed as shown in the attachment." The letter informs Respondent that the attachment was prepared by Reggie Mesimer for the Department and that "it appears that the settlement was based on that cure." The letter also informs Respondent that the "permit will contain limiting language to make clear that the permit has not been reviewed for compliance with DOT standards and that it is issued for replacement of preexisting access." Attached to the letter was a site plan showing: (a) the parking layout for the site which included two parallel parking spaces in front of the building, six perpendicular south to north parking spaces on the south end of the building and eight perpendicular north to south parking spaces on the south side of the south parking area; (b) a connection to SR 655 on the north side of the building; (c) a connection to SR 555 at the front of the building; and (d) a connection to First Avenue, a side street, on the south side of the building. The site plan shows a driveway commencing at the connection to SR 655 and continuing on in front of the building to First Avenue on the south side of the building. The site plan does not show any signings or pavement markings to indicate traffic flow in and out of the site. Sometime around June 1993, the agreement in FDOT v. Shaffer notwithstanding, the Department attempted to close the preexisting connections to SR 555 and SR 655. As a result, Respondent requested a formal administrative hearing and Department of Transportation vs First Mortgage Corporation, DOAH Case No. 93-9037 was filed with the Division. This case was later rendered moot by the issuance of the permit for the connections to SR 555 and SR 655 and the Department's agreement to construct the connections to SR 555 and SR 655. By letter dated December 15, 1993, with an addendum dated December 16, 1993, the Respondent agreed "to designating two parallel parking spaces in front of the building and have the striping done immediately." In return, the Department would "agree to have the driveway installed as shown on the drawing originally submitted." In the addendum, Respondent states that the two designated parallel parking spaces in front of the building were being striped on December 16, 1993, and that the Respondent was removing the chain link fence on the south side of the building to provide additional parking. The addendum also states that the Respondent will resurface the entire area of the drive and parking areas after the Department finishes the road construction. Additionally, the Respondent agreed to substantially comply with the driveway and parking area as shown on an attachment. The attachment was a copy of site plan referred to above in Finding of Fact 3. Respondent's Connection Application, number C-16-095-93, was approved by the Department on December 20, 1993, and the permit was issued. The application "requests permission for the construction of a connection(s) on Department of Transportation right-of-way. . . " The connections are described as: "REPLACEMENT OF EXISTING CONNECTION: ONE 24 FT INGRESS ON SR 655, ONE 30 FT INGRESS & EGRESS ON US 17 (SR 555) FOR A CONVENIENCE STORE AND RESTAURANT." Although the permit provides blank spaces where the mandatory beginning and completion of construction dates are to be filled in, these spaces were left blank on the permit. Likewise, there is no expiration date shown on the permit. A site plan was attached to the permit. The site plan is a copy of the site plan attached to the Department's September 27, 1993, letter referred to above with signings and pavement markings added to indicate the traffic flow in and out of the site. General Provision one of the permit provides: The permittee agrees and obligates himself to perform at his own expense the relocations, closure, alteration of the permitted connection, should the Department determine that the traffic patterns, points of connection, roadway geometrics or traffic control devices are causing an undue disruption of traffic or creating safety hazards at the exiting connections. Special Provisions one through five provide: This permit application has not been reviewed for compliance with DOT standards and is issued for replacement of preexisting access by the Florida Department of Transportation. The permit is subject to the limitations in Chapter 335, Florida Statutes, to the same extent as the preexisting access. The permittee shall place signing and pavement marking, as indicated on the attached site plan, so that the connection on SR 655 is operated as ingress only. Parking layout and traffic flow will be constructed and maintained in substantially the same manner as indicated in the attached site plan. The permittee acknowledges that the attached site plan was the cure in the settle- ment in DOT vs. EDWARD M. SHAFFER, case number GC-G-91-786, Parcel 105. The permittee acknowledges that with the issuance of this permit and the Florida Depart- ment of Transportation's agreement to construct the two connections referenced in this permit, DEPARTMENT OF TRANSPORTATION, Petitioner, vs. FIRST MORTGAGE CORPORATION, Defendant, case number 93-3037 has been rendered moot. Further- more, the permittee agrees to make the appropriate filing with the State of Florida Division of Administrative Hearings. (Emphasis supplied). The permit application was signed by Dennis G. Davis as president of First Mortgage Corporation. Dennis G. Davis also signed accepting the Special Provisions attached to the permit. As to signings and pavement markings the site plan shows: a designated driveway beginning at the SR 655 connection (north end of property) and proceeding around the front of the building (east side) to the south end of the building and commencing on to the First Avenue connection; large arrows within the designated driveway indicating ingress only from SR 655 and one-way traffic around the front of the building to a point on the south end of the building where stop signs are to be located; stop signs on each side of the one-way driveway where the one-way driveway intersects a designated two-way driveway; to the south of the stop signs, arrows indicating that the one-way traffic is to move into the south side parking lot or move into the south-bound lane of the two-way driveway that exits onto First Avenue; arrows indicating that incoming traffic from First Avenue is to move into the south side parking lot only; a No Right Turn sign on the east side of the one-way driveway just south of the stop signs where the one-way driveway intersects the two-way driveway; a No Left Turn sign on the southwest side of the south side parking lot where the south side parking lot intersects the outgoing lane of the two-way driveway that exits onto First Avenue; a stop sign just south of the southeast corner of the south side parking lot to the west of the outgoing lane of the two-way driveway just before First Avenue; and a No Exit sign on each side of the one-way driveway facing the opposite direction of the traffic flow in the one-way driveway at the northeast corner of the building. As to the parking layout, the site plan shows: two parallel parking spaces running north to south in front of the building along the west side of the one-way driveway; six perpendicular parking spaces running south to north abutting the south side of the building, and eight perpendicular parking spaces running north to south abutting the south side of the property west of the two-way driveway. The Department constructed the connection on SR 655 for ingress to the property from SR 655 and the connection on SR 555 for ingress to the property from SR 555 and egress to SR 555 from the property sometime in June 1993, which was before the expiration of one year after the date of issuance of the permit. Respondent started to comply with the signings and pavement markings of the site plan attached to the permit as early as December 16, 1993. Respondent has complied with the signings and pavement markings for traffic flow and parallel parking as shown on the site plan attached to the permit beginning at the connection to SR 655 and up to and including the two stop signs at the south end of the one-way driveway where it intersects the two-way driveway. The Respondent has maintained these signs and pavement markings during the construction on SR 555 by restriping the pavement and replacing signs that were torn down. However, due to the wear on the striping caused by construction traffic the pavement markings for the parallel spaces and traffic flow are dim and need painting. Due to a misunderstanding as to the Department's jurisdiction over First Avenue, Respondent has not completed the signings and pavement markings from the stop signs where the one-way driveway intersects the two-way driveway over to First Avenue or over to the parking lot. The Respondent has not completed the striping for the south to north perpendicular parking spaces abutting the south end of the building where there is pavement which would allow such striping. A segment of a chain link fence abuts the south end of the building preventing any further perpendicular parking abutting the south end of the building without going inside to the grassed area (green area) enclosed by the chain link fence. However, instead of parking perpendicular to the south end of the building, customers are parking east to west, perpendicular to the existing chain link fence. At the time the permit was issued, a chain link fence surrounded the green area on the south end of the property. Respondent removed the middle section of the chain link fence on the east side of the green area to provide additional parking inside the green area. Respondent has not placed signs or pavement markings around or at the entrance to the green area so that customers are made aware that the green area is available for parking. However, some customers are using the green area for parking. Although the parking layout of the site plan includes delineated parking spaces in the green area, nothing in the permit, including the site plan, specifically requires the green area to be paved. Although Respondent has indicated a willingness to stripe the designated parking spaces in the green area as shown on the site plan, striping the green area is neither feasible nor is it required under the permit. While all of the parking spaces have not been delineated by striping, there was no evidence that there were insufficient parking spaces on the site or that the lack of designated parking spaces was creating any safety or operational problem on SR 555. Although the site plan does not indicate by signings or pavement markings that the connection to SR 555 is an ingress and egress connection, the permit specifically provides for ingress and egress at the SR 555 connection and nothing on the site plan prohibits such access. On occasions customers park perpendicular to the front of the building ignoring the delineated parallel parking spaces in front of the building. Respondent has agreed to place a solid concrete curb along the building side (west side) of the parallel parking spaces and remove the yellow concrete stop blocks now in place that may be unintentionally inviting customers to park perpendicular to the building. The Department's expert, Michael Tako, testified that perpendicular parking in front of the building could result in vehicles on SR 555 having to slow down for vehicles that are backing out of those perpendicular parking spaces onto SR 555, creating a hazard on SR 555 known as stacking. However, there was insufficient evidence to establish facts to show that stacking actually occurred or that there was any safety or operational problem being created on SR 555 by customers parking perpendicular to front of the building rather than parking in the two parallel parking spaces in front of the building. There was no engineering study presented that had been conducted subsequent to the issuance of the permit substantiating any safety or operational problem on SR 555 resulting from the failure of the Respondent to comply with signings and pavement markings of the site plan or any of the special provisions of the permit or from customers parking perpendicular to the building rather than in the parallel parking spaces. Construction on SR 555 had not been completed as of the date of the hearing. However, Respondent agreed that construction was at the stage where the driveway and parking area could now be resurfaced and restriped without substantial damage to the striping, pavement markings and signings due to construction activity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order requiring the Respondent to: comply with the placement of signs as shown on the site plan attached to the permit including those signs required for the First Avenue connection; (b) comply with the pavement markings for traffic flow as shown on the site plan attached to the permit, including those necessary for the First Avenue connection and direction for entrance to the green area; (c) pave any surface necessary to comply with the pavement markings provided for in (b) above, including that necessary for the First Avenue connection and to allow necessary pavement markings for traffic flow into the green area but not to include the green area; (d) restripe the parallel parking spaces in front of the building and place a solid curb on the immediate west side of the parallel parking to replace the curb stops now in place; (e) stripe the perpendicular parking spaces that abut the south end of the building where pavement presently exists; (f) place the necessary signs at the entrance to the green area so that customers will be aware of the additional parking inside the fenced green area and; (g) remove whatever portion of the chain link fence is necessary to allow reasonable entrance to and exit from the green area. It is further recommended that Respondent be allowed sufficient time to complete the above, not to exceed 60 days unless the Respondent wishes to resurface the entire driveway area including the First Avenue connection and any parking area that is presently paved. In that event, it is recommended that Respondent be allowed 90 days. It is further recommended that Respondent not be required to pave any area that is to be used for parking including the green area and that adjacent to the green area that does not already have existing pavement. RECOMMENDED this day 12th of October, 1995, at Tallahassee, Florida. WILLIAM R. CAVE, 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 12th day of October, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0673 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. Proposed findings of fact 1-7, 10-13, 16-18, 20, and 21 are adopted in substance as modified in Findings of Fact 1 through 21 of the Recommended Order. Proposed findings of fact 8 and 9 are covered in the Preliminary Statement. Proposed findings of fact 14, 22 and 24 are rejected as not being supported by competent substantial evidence in the record. Proposed findings of fact 19 and 23 are rejected as being argument rather than findings of fact. Proposed finding of fact 15 goes to the weight to be given to Tako's testimony and is not a finding of fact per se. The Respondent Proposed Findings of Fact. The first two sentences of Respondent's introductory paragraph under "Findings Of Fact" are covered in the Preliminary Statement. The balance of the introductory paragraph and unnumbered paragraphs 2 - 6 are presented as restatements of Tako's and Davis' testimony and not as findings of fact. However, this testimony has been adopted in substance as modified in Findings of Fact 1 - 21 of the Recommended Order and where it has not been so adopted it is rejected as not being supported by competent substantial evidence in the record. COPIES FURNISHED: Ben Watts, Secretary Department of Transportation ATTN: Diedre Grubbs Haydon Burns Building Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Francine M. Fflokes, Esquire Department of Transportation Haydon Burns Building Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Stephen W. Moran, Esquire Moran & Tileston 1738 East Edgewood Drive Lakeland, Florida 33803
The Issue The Petitioner appeals the disapproval of its license transfer application by the Respondent. Hence the issue posed is whether or not the Respondent unlawfully disapproved the application for transfer on the grounds that "the location failed to qualify for zoning approval" within the meaning of Section 561.18, F.S. The premises sought to be licensed is located at 1480 South Ocean Boulevard, Pompano Beach, Florida. The former name of the business was Paddock International, Inc., d/b/a Paddock International. The proposed name of the new business is Jacob's Ladder, Inc., d/b/a Jacob's Ladder. When the application for transfer was submitted to the Division of Beverage for approval, it was rejected on May 19, 1976, for, as previously stated, the reason that it "failed to qualify for zoning approval", citing Section 561.18, F.S., as amended. The disapproval was appealed and the matter is now before the undersigned to determine whether or not the applicants and the premises met all of the qualifications required in the beverage law. The Petitioner takes the position that the Respondent's and County Zoning Board's action amounts to arbitrary and capricious conduct and that in no instance, has zoning approval been required in license approval situations. C. Lloyd, Respondent's representative and employee for approximately eight years, testified that he processes approximately 600 license applications yearly of which approximately 40 to 50 percent represent transfer applications. Based on his experience, the Petitioner's application is the only transfer application requiring zoning approval. He was advised during his investigation by a Mr. Kauth that the Broward County Zoning Board acted on a previous mix-up in the type of license which was previously issued and the county was misinformed in giving zoning approval to the prior licensee. He testified further that in almost all cases no inspection is made as to whether or not the particular premises meets the zoning requirements in transfer application situations. By way of background, the record evidence reveals that the license was initially issued to the owners of the premises sought to be licensed here on or about January 4, 1960. Since that time, approximately 21 licenses have been issued and/or renewed and at no time has zoning ever surfaced as a problem. The most recent zoning certificate was dated December 4, 1974 and the zoning was satisfactory at that time. George Maurer, Chief of Zoning Inspection for Broward County and who has served as the Zoning Chief for the past three years testified that he supervises personnel in the zoning department and is charged with maintaining records; overseeing and enforcing zoning procedures. He recalled being asked to sign the zoning approval form for the subject premises and he refused in that there was no certificate on file and according to his testimony, such must be current with the present owner's name contained thereon. He admitted that the prior zoning approval certificate had not been revoked either administratively or otherwise and that there was no hearing as to any proposed revocation or notice of any intent to revoke the current zoning approval certificate. The zoning approval was withheld here due to the inadequate parking spaces and for violations of the South Florida Building Code and numerous other code violations. To the best of his knowledge, the code violations had been corrected with the exception of a sign which was erected on the premises sought to be licensed. When Petitioner filed its application for transfer of license from the previous owners, he was advised that there existed 47 parking spaces, however, based on a field examination conducted by him on August, 1976, his inspection revealed that there were only 38 parking spaces. On cross examination he testified that there has been no change in the zoning regulations from the time of issuance of the prior zoning certificate through the time that the disapproval was given for the license application in question. Robert R. Krauth, Deputy County Administrator of Broward County, testified he mailed a mailgram to beverage agent Joseph J. Scozzafava and advised that the zoning certificate had been improperly granted for the premises sought to be licensed under the previous ownership. The testimony is that he had no knowledge that zoning certificates were required in transfers and that to his knowledge no steps had been taken to close the restaurant due to these alleged inadequacies. On cross examination he testified that he had some knowledge that the use of the premises had changed however he had no evidence on that point. He received no complaints from Jacobs Ladder and to his knowledge the sole problem centered around the inadequate parking spaces. George C. Gatterer, 2/ an employee of Broward County Board of County Commissioners and the Assistant Director of General Services for the zoning department, testified that the area is located in a R-6 zoning area. The zoning certificate could not be approved for the subject premises based on the "improper parking spaces". He was aware of no regulation which required that new zoning certificates be changed based solely on a name change. He knew the former compliance officer, Smith, who certified that the property had been in compliance during the prior periods in which the zoning approval had been certified. Other evidence revealed that the parking lot had not changed nor had the use changed and that prior licensees had no problem getting licenses transferred. Petitioner's agents attempted to obtain parking in contiguous areas but were unable to obtain such.
Findings Of Fact Based on the record evidence, it is clear that the request for a new zoning certificate was a new procedure utilized by the Division of Beverage in the subject case. Respondent's own witness testified that he was in charge of processing most license transfers and that he was aware of no other application in which a zoning certificate was required in order to gain transfer approval from the Respondent. The evidence further revealed that the same number of parking spaces, at least in terms of footage, now exist as has existed when zoning approval was given in the earlier situations. This situation has existed for more than 16 years and the county's witness who is in charge of the zoning approval testified that there has been no change in the zoning regulations since the issuance of the most recent zoning certificate in 1974. Evidence further reveals that at no time did the Petitioner receive and notification that the prior zoning approval was being withdrawn either administratively or otherwise, nor was any notice given of an intent to revoke the prior zoning approval. Based on these facts, the undersigned concludes that the requirement that a zoning approval be submitted along with the transfer application in this case represented a marked departure from the existing rules, regulations and procedures of the Division of Beverage, and amounted to a denial of due process. Based thereon I shall recommend that the transfer application be approved since, in my opinion, based on the evidence presented, the premises possess the requisite qualifications as required by the beverage law. It thus appears that Respondent's failure to approve the application for reasons advanced cannot stand and I shall recommend that the approval be issued forthwith.
Recommendation Based on the foregoing findings and conclusions of law, I recommend that the Department of Business Regulations, Division of Beverage, approve the application submitted in the subject case. DONE and ENTERED this 27th day of August, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issue is whether Petitioners' application for site plan approval for a proposed renovation and addition to their restaurant should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this local land use dispute, Petitioners, Ypapanti and Sevasti Alexiou, who operate a restaurant under the name of Frenchy's Rockaway Grill, have appealed a decision by the Community Development Board (Board) to deny an application to renovate and expand their restaurant located at 7 Rockaway Street, Clearwater Beach, Florida. The Board, which is made up of seven local residents, acts as the local planning agency for Respondent, City of Clearwater (City). Although the City staff supports the project, the City is technically opposed to the application since the Board failed to approve the project by a 3-3 tie vote. In denying the application, the Board rejected the City staff's recommendation that the application be approved. Intervenor, Hunter Hotel Company, owns and operates a hotel known as Clearwater Beach Hotel which is contiguous to, and south of, Petitioners' property. It objects to the application on the grounds that "the criteria for the flexible development approval were not met nor proved, [and] that the relief requested [by Petitioners] is of such a magnitude that it is not warranted and cannot be allowed under the Code." As further clarified by Intervenor, the City's parking shortage in the Beach area is the "core issue on this appeal." Until the City solves the parking problem, Intervenor suggests that there should be a moratorium on development in the Beach area. Petitioners own and operate a popular and successful one-story restaurant and bar on a 0.38-acre lot at 7 Rockaway Street, Clearwater Beach, which fronts directly on the Gulf of Mexico. The property is zoned as a part of the City's Tourist District and is bounded by the Gulf of Mexico on the west, a municipal parking lot to the north, a motel on the east, and the Clearwater Beach Hotel on the south. Due to the small size of their lot, Petitioners seek to vertically expand their restaurant by adding a second story consisting of 3,487 square feet, including an approximately 2,300 square foot open deck and 1,200 square feet of enclosed area. Both sections will accommodate bar patrons and diners. Petitioners also intend to remove and replace a 945 square foot storage room attached to the south side of the building which is structurally unsound. To accomplish these changes, Petitioners will need "flexibility" in meeting setback and parking requirements. Because more than 95 percent of the City is now "built out," and very little land is vacant, the City has adopted comprehensive infill criteria for non-conforming structures, such as Petitioners' restaurant. The criteria which apply to Petitioners' project are found in Section 2- 803C. of the City of Clearwater Redevelopment Code (Code) and allow flexibility in promoting redevelopment and infill throughout the City, including the Clearwater Beach area. As pointed out by City staff, infill projects are often used on Clearwater Beach because there are so many non-conforming structures in that area. In determining whether a project should be given flexibility as an infill project, the City evaluates the proposed project against its infill criteria. Strict compliance with all criteria is not required, but rather the criteria are weighed or balanced collectively. If a project cannot meet a "significant number of [criteria], or a significant one in a meaningful way," then an applicant "would have problems [with gaining approval]." Once a project qualifies as an infill project, an applicant may then use flexible development standards for setbacks, height, size, and minimum off-street parking. In this case, Petitioners seek flexibility for setback and off-street parking requirements. As noted earlier, the main concern raised by Intervenor centers around item 9. of the criteria, which reads as follow: 9. Adequate off-street parking in the immediate vicinity according to the shared parking formula in Division 14 of Article 3 will be available to avoid on-street parking in the immediate vicinity of the parcel proposed for development. Intervenor contends that this criterion was not satisfied, and thus the project cannot qualify as an infill project. In addition, in its Proposed Final Order, the City contends that Petitioners have failed to satisfy items 1. and 5., which read as follows: The development or redevelopment of the parcel proposed for development is otherwise impractical without deviations from the use, intensity and development standards; 5. Suitable sites for development or redevelopment of the uses or mix of uses within the comprehensive infill redevelopment project are not otherwise available in the City of Clearwater. Table 2-803 of the Code establishes minimum off- street parking requirements of 7 to 15 parking spaces per 1,000 square feet for restaurants in the Tourist District. Therefore, a restaurant of Petitioners' size (that was not an infill project) would be required to have at least 47 off- street parking spaces. In actuality, Petitioners have only 13, due to a variance having been previously granted. Since Petitioners intend to add around 3,400 square feet through the second floor addition, the Code would normally require a minimum of 24 additional parking spaces, or a total of 71. However, these off-street standards do not apply to infill projects. Instead, another provision in Table 2-803 of the Code provides that minimum off-street parking for infill projects shall be "[d]etermined by the community development coordinator based on the specific use and/or ITE [Institute of Transportation Engineers] Manual standards." Therefore, using the guidelines in the foregoing provision, the community development coordinator determines the number of additional off-street parking spaces, if any, that an infill project will require. Because the City staff concluded that a parking study would assist it in analyzing the specific use of the property, it requested that Petitioners perform a parking study. The study was conducted by Robert Pergolizzi, a certified planner, who has performed a number of parking studies during his career. The Code does not describe any criteria for a parking study for an infill project. Therefore, the staff looked at other sections of the Code in arriving at a methodology to be used for the study. More specifically, it first considered Section 2-803J.6.a., which provides in part that off-street parking requirements can be relaxed if "the physical characteristics of the proposed building are such that the likely uses of the property will require fewer parking spaces per floor area than otherwise required." Because the restaurant sits directly on the beach, the staff believed that the primary destination of many of the customers was the beach, and not the restaurant, and that the visit to the restaurant was a side trip by the customers. Thus, the parking study methodology was designed, in part, to confirm or disaffirm that assumption. Section 2-803J.6.c. also provides flexibility in off-street parking requirements if "adequate parking is available on a shared basis as determined by all existing land uses within 1,000 feet of the parcel proposed for development, or parking is available through any existing or planned and committed parking facilities." The staff used this section of the Code to determine that 1,000 feet was an appropriate distance to analyze available parking for a restaurant. Therefore, Pergolizzi was directed by the staff to analyze available parking within 1,000 feet of the restaurant. Pergolizzi conducted his study on August 25 and 26, 2000, the Friday and Saturday which preceded the Labor Day holiday weekend. It is undisputed, and the parties have stipulated, that Pergolozzi conducted the study entirely consistent with the agreed methodology. The study confirmed that the primary destination of 49 percent of the restaurant's customers was the beach, and not the restaurant. In other words, the expansion would not affect the parking demand generated by almost one-half of the customers. The study also confirmed that there was available parking within 1,000 feet of the restaurant to accommodate not only the existing business, but the proposed expansion as well. As noted above, Table 2-803 of the Code required that the community development coordinator determine the minimum off-street parking after consideration of the specific proposed use and/or the ITE Manual standards. Here, the City staff looked at the specific use, the ITE Manual standards, and the parking study to determine the minimum off-street parking required for the restaurant. It concluded that there was available parking within 1,000 feet of the restaurant and that no additional parking spaces were required. The community development coordinator concurred with the results of the study and analysis and likewise determined that the minimum off-street parking for the project were the existing 13 spaces. This determination was wholly consistent with the requirements of the Code. In recommending to the Board that the project should be given flexibility as an infill project, the staff's report contained the following conclusion: The proposal is in compliance with the standards and criteria for flexible development approval, with maximum development potential, requirements of the Comprehensive Infill Redevelopment Projects, and with all applicable standards of the Community Development Code. A more detailed analysis of how each of the ten criteria were satisfied is found in Petitioners' Exhibits 9 and 14 received in evidence. At the hearing on March 27, 2001, the City's assistant planning director also established that the proposed expansion and renovation complied with all applicable standards of the Code. Intervenor's expert witness, Gail Easley, a certified planner, questioned whether the methodology used by Pergolizzi complied with the Code. More specifically, she contended that the City was required to determine minimum off- street parking for infill projects in the manner described in Section 2-803C.9. That section provides that "[a]dequate off- street parking in the immediate vicinity according to the shared parking formula in Division 14 of Article 3 will be available to avoid on-street parking in the immediate vicinity of the parcel proposed for development." If this contention were true, however, it would render meaningless the provision in Section 2-803C.8., which provides that "[f]lexibility in regard to lot width, required setbacks, height and off-street parking are justified by the benefits to community character in the immediate vicinity of the parcel proposed for development and the City of Clearwater as a whole." In other words, there would be no flexibility for off-street parking as permitted by that section. This would be contrary to the very purpose of infill projects. Witness Easley's interpretation is also inconsistent with Table 2-803, which states that "minimum off-street parking will be determined by the community development coordinator based on the specific use and/or ITE Manual standards." Under her interpretation of the Code, the community development coordinator would have no right to determine minimum off-street parking for infill projects based on the specific use and/or ITE Manual standards, despite clear language in the Code to the contrary. More importantly, the criteria in Section 2-803C., including item 9., are used to determine whether a project should be considered an infill redevelopment project under the Code. Item 9. is simply one of those criteria, and it does not establish minimum off-street parking requirements for an infill project. Witness Easley also opined that it was inappropriate for the parking study to consider on-street parking. However, the Code does not prohibit the community development coordinator from requesting a parking study which includes on- street parking. It only requires that he consider the specific use and/or ITE manual standards when determining off- street parking for an infill project. Other contentions that the methodology was flawed, including a concern about the date and time of the study and the use of 1,000 feet as a measuring stick for available parking, have been considered and found to be without merit. A contention was also made that certain other infill criteria were not met. However, there was no evidence to support these contentions, and the more persuasive evidence supports a finding that all criteria have been satisfied, and that Petitioners qualify as an infill project. The undersigned has also considered the testimony of the owners of two competing restaurants who object to the project. While they contended that the lack of parking motivated their opposition to the application, it is fair to infer from their testimony that they object mainly because they fear that Petitioners may capture some of their business through an expansion of their restaurant. Finally, in its Proposed Final Order, the City has contended that Petitioners have failed to satisfy a general standard contained in Section 3-913A.6., which requires that an applicant ensure that: [t]he design of the proposed development minimizes adverse effects, including visual, acoustic and olfactory and hours of operation impacts, on adjacent properties. Given the modifications agreed to by Petitioners in the following Finding of Fact, the requirements of this section have been met. In the nature of an affirmative defense, Petitioners have raised the issue of equitable estoppel and contend that Intervenor should be estopped from opposing the application. The facts underlying this argument are as follows. On November 21, 2000, the Board heard testimony and considered the application for the first time. At that meeting, Intervenor's counsel represented to the Board that "my client's concern is not the parking. My client's concern is because of proximity of noise and light intrusion." In light of these concerns, counsel for Petitioners and Intervenor reached an agreement wherein Petitioners agreed to limit the addition to the northern one-half of the existing building, construct an 8-foot concrete block wall on the south property line between the restaurant and the hotel, close the upstairs addition at 10:00 p.m. on week nights and 11:00 p.m. on Fridays and Saturdays, place no outside speakers and allow no live music on the upstairs addition, and direct upstairs lighting away from the hotel. With these accommodations, counsel for the hotel represented to the Board that "if [the Board] approve[s] this, you have addressed our primary areas of concern." After the close of public comments, the Board voted to approve the application by a 3-2 vote. Because four votes are required to approve an application, and one member was absent from the meeting, the matter was continued to the next meeting on December 12, 2000. By letter sent to Petitioners' counsel on December 5, 2000, Intervenor's counsel identified the "commitments at the preceding hearing, which [Petitioners were] willing to make to the Clearwater Beach Hotel." Upon receipt of that letter, Petitioners advised the City by letter that they were in agreement with Intervenor's counsel that "these are the conditions agreed to at the last CDB meeting, which shall be binding upon my client." Notwithstanding earlier representations, by letter dated December 7, 2000, counsel for Intervenor indicated that "the owners of Clearwater Beach Hotel have instructed us to object to the pending application. Upon further review, prompted by the renderings, the magnitude of this project is simply too great for the size of the property." The letter further stated that it was to be considered "as withdrawal of our prior letter and position of 'no objection,'" and that Intervenor would attend the December 12 hearing "to formally object." Petitioners have further contended that Board member William Johnson had ex parte communications with some of his neighbors concerning the merits of this application, and this constituted a departure from the essential requirements of the law. Section 4-206D.2. of the Code provides that "no member of the community development board or the city commission shall engage in any ex parte communications with any person in regard to the substance of a quasi-judicial matter which is to be considered by the board or commission, as the case may be." If such communications occur, Section 4-206D.3.a. requires that a member disclose these communications at the meeting. There is no record of any disclosure being made. At the first Board meeting on November 21, 2000, member Johnson had moved for approval of the application. Without any explanation, at the second meeting on December 12, 2000, he voted against the application. Member Johnson did not testify at hearing to confirm or deny Petitioners' allegation of wrongdoing. However, witness Pergolizzi testified that he spoke with member Johnson just after the December 12 meeting, at which time member Johnson allegedly admitted that he had such conversations with his neighbors and was sorry for his change of vote. But the out-of-court statements of member Johnson are hearsay in nature, do not supplement or explain any other competent evidence on this issue, and they cannot form the basis for a finding of fact.
The Issue The issues in this permit enforcement proceeding are whether Respondent violated the conditions of a general use permit, authorizing use of a designated portion of the Department of Transportation's right-of-way property, and, if so, what remedy is appropriate and authorized?
Findings Of Fact Ronald Puleo owns property that fronts on U.S. Highway 41, South Tamiami Trail, in Sarasota, Florida. He purchased the property in 1989 and has used the property to operate a business called Sarasota Auto Rentals. A commercial building on Mr. Puleo's property faces east, toward Tamiami Trail. The building houses not only Mr. Puleo's auto rental business, but also several other commercial tenants who operate businesses that serve the public. According to signs in front of the building, these tenants have included a window-tinting business and Scoot, Inc., apparently involving the sale and/or rental of motor scooters. Pictures in evidence of Mr. Puleo's property and the vicinity, taken during the relevant time of this controversy,3/ portray a fairly busy, established commercial area, as witnesses confirmed. The property to the south of Mr. Puleo's property is occupied by Enterprise, another rental car business. Further south, there is a solid line of establishment after establishment, a mixture of buildings, signs, and parking areas as far as the eye can see. To the north of Mr. Puleo's property, there is a large car dealership with visible logos for Volkswagen and Audi. Tamiami Trail is a major north-south roadway through Sarasota. In front of Mr. Puleo's property, the road is six-laned, with three lanes in each direction separated by a median. Outside of the solid white lines marking the road's outer edge, the area adjacent to the roadway is finished with concrete gutters with intermittent drainage grills, raised curbs, and then a sidewalk flanked on either side by grass. At the interspersed access connections that allow ingress and egress to and from the various business properties, the curb and sidewalk flatten to street level, and there is pavement instead of grass. Standing on the grassy strip on the interior side (i.e., the side farther from the street), there is a row of intermittent tall poles with street lights. After the interior grassy strip (moving away from the street), there appears to be mostly asphalt paving in front of the businesses. On Mr. Puleo's property, in particular, there is one access connection near the north end of the property. To the north of the access connection, a single street light pole stands on the interior grassy patch to the west of the sidewalk. On the south side of the access connection, there is a small grassy strip to the right of the sidewalk. The rest of the space in front of Mr. Puleo's property is paved with asphalt. Directly in front of Mr. Puleo's building, the asphalt is painted with white stripes, designating parking spots perpendicular to the building. The parking spots have concrete parking bumpers at the front edges, which are very close to the front of the building itself; perhaps there is enough room for a person to walk in front of a parked vehicle to go into the building, but no more than that. In addition to the designated parking spots, other parts of the asphalt pavement in front of Mr. Puleo's building are used, and historically have been used, for parking vehicles. Running east to west along the north property line, from the edge of the interior grassy patch, Mr. Puleo uses the pavement to park a row of rental cars. These cars are backed in either due south- to-north, or diagonally southeast-to-northwest, so that the car fronts face south (towards the asphalt in front of Mr. Puleo's property) or southeast (angled towards Tamiami Trail). These parked cars along the north property edge often have small "Rent Me" signs in the front windows. In addition, historically, Mr. Puleo, his customers, his tenants, his tenants' customers, and sometimes customers or visitors of nearby businesses have parked vehicles along the east edge of the asphalt pavement in front of Mr. Puleo's building and along the south edge of the paved area in front of the building. Historically, Mr. Puleo and others also have parked vehicles on an area to the south of Mr. Puleo's southern property line, in front of what is now the Enterprise rental car business, where there used to be asphalt pavement to the west of the sidewalk and interior grassy strip. Lance Grace has been the operations engineer for the Department's Sarasota Operations Center since 2003. Mr. Grace first became familiar with Mr. Puleo's property and the property to the south in 2004, when Mr. Puleo's neighbor to the south was an exotic car dealer. According to Mr. Grace, there was competition between the two neighboring businesses to park on the asphalt-paved area that was to the south of Mr. Puleo's property line, and Mr. Grace was asked to get involved. Mr. Grace did not identify by whom he was asked to get involved, but the impression given was that it may have been the exotic car dealer. Mr. Grace testified that the exotic car dealer did not like Mr. Puleo parking on the asphalt to the south of his property line, because it blocked the view to the exotic car dealer's property. At that time, the Department asserted the right to all of the Tamiami Trail frontage as its right-of-way westward from the roadway, past the sidewalk and grassy strips, all the way to a line that runs north-south, very close to Mr. Puleo's building--so close that the line actually bisects the designated parking spaces in front of Mr. Puleo's building so that half of the parking spaces are within the right-of-way. This right-of- way line is 40 feet to the west of the interior grassy strip. Therefore, the asphalt-paved area in front of the exotic car dealer's business was included in the Department's right-of-way. Mr. Grace said that when he was asked to get involved in 2004, he tried to let the property owners work it out among themselves, although he did tell them that "all this parking within the right-of-way is illegal" and that if they continued to have issues, then he would have to get involved to "deal with it from a statutory point of view." At the hearing, Mr. Grace explained: "There is a Section 337 [in the Florida Statutes] that deals with unauthorized use within the right-of-way, and it is specifically written to prevent the parking and display of items within the right-of-way for safety and efficient use of the roadway." Mr. Grace testified that it was, and is, the Department's position based on the statute to which he alluded that parking is not allowed on its right-of-way. Nonetheless, the parking continued on the paved area to the south of Mr. Puleo's property in front of the neighboring business. Mr. Grace testified that at some point, when there continued to be issues with parking there, the decision was made to have the asphalt removed and replaced with grass to discourage parking in that portion of the right-of-way. Mr. Grace's recollection was that a portion of that asphalt "may have" been removed by the Department, but that at least part of the asphalt on the right-of-way was removed by Mr. Puleo's neighbor, who did not like the parked vehicles blocking the view of his business. The pictures in evidence show the rectangular area south of Mr. Puleo's property where grass was placed to discourage parking in response to the dispute between Mr. Puleo and his neighbor to the south. However, in front of Mr. Puleo's property and elsewhere on both sides of Tamiami Trail, areas claimed as Department right-of-way remain paved between the interior grassy strips and the fronts of buildings. Mr. Puleo credibly testified that historically, as long as he has owned the property, persons working at or visiting other establishments in the vicinity on both sides of Tamiami Trail have used the right-of-way similarly by parking vehicles on the area between the interior grassy strips next to the sidewalks and their buildings. Mr. Puleo's testimony was further corroborated by the pictures in evidence. For example, the Department offered in evidence an aerial picture with the legend "Sarasota County Property Look- Up," on which tan lines are superimposed to demonstrate the Department's right-of-way boundary. This aerial picture (Petitioner's Exhibit 2) shows the lineup of cars parked along the northern boundary of Mr. Puleo's property described above. The same aerial view also shows that other businesses in the vicinity use Department right-of-way property for parking. The property in the bottom left corner of the picture, on the other side of Tamiami Trail and a little to the south of Mr. Puleo's property, illustrates this usage. Just inside of the sidewalk and interior grassy strip, two cars are diagonally parked on a paved area facing Tamiami Trail. According to the tan right-of- way line, these two cars and the asphalt paving on which they are parked are wholly on right-of-way property. On the same parcel, the right-of-way line bisects a number of vehicles parked on paved areas that appear to be designated parking spaces, much like the right-of-way line in front of Mr. Puleo's building bisects his parking spaces. The aerial photo also shows that on the property two parcels to the south of Mr. Puleo's property, several vehicles are parked perpendicular to the roadway with the front bumpers very near the sidewalk; one of the cars is so close that the edge of its front bumper might even protrude a bit over the edge of the sidewalk. These cars are wholly within the right-of-way. Other pictures in evidence present similar images, such as the color photos that are part of the 2009 permit, which were taken by Mr. Rosenstein. Mr. Grace acknowledged that Mr. Puleo's historic use of the right-of-way was not unique to his property, but rather, was fairly common in the general area, as shown in the pictures. According to Mr. Grace, "the first real major effort" to try to prevent parking within the right-of-way in this vicinity occurred in 2005. This "major effort" involved him sending "several letters" to Mr. Puleo and several other businesses in the vicinity advising that "selling of items and parking in the right-of-way" was illegal. Mr. Grace noted that Mr. Puleo has not ever stopped parking vehicles in the right-of-way in front of his property, despite the 2005 letter described by Mr. Grace. The pictures in evidence (bearing dates in and after 2009) show that others in the vicinity similarly continued parking vehicles in the right-of-way after 2005. Mr. Grace was asked what enforcement authority he has with regard to the problem he has perceived of parking and advertising items for sale in the right-of-way. He candidly admitted that he does not have law enforcement authority; he said that he can only inform property owners that there is a statute that applies to this situation and it is illegal. Mr. Grace testified that, if necessary, he can request assistance from law enforcement and that when he sent letters to property owners in 2005, he sent copies to the Florida Highway Patrol. Throughout Mr. Grace's involvement in right-of-way matters with Mr. Puleo, dating back to 2004, no citations have been issued by the Florida Highway Patrol or any other law enforcement authority for what Mr. Grace testified was Mr. Puleo's illegal use of the right-of-way. When asked whether he has asked for enforcement assistance in Mr. Puleo's case, Mr. Grace said that he did so once. As Mr. Grace described the occasion, the Department was poised with a crew in place to remove asphalt from the right-of- way in front of Mr. Puleo's business. Apparently, Mr. Grace sought approval from the Florida Highway Patrol to authorize the crew to proceed. From what Mr. Grace recalls, Mr. Puleo may have gotten an attorney involved, because the Florida Highway Patrol "backed down at that point," telling Mr. Grace that they were "not sure about this whole right-of-way issue." Mr. Grace did not say when this incident occurred, except to note that it was before "the lawsuit." In 2007, the Department filed a complaint in circuit court for ejectment against Mr. Puleo and his business, seeking to eject them from the Department's right-of-way. Michael Hope is the Department attorney who prepared the ejectment complaint. Both Mr. Hope and Mr. Grace acknowledged that the purpose of this lawsuit was to stop Mr. Puleo from parking and advertising on Department right-of-way. Mr. Puleo and his business counterclaimed. A twist in the controversy arose when title work revealed that the 90 feet of Tamiami Trail frontage in front of Mr. Puleo's property, from the roadway to a line bisecting the parking spaces in front of Mr. Puleo's building, did not all belong to the Department as right-of-way, as believed. Instead, more than half of the frontage--50 feet--actually was owned entirely by Mr. Puleo in fee simple. This twist changed the dynamics of the dispute between the parties. The Department was put into the position of having to secure permission from Mr. Puleo to use his property for drainage and underground utilities traversing 50 feet of Mr. Puleo's property. And in an ironic twist, it was suddenly the Department having to make amends for its prior unauthorized use of Mr. Puleo's property. Meanwhile, although Mr. Puleo's bargaining position certainly had changed, his objective remained unchanged; he wanted to continue his admitted historic use of the paved portion of the other 40 feet of Tamiami Trail frontage, which was Department right-of-way up to the line bisecting the parking spaces in front of Mr. Puleo's building. In addition, Mr. Puleo wanted an asphalt strip restored on the right-of-way south of Mr. Puleo's property line, where it had been removed and planted with grass to discourage his historic use of that right-of-way. Protracted negotiations ensued, and the parties ultimately reached a settlement agreement in July 2009. The settlement agreement is set forth in a pleading that bears the caption of the circuit court case, entitled "Stipulation for Dismissal of All Claims and Counterclaims," signed by both parties on July 10, 2009. Although the settlement agreement in evidence does not indicate approval by the circuit court, the parties acknowledge that it was, in fact, approved by the court. As suggested by the title, the settlement agreement resulted in the dismissal of all claims and counterclaims (subject to the right reserved in paragraph 12 of the settlement agreement to reopen the case for the purpose of enforcing the agreement). Both parties agree that two paragraphs of the settlement agreement provide background germane to this administrative enforcement action, as follows: [The Florida Department of Transportation, FDOT] acknowledges that the 40 foot portion of Parcel 106 that is proximate to the PULEO frontage is PULEO's historic driveway, for driveway usage for the PULEO property and that such driveway shall not be changed, except as provided herein, or in accordance with FDOT Access Management standards and procedures, with PULEO retaining rights to procedural redress under Chapter 120 of the Florida Statutes. FDOT has issued a permit (permit #2009- K-194-36), Exhibit C, and thus agrees that PULEO may construct a 15 foot deep asphalt "turn out" for driveway usage for PULEO's property; such driveway "turn out" shall not be changed except in accordance with FDOT Access Management standards and procedures, with PULEO retaining rights to procedural redress under Chapter 120 of the Florida Statutes. Paragraph 7 of the settlement agreement addresses Mr. Puleo's use of the Department's right-of-way on the 40-foot portion of the Tamiami Trail frontage that is not owned outright by Mr. Puleo. As confirmed by both parties' witnesses, this right-of-way area is shown on Respondent's Exhibit 1 as the square outlined in pink. On Petitioner's Exhibit 2 (the aerial picture), it is the square area immediately north of the green-yellow- highlighted rectangle designated right-of-way parcel 196, east of the tan line bisecting five parking spots in front of Mr. Puleo's building and south of the tan line protrusion that extends eastward to the roadway, then north to Mr. Puleo's northern property boundary. The tan line protrusion marks the 50-foot frontage owned by Mr. Puleo; this area is shown on Respondent's Exhibit 2 as the larger blue rectangle next to the pink square. Paragraph 8 of the settlement agreement addresses Mr. Puleo's use of the right-of-way to the south of Mr. Puleo's property, which previously had been paved and used by Mr. Puleo. The Department issued the 2009 permit identified in paragraph 8 on July 9, 2009, the day before the settlement agreement was executed. The 2009 permit is part of the settlement agreement, as Exhibit C thereto.4/ Issuance of the 2009 permit allowed Mr. Puleo to repave (at Department expense) and use a designated portion of the right-of-way to the south of Mr. Puleo's property. Department attorney Michael Hope reviewed and signed the settlement agreement, with the 2009 permit attached. Before the settlement agreement was signed, Mr. Hope gave the instructions to Mr. Rosenstein to prepare the permit. Mr. Rosenstein has primary responsibility within the Sarasota Operations Center for issuing permits, although occasionally Mr. Grace, to whom Mr. Rosenstein reports, gets involved in issuing permits. When the matter of preparing a permit for Mr. Puleo arose, Mr. Grace was on vacation. The issuance of the 2009 permit to Mr. Puleo was unusual for several reasons. First, it was issued as part of a settlement agreement, instead of by the normal procedure of an application being filed by someone requesting a permit. Second, Mr. Rosenstein was asked by Mr. Hope to prepare and issue the permit and deliver it to Mr. Puleo, all in a single day, which is highly unusual. Mr. Rosenstein had to drop everything and immediately go to Mr. Puleo's property to take pictures from several angles of the adjacent right-of-way to the south. He marked the pictures to describe and outline the area of right-of- way that Mr. Puleo would be allowed to pave and use. Mr. Rosenstein then had to fill out the permit, cross-referencing the marked pictures. He had to add the appropriate form pages containing the Department's standards for the paving activity adjacent to Tamiami Trail, addressing such matters as requirements for signs alerting traffic to the work and procedures for lane closures, if necessary. Mr. Rosenstein then had the completed permit reviewed and approved by the permits coordinator who signed the permit along with Mr. Rosenstein. He then delivered the completed permit to Mr. Puleo.5/ Mr. Rosenstein testified that the 2009 permit is a "general use permit." According to Mr. Rosenstein, a general use permit is considered a residual category to allow an activity on right-of-way that does not fall within any other permit category. He identified the other permit categories as drainage permits, utility permits, landscape permits, and access connection permits to make a connection to access a state road. The 2009 permit is not an access connection permit, as the asphalt pad authorized by the 2009 permit stops at the inside end of the interior grassy strip and does not extend to the roadway; a vehicle cannot drive directly from the asphalt pad onto Tamiami Trail. The 2009 permit, as completed by Mr. Rosenstein, states that the permittee, Mr. Puleo, requests permission from the Department "to construct, operate and maintain: INSTALL ASPHALT PAD AS SHOW [sic] IN PICTURE." Mr. Rosenstein attached two pages with pictures of the site. The first page has a single picture on which Mr. Rosenstein put the following description: "Extend Parking Area with Asphalt 15 x 40 feet." He marked the outline of the designated rectangle in red. As designated, the area extended the pavement that was in front of Mr. Puleo's property to the south, adding 15 feet of Tamiami Trail frontage to the south. The 40-foot length of the rectangle extended from the edge of the interior grassy strip west of the sidewalk to the end of the Department's right-of-way. This means that the west end of the new asphalt pad would be even with the midpoint of the parking spaces in front of Mr. Puleo's building, where they are bisected by the Department's right-of-way line. Mr. Rosenstein acknowledged that he did not add any special conditions to the permit to specify or restrict the usage of the approved asphalt pad. There was no evidence to suggest that Mr. Rosenstein was given instructions to include special permit conditions to specify or restrict the usage of the asphalt. In the space on the permit form for special conditions, the only condition put on the 2009 permit required Mr. Puleo to "sod all areas of disturbed right-of-way." Mr. Rosenstein gave conflicting testimony regarding his understanding of the 2009 permit that he was instructed to prepare. At first, he testified that he had no information at the time regarding the purpose of the asphalt pad or its intended use. However, he stated later that he understood at the time that the purpose of the asphalt pad was to allow cars to turn around. According to Mr. Hope, he instructed Mr. Rosenstein to prepare a permit "for a turn-out area for driveway purposes over a portion of the right-of-way." Mr. Hope testified that the asphalt pad was intended to be used only as a "turn out," in which cars pulling out of the parking spaces in front of Mr. Puleo's building could back into the newly paved area and then drive forward to exit onto Tamiami Trail at the access connection. Mr. Hope said that the "turn- out" area was needed primarily for cars parking in the two southernmost parking spaces in front of Mr. Puleo's building. Although this turn-out use might explain one of the reasons for the asphalt pad authorized by the 2009 permit, that use alone would not explain authorizing a 40-foot-long asphalt pad that extends parallel to the parking spaces. Cars would not back out of parking spaces and then back up while turning 180 degrees before pulling forward to exit Mr. Puleo's business. Mr. Rosenstein did not recount the instructions he received from Mr. Hope for preparing the permit. Neither Mr. Rosenstein nor Mr. Hope explained why the authorized asphalt pad extend for 40 feet, all the way from the interior grassy strip to the west end of the Department's right-of-way. Mr. Rosenstein did not explain how he knew to mark the pictures to designate the site for the asphalt pad or where the dimensions came from. Mr. Rosenstein claimed that he was focused on giving instructions to the contractor that would be installing the asphalt pad, not on the use of the new paved area after construction. Nonetheless, he admitted that general use permits are intended to address not only construction, but also the subsequent operation or use of what is constructed. Mr. Rosenstein conceded that since the 2009 permit did not address the ultimate usage, then the ultimate usage would be determined by the permittee. Actually, the 2009 permit does address the usage of the new paved area by the description "extend parking area." The 2009 permit, thus, identifies the paved right-of-way on Mr. Puleo's property as a "parking area" and authorizes asphalt paving to "extend" that "parking area" to add another 15 feet of Tamiami Trail frontage for the entire length of the right-of-way. Based on the credible evidence of record, the reasonable meaning of the description "extend parking area," placed by Mr. Rosenstein on the picture that became part of the 2009 permit, is to indicate that the paved area in front of Mr. Puleo's building was, in fact, used as a parking area and that the new asphalt was being authorized as an extension of that area and of that use. Neither Mr. Rosenstein nor any other witness offered a different credible interpretation of the "extend parking area" description in the 2009 permit. Mr. Hope testified that he discussed the subject of parking and the other historic uses with Mr. Puleo in a single face-to-face settlement negotiation meeting with Mr. Puleo and his attorneys. According to Mr. Hope, at that meeting, Mr. Puleo asked Mr. Hope whether he would be allowed to park vehicles or put signs on the new paved area; Mr. Hope said that he told Mr. Puleo no, that the new paved area was a turn-out area to be used for driveway purposes only, by which he meant for moving vehicles from one area to another. Mr. Hope conceded that this single face-to-face settlement meeting occurred many months before the settlement agreement was reached. Mr. Puleo testified that the meeting he attended with Mr. Hope took place nine months before the 2009 permit was prepared and the settlement agreement was finalized. Mr. Puleo testified that he did not ask Mr. Hope at that meeting whether parking would be allowed on the right-of-way and does not recall Mr. Hope addressing that subject, either. However, Mr. Puleo did recall subsequent protracted negotiations in which he understood that the Department did not want to give Mr. Puleo the right to use the new asphalt pad for parking. Mr. Puleo credibly testified that since this was important to him, he refused to agree on those terms. Mr. Puleo testified that the Department ultimately agreed to settle on his terms by issuing the 2009 permit that authorized him to "extend [his] parking area" and by making that permit a part of the settlement agreement. Mr. Hope's recollection of what was said at a settlement conference nine months before the 2009 permit was prepared and incorporated into the settlement agreement is inconsistent with the description expressed in the 2009 permit. Even if a conversation took place that was anything like his recollection, the credible evidence established that the Department's preliminary position changed between then and the issuance of the 2009 permit. Mr. Hope testified that he reviewed the final settlement agreement document, including the exhibits, before he signed it. He acknowledged reviewing the 2009 permit after it was issued and before he signed the settlement agreement, because the 2009 permit was an exhibit to the settlement agreement. Given that the sole purpose of the ejectment lawsuit he prepared was to stop Mr. Puleo from parking and advertising on Department right-of-way, it is not credible that Mr. Hope would not have insisted on express prohibitions in the 2009 permit against parking and advertising, had he believed that those prohibitions would have been permissible as part of the settlement agreement, of which the 2009 permit was a critical part. It is not credible that Mr. Hope would have agreed to the 2009 permit authorizing Mr. Puleo to "extend parking area" as part of the settlement agreement, unless, as Mr. Puleo testified, that is what was bargained for and what Mr. Puleo required to enter into the settlement agreement. Mr. Puleo's testimony in this regard is accepted as more credible than Mr. Hope's testimony. When Mr. Grace came back from vacation, he was made aware of the permit and the settlement agreement. He testified that "despite the original purpose of the lawsuit, there was parking and advertising continuing to occur within the right-of- way." He conducted surveillance and had pictures taken of the property after the asphalt pad was installed. Pictures were taken of Mr. Puleo's property and the extended parking area on July 27 and 30, 2009, to document that the new asphalt pad was being used for parking. Mr. Grace testified that he called Mr. Puleo to report that he observed parking on the new asphalt. Mr. Puleo told Mr. Grace that he was allowed to park on the new asphalt because his permit authorized him to "extend parking area." Mr. Grace claimed that he had not looked at the permit until then. At that point, Mr. Grace "started discussing the matter with Mike Hope," and they decided that it was time to revoke the 2009 permit and issue a new permit "that would clarify and still support the original intent of the settlement agreement, but clarify the intent." Inexplicably, the Department took no action until May 13, 2010, when Mr. Grace sent a letter by certified mail to Mr. Puleo. The entire text of the letter was as follows: Re: Permit Number 2009-K-194-36 Dear Mr. Puleo: As part of the stipulation agreed to between the [Department] and you the above referenced permit was issued on July 9, 2009. The permit was issued to comply with stipulation number 8 which states "PULEO may construct a 15 foot deep asphalt "turn out" for driveway usage for PULEO's property." The stipulation clearly states that the asphalt turn out is for driveway usage. However, it has been observed on numerous occasions that the asphalt area is routinely being used as a parking area which does not comply with the intent of the agreement. When this issue was previously brought to your attention you referenced a picture which was included with the permit depicting the area for asphalt placement. The picture included verbiage that included "Extend Parking Area". This reference was made in error by a staff member who was not completely familiar with the terms of the stipulation. This permit will be voided and replaced with a new permit to comply with the terms of the stipulation which included the use of the right of way as a driveway and not for parking. The permit referenced above will be voided effective May 21, 2010. A replacement permit will be issued concurrently with the voiding of this permit. Please contact me if you have any questions. Thank you for your cooperation in these matters. (emphasis added). Mr. Grace's statement--that the 2009 permit's authorization to "extend parking area" was made in error by the Department representative--is an admission that the 2009 permit does indeed authorize Mr. Puleo to park on the new asphalt. However, contrary to Mr. Grace's characterization, the 2009 permit cannot be said to have been issued in "error" or not in compliance with the terms of the settlement agreement, because the 2009 permit itself was made part of the settlement agreement. Mr. Grace's description implies that the settlement agreement came first, followed by the 2009 permit, which did not match up to the requirements of the settlement agreement; in fact, the reverse is true--the 2009 permit was issued first and the 2009 permit, as prepared and issued (including the "extend parking area" description), was incorporated into the settlement agreement as an exhibit and an express component of paragraph 8. The only explanation given for revoking the 2009 permit was its purported inconsistency with the settlement agreement. For example, there were no allegations of substantial changes in the use of the right-of-way that would trigger new and different safety concerns. Instead, Mr. Grace's May 13, 2010, letter acknowledged that Mr. Puleo had only continued his historic use of the right-of-way in front of his property, extending that use to the new asphalt extension of his parking area. The May 13, 2010, letter did not inform Mr. Puleo that he had a right to an administrative hearing to contest the Department's intended action to revoke his 2009 permit. Instead of offering Mr. Puleo a window of time in which to request an administrative hearing, only eight days after the May 13, 2010, letter was mailed to Mr. Puleo, Mr. Grace sent a second certified letter to Mr. Puleo. The entire text of this May 21, 2010, letter was as follows: Re: Permit Number 2010-K-194-30 Dear Mr. Puleo: As stated in my May 13, 2010, letter to you permit number 2009-K-194-36 is void and no longer valid. A replacement permit number 2010-K-194-30 is enclosed for your use and meets the terms of the stipulation referenced in my previous letter. Please contact me if you have any questions. Thank you for your cooperation in these matters. The 2010 permit is a general use permit, just as the 2009 permit was. Despite the fact that the asphalt pad that was authorized by the 2009 permit to "extend parking area" had already been installed, the 2010 permit authorized Mr. Puleo to "Install Asphalt Pad as shown in attached photo's [sic]." The 2010 permit in evidence is incomplete, in that no photos are attached. Presumably, the missing photos are different from those included with the 2009 permit. Whereas the 2009 permit had a single "special condition" requiring the replacement of all sod disturbed during the installation of the asphalt pad, the 2010 permit added the following as new special conditions: The asphalt placed in the Department's right-of-way is for the limited use of vehicles as a driveway only. This is limited to maneuvering of a vehicle for ingress and egress only. No other permissions are granted herein. The Department's right-of-way shall not be used for parking, storage of equipment, placement of signs, or any other use not expressly stated within the terms of this permit. Mr. Grace testified that he drafted the special conditions in the 2010 permit. He explained why he believed it was necessary to draft these conditions: In the case of Mr. Puleo, it's been a situation that I have been trying to resolve since 2004, and I felt like it was necessary to clearly state that the permit, while it allows the use of the right-of-way for placement of the asphalt, and it's allowed, per the stipulation, for ingress and egress, I said that, in order for this to be clear to Mr. Puleo, I had to state that parking and display of items for sale were not permitted. Mr. Grace's testimony--that it was necessary to specifically prohibit parking and advertising as conditions in the permit itself because of the history with Mr. Puleo--is an admission that the 2009 permit cannot be interpreted to prohibit those historic uses, because it lacks the necessary express conditions. Mr. Grace has driven by Mr. Puleo's property 100 times between 2004 and the day of the hearing, observing the same kind of parking and advertising activity that Mr. Grace has been trying to stop since 2004. The pictures in Petitioner's Composite Exhibit 10 were described as representative of the alleged violations. As these pictures demonstrate, the advertising activity referred to is the placement of small "Rent Me" signs in the windows of vehicles parked on the pavement in front of Mr. Puleo's property on the right-of-way. Therefore, as Mr. Grace clarified, the advertising on the right-of-way is not a separate activity from the parking on the right-of-way; he considers the parking and advertising to be a single violation. Mr. Grace acknowledged that the special conditions in the 2010 permit, which he found necessary to make clear that Mr. Puleo had to stop the parking and advertising that he has been doing on the right-of-way since 2004, could have been put in the 2009 permit. As found above, the credible evidence establishes that the Department would have expressly prohibited parking and advertising on the new asphalt pad authorized by the 2009 permit, if the Department had been in a bargaining position to insist on those terms, but the Department was not. The Department presented no credible evidence that Mr. Puleo's parking and advertising in the right-of-way ever has endangered the health, safety, and general welfare of the public by causing distractions to motorists, unsafe pedestrian movement, dangerous traffic movement, increased vehicular accidents, motorist injuries, or fatalities. There was no evidence of any safety-related problems of any kind actually caused by Mr. Puleo's historic use of the right-of-way in front of his property or to the south of his property line where the asphalt was installed to extend his parking area. No evidence was offered to prove that allowing Mr. Puleo to use the new asphalt pad for the same parking and advertising activity he has conducted historically would interfere with safety, operation, aesthetics, or maintenance of the State Highway System, utilities, or right-of-way. Instead, the evidence established that Mr. Puleo's historic parking and advertising on the right-of-way have not given rise to any traffic-related or pedestrian-related problems. Mr. Puleo's use of the right-of-way is no more intrusive or distracting than the similar uses of right-of-way evident from the pictures in evidence. Moreover, Mr. Puleo's historic use of the right-of-way is no more intrusive or distracting than Mr. Puleo's lineup of rental cars with "Rent Me" signs in the windows along his northern property line, which Mr. Puleo has every right to do, because he owns that property in fee simple. While in a different case, the Department certainly could have legitimate safety concerns with certain parking on its right-of-way, such as if vehicles parked on the grassy strips on either side of the sidewalk, or straddled the sidewalk itself, or if parked vehicles blocked access connections or interfered with motorist visibility. However, not all right-of-way areas present the same safety concerns. Parking on the right-of-way might, but would not necessarily, impede pedestrian traffic on sidewalks or interfere with ingress and egress or motorist visibility at access connections, depending on where the right-of-way is and how far it extends in from the roadway. These sorts of safety concerns are matters to be proven, and there was no such proof offered by the Department in this case.6/ The Department sought to justify the issuance of the 2010 permit, with its new special conditions, on the grounds that the 2010 permit is more consistent with the terms of the settlement agreement. The Department points to the terms "turn out" and "driveway usage" in paragraph 8, which the Department argues should give rise to a permit restricting usage of the new asphalt to moving traffic only. Mr. Puleo contends that "driveway usage" in both paragraphs 7 and 8 refer to the ordinary meaning of that term, which includes parking. As the parties acknowledged at the outset of the hearing and as the undersigned reiterated throughout the hearing, the nature of this proceeding is a permit enforcement proceeding. Interpretation and enforcement of the settlement agreement are matters for the circuit court. Moreover, as noted above, the settlement agreement incorporates the 2009 permit as one of the settlement agreement's terms, not the other way around. Therefore, while one might want to consider what the 2009 permit says, if one were interpreting the settlement agreement (because the 2009 permit is part of the settlement agreement), the reverse is not true. The 2009 permit stands on its own terms, because it was issued before the settlement agreement was executed. The 2009 permit uses the description "extend parking area" and neither incorporates the settlement agreement by reference, nor uses the terms "turn out" or "driveway usage" that appear in the settlement agreement. Even if the 2009 permit provided that the newly installed asphalt was for "driveway usage" as paragraph 8 of the settlement agreement does, absent a specific definition of that phrase, one would resort to the common, ordinary meaning from dictionaries. The word "driveway" alone is commonly defined as "a private way or road for cars, leading from a street or road to a garage, house, or other building." See, e.g., Webster's New World Collegiate Dictionary (2010); American Heritage Dictionary of the English Language, 4th Ed. (2010) (both available online at yourdictionary.com). The same online source provides examples of usage of the word "driveway" in sentences and phrases, as follows: Driveway parking. A paved driveway in the property provides ample parking. The property is approached via a block-paved driveway with parking for approximately four vehicles. These examples illustrate that driveway usage includes parking, based on the common, ordinary meaning of the term. The Department offered a specialized meaning of "turn out" and "driveway" from its design standards for access connections that are permitted on right-of-way property. Those standards provide that access connections are to be designed with driveways of sufficient length to allow all vehicular parking and maneuvering to take place beyond the right-of-way, so that driveways and turn outs within the right-of-way are used only for "moving vehicles entering or leaving the highway." That specialized definition makes sense in the context of designing access connections that are permitted uses of a right-of-way. If vehicles are parked or are maneuvering to turn around within the right-of-way that is being used as an access connection, that use would interfere with the movement of vehicles entering or leaving the highway, as the design standard itself makes clear. Here, however, the asphalt extension of Mr. Puleo's parking area does not connect to the roadway and is not proximate to the access connection point on Mr. Puleo's property. Thus, the design standard's specialized usage of the terms driveway and turn out to restrict use of the right-of-way to "moving vehicles entering or leaving the highway" has no application to the facts here. The Department's witnesses established that neither the 2009 permit, nor the 2010 permit at issue in this case, is an access connection permit. Perhaps the clearest indicator that the 2009 permit means what it says and was intended that way is by reference to Mr. Puleo's historic use of the right-of-way in front of his building. The settlement agreement addresses this right-of-way in paragraph 7, stating that the Department acknowledges that Mr. Puleo has used this right-of-way as "his historic driveway." The Department also acknowledges that there are parking spaces on the right-of-way that is Mr. Puleo's historic driveway; part of every vehicle parked in a designated space in front of Mr. Puleo's building is on the right-of-way that is described in the settlement agreement as Mr. Puleo's "historic driveway." Vehicles historically have also parked on other parts of the pavement in front of Mr. Puleo's building, besides the designated parking spaces, on Department right-of-way, also known as Mr. Puleo's historic driveway. Another apt name for Mr. Puleo's historic driveway was suggested by Mr. Rosenstein's 2009 permit description--parking area. The evidence establishes that the two phrases are one and the same for purposes of describing Mr. Puleo's historic usage of the right-of-way in front of his building; he has used his historic driveway as a parking area. The corollary is that the 2009 permit authorized Mr. Puleo to extend the parking area and, thereby, extend his historic use of his driveway as a parking area to the extended driveway/parking area. Nonetheless, after the Department unilaterally revoked the 2009 permit and replaced it with the 2010 permit, the Department issued its Complaint. The Complaint alleged that by parking vehicles and advertising on the new asphalt pad, Mr. Puleo violated the new special conditions of the 2010 permit. Sections 335.181 and 337.406, Florida Statutes, were cited as the statutes under which Mr. Puleo's alleged violations were charged. This time, the Complaint acknowledged that the Department's charges were only intended action and that Mr. Puleo could contest the charges before they became final by timely requesting an administrative hearing. At the hearing, the Department offered no explanation for its failure to follow the same procedure when it notified Mr. Puleo by letter on May 13, 2010, that his 2009 permit would be revoked, effective eight days hence. The Complaint is predicated only on Mr. Puleo's alleged violation of the 2010 permit, by his use of the new asphalt pad for parking and advertising. The Complaint does not charge Mr. Puleo with any improper use of the right-of-way in front of his building. The parties stipulated that Mr. Puleo has been parking and advertising on Department right-of-way.7/ Mr. Puleo credibly testified that he would not have agreed to a settlement of the circuit court litigation with the Department without the 2009 permit authorizing him to "extend [his] parking area." Mr. Puleo reasonably relied on the Department's representations expressed in the 2009 permit and in the settlement agreement incorporating the 2009 permit. The Department's representations recognized that Mr. Puleo's "historic driveway" was used as a parking area; the Department's representations authorized Mr. Puleo to extend his parking area and continue his historic usage of the parking area, as extended by the new asphalt pad. In reliance on the Department's representations, Mr. Puleo changed his position to his detriment by agreeing to a settlement agreement that resulted in the dismissal of the circuit court litigation. In entering into the settlement agreement, Mr. Puleo acquiesced to terms that were of great value and importance to the Department, because Mr. Puleo understood from the Department's representations that he was receiving, in return, the terms that were of great importance to him. The 2009 permit was issued as an inducement to secure Mr. Puleo's agreement to execute the settlement agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order (1) determining that permit number 2009-K- 194-36 remains in full force and effect; (2) determining that permit number 2010-2010-K-194-30 is void and of no effect; and (3) dismissing the Complaint (as deemed amended), based on the failure to prove violations of the 2009 permit under the statutes charged in the Complaint, and based on the established defense of equitable estoppel. DONE AND ENTERED this 14th day of February, 2013, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 14th day of February, 2013.
The Issue The issue in this case is whether the Respondent's proposed award of DCPHU Bid I-90 to the Intervenor, Meyers Parking Systems, Inc., for the management of a parking facility located at 1350 Northwest 14th Street should be upheld.
Findings Of Fact For approximately the last ten years, Kinney has operated the parking lot at the Dade County Public Health Unit building located at 1350 N.W. 14th Street in Miami, Florida (the "Parking Lot") pursuant to a contract with HRS. The existing contract between Kinney and HRS for the management of the Parking Lot was entered in June 1989 and was scheduled to expire on June 30, 1990. That contract included two one-year options to renew. The contract also included a provision that allowed either party to terminate the contract upon thirty days notice. The contracts for management of the Parking Lot in previous years were substantially identical in form to the existing contract. In February of each year, a contract review committee consisting of the head of the administrative services department of the facility (the "Contract Manager') and several other employees of the facility would meet to discuss the Parking Lot contract and to determine whether to renew the contract or rebid it. (This Committee will be referred to as "Parking Lot Committee.") The Contract Manager (whose title has been recently changed to Administrative Services Director) essentially chaired the Parking Lot Committee and appointed the other employees who served on the Committee. For the last ten years the Contract Manager has been responsible for overseeing this contract. During this time, his main contacts at Kinney were Chuck Adams, who was usually at the Parking Lot on a daily basis, and Mr. Adams' supervisor, Ken Deutsch. Both Mr. Deutsch and Mr. Adams left the employ of Kinney sometime prior to February, 1990. The exact date of their departure was not established. Both Mr. Deutsch and Mr. Adams now work for Meyers. Kinney's new representative with respect to the Parking Lot contract was Tony Benyon, who assumed those responsibilities on February 1, 1990. Mr. Benyon had previously worked for Meyers and was on the job only twenty two days before the decision was made to rebid the contract. On February 22, 1990, the Parking Lot Committee met and determined not to renew the contract with Kinney. At the time this decision was made, the Contract Manager was aware that the former Kinney employees had switched jobs and were now working for Meyers. However, it does not appear that he brought the job changes to the attention of the Parking Lot Committee because at least one member of the Committee was not aware of the job changes. On or about March 23, 1990, HRS issued an invitation to bid for the management and operation of the Parking Lot (the "Invitation to Bid.") Although the evidence did not establish exactly how many time this contract had been bid in the past, it appears that bids were solicited for this contract on at least two prior occasions during the ten years that Kinney had been operating the Parking Lot. On each occasion, the Invitation to Bid form was substantially identical to the form used in March of 1990. Page 6 of the Invitation to Bid requested bidders to submit a resume of their backgrounds. Page 8 of the Invitation to Bid was entitled "Bid Sheet" and required bidders to submit the following information: "(1) Proposal for Operating the Lot; (2) Proposed Rates, (3) Proposed Net Income Distribution." The Invitation to Bid did not require the bidders to provide any documentation regarding their financial condition nor did it indicate that prior job performance would be considered in evaluating the bids. The Invitation to Bid contained a provision that "any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening." Between the time the Invitation to Bid was sent out and the bids were received, the Contract Manager admits that he "probably" had conversations with some of the bidders and responded to questions about the bid. The Contract Manager could not specifically recall any such discussions with potential bidders between the time the Invitation to Bid was sent out and the date the bids were submitted. However, he admitted that it was likely that some discussions took place. Kinney was never advised of any such discussions between the Contract Manager and other potential bidders. Three sealed bids (including proposals from Kinney and Meyers) were received and opened by HRS at a bid opening on April 4, 1990. A fourth bid was disqualified because it was not sealed. The members of the Parking Lot Committee and representatives of the bidders were present at the bid opening. The bid submitted by Kinney proposed a net income distribution to HRS of 82.5 percent with the remaining 17.5 percent being retained by Petitioner. The Kinney bid also contained a specific breakdown of anticipated costs, fees and expenses to be deducted from the projected gross income to achieve projected net income, a resume and a list of references regarding other-lots being managed by the Petitioner in the area. Meyers and Hi-Rise Parking Systems, Inc. ("Hi- Rise") also submitted bids. Both of those bids contained a proposed net income distribution of 90 percent to HRS. Neither the Hi-Rise nor the Meyers' bids contained a resume or a list of local references of other lots being managed by the companies nor did they contain a listing of anticipated costs, fees and expenses. At the bid opening, the Contract Manager indicated that the bids submitted by Meyers and Hi-Rise were the low bids and the Parking Lot Committee would meet to determine how to "break the tie." At this point, Kinney was effectively eliminated from consideration. By letter dated April 10, 1990, the Contract Manager requested additional information from Meyers and Hi-Rise as follows: Company background information including officers, organization and latest financial/management audit; [and] At least three references to include name of contact person, firm, mailing address and telephone number. The Contract Manager did not request any additional information from Kinney or the disqualified bidder. On or about April 16, 1990, Meyers submitted the requested information to the Contract Manager. On or about April 17, 1990, Hi-Rise submitted the requested information to the Contract Manager. Thus, it is clear that information regarding the financial condition of Meyers and Hi-Rise was not submitted until after the bids were opened. On May 1, 1990, the Parking Lot Committee met to discuss the additional information received from Meyers and Hi- Rise. At that meeting, the members of the Committee completed a "bid selection review form" that listed (1) net income distribution (2) references and (3) company management and financial condition as the criteria for evaluation of the bids. The Committee determined that Meyers and Hi--Rise were "tied" in all categories except financial condition. At best, the submitted financial information provides a cloudy picture of Meyers' financial status. The information indicates that Meyers showed an income loss for the year 1988-1989 of $3,670,000. While a large portion of this loss is apparently related to corporate restructuring, it does not appear that any members of the Parking Lot Committee understood or fully considered this financial information nor did they seek to have the submitted financial information reviewed by an accountant. Hi-Rise's financial records indicate that it is a significantly smaller company, but its records indicated a positive cash flow for the preceding year. Notwithstanding these facts, the Committee decided to award the contract to Meyers. This decision was essentially made on the recommendation of the Contract Manager. The bid selection review form stated as follows: Based on bids and additional information provided, the Parking Lot Management Bid Selection Team recommended award of DCPH Bid No. I-90 to Meyers Parking System, Inc. On May 9, 1990, HRS provided all interested parties with a notice of its selection of Meyers as the successful bidder. In the Notice of Selection, HRS indicated that Meyers had been selected based on the proposed net income distribution, references, background and financial condition. Petitioner timely filed a protest of the proposed award of the contract. The Parking Lot Committee excluded Kinney from consideration based solely upon the net income distribution percentage. However, since the Invitation to Bid did not require the bidders to specify or limit in any way the expenses that could be deducted from gross revenues prior to distributing proceeds to HRS, there was an insufficient basis to accurately evaluate the proceeds that HRS could reasonably expect pursuant to any of the bid proposals. HRS and Meyers have argued that, because HRS has many years experience and expense records relating to the operation of the Parking Lot, the information provided pursuant to the Invitation to Bid provided HRS with sufficient information to make a reasonable evaluation of the financial terms of the proposals. This contention is rejected. To permit such uncertainty and discretion to be built into the bid process would substantially undermine the integrity and dependability of the process. Item 12 on page 6 of the Invitation to Bid required that "bidders will submit a resume of their background and other local lots they are currently managing." No such resume or lists were provided by Meyers. Meyers contends that its response to Item 1 on Page 8 of 8 adequately addressed this requirement. That response provided as follows: PROPOSAL FOR OPERATING LOT. Meyers Parking System, Inc. proposes to operate the Dade County Health department's parking lot with the same high degree of professionalism that we are known for and have demonstrated to our other clients throughout the county. The facility will be managed by trained, uniformed, courteous employees and supervised regularly and closely with our field supervisors and our Regional Vice-President... This statement is not a sufficient response to Item 12 of the Invitation to Bid. During the Parking Lot Committee meeting on February 22, 1990, several complaints were made regarding Kinney's performance under the existing contract. However, no efforts were ever undertaken by HRS to terminate the existing contract with Kinney. While HRS contends that the complaints were part of the reason for deciding to rebid the contract, no steps were taken to disqualify Kinney from bidding on the new contract. In any event, most of the complaints voiced on February 22, 1990 would have been the responsibility of the prior managers of Kinney who now work for Meyers. In February and March of 1990, the disbursements to HRS under the existing contract diminished significantly. This decrease in payments was the result of embezzlement by Kinney employees. While HRS has cited this shortage to justify its decision in awarding the contract to Meyers, there is no evidence that HRS ever attempted to terminate the existing contract nor does it appear that the Parking Lot Committee considered this fact in deciding to eliminate Kinney's bid from consideration. Similarly, the evidence established that there have been problems during the months of March, April and May of 1990 with attendants failing to appear at work on time or leaving the job site. Again, however, there is no indication that HRS attempted to terminate the existing contract or that the Parking Lot Committee relied upon these factors in deciding to eliminate the Kinney bid from consideration. There have been recurring complaints made to Kinney under the existing contract regarding excessive towing of cars from the Parking Lot. The problem of parking lot attendants ordering cars towed without the permission of HRS has existed off and on for sometime. Even though HRS representatives had voiced complaints about the. towing policies, the evidence indicates that this recurring problem became worse in the late spring and early summer of 1990. Nonetheless, HRS never sought to terminate the existing contract because of the towing problems nor did the Parking Lot Committee rely upon this fact in deciding to eliminate the Kinney bid from consideration.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary of the Department of Health and Rehabilitative Services enter a Final Order rejecting all bids for DCPHU Bid I-90 and issue a new Invitation to Bid. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 31 day of October, 1990. 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 Division of Administrative Hearings this 31 day of October, 1990.
The Issue The issue is whether Respondent should deny Petitioner's application for a sign permit, because the proposed site is not zoned commercial and, therefore, fails the requirement for commercial zoning in Subsection 479.111(2), Florida Statutes (2007),1 and the location does not qualify as an un-zoned commercial/industrial area within the meaning of Subsection 479.01(23).
Findings Of Fact Respondent is the state agency responsible for regulating outdoor signs at the proposed site. The proposed site is located at 2505 West Bella Vista Street, Lakeland, Florida. Petitioner is a Florida corporation engaged in the business of full-service advertising in the state, including road-side signs or billboards. On March 21, 2008, Petitioner submitted an application for an outdoor advertising permit for two structures with four sign faces identified in the record by application numbers 57095, 57096, 57097, and 57098. On March 31, 2008, Respondent issued a Notice of Denied Application (the Notice). The Notice notified Petitioner of proposed agency action to deny the permit application. The Notice states two grounds for the proposed denial. The first ground alleges the “Location is not permittable under land use designations of site [sic]” within the meaning of Subsection 479.111(2). The second ground alleges the “Location does not qualify as unzoned commercial/industrial area” within the meaning of Subsection 479.01(23). Section 479.111 applies to signs located within the interstate highway system and the federal-aid primary highway system (the regulated highway system). The proposed site is located within the regulated highway system adjacent to Interstate 4 in Polk County, Florida. Subsection 479.111(2), in relevant part, authorizes signs within the regulated highway system which satisfy one of two disjunctive requirements. A sign must be located in either a “commercial-zoned” area or must be located in a “commercial- unzoned” area and satisfy a statutorily required use test.2 The term “commercial-unzoned” is defined in Subsection 479.01(23). However, a determination of whether the proposed site satisfies the statutory use test for a “commercial-unzoned” area is not necessary if the proposed site is found to be in a “commercial-zoned” area. The Legislature has not defined the term “commercial-zoned” area, and Respondent has cited no rule that defines the term. The issue of whether the proposed site is in a “commercial-zoned” area is an issue of fact and is not within the substantive expertise of Respondent. Even if the definition were within the substantive expertise of Respondent, Respondent explicated no reasons in the evidentiary record for deference to agency expertise. The evidentiary record explicates reasons for not deferring to purported agency expertise in this case. Respondent previously approved a sign permit from the same applicant on the same property. Petitioner spent $23,000.00 to move the previously approved sign so that both the proposed and existing signs could be permitted on the same property. It is undisputed that the proposed site is located on property zoned as Leisure Recreational in the Polk County Comprehensive Plan. It is also undisputed that Leisure Recreational “allows for multiple uses including commercial.”3 However, Respondent interprets the Leisure Recreational designation to be an “unzoned-commercial” area, because “The subject parcel is not explicitly zoned commercial. ”4 Respondent apparently has adopted a titular test for determining whether the proposed site is “commercial-zoned.” If the zoning designation does not bear the label “commercial,” Respondent asserts it is not “commercial-zoned” within the meaning of Subsection 479.111(2). The fact-finder rejects that assertion and applies a functional test to determine whether the local zoning label permits commercial use. A preponderance of the evidence supports a finding that the local zoning label of Leisure Recreational means the proposed site is “commercial-zoned” within the meaning of Subsection 479.111(2). Credible and persuasive expert testimony shows that the Leisure Recreational zoning designation specifically designates the proposed site for commercial uses, within the meaning of Subsection 479.01(23),5 including retail structures up to 20,000 square feet, bars, taverns, marinas, and fishing camps. The commercial uses allowed under the Leisure Recreational zoning designation are not discretionary with county planning staff but are permitted as a matter of right. Much of the dispute and evidence in this proceeding focused on two use tests that Respondent performed in accordance with Subsections 479.01(23)(a) and (b). However, the statutory use test applies only to site locations that are “commercial- unzoned.” Findings of fact pertaining to the accuracy of the use tests utilized by Respondent are unnecessary because they are inapposite to “commercial-zoned” property such as the proposed site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting the application for a sign permit. DONE AND ENTERED this 8th day of April, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 8th day of April, 2009.
Findings Of Fact Based upon the evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made: On December 27, 1993, Universal Outdoor, Inc. ("Universal") entered into a twenty year lease agreement with the Greater Hollywood Jaycees pursuant to which Universal was authorized to erect an outdoor advertising sign on property owned by the Jaycees in the general vicinity of the southwest corner of Hollywood Boulevard and Interstate-95 (the "Site") within the city limits of Hollywood, Florida. The site is located at an extremely busy intersection. A railroad track separates the Site from the Interstate. To the immediate south and west of the Site is a city owned golf course. A building which serves as the Jaycees meeting hall and headquarters is located on the Site. There is a catering business that operates out of the building, at least on a part time basis. The Jaycees acquired the Site from the City of Hollywood on or about December 15, 1965. As best can be determined from the evidence in this case, the Site was owned by the government before it was acquired by the Jaycees. After securing the lease from the Jaycees, Universal applied to the City of Hollywood for a city building permit (the "Building Permit") to construct an outdoor advertising sign on the site. The city issued the requested Building Permit on February 2, 1994. The Hollywood City Commission, as well as the City's Building and Zoning Department, had to approve the issuance of the Building Permit. In deciding to issue the Building Permit, the City Commission and its Building Department apparently concluded that a sign was not inconsistent with the zoning for the Site. On or about February 3, 1994, Universal submitted an application (the "Sign Application") to the Department for a state Outdoor Advertising Sign permit for the Site. The Department denied the Sign Application in a notice dated February 15, 1994 (the "Denial Notice") stating that the Site was "in unpermitable zoning." At some point after the Sign Application was filed with the Department, Universal assigned all of its interest and rights under the lease, the Building Permit and the Sign Application to Hancock. The transfer apparently occurred sometime around the end of February. The circumstances and conditions of the transfer of interest from Universal to Hancock are not entirely clear. The president of Hancock is the brother of one of the principals of Universal. Thus, there is some question whether the transfer was an arms-length deal. At one point during the hearing, Hancock suggested that it never received formal notification of the Department's denial of the Sign Application. However, the evidence is clear that Hancock was aware when it obtained an interest in the Site that a state permit was necessary and that a hearing had been requested in connection with Universal's Sign Application. The building permit obtained from the City of Hollywood was apparently valid for only a limited time. In order to obtain a building permit for a sign, Hancock claims that the City of Hollywood required the permit applicant to make a donation of $20,000 to the Hollywood Boys Club. It is not clear when or whether such a payment was made by either Universal or Hancock. As noted in the Preliminary Statement above, the parties have stipulated that a timely request for an administrative hearing was submitted in connection with the Denial Notice. However, it does not appear that any case involving Universal was referred to DOAH. In any event, it is clear that no hearing was scheduled to be conducted on the denial of the Sign Application prior to the date that the Building Permit was to expire. Faced with the imminent expiration of the Building Permit and convinced that the City had correctly determined that the zoning allowed the sign, Hancock proceeded with construction of the sign beginning in approximately the end of April. An inspector for the Department noticed the sign under construction and issued a Notice of Violation on May 2, 1994 for erecting the sign without an Outdoor Advertising Permit from the Department. Hancock promptly halted all construction activity. At the time the Sign Application was filed with the Department in February, the Site was zoned "OS" by the City of Hollywood. The "OS" designation is a for an "open space district". The "OS" designation for this parcel appears to have been an error since the existing uses are inconsistent with that designation. The Department denied the Sign Application because the Site was not specifically zoned either industrial or commercial. In reaching this determination, the Department did not confer with the City of Hollywood nor did it make any investigation to determine what uses were permitted in the "OS" zoning district. While the City Zoning Code included certain areas specifically designated "commercial" and "industrial," it is not clear that the city intended these terms to coincide with the use of the terms in Chapter 479, Florida Statutes. "Commercial" is defined in the City Zoning Code as "any activity where there is an exchange of goods or services for monetary gain. . ." The "OS" designation allowed a number of uses which arguably fell within this definition, including camp grounds, cemeteries, golf courses, horse farms, riding stables and other similar uses. On or about April 6, 1994, the City of Hollywood passed four ordinances which cumulatively had the effect of repealing the City's prior zoning code and replacing it with a new code. There is some confusion regarding the applicable zoning for the Site under the new Zoning Code. The City's Official Zoning Map reflects that the property was rezoned "GU", which is a government use district. The adjoining golf course, which is publicly owned, is also zoned "GU". The City Planning Department has acknowledged that the "GU" designation is only applicable to government-owned property. Such designation is clearly not applicable to this Site. Furthermore, the default zoning of "RS- 1" (single family residential) is not consistent with the subject property's comprehensive land use plan designation and is inconsistent with the present use of the property. As a result of the ambiguities resulting from the newly passed zoning ordinances, the Site should be treated as unzoned as of April 6, 1994. There is at least one commercial use on the same side of the Interstate within 800 feet of the Site. In addition, there are more than three separate commercial uses within 1600 feet of the Site, each visible from the main traveled way, that are within 1600 feet of each other and within 600 feet of the right of way of the adjacent Interstate. Consequently, the Site qualifies as a "commercial-unzoned" area as defined in Chapter 479, Florida Statutes. Only the City Commission has the power to rezone property and, as of the date of the hearing in this matter, no such action had been taken with respect to the Site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order granting the application for a state Outdoor Advertising Sign permit for the Site. DONE AND ENTERED this 13th day of January 1995 in Tallahassee, Leon County, Florida. 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 Division of Administrative Hearings this 13th day of January, 1995.
