The Issue The issue for determination in this case is whether Broward County Ordinance 1999-26, amending the Broward County Comprehensive Plan (Plan), is "in compliance," as defined in Chapter 163, Part II, Florida Statutes, and more specifically whether that portion of PCT 99-2, adopted through Ordinance 1999-26, which limits the use of flexibility units and reserve units east of the Intracoastal Waterway is not "in compliance" under Section 163.3184(1)(b), Florida Statutes, as alleged by the City of Hallandale Beach.
Findings Of Fact Parties The Petitioner, the City of Hallandale Beach (the City or Hallandale) is an incorporated municipality located in Broward County, Florida. The City is a political subdivision of the State of Florida. The City has adopted the City of Hallandale Comprehensive Plan (the City's Plan). In August of 1999, the City of Hallandale officially changed its name to the City of Hallandale Beach. The Respondent, Broward County (the County or Broward) is a political subdivision of the State of Florida. The County is a charter county. The County has adopted the Broward County Comprehensive Plan (the County's Plan). The Respondent, the Department of Community Affairs (DCA), is the state land planning agency which under Chapter 163, Part II, Florida Statutes, is responsible for, among other things, the review of municipal and county comprehensive plans to determine if the plans, and subsequent amendments thereto, are "in compliance" as defined by Section 163.3184(1)(b), Florida Statutes. Standing The transmittal hearing for the proposed amendment was conducted on February 23, 1999. The adoption hearing was held June 22, 1999. During the plan amendment process, the City submitted three letters dated January 22, 1999, February 11, 1999, and April 30, 1999, in opposition to the proposed amendment. These letters, along with other materials in support of and in opposition to the proposed amendment were forwarded to the Department in the adopted amendment package on June 30, 1999. The City is an "affected person" under Section 163.3184(1)(a), Florida Statutes. The County Charter The Charter of Broward County took effect on January 1, 1975. (The current Charter submitted as Joint Exhibit 1 is revised as of November 5, 2002). With reference to land use planning, the County Charter in Article VIII creates the Broward County Planning Council (Planning Council). The Planning Council is the local planning agency for the Broward County Land Use Plan (BCLUP). The Planning Council employs a staff, which includes professional planners, gathers data, performs analyses of data, conducts hearings, and recommends the adoption of land use ordinances by the Broward County Commission. The Planning Council has final authority over the approval, or recertification, of municipal land use plans and amendments. Under the Charter, the County has primary responsibility for land use planning. Municipal comprehensive plans must be in conformity with the BCLUP. Pursuant to section 11.01 of the Charter, County Ordinances relating to land use planning prevail over municipal ordinances. Flexibility Units/Reserve Units Broward County is a highly urbanized, fast-growing county located in the southeastern portion of Florida. The estimated 1998 population was 1,460,890, a 16.4 percent increase over the 1990 census. In addition to the County government, there are 29 municipalities in the County. In November 1977, Broward County first devised the concept of allowing flexibility to municipalities in land use planning by creating "flexibility units" (flex units) which could be used by municipalities in land use planning. The number of flex units is equal to the difference between the density permitted on the BCLUP map and the density permitted on the applicable municipal land use plan for any particular parcel of land. Flex units are unique to Broward County in the State of Florida. The entire County is divided into 126 flexibility zones. Each flexibility zone has a determined number of available flex units based on the difference in densities between the future BCLUP map and the municipal land use plan. Within each of the 126 flexibility zones, designated on the future BCLUP map, the appropriate municipality may rearrange and revise land uses and densities, within limits specified in the County Plan, without the necessity of an amendment to the County Plan. The total density within any particular flexibility zone cannot exceed the density on the future BCLUP map. The Administrative Rules Document contains rules and procedures regulating flexibility zones and units. Modifications to flexibility zones may be requested by the municipality, the County, or the Planning Council, subject to final approval by the Board of County Commissioners. Municipal plan amendments revising land uses by use of flex units within flexibility zones are subject only to recertification by the Planning Council. Without the use of flex units, the land use category for a particular piece of property on the BCLUP map can be amended through an amendment to the BCLUP. "Reserve units" are additional permitted dwelling units equal to 2 percent of the total number of dwelling units permitted in a flexibility zone by the future BCLUP map. Reserve units function similarly to flex units and may be allocated by a municipality to rearrange and revise densities within a flexibility zone. For the purpose of this Recommended Order, reserve units shall be treated as flex units. Hallandale contains flexibility zones 93 and 94. Review of the Operation of Flexibility Rules In 1996, in response to state requirements for periodic evaluations of county comprehensive plans, the planning council staff, including Henry Sniezek of the County planning staff, prepared the Broward County Land Use Plan "Flexibility Rules" Study. After many hours spent obtaining data and analyses, the staff recommended that flexibility rules include more consideration of compatibility with surrounding land uses and the impacts on public schools. The 1996 report concluded: (1) that flexibility rules generally continued to serve the purpose of allowing local governments to address local planning issues and market concerns; (2) that local governments have utilized the flexibility rules consistent with their intent; and (3) that flexibility rules should continue to be available for local government use. The issue which is the subject of this proceeding, as to whether flex units should continue to be authorized for land planning uses in areas east of the Intracoastal Waterway to increase density from 25 to 50 units per acre, was not specifically within the scope of the 1996 report. Coastal Densities An April 24, 1998, version of the County land uses plan map, which is apparently still in force, designated a number of parcels throughout Broward County, east of the Intracoastal Waterway on the Atlantic Ocean, as land use category "H," for high density dwellings of 50 units per gross acre. Under the Broward County land use regulations, gross acreage is calculated by including the property owned by the landowner and half of adjacent right-of-way. In County-designated "H" parcels, developments of 50 units per acre are permitted, without the need to allocate flex units to the parcels. The Hallandale Ordinance In 1998, Hallandale passed an Ordinance 1998-3, creating a new Residential High Density-2 Land Use Designation (HD-2), allowing developments up to 50 residential dwelling units per acre, but only by the allocation of available flex units. On June 1, 1999, the Mayor of Hallandale was notified, by letter, that the land use element, as amended to create the HD-2 category, was recertified by the Planning Council. The recertification process constitutes a determination that the municipal plan amendment substantially conforms to the County Plan. The DCA found Hallandale's HD-2 ordinance in compliance. The Regional Planning Council determines whether comprehensive plan amendments comply with the 1995 Strategic Regional Policy Plan. The Planning Council approved the City's HD-2 category as consistent with the Strategic Regional Policy Plan. The intent of the ordinance was to promote and attract redevelopment to Hallandale, particularly the beach area, where many buildings date from the 1960's and 1970's, and may be approaching the end of their useful lives. The City used the HD-2 for the redevelopment of a property called Riviera Beach, which consisted of a deteriorating motel, a restaurant, and offices. The City also used the category to promote the redevelopment of the Ocean Marine property site of another deteriorating motel with a yacht club on the Intracoastal Waterway, which is currently going through the approval process. The City's former Director of Growth Management, Lorenzo Aghemo, opined that with existing average density on the beach in the range of 86 to 89 units an acre, redevelopment up to only 25 dwelling units per acre is not economically advantageous. The Proposed Amendment The Amendment that is the subject of this proceeding began as a "housekeeping" amendment which was initially designed to establish a uniform cap of 50 units per acre for the use of flex units to be consistent throughout the County Plan. During the process of meetings and public hearings before the Planning Council and the County Commission, and in response to comments and suggestions from members and staff as well as comments from DCA, the Planning Council, the Broward County League of Cities and various municipal governments, the Amendment evolved as more particularly described below. The Amendment ultimately became a mechanism to further goals contained in a Governor's Commission report entitled "Eastward Ho!" which was published in July 1996 and discussed in more detail below. A primary focus of the Eastward Ho! report is the recommendation that development in Southeast Florida, including Broward County, should be redirected into a corridor of land that generally consisted of the land between CSX and Florida railroads. The precise parameters of the Eastward Ho! corridor are undefined and the corridor eventually was expanded beyond the lands between the railroads; however, it is agreed that this corridor contains many of the older municipal regions of the County west of the Intracoastal Waterway. In its adopted form, the portion of the County's challenged amendment PCT 99-2, adopted through Ordinance 1999- 26, implements several changes which encourage the redevelopment of the County's urban corridor, and redirects development away from the Coastal High Hazard Area (CHHA) as well as away from the environmentally sensitive western areas of the County. With respect to the use of flex units, the challenged Amendment establishes four areas ("Areas A-D") within the County. Each area is given its own designation regarding the use of flex units. Area A This area generally encompasses all land west of the Urban Infill Area line. It is treated differently from the other areas for planning purposes because of its environmentally sensitive lands. Included in this area are portions of the Florida Everglades, other wetlands and well fields. In recognition of the environmental features of this area, the Amendment restricts the use of flexibility units to a maximum of 25 units an acre and helps to minimize urban sprawl. Area B This area is defined as all land east of the Intracoastal Waterway. It lies entirely within the County’s CHHA, which includes the land and water eastward of the Atlantic Intracoastal Waterway to the Atlantic Ocean. CHHAs are areas that are prone to damage from flood and wind from a hurricane event. This vulnerability to hurricanes presents special planning issues which led the County to limit the use of flexibility units to a maximum of 25 units an acre. In order to better protect human life and property, the County not only places a limit on flexibility units in this area, but encourages development and redevelopment in other portions of the County outside the CHHA. Area C This area generally comprises all of the land east of the Urban Infill Area Line and West of the Intracoastal Waterway. It includes many of the County’s older cities, where there is the greatest need for redevelopment. This area generally includes the Eastwood Ho! corridor. In order to encourage redevelopment in this area, the County continues to allow local governments to use up to 50 flexibility units an acre. Area D This area contains pocket areas that lie west of the Urban Infill area. Although the Amendment restricts the use of flexibility units to a maximum of 25 units an acre in this area, no compatibility review is required. At this time, there are two areas with this designation. Both of these pocket areas lie close to the Urban Infill Area. Application to Hallandale Most of Hallandale lies within Area C. A small potion of the City consisting of the beach east of the Intracoastal Waterway is in Area B and also within the CHHA. Under the challenged Amendment the City is limited to a maximum allowable density, with the allocation of flex units, to 25 units per acre, because the area is east of the Intracoastal Waterway. For purposes of this proceeding, the objectionable effect of the challenged Amendment is that it prohibits the use of flex units to that small portion of Hallandale that is east of the Intracoastal Waterway to attain densities greater than 25 units per acre. Lorenzo Aghemo, formerly Hallandale's Director of Growth Management, testified that the County's challenged Amendment is inconsistent with the following elements of the County's Plan: Objective 8.03.00, on discouraging urban sprawl by directing development to areas with existing facilities and services; Goal 13.00.00, on maximizing intergovernmental coordination and cooperation; Policy 13.01.08, on the Planning Council's responsibility to ensure consistency, as compared to its decisions to approve 50 units and than a few months later 25 units per acre; Goal 17.00.00, directing growth to identified urban infill, in areas of existing infrastructure and services to promote redevelopment; Policy 17.02.02, on urban infill and redevelopment to promote economic development and increase housing opportunities. Mr. Aghemo testified that the County's Ordinance, limiting the flex units to 25 per acre is also inconsistent with the following statutes: Section 163.3177(11)(c) - on maximizing the use of existing facilities and services through redevelopment and urban infill development; Section 187.201(15)(a) and (b) - on directing development to areas which have, in place, land and water resources, fiscal abilities and service capacity; Section 187.201(16)(b)5. - on allowing local government flexibility to determine and address urban priorities. Henry Sniezek testified that the proposed Amendment viewed in its entirety, is consistent with the above-cited provisions. Evolution of the Proposed Amendment On January 15, 1999, the County Planning Council's Land Use/Traffic Ways Committee discussed, for the first time, an early version of a County amendment to limit the density allowed from the use of flex units. At that time, the staff recommended that flex units should result in densities no higher than 50 units per acres. As stated above, the maximum of 50 units an acre, recommended in 1999, was intended for "housekeeping" purposes to establish the same cap for flex units consistently referenced throughout the plan. Robert Daniels, the principal planner for the Regional Planning Council, first recommended that the coastal barrier island be excluded from certain flex unit allocations in a letter to Mr. Sniezek, on January 27, 1999. Mr. Daniels testified that his concern was based on the Strategic Regional Plan goal and policy of reducing densities on coastal barrier islands, the beaches and areas east of the Intracoastal Waterway. The Broward League of Cities Technical Advisory Committee, composed of planners from various municipalities in the County, also recommended to the County Commission that it attempt to direct growth to the area between the Everglades on environmentally sensitive west and the CHHA. That policy is included in the County's "Eastward Ho" voluntary initiative. The Broward County urban infill area has a western boundary that coincides with the western boundary of the challenged amendment but extends east to the Atlantic Ocean. The Amendment, as adopted, ultimately excluded the area east of the Intracoastal Waterway within the urban infill area, as designated on the County land use map, from the maximum flex unit uses without County Commission approved. Eastward Ho! "Eastward Ho! Revitalizing Southeast Florida’s Urban Core" is a 1996 planning initiative of the Governor’s Commission for a Sustainable South Florida. It was developed by the South Florida Regional Planning Council in conjunction with the Treasure Coast Regional Planning Council. Eastward Ho! promotes urban infill and redevelopment in order to revitalize older communities. Among its other goals is to direct development away from environmentally sensitive lands, prime agricultural areas, and water resources. The Eastward Ho! initiative attempts to capture some of the projected growth in the western and CHHA and redirect it to the urbanized areas. The boundaries for the Eastward Ho! initiative include portions of Palm Beach County, Broward County and Miami-Dade County. Its boundaries are not precisely defined and have evolved over time. The original study area encompassed the area between the Florida East Coast Railroad and the CSX Railroad. As the program progressed, it became apparent that additional areas should be included. This larger Eastward Ho! area includes the lands lying east to US 1 and west to the Palmetto Expressway, the Florida Turnpike, State Road 7 and Military Trail. The Amendment Area C is generally compatible with the Eastward Ho! boundaries in Broward County. Area B does not lie within the Eastward Ho! boundaries. In its totality, the Amendment advances the purposes of Eastward Ho! by redirecting growth towards already urbanized areas and away from the environmentally sensitive areas in the western portion of the County and the CHHA. The Eastward Ho! initiative is advanced by the Amendment in that the proposed flexibility units scheme promotes the goals of directing some future development away from environmentally sensitive areas and the CHHA and redirects that future development to the urban infill areas. As the Amendment is consistent with, and furthers, Eastward Ho! goals, the contents of the document entitled "Eastward Ho! Revitalizing Southeast Florida's Urban Core" constitute relevant and appropriate data and analysis which supports the Amendment. In February 1999, a report was issued by Rutgers University, Center for Urban Policy Research in which the Eastward Ho! program is described and analyzed. This report was prepared for the Florida Department of Community Affairs and the U.S. Environmental Protection Agency. This document is entitled "Eastward Ho! Development Futures: Paths to More Efficient Growth in Southeast Florida." Included in this report are data and analysis contrasting projected Eastward Ho! and non-Eastward Ho! development patterns. In this report, it is concluded that directing some residential development growth from the hurricane hazard area and the western areas into the Eastward Ho! areas in the next twenty-five years will save 52,856 acres of prime farmland and 13,887 acres of fragile environmental lands. It is also expected that housing costs would drop approximately 2.3 percent. The report also concludes that by directing some future development over a 25-year period into the Eastward Ho! areas, the following savings in infrastructure costs can be gained: $1.54 billion dollars in local road costs, $62 million in state road costs, $157 million in water capital costs, and $135.6 in sewer capital costs. As the Amendment helps implement the goals of Eastward Ho!, it reasonably can be concluded that this report contains data and analysis that supports the Amendment. Local Mitigation Strategy Broward County’s emergency management staff has prepared a local mitigation strategy (LMS), which is the County’s plan to mitigate the effects of potential natural disasters, especially hurricanes. In this document, the County identifies the trend of conversions of living units in the coastal hurricane evacuation zone from seasonal to year-round use, increasing the number of residents in the coastal hurricane evacuation zones. This area is basically the same as the portion of the County described in the Amendment as Area B. In order to minimize the impact of natural disasters, the LMS recommends discouraging additional public expenditures to expand or improve infrastructure in the CHHA. The Amendment implements these recommendations by providing an incentive for directing some future growth away from the CHHA to Area C. Accordingly, the LMS constitutes data and analysis which supports the Amendment. Consistency with the Broward County Comprehensive Plan The City contends that the Amendment is inconsistent with the following provisions of the Broward County Comprehensive Plan: Objective 8.03.00, Goal 13; Policy 13.01.08, Goal 17; and Policy 17.02.02. Those provisions are part of the BCLUP. Objective 8.03.00 is entitled "EFFICIENT USE OF URBAN SERVICES" and reads: Discourage urban sprawl and encourage a separation of urban and rural uses by directing new development into areas where necessary regional and community facilities and services exist. The BCLUP does not define "urban sprawl." The Department of Community Affairs has a rule that defines "urban sprawl" as meaning: . . . urban development or uses which are located in predominantly rural areas, or rural areas interspersed with generally low- intensity or low density urban uses, and which are characterized by one or more of the following conditions: (a) The premature or poorly planned conversion of rural land to other uses; (b) The creation of areas of urban development or uses which are not functionally related to land uses which predominate the adjacent area; or (c) The creation of areas of urban development or uses which fail to maximize the use of existing public facilities or the use of areas within which public services are currently provided.... Rule 9J-5.003(134), Florida Administrative Code. Rule 9J-5.006(5), Florida Administrative Code, provides guidance on how to ensure that plans and plan amendments are consistent with applicable requirements pertaining to the discouragement of urban sprawl. Rule 9J- 5.006(5)(a), Florida Administrative Code. The rule contains sections on primary indicators, land use evaluations, and development controls, each of which includes many factors to be carefully considered. The Amendment provides incentives for development in Area C, which is the older urban corridor of the County. Although some of it is also urban, Area B lies in the CHHA and the data and analysis support its disparate treatment. Taken as a whole, the Amendment has the effect of discouraging urban sprawl by promoting infill in older downtown areas (Area C) and directing development away from the environmentally sensitive areas (Areas A and B) and areas with inefficient land use patterns (Area A) such as the western areas of the County. Goal 13 and Policy 13.01.08 are located in the section of the plan entitled "INTERGOVERNMENTAL COORDINATION." They read as follows: GOAL 13.00.00 MAXIMIZE INTERGOVERNMENTAL COORDINATION AND COOPERATION AMONG STATE, REGIONAL, AND LOCAL GOVERNMENT ENTITIES. POLICY 13.01.08 The Broward County Planning Council shall continue to coordinate, cooperate and share information and services with all City and County planning offices and all local government agencies in order to ensure consistency and compatibility among the Broward County Land Use Plan and the other elements of the Broward County Comprehensive Plan, as well as municipal comprehensive plans. The Amendment does not modify the intergovernmental coordination provisions. While the Amendment restricts the effect of Hallendale Ordinance 1998-2 in that small portion of the City that is east of the Intracoastal Waterway, that restriction alone does not support a finding that the Amendment as a whole is inconsistent with Policy 13.01.08. Moreover, the County complied with the letter and spirit of Goal 13.00.00 and Policy 13.01.08 in developing and adopting this Amendment. It kept the municipalities informed of the Amendment by providing written drafts and coordinated with entities including the Broward County League of Cities, the South Florida Regional Planning Council, the Broward County Planning Council, and its technical advisory committee. Suggestions and comments from the South Florida Regional Planning Council and the League of Cities were a major influence in the ultimate version of the adopted Amendment. Goal 17.00.00 and Policy 17.02.02 are contained in the Plan’s section entitled "URBAN INFILL AREAS, URBAN REDEVELOPMENT AREAS AND DOWNTOWN REVITALIZATION." They read as follows: GOAL 17.00.00 DIRECT GROWTH TO IDENTIFIED URBAN INFILL, URBAN REDEVELOPMENT AND DOWNTOWN REVITALIZATION AREAS WITHIN BROWARD COUNTY IN ORDER TO DISCOURAGE URBAN SPRAWL, REDUCE DEVELOPMENT PRESSURES ON RURAL LANDS, MAXIMIZE THE USE OF EXISTING PUBLIC FACILITIES AND CENTRALIZE COMMERCIAL, GOVERNMENTAL, RETAIL, RESIDENTIAL AND CULTURAL ACTIVITIES. POLICY 17.02.02 Local land use plans should include policies to provide for adequate housing opportunities necessary to accommodate all segments of present and future residents of identified urban infill, urban redevelopment and downtown revitalization area(s). In its totality, the Amendment is not inconsistent with Goal 17.00.00 and may further it. By limiting development in the CHHA and the western portions of the County, the Amendment effectively encourages significant future growth to the urban infill areas and older downtown areas. The area encouraged for growth under this goal and policy is consistent with Area C, and targeted for the densest development and redevelopment. The Amendment is not inconsistent with Policy 17.02.02. Area B as a Coastal area is not particularly economically suitable for affordable housing. By encouraging development away from the CHHA, the Amendment may promote a wider range of housing opportunities through redevelopment in the Eastward Ho! corridor. Moreover, the Amendment provides that applications of flex units for affordable housing, Regional Activity Centers and special residential facilities are exempt from the Amendment’s restrictions in specified situations should affordable housing units be developed in Area B. Even if the Amendment were construed to be inconsistent with any of the above-discussed plan provisions, there are several other portions of the Plan that the Amendment furthers by encouraging development away from the CHHA and the environmentally sensitive areas in the western portion of the County. Those provisions include Objective 9.03.00, which requires developing and implementing land use controls to protect and enhance the County's beaches, rivers, and marine resources, and Policy 9.05.09, which requires considering the impact land use plan amendments have on wetland resources and minimizing those impacts to the maximum extent practicable. Objective 9.07.00 reads: Protect identified floodplains and areas subject to seasonal or periodic flooding. The Amendment advances this objective by limiting development in the CHHA (Area B), which is subject to storm surge, as well as limiting development in the western portion of the County (Area A), which has many flood-prone areas. Consistency with Section 163.3177(11)(c) The City alleges that the Amendment is inconsistent with Section 163.3177(11)(c), Florida Statutes, which reads: It is the further intent of the Legislature that local government comprehensive plans and implementing land development regulations shall provide strategies which maximize the use of existing facilities and services through redevelopment, urban infill development, and other strategies for urban revitalization. To the extent this statute is a substantive compliance criteria, the Amendment is consistent with this statute. By promoting development in Area C, the Amendment will help achieve the goal of maximizing existing facilities through redevelopment, urban infill and urban revitalization. Consistency with the South Florida Regional Policy Plan The Strategic Regional Policy Plan for South Florida (SFRPP) is the regional policy plan adopted by the South Florida Regional Planning Council. It is adopted by reference in Rule 29J-2.009, Florida Administrative Code. The Amendment is consistent with provisions in the SFRPP, particularly those related to land use, public facilities, natural resources, and emergency management. The Amendment is consistent with Strategic Regional Goal 2.1, which requires directing development and redevelopment to areas least exposed to coastal storm surges and where negative impacts on the environment are minimal. The Amendment is consistent with several of Goal 2.1's implementing policies, including Policies 2.1.2 (reducing allowable densities on barrier islands and in the Category 1 Hurricane Evacuation Area), 2.1.3 (restricting development, redevelopment, and public facility construction in the CHHA), and 2.1.4 (directing development away from environmentally sensitive lands). The Amendment also furthers Strategic Regional Goal 7.1 by directing future development away from the areas most vulnerable to storm surges. Viewed in its entirety, the Amendment is consistent with the SFRPP construed as a whole. Consistency with the State Comprehensive Plan The City contends that the Amendment is inconsistent with the following provisions in the State comprehensive plan: Sections 187.201(15)(a) and (b) and 187.201(16)(b)(5), Florida Statutes. Goal (15)(a) recognizes the importance of preserving natural resources and requires development to be directed into areas which can accommodate growth in an environmentally sensitive manner. Implementing Policies (b)1., 2., and 5. requires the encouragement of efficient development, the separation of urban and rural uses, and the consideration of impacts on natural resources and the potential for flooding in land use planning. As discussed in earlier findings, the Amendment is consistent with such directives. The Amendment furthers Goal (15)(a) and Policies (b) 1., 2., and 5. Policy (16)(b)(5) reads: Ensure that local governments have adequate flexibility to determine and address their urban priorities within the state urban policy. The Amendment coordinates the policy for prioritization of urban development. Development is promoted in areas away from the CHHA and environmentally sensitive lands in the west. This is accomplished through the use of a cap on flexibility units. Local governments may choose to utilize less than the full extent of their available flexibility units or use alternative mechanisms to achieve higher densities. The use of flexibility units is only one method for controlling densities. If a local government needs more density to address its planning goals than is allowed by the Amendment, it may request a Future Land Use Map amendment. Additionally, local governments may avoid the Amendment's limits by maximizing density by the use of affordable housing developments, Regional Activity Centers or special residential facilities. The Amendment is not inconsistent with Policy (16)(b)(5). The Amendment is consistent with the State Comprehensive Plan construed as a whole.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Plan Amendment adopted by Broward County in Ordinance No. 1999-26 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rule promulgated thereunder. DONE AND ENTERED this 12th day of June, 2003, in Tallahassee, Leon County, Florida. RICHARD A. HIXSON 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 12th day of June, 2003. COPIES FURNISHED: Mark Goldstein, Esquire City of Hallandale 400 South Federal Highway Hallandale, Florida 33009 Craig Varn, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Jose R. Gonzalez, Esquire Broward County Attorney's Office 115 South Andrews Avenue Governmental Center, Suite 423 Fort Lauderdale, Florida 33301 Colleen M. Castille, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 David Jordan, Acting General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
The Issue Whether Petitioner willfully violated Section 106.021(3), Florida Statutes, which prohibits a candidate from making an expenditure except through the campaign treasurer on 66 separate occasions, and, if so, what is the appropriate penalty.
Findings Of Fact Based on the testimony, documentary evidence, entire record of the proceedings, and facts admitted to in the Joint Pre-Hearing Stipulation, the following Findings of Fact are made: Petitioner, Alan Schreiber, was the incumbent candidate for Public Defender, 17th Judicial Circuit, in the 2000 election. Petitioner was unopposed for reelection when qualifying ended on July 21, 2000. Petitioner is an experienced politician serving his seventh term as Public Defender. During the 2000 campaign qualifying period, Petitioner made sixty-six expenditures for which he submitted receipts and received reimbursement from his campaign account. The expenditures for which Petitioner was reimbursed are as follows: Date Merchant Amount 05-01-00 Andrew's Tallahassee $261.00 04-04-00 Andrew's Tallahassee $225.61 12-13-99 Bar Amici/ Cathode Ray $50.40 10-29-99 Bar at Embassy Suite $51.41 06-30-00 Big Louie's $265.01 06-20-00 Big Louie's $145.72 06-27-00 Bimini Boatyard $64.82 05-31-00 Bimini Boatyard $316.49 05-21-00 Bimini Boatyard $70.08 05-18-00 Bimini Boatyard $43.26 12-08-99 Bimini Boatyard $71.66 10-20-99 Bimini Boatyard $47.92 05-04-00 Bravo Italiano $63.86 02-24-00 Bravo Italiano $232.43 02-15-00 Bravo Italiano $52.79 01-31-00 Bravo Italiano $62.86 01-27-00 Bravo Italiano $86.83 06-19-00 Café de Paris $113.34 05-24-00 Café de Paris $70.04 05-16-00 Café de Paris $154.99 05-12-00 Café de Paris $160.94 05-06-00 Café de Paris $136.11 04-13-00 Café de Paris $146.65 03-18-00 Café de Paris $113.09 03-04-00 Café de Paris $144.47 02-23-00 Café de Paris $280.10 02-07-00 Café de Paris $73.27 01-17-00 Café de Paris $193.51 12-27-99 Café de Paris $66.47 11-29-99 Café de Paris $145.60 11-26-99 Café de Paris $230.51 11-24-99 Café de Paris $133.57 11-15-99 Café de Paris $183.97 10-31-99 Café de Paris $105.68 10-22-99 Café de Paris $99.43 10-19-99 Café de Paris $130.76 03-31-00 Café de Paris $182.64 03-15-00 Costco Wholesale $140.96 12-14-99 Costco Wholesale $267.61 10-27-99 Costco Wholesale $231.02 Costco Wholesale $256.87 05-23-00 French Quarter $499.24 11-09-99 French Quarter $81.25 11-09-99 French Quarter $85.02 06-08-00 Georgio's Food and Spirits $193.14 05-11-00 Greek Islands $89.73 06-03-00 Greek Islands $75.25 01-04-00 Greek Islands $70.49 10-29-99 Heavenly Ham $349.66 03-22-00 Houston's $75.54 10-28-99 Mayhue's Liquors $70.02 06-14-00 Mezzanot $102.02 12-01-99 Padrino's Restaurant $61.21 03-17-00 Publix $235.32 12-16-99 Publix $235.32 10-29-99 Publix $212.00 Publix $149.41 05-07-00 Restaurante Botin $146.39 01-04-00 Sage $79.85 12-28-99 Sage $107.89 10-29-99 Salute-Embassy Suites $211.26 03-01-00 TGI Fridays $47.08 05-25-00 Things Remembered $79.49 05-24-00 Things Remembered $296.69 05-21-00 Things Remembered $386.22 01-03-00 Wolfgang Puck Café $138.87 While Petitioner's personal decision to "wine and dine potential donors, supporters and campaign volunteers" at upscale restaurants may have been the genesis of the complaint that caused the Commission's investigation, no evidence was offered that suggested this to be an inappropriate expenditure of campaign funds. Sixteen checks were written by the campaign treasurer from the campaign account to Petitioner to reimburse him for the above expenditures. The campaign treasurer acknowledged that he had misdated one of the sixteen checks. Each check was written on the campaign accounts, was dated, was made payable to Petitioner, and each check listed that the purpose of the expenditure was to reimburse for non- specific campaign expense(s) as follows: Date Check No. Purpose Amount 10-29-99 1003 Reimb.-Campaign party expenses 11-02-99 1004 Reimb.-misc. campaign lunches 11-16-99 1005 Reimb.-misc. campaign lunches $968.38 $536.68 $350.24 11-30-99 1006 Reimb.-misc. campaign dinners 01-06-00 1008 Reimb.-camp. party expenses $509.68 $502.93 01-07-00 1009 Reimb.-misc. camp. dinners $496.50 03-03-00 1015 Reimb.-misc. camp. dinners $566.81 04-04-00 1019 Reimb.-camp. meeting expenses $565.32 04-11-00 1020 Reimb.-camp. party exp. $376.28 04-27-00 1021 Reimb.-misc. camp. dinners $799.23 5-16-00 1023 Reimb.-misc. camp. dinners $679.69 5-18-00 1024 Reimb.- misc. camp. lunches $462.58 5-22-00 1025 Reimb.-novelty items $368.22 5-24-00 1051 Reimb.-misc. camp. lunches $612.58 5-26-16 1054 Reimb.-camp. novelty items $376.16 06-09-00 1055 Reimb.-camp. meals/lunches $386.53 Each of the above-noted reimbursements to Petitioner was listed as an expenditure on Petitioner's campaign treasurer's reports filed with the Division of Elections as follows: Date Name and Address of Purpose Amount Person Receiving Reimbursement 10-29-99 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement for campaign party expenses $968.38 11-02-99 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign lunches $536.68 11-16-99 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign lunches $320.24 11-30-99 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign dinners $509.68 01-06-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement for campaign party expenses $502.93 01-07-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign dinners $496.50 03-03-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign dinners $566.81 04-04-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement campaign meeting expenses $565.32 04-11-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement for campaign party expenses $376.28 04-27-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign dinners $799.23 05-16-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign dinners $697.69 05-18-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign lunches $462.58 05-22-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement campaign novelty items $386.22 05-24-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign lunches $612.58 05-26-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign novelty dinners $376.16 06-09-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign lunches $386.53 While the campaign treasurer's report accurately reports reimbursements to Petitioner, because the reimbursements are non-specific and aggregated, it is impossible to determine the actual expense for which reimbursement is made. Stephen Michaelson served as the campaign treasurer for Petitioner's 2000 reelection campaign and had served as deputy treasurer of Petitioner's 1996 campaign. Mr. Michaelson has served a number of candidates in a similar fashion. Prior to filing papers to open the 2000 reelection campaign account, Mr. Michaelson and Petitioner discussed whether it was permissible under Florida law for a candidate to be reimbursed from his campaign account for legitimate, campaign-related expenditures made by him personally in the course of the campaign. Petitioner had experienced difficulty writing campaign checks at restaurants during the 1996 campaign. After the 1996 campaign, Mr. Michaelson had researched the issue and informed Petitioner that he had discovered a "reimbursement statute." Mr. Michaelson also found a 1994 Division of Elections opinion that he believed "to be right on all fours," i.e., the opinion dealt specifically with the issue. The 1994 Division of Elections opinion [DE 94-07] referred to by Mr. Michaelson provides, in pertinent part, as follows: It is also permissible for a candidate to make a purchase with his own personal check or currency if the candidate intends to seek reimbursement from his campaign. However, the purchase does not become a campaign expenditure until such time as the reimbursement is made by campaign check or petty cash through the candidate's campaign treasurer. In 1999, prior to opening his campaign account, Petitioner and Mr. Michaelson again discussed the "reimbursement issue." Mr. Michaelson checked Chapter 106, Florida Statutes, that had been in effect when the 1994 Division of Elections opinion [DE 94-07] had been issued and noted no changes in the statute. In addition, he did a computer search on Florida Statutes Annotated of District and Supreme Court cases and found nothing dealing with the subject that, in his opinion, would warrant a change in the Division of Elections opinion. He checked the Division of Elections website to see if the 1994 opinion was still there and concluded that it was. He did a computer check to see if there were any subsequent Division of Elections opinions that referred to expenditures; finding none, he concluded that the 1994 opinion was still in effect. Based on his review, he advised Petitioner that Petitioner could seek reimbursement from the campaign account for legitimate campaign expenditures that he paid with personal funds. Mr. Michaelson has been a campaign treasurer or deputy campaign treasurer on seven occasions, has, himself, been a candidate, is a lawyer who has practiced criminal defense law for 23 years, and, during his testimony at this formal hearing, demonstrated competency and understanding of the Florida election law/campaign financing law. He gave Petitioner advice on Florida election law/campaign financing law knowing that Petitioner would rely on his advice. Petitioner's reliance on Mr. Micahelson's advice was warranted. In the same general time period during which he opened his reelection campaign account, Petitioner spoke to David Bogenschutz, an attorney in Fort Lauderdale, and asked whether a candidate could incur campaign expenses and then seek reimbursement from his campaign account. Mr. Bogenschutz is a lawyer who has known Petitioner since 1971, whose practice is devoted largely to criminal defense, who had previously advised and represented candidates and public officials in proceedings related to the Florida's election law/campaign financing law, had himself been a candidate, and was believed by Petitioner to be knowledgeable regarding Florida election law/campaign financing law. While Mr. Bogenschutz was reluctant to acknowledge that he was an "expert" in Florida election law, his testimony at this formal hearing demonstrated a satisfactory working knowledge of Florida election law/campaign financing law; it was appropriate for Petitioner to seek his counsel and to be guided by his advice. Mr. Boganschutz advised Petitioner that he saw nothing wrong with his reimbursing himself from his campaign treasury for authorized campaign expenses. He further advised that he would research the matter and advise if he saw anything wrong. Mr. Boganschutz reviewed Section 106.021(3) and Subsection 106.07(4)(a)7, Florida Statutes, and Florida Statutes Annotated. He concluded that Subsection 106.07(4)(a)7, Florida Statutes, permitted a candidate to be reimbursed for authorized campaign expenditures from the campaign account and so advised Petitioner. In giving his advise, he did not review Division of Elections Opinion DE 94-07 or a later opinion, DE 97-06, because, while other Division of Elections opinions are found in Florida Statutes Annotated, neither of the referenced opinions is listed in Florida Statutes Annotated. In addition, he felt that the statute regarding reimbursement was so clear that there was no need to do further research. In addition to his discussions with Mr. Michaelson and Mr Bogenschutz, Petitioner conducted his own research and concluded that it was appropriate to pay vendors personally for campaign-related expenses and then be reimbursed from his campaign account for those campaign-related expenses. The qualifying period ended on July 21, 2000, with Petitioner having drawn no opposition. At about the same time, a local newspaper article questioned Petitioner's campaign spending habits and quoted a Division of Elections official saying Petitioner should have been using campaign checks. After reading the newspaper article, Mr. Michaelson called the local Supervisor of Elections who advised him that Division of Elections opinion DE 94-07 had been rescinded by Division of Elections opinion DE 97-06. This caused Mr. Michaelson obvious concern; the qualifying period had ended and, for Petitioner, the election was over. It appeared that he had incorrectly advised Petitioner regarding the propriety of paying campaign-related expenses personally and then seeking reimbursement. Mr. Michaelson then checked his research in an effort to understand how he had missed the rescission of Division of Elections opinion DE 94-07 and discovered that the Division of Elections website did not indicate that opinion DE 94-07 had been rescinded. The Division of Elections, Department of State, maintains a website which includes "Formal Opinions of the Division of Elections." This website lists all opinions from 1987-2000. Intermittently throughout the list of opinions is the notation "rescinded" in highlighted type, indicating that the particular opinion has been rescinded. No such notation appeared in reference to opinion DE 94-07. The 1997 Division of Elections opinion DE 97-06 indicates "Rescinding DE 76-16, 78-2, 88-32, 90-16, and 94-7." This is presented in the same type as the rest of the text and is not highlighted. Mr. Michaelson then used his web browser to search the Division of Elections website that lists these advisory opinions for the words "expenditure" or "reimbursement," the website did not direct him to the 1997 opinion DE 97-06. Division of Elections opinion DE 97-06, which, in part, rescinds Division of Elections opinion DE 94-07, provides in pertinent part, as follows: We held that candidates could make unlimited purchases by personal check as long as they intended for such expenditures to be reported as in-kind contributions. The opinion also stated that the "candidate cannot make such purchases as a campaign expenditure except by means of a campaign check . . . made through the candidate's campaign treasurer." This reasoning has resulted in some confusion as to when and under what circumstances a campaign expenditure or in-kind contribution occurs. Therefore, we rescind DE 94-07. Except for petty cash expenditures allowed under section 106.12, Florida statutes (1995), the only way that a candidate may make a campaign expenditure is by means of bank check drawn on the primary campaign depository, pursuant to section 106.11(1), Florida Statutes (1995). Having said this, we recognize the applicability of section 106.07(4)(a)7, Florida Statutes (1995), which requires that candidates report any reimbursements of authorized expenses from the campaign accounts to themselves. We believe that the purpose of this provision is to cover rare occurrences where the campaign must make an expenditure, but the campaign check book is not available. Such a situation could occur when a bill must be paid and the campaign has not received its first order of checks from the bank, or where, during the course of campaign travel, tolls or other miscellaneous expenses must be paid in cash and the candidate has failed to take the money out of his petty cash fund for such purposes. During the 2000 campaign, Mr. Michaelson maintained possession of the campaign checkbook which was usually kept at his home. On occasion, he would have one or two campaign checks on his person. If Petitioner asked for a campaign check, and Mr. Michaelson had one on his person, he would give it to Petitioner. On occasion, Petitioner would return a campaign check to Mr. Michaelson, indicating that the check was not accepted by a particular vendor. Most of the reimbursements at issue are a result of Petitioner's not having a campaign check with him at the time of a transaction or the vendor's unwillingness to accept a check or campaign check. In most instances the transaction involved purchases by Petitioner at restaurants. TGI Friday's located in Plantation, Florida, does not accept checks. Petitioner made one campaign-related purchase at TGI Friday's for which he was reimbursed from the campaign account. Bimini Boatyard does not generally permit patrons to pay with checks, although exceptions have been made. Petitioner made six campaign related-purchases at Bimini Boatyard for which he was reimbursed from the campaign account. During his 1996 campaign, Petitioner wrote 15 checks directly to Bimini Boatyard for campaign expenditures from the campaign account. Café de Paris and French Quarter have a policy of not accepting checks except when personally approved by the owner or for a special party. The owner indicated he would not accept a campaign check. Petitioner made 20 campaign related-purchases at Café de Paris and three campaign-related purchases at French Quarter for which he was reimbursed from the campaign account. The Sage Restaurant accepts only cash, MasterCard and Visa from restaurant patrons; checks are accepted for catering. The owner opined that had Petitioner called ahead and advised that campaign laws required him to pay by campaign check, she would accept that form of payment. Petitioner made two campaign-related purchases at Sage Restaurant for which he was reimbursed from the campaign account. Bar Amici and Cathode Ray do not accept checks; however, if a candidate advised that the law required payment by campaign check, a check would be reluctantly accepted. Petitioner made one campaign-related purchase at Bar Amici and Cathode Ray for which he was reimbursed from the campaign account. Greek Island Taverna does not accept checks. Petitioner sought reimbursement for three campaign-related expenditures at Greek Island Taverna for which he was reimbursed from the campaign account. Padrino's Restaurant does not accept checks. The owner, who is seldom at the restaurant, indicated that he would accept Petitioner's check. Petitioner made one campaign-related purchase at the Padrino's Restaurant for which he was reimbursed from the campaign account. Andrew's, a Tallahassee restaurant, does not accept checks from restaurant patrons. The manager opined that, if prior arrangements were made, a campaign check might possibly be accepted, but an out-of-town campaign check made it more problematic. Petitioner made two campaign-related expenditures at Andrew's for which he was reimbursed from the campaign account. Connie Evans, Chief, Bureau of Election Records, Division of Elections, Department of State, who has been employed by Division of Elections for 22 years and a bureau chief for five years, was qualified as an expert witness "in the area of Chapter 106 of Florida Statutes," without objection. She opined that Chapter 106, Florida Statutes, requires full disclosure of all contributions and expenditures for the public benefit. Ms. Evans further opined that Division of Elections advisory opinions are only binding on the candidate or organization who sought the opinion. Ms. Evans further opined that the Division of Elections, in applying Division of Elections opinion DE 97-06, considers that it is appropriate for a candidate to seek reimbursement for personal payment of a campaign-related expense at a restaurant when the restaurant refuses to take a check, but that the candidate should not return to the same restaurant knowing that the restaurant will not accept a campaign check in payment. She acknowledged that there is no statutory authority in Chapter 106, Florida Statutes, for this opinion. Ms. Evans further acknowledged that Division of Elections opinion DE 97-06 refers to Subsection 106.07(4)(a)(7), Florida Statutes (which allows reimbursement for campaign- related expenses), and that both DE 97-06 and DE 94-07 advise that it is permissible for candidate to reimburse himself for campaign-related expenses. Ms. Evans opined that the Division of Elections website should have indicated that Division of Elections opinion DE 94-07 had been rescinded in bold type, as is done with the other rescinded opinions. Ms. Evans further opined that, if a candidate were to reimburse himself or another person for authorized campaign- related expenses, it is the position of the Division of Elections that the reimbursement must be made by a campaign check, must be reported on the campaign treasurer's report as an expenditure, and the amount, date, and the purpose of the expenditure must be reported.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is recommended that the Florida Elections Commission enter a final order finding that Petitioner, Alan Schreiber, did not violate the Florida Campaign Financing Law as alleged and dismissing the Order of Probable Cause. DONE AND ENTERED this 19th day of September, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 19th day of September, 2001. COPIES FURNISHED: Mark Herron, Esquire Mark Herron, P.A. Post Office Box 1701 Tallahassee, Florida 32301-1701 Eric M. Lipman, Esquire Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Barbara M. Linthicum, Executive Director Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050
Findings Of Fact On May 25, 1979 NFRH requested a binding letter of determination of a Development of Regional Impact status for a proposed 97-bed addition to the hospital at Gainesville, Florida (Exhibit 1). In this request NFRH suggested that the 97-bed addition was exempted by Section 380.06(15), Florida Statutes, from the other provisions of Section 380.06 and included evidence to show that NFRH was constructed prior to 1973 and had thereby obtained a vested status. Petitioner sought to intervene in that proceeding and requested a formal hearing before the BLID issued. This was denied by Respondent. In response to NFRH request for this binding letter of interpretation, Respondent, on 22 June 1979, issued the letter in the format of a final order as prescribed by Section 120.59, Florida Statutes, containing findings of fact, conclusions of law and an order that the proposed addition of 97 beds to NFRH at Gainesville did not have to comply with the review requirements of Section 380.06, Florida Statutes, applicable to developments of regional impact. Petitioner has appealed the issuance of this final order to the district court of appeal. This action to challenge the BLID as a rule was then filed.
Findings Of Fact At the times pertinent to this proceeding, the Dade County School Board (School Board) was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Dade County, Florida. By Memorandum dated August 27, 1976, the attorney for the School Board recommended that it approve a list of individuals to serve as "hearing examiners" in certain hearings pertaining to personnel matters as required by different collective bargaining contracts and as to student expulsion cases. The Memorandum thereafter listed the individuals who were recommended by the School Board attorney to serve as hearing examiners. On September 8, 1976, the School Board adopted the recommendation of its attorney. The minutes of the September 8, 1976, meeting of the School Board, reflect, in pertinent part, the following pertaining to this action: A memorandum was received from the Legal Department, advising that the collective bargaining agreements between the School Board and the unions provide that in various circumstances, including suspension, dismissal and reduction in grade, the employee has the right to a review of the action. Also, the Florida Administrative Procedure Act was amended to provide for informal hearings con- ducted by impartial hearing examiners in student expulsion cases. With a view toward obtaining unbiased hearing examiners who can expedite cases at a minimal cost to the Board, the Office of the School Board Attorney and the Division of Employee Relations have solicited the services of various members of the Florida Bar and persons with experience in labor arbitration. It is believed that the following list of examiners will meet the needs of the Board in this area. These individuals have agreed to serve at the rate of $40.00 per hour. The minutes of the September 8, 1976, meeting of the School Board reflect the names of seventeen individuals who were recommended to serve as impartial hearing examiners. The minutes of the September 8, 1976, meeting of the School Board reflect that the following motion was adopted: That the school Board approve the list of persons named above to act as impartial hearing examiners in appropriate proceedings involving personnel and pupils, the hearing examiners to be reimbursed at the rate of $40.00 per hour for their time and to be designated as needed by the Superintendent or his designee. That the Superintendent or his designee be authorized to strike from the list the name of any hearing examiner who does not submit his or her recommended order within the time prescribed. The list of individuals to serve as impartial hearing examiners (who were sometimes referred to as hearing officers) was revised by the School Board on June 27, 1990, and on September 20, 1995. Petitioner's daughter is a student at one of the schools under the authority of the School Board who receives services as a gifted student under the School Board's Exceptional Education Program. Local hearing officers do not conduct proceedings pertaining to students in the Exceptional Education Program. Petitioner has never requested a hearing before a hearing examiner (or hearing officer) appointed by the School Board pursuant to the School Board's action of September 8, 1976, or as subsequently revised, and he is not involved in any pending or threatened administrative proceeding that would require the appointment of a local hearing officer by the School Board. Petitioner's daughter has never requested a hearing before a hearing examiner (or hearing officer) appointed by the School Board pursuant to the School Board's action of September 8, 1976, or as subsequently revised, and she is not involved in any pending or threatened administrative proceeding that would require the appointment of a local hearing officer by the School Board. Petitioner has never applied for appointment as a local hearing officer. He is not a member of the Florida Bar and there was no evidence that he is experienced in labor arbitration. Petitioner is not employed by the School Board. Petitioner is not affected by who has or has not been approved by the School Board to serve as a local hearing officer.
Findings Of Fact The Respondent. The Respondent, Gerald S. Rehm, served as Mayor of the City of Dunedin, Florida, from 1965 to 1972. The Respondent served in the Florida Senate from 1980 to 1984. Among other duties, the Respondent served on the Senate Transportation Committee. The Respondent served as a Florida state representative from November 4, 1986, through November 6, 1990. (Stipulated Fact). At all times relevant to this proceeding, the Respondent served as a public official. During the time that the Respondent served as a Florida state representative, he served on the House Transportation Committee and House Appropriations Committees. At some time during his service as a Florida state representative the Respondent asked to be removed from the House Transportation Committee. This request was granted. The Top of The Bay Road Improvement Task Force. The Top of the Bay Road Improvement Task Force (hereinafter referred to as the "Task Force"), was a private, not-for-profit organization incorporated on June 14, 1985. It was dissolved in late 1990. (Stipulated Fact). The original and primary purpose of the Task Force was to expedite the widening of State Road 580/584 (hereinafter referred to as the "580/584 Project"). The Task Force endeavored to obtain donations of right-of-way along the 580/584 Project corridor to accomplish its goal. Over time, the purpose of the Task Force expanded to include the tracking of road development in northern Hillsborough and Pinellas counties, to the extent that other roads and projects impacted on the 580/584 Project. (Stipulated Fact). The 580/584 Project included roads of Hillsborough and Pinellas Counties and the State of Florida. Therefore, Hillsborough and Pinellas Counties and the State were involved in the 580/584 Project. The Task Force hoped to insure that all three government bodies were communicating about the 580/584 Project. The Task Force believed that the 580/584 Project would not be completed until as late as the year 2010. By providing coordination and obtaining donations of right-of-way along the 580/584 Project corridor, the Task Force hoped to facilitate the completion of the 580/584 Project sooner. The Task Force was aware that if needed right-of-way along the 580/584 Project corridor was donated, it could take only a day to complete the donation instead of taking as long as two years to acquire the same right-of-way by eminent domain. Acquiring right-of-way along the 580/584 Project corridor by eminent domain was inconsistent with the purpose of the Task Force. The poor condition of highways 580 and 584 was adversely affecting business interests along these highways. The Task Force was formed to correct this problem as soon as possible. The completion of the 580/584 Project was also necessary for some land owners along the 580/584 Project corridor to be able to obtain DRI (Development of Regional Impact) permits necessary to develop their property. When first conceived, it was believed that the Task Force would be needed only for a short period of time. The Task Force was continued beyond the period of time originally contemplated because it was believed that the government agencies involved would believe that they were being "watched" if the Task Force remained active. The Task Force received most of its funding from large land owners and developers. (Stipulated Fact). About 12 to 15 major landowners, businesses and developers provided most of the Task Force's funding. The goals of the Task Force were the goals of those who contributed the Task Force's funds. The Respondent's Involvement with the Task Force. The Respondent served as the executive director of the Task Force from its inception in 1985 until November 13, 1989. (Stipulated Fact). The Respondent's involvement with the Task Force began before, and continued after, he became a Florida state representative. The Respondent's duties as executive director of the Task Force included working with the Florida Department of Transportation (hereinafter referred to as the "Department") to ensure that donations of right-of-way adjacent to State Road 580/584 met the Department's legal and technical requirements. (Stipulated Fact). The Respondent's duties as executive director of the Task Force also included gathering information about the Department's progress and decisions pertaining to the 580/584 Project, so that the proper right-of-way donations could be obtained. (Stipulated Fact). The Respondent characterized his relationship with the Task Force as that of a "consultant." The Respondent spoke with the Task Force's general counsel prior to becoming a Florida state representative. Based upon his discussion with the general counsel, the Respondent concluded that he had not been doing anything on behalf of the Task Force that would cause a conflict of interest if he continued his involvement after becoming a Florida state representative. The nature of the Respondent's activities on behalf of the Task Force did not materially change after he became a Florida state representative. He continued to perform his duties in an effort to assist the Task Force to achieve its goals of seeing a quick conclusion of the 580/584 Project which was in the interest of the Task Force and those who had created it, and the other goals of the Task Force. The Respondent's duties as executive director of the Task Force also included production of what were known as "Task Force Monitor Maps." A man by the name of Dick Vaugier, however, also was involved in the preparation of the Task Force Monitor Maps and may have actually performed the physical creation of the maps. The maps tracked the status of all road projects and provided projected completion dates and other information of interest to the Task Force. (Stipulated Facts). Some of the information required to produce the Task Force Monitor Maps was obtained by the Respondent from the Department. (Stipulated Fact). Task Force Monitor Maps underwent several revisions as road projects progressed. (Stipulated Fact). The Respondent provided copies of the completed Task Force Monitor Maps to the Department. (Stipulated Fact). Copies of the maps were also kept at an office of the Respondent where interested persons could review them. The Respondent's Contacts with the Department of Transportation. During the period of time that the Respondent served in the Florida House of Representatives, he had numerous contacts by telephone and in person with employees of the Department concerning the 580/584 Project. The Respondent had three contacts with Gene Dorzback, Department Assistant Project Development and Environmental Administrator, concerning the 580/584 Project. Ms. Dorzback worked in the Department's District 7. Ms. Dorzback worked for the Department from May, 1988, to October, 1990. All of her contacts with the Respondent were during the period of time that he was a Florida state representative. The Respondent discussed the 580/584 Project with Ms. Dorzback on June 15, 1989, during a public hearing on the 580/584 Project. During this conversation, the Respondent expressed his disapproval and frustration over the alignment of the 580/584 Project which the Department had established prior to the public meeting and which the Department had discussed with the public during the public hearing. The Respondent also questioned Ms. Dorzback about why the Department had decided on the alignment presented. Alignment of a road project involves the decision of which side(s) of the road additional right-of-way necessary to complete a road-widening project will be taken from and the amount of right-of-way necessary. Alignment of the 580/584 Project was determinative of the right-of-way which would have to be donated in order to achieve the Task Force's goals. The Respondent's concern over the alignment for the 580/584 Project was over the fact that the alignment would require obtaining right-of-way from property owners that had not agreed to donate right-of-way, and ignored some property owners that were willing to donate right-of-way. Although the Respondent did not specifically suggest that a particular alignment be used by the Department, he did suggest that the Department consider using the right-of- way which property owners were willing to donate. In order for the Department to accept this suggestion the Department would have been required a change the alignment of the 580/584 Project. At some time after the June 15, 1989, public hearing, the Respondent also telephoned Ms. Dorzback and inquired whether she had been provided with certain survey information concerning the 580/584 Project from the District 7 Survey Administrator, Larry Jones. The information involved property of owners who were willing to donate right-of-way. Although the Respondent did not specifically suggest any particular alignment, it was evident from the Respondent's comments to Ms. Dorzback that he believed that accepting donated right-of-way would speed up completion of the 580/584 Project. Ms. Dorzback explained to the Respondent why she did not believe that completion of the project would necessarily be speeded up by accepting donated right-of-way. The third conversation Ms. Dorzback had with the Respondent involved an inquiry from the Respondent concerning whether she had received the survey information he had previously inquired about. At the time of the Respondent's contacts with Ms. Dorzback, she was aware that he was a Florida state representative. Ms. Dorzback was consequently intimidated by the Respondent's criticisms. She was not initially aware of his connection with the Task Force. The Respondent also had contacts with Teresa Estes. Ms. Estes was a Project Manager in the Department's District 7 Project Development and Environmental Section. The Respondent's contacts with Ms. Estes occurred approximately once every three or four months over a two-year period of time when the Respondent was a Florida state representative. Some of the contacts Ms. Estes had with the Respondent involved the 580/584 Project. The contacts took place in the Department's offices. During the Respondent's contacts with Ms. Estes, he inquired about, and they discussed, the progress on an environmental study required for the 580/584 Project. The Respondent requested information from Ms. Estes concerning the 580/584 Project, which she provided to him. The approximately $210,000.00 cost of the environmental study for the 580/584 Project was paid for by two corporations, the Millford Corporation and the Hollywood Corporation. The weight of the evidence failed to prove if these corporations were involved with the Task Force. Ms. Estes knew that the Respondent was a Florida state representative when some of the contacts she had with him occurred. The Respondent informed Ms. Estes that he was a Florida state representative, that he was interested in the 580/584 Project and that he worked with the Task Force. The evidence, however, failed to prove when the Respondent told Ms. Estes that he worked with the Task Force. The Respondent also had at least three or four contacts with James Edwards. Mr. Edwards was the District 7 Public Transportation Manager for the Department from February, 1987, through the present. The Respondent contacted Mr. Edwards by telephone or in person to inquire about the status of the 580/584 Project, right-of-way donations, and other issues or aspects germane to specific projects in the area of the 580/584 Project. Mr. Edwards had at least one other meeting with the Respondent which did not involve the 580/584 Project. Mr. Edwards had to gather information concerning the 580/584 Project prior to his meetings with the Respondent and he provided that information to the Respondent. The Respondent also met three or four times with Ronald G. Pscion, the Department's District 7 Director of Planning and Programs. During one of the Respondent's contacts with Mr. Pscion, the Respondent inquired about the status of the 580/584 Project's work program and how the work on the 580/584 Project was scheduled. Mr. Pscion knew that the Respondent was working with property owners that wanted to donate right-of-way for the 580/584 Project and that one donation was dependent on a particular construction job on the 580/584 Project being completed by fiscal year '91-92. During another contact with Mr. Pscion, the Respondent wanted to insure that the Department was aware of other developments in the area of the 580/584 Project which could impact the project. The Respondent wanted to be sure that traffic in the area could be handled by the 580/584 Project. During a third conversation with Mr. Pscion, the Respondent inquired about the status of the 580/584 Project. The Respondent requested that Mr. Pscion let him know if there was any change in the work program for the 580/584 Project. The Respondent provided a copy of the Task Force Monitor Map prepared for the Task Force to Mr. Pscion. The Respondent also had contacts with Mr. Pscion concerning other road projects of the Department. Mr. Pscion was aware that the Respondent was a Florida state representative but was not aware of his relationship with the Task Force. The Respondent also had more than ten contacts with John H. DeWinkler, the Department's District 1 Director of Production. Mr. DeWinkler worked with the Respondent to achieve the Task Force's objective of trying to speed up the 580/584 Project without having to go through a lengthy process to complete the project. The property owners that were willing to donate right-of-way were entitled to certain rights. Mr. DeWinkler wanted to insure that those rights were not violated. Contacts concerning the 580/584 Project were made by the Respondent with Mr. DeWinkler at or near the time that what is now the Department's District 7 was separated from the Department's District 1. That split occurred in approximately October, 1988, after the Respondent became a Florida state representative. Therefore, some of the Respondent's contacts with Mr. DeWinkler took place when the Respondent was a Florida state representative. The Respondent had at least two contacts concerning the 580/584 Project with Joseph R. Brandenburg. These contacts occurred while the Respondent was a Florida state representative. Mr. Brandenburg was a Department District 7 Right-of-Way Surveyor from September, 1986, through July, 1988. One contact between the Respondent and Mr. Brandenburg involving the 580/584 Project was a meeting which was also attended by Mr. DeWinkler and Derrick Vardy, the Department's District 1 Right-of Way Administrator. During this meeting the Respondent inquired about areas along the 580/584 Project corridor for which right-of-way donations were still needed. As a result of this meeting, Mr. Brandenburg was to provide right-of-way maps and property legal descriptions concerning the 580/584 Project to the Respondent. The other contact which Mr. Brandenburg had with the Respondent was a telephone conversation during which the Respondent inquired about the information he was to be provided as a result of the meeting described in finding of fact 53. Mr. Brandenburg, subsequent to his two contacts with the Respondent, provided the right-of-way maps and property legal descriptions concerning the 580/584 Project to the Respondent. This information was to facilitate the donations of certain right-of-ways along the 580/590 Project corridor. Between February, 1988, and February, 1989, the Respondent also had three contacts with Larry R. Jones. Mr. Jones at that time was Department District 7 Right-of-Way Surveyor. The first contact between the Respondent and Mr. Jones took place shortly after Mr. Jones was employed by the Department. Mr. Jones and the Respondent argued about the width of the right-of-way needed for the 580/584 Project. Their difference of opinion was clarified by Mr. Jones' supervisor. The second contact between the Respondent and Mr. Jones occurred after a telephone call from the Respondent informing Mr. Jones that he was going to come by and pick up title search information concerning the 580/584 Project which was being provided by Pinellas County, Florida. The Respondent did come by and pick up the information. During the third contact between the Respondent and Mr. Jones, they discussed the impact of Murphy Act Deeds on the 580/584 Project. The Respondent suggested that any interest the State might have pursuant to the Murphy Act Deeds should be released to property owners who donated right-of-way for the 580/584 Project. Mr. Jones explained to the Respondent why this should not be done. Mr. Jones testified as to what a Murphy Act Deed, which is also known as "TIITF Reservation", is and the reason why the Department could not take the action the Respondent was suggesting, as follows: Basically a TIITF Reservation was something out of the '30's and '40's. If a tax collector seized a piece of property and sold it for the back taxes, they would reserve a strip of land for road purposes. And in this case 584 had some of these TIITF Reservations on them. That land is usable by the State Road Department. We have to go to DNR to get an easement, not the property owner. We don't pay for them. And by releasing the remainder over from what the PD&E study called for, we'd be in a position if we had to have more right-or-way, we would be back in an acquisition condemnation scenario, we'd be dealing with the property owners instead of DNR. Lines 2-15, page 103, Transcript of the September 4, 1991, Formal Hearing. At the time of the contacts with the Respondent, Mr. Jones was aware that the Respondent was a Florida state representative. The Respondent also represented to Mr. Jones that he was working for the Task Force. James G. Kennedy was the District Secretary for the Department's District 7 from 1987 until May, 1990. From 1984 until 1987, Mr. Kennedy was the Urban Office Director for the Department's District 1. Prior to and after the Respondent became a Florida state representative, Mr. Kennedy had numerous contacts with the Respondent about various transportation matters, including the 580/584 Project. During the Respondent's contacts with Mr. Kennedy after the Respondent became a state representative, the Respondent inquired about the 580/584 Project. In particular, the Respondent asked for information concerning the manner in which the Department acquired right-of-way and the progress on the project. Mr. Kennedy made his staff available to the Respondent. The degree of support given to the Respondent was in part attributable to the Respondent's position as a Florida state representative. The degree of contact Mr. Kennedy and his staff had with the Respondent was significant enough that Mr. Kennedy reported the situation to the Department's Secretary at the time, Kay Henderson. Secretary Henderson merely suggested that Mr. Kennedy use his best judgement to handle the matter. Mr. Kennedy was aware of the Respondent's involvement with the Task Force. Mr. Kennedy had been told by the Respondent that the Respondent was the leader of the Task Force. Mr. Kennedy was concerned enough about the Respondent's relationship with the Task Force that he asked the Respondent whether the Respondent thought there was a conflict of interest with his position as a Florida state representative. Mr. Kennedy was aware that the purpose of the Task Force was to obtain donations of right-of-way along the 580/584 Project corridor to speed up the completion of that project. Mr. Kennedy made his Department available to the Respondent to assist the Respondent in his efforts to insure that the donation of right-of-way along the 580/584 Project corridor was handled properly. The Respondent provided Mr. Kennedy with up-to-date Task Force Monitor Maps. Derrick Vardy was a Department District 1 Right-of-Way Administrator. Mr. Vardy had two telephone conversations with the Respondent and approximately two or three face-to-face meetings with him concerning the 580/584 Project. Some of these contacts occurred in August, 1987. Mr. Vardy attempted to assist the Respondent with documents needed to acquire donations of right-of-way for the 580/584 Project. All of the information which the Respondent obtained from employees of the Department was information which was available to the public. The information was obtained, however, on behalf of the Task Force and not in the Respondent's capacity as a Florida state representative or as a member of the public. The Respondent's contacts with the Department while he was a Florida state representative were made to further the goals of the Task Force and were made on behalf of the Task Force. Compensation. Beginning in 1985, when the Respondent began to perform services for the Task Force, and continuing until November, 1986, the Respondent was paid a consulting fee for his services as executive director of the Task Force. After the Respondent's election as a Florida state representative in November, 1986, the payments from the Task Force that had been made directly to the Respondent were made to Gerald S. Rehm and Associates, Inc. Gerald S. Rehm and Associates, Inc., is a closely held corporation, the stock of which was owned by the Respondent. From 1985 until sometime during 1987, the Task Force paid $2,000.00 a month to the Respondent and later Gerald S. Rehm and Associates, Inc. The amount paid by the Task Force to Gerald S. Rehm and Associates, Inc., was increased in 1987 to $3,000.00 and the corporation began "absorbing expenses" according to the Respondent. The payments to Gerald S. Rehm and Associates, Inc., were made in payment for services of the Respondent. Those services were the same services the Respondent performed for which payments were made directly to the Respondent before he become a Florida state representative. The weight of the evidence failed to prove that the payments made by the Task Force to Gerald S. Rehm and Associates, Inc., were merely reimbursements of expenses of the corporation. The Respondent testified that the payments his corporation received while he was a Florida state representative were reimbursements of expenses. This testimony was not credible. The Respondent characterized the payments he had received prior to his election as a Florida state representative as consulting fees. He did not characterize the payments he received before his election as a reimbursement of expenses. The Respondent admitted that his services were essentially the same before and after he became a Florida state representative. Therefore, since his services did not change and the amount of the payments did not change after he became a Florida state representative, it is not credible to believe that the payments after he became a Florida state representative were merely intended as a reimbursement of expenses. Additionally, the weight of the evidence failed to prove that there was any connection between the expenses that the Respondent or his corporation incurred and the amount of the payments he or his corporation received. Finally, the Respondent testified that the increase from $2,000.00 per month to $3,000.00 per month which occurred in 1987 was to cover expenses. Therefore, based upon the Respondent's own testimony, only $1,000.00 of the $3,000.00 monthly payments were for expenses.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, Gerald S. Rehm, violated Section 8(e), Article II, of the Constitution of the State of Florida, as alleged in Complaint No. 90-50. DONE and ENTERED this 13th day of November, 1991, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1991. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Advocate's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection A. General 1 3-4. 2 1. 3-4 2. 5 5. B. Top of the Bay Task Force 1 6. 2 7. 3 8. 4 9-10. 5 12. 6 13. 7 11 and 13. 8 7 and 9-11. C. The Respondent's Relationship with the Task Force 1 14. 2 Hereby accepted. 3-4 17. 5-6 21. 7 22. 8 23-24. 9 15. 10 19-20. 11 73-75. 12 76-77. 13 75. D. Respondent's Contacts with the Department of Transportation 1 See 26-27. 2 27-29. 3 28-29. 4 32. 5 30. 6 See 30. 7 31. 8 See 32. 9 26. 10 33. 11 33. The weight of the evidence failed to prove when Ms. Estes was employed with the Department. It is not, therefore, possible to tell whether his contacts with Ms. Estes were during his term as a Florida state representative based upon when he served. Ms. Estes did testify, however, that she knew the Respondent was a Florida state representative. Based upon this testimony, it has been concluded that the Respondent had contacts with Ms. Estes while he was a Florida state representative. 12 34-35. 13 38. 14 39. 15 39-41. 16 See 39-41. 17 Not relevant. The evidence failed to prove who the "developer" was or what relationship, if any, the "developer" had with the Task Force or the Respondent. 18 41. 19 42. 20 42-43. 21 44. 22 45. 23 See 48. 24 46. 25 49. 26 Hereby accepted. 27 50. 28-29 51. 30-31 50. 32 52. 33 52-54. 34 53. 35 54. 36-37 55. 38 56. 39 See 56-57. 40 58. 41-42 59. 43 60. 44 59. 45 61. 46 66. 47 Hereby accepted. 48 62-63. 49 64. 50 68. 51 Hereby accepted. 52 69. 53 70. 54-55 69. 56 See 71. 57 Hereby accepted. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 3. The evidence proved that the Respondent dropped the title of "President." The evidence also proved that the Respondent's duties after becoming a Florida state representative did not materially change. 2 14. 3 6. 4 7. 5 7 and 10. 6 See 7. 7 15-16. 8 The meeting referred to in this proposed finding of fact is not relevant. It occurred before the Respondent became a Florida state representative. See 50, 52-53 and 69. 9 17. 10 See 25-27 and 30-32. See 28-29 with regard to the 6th and 7th sentences. 11 33-34 and 36. 12 39-40 and 71. 13 52-55. The last sentence is not relevant. 14 42, 48 and 71. See 43-45. 15 56-59. 61-63 and 71. The 4th and 5th sentences are generally true, but see 64-67. Although correct (except the value of the right-of-way, which the weight of the evidence failed to prove), not relevant to this proceeding. 18 See 21-24. But see 16-20. 22 and hereby accepted. 47, 68 and hereby accepted. 21 13. 22 74-77. 74. The 2d sentence is not supported by the weight of the evidence; see 80. 74. See 25-71. The last two sentences are not supported by the weight of the evidence. Not supported by the weight of the evidence. See 19. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, FL 32399-1050 Mark Herron, Esquire Bonnie J. Williams J. B. Donnelly, Esquire Executive Director Akerman, Senterfitt, Eidson Commission on Ethics & Moffit The Capitol, Room 2105 216 South Monroe Street Post Office Box 6 Suite 300 Tallahassee, FL 32302-0006 Post Office Box 10555 Tallahassee, FL 32302-2555
The Issue At issue herein is whether or not the application of the City of Boca Raton Applicant, to open an at-grade crossing at Southwest 18th Street (Milepost 326 + 100') within the City of Boca Raton should be granted.
Findings Of Fact Based on the testimony of the witnesses and their demeanor while testifying, the arguments of counsel and the documentary evidence offered during the hearing, consideration of the Proposed Findings of Fact and Conclusions of Law submitted by the parties, the following relevant facts are found. Southwest 18th Street is located in the southern quadrant of the City. Presently, it is unimproved from an area immediately west of Military Trail and proceeds east with an overpass over Interstate 95 into the Seaboard Railway tracks through the City and terminates just prior to the El Rio Canal (See City's Exhibit 1). Two citizens groups appeared at the hearing and offered testimony against the application. The first group consisted primarily of residents of the Boca Bayou Condominium, which is an area east of the Railway's mainline track and Dixie Highway. Opposition from residents of Boca Bayou was essentially to the fact that the proposed crossing and its extension at Southwest 18th Street would increase automobile traffic, train noise, and air pollution, and thus diminish the value of their residences; and, secondly, that the construction of another crossing would create an additional source of vehicular contact, and thus a source for additional automobile accidents. The other group opposition to the subject application emanated from residents of Camino Lakes. Stan Radzkowski, a resident of Camino Lakes Community, voiced concern about the attractiveness of the community, the increase of vehicular traffic with the advent of the new crossing and with other resulting safety problems (See Joint Exhibits 1, 2 and 3). Other citizens residing in the area west of the Railway's mainline tracks along the existing Southwest 18th Street (Camino Real Community) appeared and opposed the application. This group generally opposed the application on the basis that the crossing would have an adverse impact on street improvements in the immediate area adjoining their residences. Southwest 18th Street is designated in the West Palm Beach Urban Area Transportation Study (WPBUATS) as a major east/west arterial serving the southern quadrant of the City and Palm Beach County. WPBUATS is the basic transportation planning document in Palm Peach County (Applicant's Exhibits 4A, 4B, 5A and 5B are exhibits designating the studies conducted during the 1960's with the projection of traffic studies from 1985 with updates through the year 2000). The Applicant recognized in 1965, as did the Department of Transportation in 1968, that there existed a great need for a major route at Southwest 18th Street. To handle the traffic flow, the City designated Southwest 18th Street as a major arterial route in 1965. Interstate 95 was completed and opened for traffic during calendar year 1977. During September of 1977, the City Council proposed a bond issue which was approved by the electorate, including $800,000 set aside for the Southwest 18th Street bridge and a railroad crossing at that site. Existing available data revealed that all existing crossings within the immediate vicinity are either operating at capacity or over capacity, and that it is impossible to construct an above-grade crossing at Southwest 18th Street due to cost factors. John Carroll, the City Engineer since September of 1977, has approximately twenty-two years of experience in traffic engineering, highway design and traffic impact studies. Mr. Carroll was received as an expert in traffic related matters. Mr. Carroll testified that if the Southwest 18th Street crossing application is not granted, traffic will necessarily be shifted to other areas and that Southwest 18th Street could not function as proposed due to the manner in which traffic flows into the area. Carroll testified that there would be an approximate four minute reduction in travel time if the Southwest 18th Street crossing is approved, and that gas consumption could be reduced by approximately 500 gallons per day by the area motorists. Additionally, he testified that emergency vehicle response time would be reduced by the opening of the Southwest 18th Street crossing. According to Carroll's data, the traffic count for Camino Real during April 20, 1978, was approximately 17,000 vehicles per day, and that volume capacity for the area was 18,000 vehicles per day. He testified that area growth figures reveal that the average annual traffic increase is 16 percent. This, according to Mr. Carroll, shows that by April, 1979, the traffic flow will be beyond the peak for the area. Mr. Carroll testified that an engineering firm (Kimley-Horn and Associates) was engaged to study the feasibility and design of the proposed 18th Street's southwest crossing. Based on the study completed by Kimley-Horn and Associates, witnesses Carroll and Joe Pollack, an engineer from the firm of Kimley-Horn and Associates, concluded that the improvements engineered into the design of the Southwest 18th Street area would correct any alignment problems and solve the additional increase in traffic load for the area (See Exhibit 7). Mr. Pollack testified that in designing the Southwest 18th Street proposed crossing, Kimley-Horn and Associates considered the following factors: Traffic; Grade and elevation; Existing railroad crossings; Protective devices and signalization; and Traffic signals. He concluded that based on the study as presented by Kimley-Horn and Associates, the proposed crossing would reduce the likelihood of accidents. By reducing overflow traffic and by use of maximum signalization, including flashing lights coordinated with traffic signals along the roadway, gates, bells, and cantilevered lights with motion sensors, the proposed crossing, according to Mr. Pollack, would be a safe and efficiently designed crossing. Mr. E. H. McLaughlin, an employee of the Railway since approximately April of 1955 and presently a Trainmaster since 1971, is a qualified locomotive engineer. Mr. McLaughlin testified that the most prevalent problem that would face motorists if the proposed application is granted, would be that of a lack of visibility by the train engineers, to see motorists approaching from the south. Mr. McLaughlin testified that the proposed crossing is situated on the Railway's mainline and that approximately eighteen trains use the line daily. Mr. Frank Stuart, an employee of the Railway since 1955, is presently the manager of insurance and safety for the Railway. Mr. Stuart testified that if the proposed application is in fact granted, he would recommend as a safety supervisor that the crossing use safety devices consisting of flashing lights, gates, bells, cantilevered lights and motion sensors. He further recommended that no holding (storing) facilities be situated near the crossing. Mr. Stuart guesstimated the cost for the signalization required at approximately $54,000 excluding the motion sensors and site preparation. Mr. Joseph Rice, a Registered Professional Engineer and a consultant for the Railway, was called as expert witness to testify respecting the Railway's position. Mr. Rice testified that in his opinion the vehicular figures cited in the WPBUATS studies are too high; however, he was of the opinion that using the most realistic figures, all studies showed that the road (Southwest 18th Street) would necessarily have to be upgraded. Mr. Rice recommended that if the crossing is permitted, that maximum signalization be utilized at the crossing. Mr. Rice also conceded during cross-examination that staged construction was a good idea for a municipality to engage in to complement its overall growth. Although he was of the opinion that there were alternative routes available, he could not be specific as to whether or not there were feasible alternatives to the proposed crossing. Jeffrey DuBois, a District Coordinator in the Fourth District for the Department of Transportation, testified that a conference committee was conducted with respect to the subject crossing and that the conference recommended that if the application for the subject crossing is granted, cantilevered lights, gates, bells and flashing lights be used as signalization for the proposed crossing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That the application of the City of Boca Raton to open an at-grade crossing at Southwest 18th Street (milepost 326 + 100') be GRANTED. RECOMMENDED this 25th day of June, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1979.
The Issue Whether Rule 27G-1.06(2) and Rule 27G-1.08(4), Florida Administrative Code, or either of them, is an invalid exercise of delegated legislative authority?
Findings Of Fact The parties have stipulated that Fairfield Communities, Inc. (Fairfield) has the requisite standing to challenge the rule provisions at issue and that Friends of Fort George, Inc., (Friends), Florida Wildlife Federation (FWF) and Florida Audubon Society (Audubon) have standing to participate as intervenors in support of these rule provisions. The Florida Land and Water Adjudicatory Commission (FLWAC) is the state agency that promulgated the challenged rules. The Fort George DRI case, No. 86-4127, began on August 1, 1986, when the Department of Community Affairs took an appeal of the development order entered by the City of Jacksonville on June 12, 1986 on grounds The MLUP does not accurately show or locate the DER jurisdictional line on the western side of the island from which buffer areas required by the ADO are to be measured . . . The MLUP does not properly or accurately depict or locate buffer areas surrounding the sloughs on the western side of Fort George Island. Exhibit B to the Prehearing Stipulation. Together with others, the Intervenors in the present case filed, in the Fort George DRI case, No. 86-4127, a motion to intervene as of right and request for consideration of additional issues on August 7, 1986. The intervenors in No. 86-4127 sought consideration of a wide range of issues in the Fort George DRI case, including questions concerning Blue Pond, the perimeter buffer zone, the interior habitat, weirs, berms, dikes and hydraulic connections, the adequacy of the water supply, the effect of the Game and Fresh Water Fish Commission's disapproval, the placement of various boundaries, and whether "Fairfield has failed to provide adequate protection of the microclimate and ecology of the Rollins Bird and Plant Sanctuary as mandated by the ADO . . ." Exhibit C to the Prehearing Stipulation. In filing their motion to intervene as of right and request for consideration of additional issues in No. 86-4127, Friends, Audubon and FWF expressly relied on Rule 27G-1.06, Florida Administrative Code. The portion under challenge here provides: (2) Motions to intervene filed with the Commission within 30 days of the filing of a notice of appeal may request the Commission to consider issues raised in the record below but not raised by the parties to the appeal. Rule 27G-1.06, Florida Administrative Code. In the order of transmittal, entered in No. 86-4127 on October 15, 1986, FLWAC denied consideration of every issue raised by the intervenors, except for the issue concerning the Rollins Bird and Plant Sanctuary, and added a related issue, also concerning the Rollins Bird and Plant Sanctuary, citing Rule 27G- 1.08, Florida Administrative Code. The portion of that rule under challenge here provides: Within 60 days of receipt of a notice of appeal, the Commission shall meet to review the issues raised by the parties. If the Commission determines that an issue of statewide or regional importance was not raised by the parties but is necessary to its disposition of the appeal, the Commission shall specify said issue and shall specify whether the issue shall be the subject of review based on the record made below, additional evidence or a combination thereof. New issues shall not be raised by the parties or other persons after this Commission meeting. At this meeting, the Commission may also dispose of procedural motions, including motions to intervene, which have been filed within 30 days of the filing of the notice of appeal. Rule 27G-1.08, Florida Administrative Code. Fairfield, as the applicant for the development order in No. 86- 4127, questions FLWAC's authority to promulgate rules that allow FLWAC to consider issues not raised by the party who took the DRI appeal, whether sua sponte or on motion of an intervenor.
Findings Of Fact In June, 1982, Florida East Coast Railway Company filed an Application for Development Approval for a Development of Regional Impact to be called "F.E.C. Park of Industry and Commerce" to be located in Dade County, Florida. On June 23, 1983, the Board of County Commissioners of Dade County adopted Resolution Z-114-83, a Development Order approving with conditions the development proposed by Florida East Coast Railway Company. A copy of the Development Order was transmitted to the Clerk of the Board of County Commissioners on July 7, 1983. By letter dated July 8, 1983, and received by the Department of Community Affairs on July 11, 1983, the Assistant Director of the Building and Zoning Department of Dade County advised that: In compliance with Section 380, Florida Statutes, we are enclosing , herewith, a copy of Resolution No. Z-114-83, adopted by the Board of County Commissioners on June 23, 1983, approving a development of regional impact applied for by Florida East Coast Railway Company to permit the development of the above-described property for an industrial park complex involving a district boundary change from GU (interim) to IU-C (Industry-Controlled) and an Unusual Use to permit two lake excavations. By letter dated July 19, 1983, the Department of Community Affairs responded to receipt of the copy of the Development Order as follows: We have received the copy of the Florida East Coast Railway Development Order you sent on July 8 in accordance with Chapter 380, Florida Statues[sic]. However, to fulfill the requirements of the law, the Development Order must he signed and include all exhibits. Therefore would you please he kind enough to provide the Department with a signed copy of Resolution #Z-114-83. . . . By letter dated July 27, 1983, and received by the Department of Community Affairs on August 1, 1983, Dade County advised that: In accordance with your letter of July 19, 1983, and our telephone conversation of this date, I am enclosing, herewith, a certified copy of Resolution Z-114-83; as I explained to you on the telephone, the Board of County Commissioners does not sign its resolutions. The only significant difference between the copy of the Development Order received by the Department of Community Affairs on July 11, 1983, and the one received on August 1, 1983, is a certificate signed by a Deputy Clerk in the office of the Clerk of the Circuit Court in Dade County certifying that the latter copy of Resolution No. Z-114-83 was a true and correct copy of the original of that document. Since at least 1946, Dade County has adopted and codified its zoning actions in the following manner. After the Board of County Commissioners acts on zoning applications at a regularly scheduled zoning meeting, zoning resolutions are prepared by Mr. Chester C. Czebrinski, who is in attendance at the meetings. Mr. Czebrinski is an attorney and is the Assistant Director of the Dade County Building and Zoning Department. He is also legal counsel to the Department and is a Deputy Clerk of the Board of County Commissioners. He has performed the functions described herein since 1946. While in attendance at the zoning meeting, Mr. Czebrinski records the action of the Board of County Commissioners on zoning applications noting any conditions adopted by the Board. In preparing the zoning resolution, he uses information obtained from the Clerk of the County Commission as to the resolution number, the names of the Commissioners who made and seconded the motion, and the vote on the resolution. When such resolutions are prepared, they are never re-submitted to the Board of County Commissioners for any further action or review. Copies of final zoning resolutions prepared by Mr. Czebrinski are sent to the Clerk of the County Commission (two original copies), other county departments, to the applicant, and to the attorneys of record. The purpose of transmitting the resolution to those departments and persons is to notify them of the official final action taken by the Board of County Commissioners. Additional copies of resolutions are also placed in the zoning hearing file. All such resolutions transmitted contain a transmittal date on the face of the resolution. The purpose of the transmittal date is to commence the appeal period within which an appeal may be taken to circuit court from the action of the Board of County Commissioners pursuant to the Code of Metropolitan Dade County. All such resolutions transmitted by Mr. Czebrinski are unstamped, uncertified copies of the final zoning resolution. Upon receipt of the transmittal of two copies of the resolution from Mr. Czebrinski, the office of the Clerk of the Board stamps both with the name of the deputy clerk, who for the past eleven years has been Raymond Reid. The letters on one stamp (the large stamp) are larger than the letters on the other, smaller stamp. The copies stamped with the large stamp are also stamped with the county seal. This copy is retained by the Clerk and is never certified. The other copy, stamped with a small stamp, is not stamped with the county seal. This copy is sent to Mr. Czebrinski with a separate certification by the Clerk on a separate page attached to the back of the resolution. Upon request, the Clerk's office will provide a copy of the zoning resolution retained by it. Such a copy is never certified, even for a state agency, unless a specific request for certification is made. An individual requesting certification is required to pay the Clerk a fee of one dollar. Section 2-1, Rule 1.05, Dade County Code, is interpreted and applied by Dade County not to require certification of the resolution physically retained by the Clerk and not to require certification of any copies of that resolution unless a specific request for certification is made. If Mr. Czebrinski receives a request for a copy of a zoning resolution, he provides one of the additional unstamped copies made prior to transmittal of the Clerk. If a certified copy of the resolution is requested, Mr. Czebrinski would make a copy of the resolution with the certification and then place a further certificate on it indicating that it was a copy on file with his office. The above procedures are for normal zoning actions of the Board of County Commissioners and differ from untypical procedures utilized for Zoning Appeals Board (ZAB) resolutions (which are certified by the Building and Zoning Director) and for resolutions pertaining to county airport matters, which are prepared by the County Attorney's office. Where a resolution encompasses an order of the Board of County Commissioners for a Development of Regional Impact, Mr. Czebrinski prepares a resolution in the manner described above and distributes it to all of the previously mentioned parties, and in addition to the Florida Department of Community Affairs and to the South Florida Regional Planning Council. Mr. Czebrinski has had responsibility for transmitting copies to the State Land Planning Agency pursuant to Chapter 380, Florida Statutes, since the adoption of the state law. The resolutions transmitted have been blank, uncertified copies. Each copy is accompanied by a transmittal letter which is signed by Mr. Czebrinski. Although in a few instances the files of the Department of Community Affairs contain items where the typical County Commission zoning procedure was not applicable, this was because either the special procedure of the ZAB or airport zoning applied, because the Department has specifically requested a certified copy in an isolated case, or because the Department had received a transmittal from a non-county source. On September 12, 1983, the Department of Community Affairs filed a Notice of Appeal with the Florida Land and Water Adjudicatory Commission objecting to various portions of the Development Order.
