Findings Of Fact Maurice Fox ("Developer" or "Respondent" hereafter) filed his original application for approval of a development of regional impact with the Palm Beach County Board of County Commissioners in April, 1974. An extensive application was filed. Personnel from the staff of the County's Planning, Building, and Zoning Department discussed the application with the Respondent and his representatives, and the staff's recommendations were presented to the Planning Commission and to the Board of County Commissioners. The Respondent made presentations to the South Florida Regional Planing Council, and to the Board of County Commissioners. The Board received input from the Respondent, from the South Florida Regional Planning Council, from its own staff, from the Florida Game and Fresh Water Fish Commission, and from the Flood Control District, which is now the South Florida Water Management District. Palm Beach County was, at that time, a member of the South Florida Regional Planning Council. The Council recommended that the Board of County Commissioners deny the application for development order, maintaining that the proposed development conflicted with the county land use plan, would stimulate excessive migration into the region, would cause an excessive burden upon transportation facilities, did not adequately provide for solid waste disposal, could have an adverse impact upon water quality in the region, and would eliminate a significant habitat for wildlife including several threatened or endangered species. The Game and Fresh Water Fish Commission opposed the proposed project because of its potentially adverse impact upon the wildlife habitat. The Flood Control District considered that the lake system proposed to be operated in conjunction with the development could be maintained in such a way as to negate adverse impacts upon water quality of the region, and did not oppose the project. The County's Planning, Building, and Zoning Department recommended that the development order be issued, and the County Planning Commission concurred. By resolution number R74-700, the County Commission approved the application for development order subject to three conditions on September 3, 1974. This proceeding ensued. During the pendency of this proceeding, Palm Beach County withdrew from membership in the South Florida Regional Planning Council. The County joined the Treasure Coast Regional Planning Council (TCRPC). Since it was granted status as an intervenor, TCRPC has been functioning as the appellant. The South Florida Council has withdrawn from the proceeding. TCRPC has contended that the Board of County Commissioners did not adequately consider the environmental consequences of the proposed development. This contention is not supported by the evidence. The Board of County Commissioners did not have before it all of the evidence that is now before the Florida Land and Water Adjudicatory Commission, but it did have adequate information from which it could assess the environmental impacts of the proposed development, and weigh these impacts against potential advantages and disadvantages of the development. Whether the County Commission made a correct assessment of the ecological consequences of the proposed development is an issue for this appeal. The thought processes by which members of the Commission made the determination are not issues in this proceeding. Maurice Fox acquired the property which is the subject of this proceeding, and which has come to be known as the Fox Property, in 1954. The Fox Property lies in Palm Beach County, and is bordered on the east by State Road 7 as it is presently constructed and as it is proposed for extension. The property will run three lineal miles along State Road 7 when State Road 7 is completed. Okeechobee Road runs through the southern section of the property. The property has roughly a rectangular configuration, and consists of 1705 net acres apart from the rights of way of Okeechobee Road and State Road 7. The proposed development is a retirement community. It would contain 10,004 living units with a population cap of 18,416 persons. Dwelling units would be dispersed in forty five residential pods, some bordering on a lake, others on a golf course. There would be single and mixed story clusters. The maximum rise would be four stories. Two golf courses are proposed for construction, along with a 406-acre lake for sailing, boating, and fishing. A fourteen mile bicycle path that would not cross any roads is proposed for construction around the lake. There would be tennis courts, and at least one swimming pool for each building pod. The main social club would be located on the lake. Each golf course would have a club house. There would be a total of 1028 acres of open space, with approximately fourteen acres preserved in a natural condition. Three church sites have been set aside, along with a four and one half acre civic center, which would include a fire station, security facility, and municipal services. A commercial facility on a twenty five and one half acre tract is planned, with smaller convenience centers located at each of the golf club houses. The most significant feature of the development is a proposed center for geriatric medicine, which would be located on the southeast corner of the property. The center would be owned by a non profit corporation, and would be operated for the public benefit. The Respondent proposes to donate the land for the center. The center would have the following facilities: (a) A medical clinic with group practices of physicians; (b) Emergency facilities and rehabilitation services as a part of the clinic; (c) A retirement hotel for physically or mentally disabled persons who do not require complete nursing care; (d) A nursing home, and facilities that would provide in home services designed to keep older persons in their homes; (e) A nursing school, or continuing education facility that would provide training for staff for the center, and for other facilities. The center would have a significant research function, allowing a group of older persons to be studied over a period of years. The development would be constructed in four essentially, equal phases. Phases for construction of the geriatrics center have not yet been detailed. Local and state licensing would be required in order to operate many of the proposed functions of the center, and planning for construction of the center would need to be coordinated on an on going basis with the development of the retirement community. No evidence was offered that would specifically compare the proposed retirement community with other such communities. It is apparent, however, that the proposed community would provide a desirable place to live. All residences would border either a lake or golf course, and good recreational facilities would be immediately accessible to all residents. The project has been designed in order to maintain open spaces, with as much as seventy five, percent of the area remaining open. The primary benefit that the development would offer is the proposed center for geriatric medicine. The center is a primary altruistic goal of the Developer. The Developer has consulted eminent experts about the proposed center, and the center could provide a means for conducting significant research into illnesses of the elderly, and as a facility for training persons to treat illnesses of the elderly. Florida has a particular need for such an institute, and none of the medical schools in the state presently provide it. Although much is known about the needs for medical care of the elderly, a broader treatment concept has not been adequately developed. Old people are constantly fearful of becoming dependent, and they dread loneliness and bereavement. They have anxiety about spending their last days in a nursing home. The proposed center would address these problems by recruiting sensitive health care personnel, and providing a total care program for residents of the proposed community. Elderly persons require a continuum of care. Institutionalization of older people should be deferred as long as possible. There is a need to develop health services that can be delivered directly to the home. When it becomes necessary to institutionalize older persons, the proposed geriatrics center would accomplish it in a facility near to where they have lived, and to where their friends continue to live. Persons too fragile to stay in their own homes could live in the proposed hotel, and maintain personal relationships and community activities. Such a center as is being proposed would not have to be constructed in connection with a housing project, but it would be helpful to do so. Study would be facilitated due to the ready availability of a group of appropriate persons. The research that could be conducted could provide vital information about diseases of the aged. Some evidence was offered that tends to show that the Respondent may have some difficulty in obtaining all of the pertinent licenses that he will require in order to operate all facets of the proposed center. The evidence does not establish that the center is an impractical goal, but that ongoing planning that accounts for needs of the entire region is necessary. The Developer's motivations are clearly good. He is in part motivated by his own experience in dealing with an aged mother. He is not interested in developing the retirement community unless the center for geriatric medicine can also be developed. With appropriate planning the facility can become a reality, and would be a significant benefit to Palm Beach County, the region, the State of Florida, and indeed to society as a whole. The Fox Property is presently undeveloped. Human activities have had an effect on the property, but the property remains in an essentially natural condition. The property has been diked on all four sides by persons other than the Respondent. These dikes effect the flow of water across the property. While the evidence does not conclusively reveal whether the property has become drier or wetter as a result of human activity surrounding it, the present state of the property leads to a finding that its condition has not changed drastically in many years. The property may now be wetter than it was at some given instant in the past, or it may be drier. What is apparent is that the property has consistently maintained a degree of wetness that would support submerged or emergent vegetation, and that it has provided habitat for wildlife that thrive in transitional areas. Expert witnesses, who testified at the hearing, agreed as to the present characteristics of the property, but their testimony conflicted sharply in characterizing the condition as wet or dry, or as high quality or low quality wildlife habitat. Ecologists have reached no unanimous consensus in defining the term "wetland". The most generally accepted definition has been proposed by the United States Fish and Wildlife Service of the United States Department of the Interior in a "Draft of Interim Classification of Wetlands and Aquatic Habitats in the United States." The definition is as follows: Wetland is land where an excess of water is the dominant factor determining the nature of soil development and the types of plant and animal communities living at the soil surface,. It spans a continuum of environ- ments where terrestrial and aquatic systems intergrade. For the purpose of this classification system, wetland is defined more specifically as land where the water table is at, near, or above the land surface long enough each year to promote the formation of hydric soils and to support the growth of hydrophytes, as long as other environmental conditions are favorable. Permanent flooded lands lying beyond the deep water boundary of wetlands are referred to as aquatic habitats. The definition is compatible with the definition developed by other entities including the United States Corps of Engineers. The definition is also compatible with the Florida Department of Environmental Regulation system of classifying areas as submerged, transitional, and upland. Transitional areas within the Department of Environmental Regulation criteria would be classified as wetlands under the Fish and Wildlife Service definition. Wetlands have commonly recognized ecological values. These values are applicable to all wetlands, varying in quantitative and qualitative degree. In order of importance these values are as follows: First, wetlands provide habitat for an enormous array of plant and animal species, which cannot survive without such a habitat. Many endangered and threatened species require wetland habitats. They have become endangered or threatened because their realm has been diminished. Second, wetlands serve to remove and store excesses of certain elements from the environment. As a result of agricultural activities and as a result of large scale usage of fossil fuels, nitrogen and sulfates have become generally excessive in the environment. Wetlands serve a filtering and storage function for these potential pollutants. Third, wetlands serve an important water quality function. In periods of heavy rainfall wetlands serve to store and slowly release waters. Wetland vegetation serves to filter excess nutrients, from rainfall and from runoff, especially phosphorus and nitrogen. Fourth, wetlands are extremely productive in biological terms. Wetland vegetation takes in nutrients, and causes a net production of oxygen in the process of respiration. On a global, and even on a local scale, wetlands can thus be very important to air quality. Fifth, wetlands have an important impact upon the climate. Stored water in wetland areas maintains a warmer climate in areas surrounding the wetland. Wetlands also serve to fuel rainfall in an area. These wetland attributes apply to all wetlands in varying degrees, and do not apply as profoundly to other ecosystems. In addition to these values, wetlands serve an important food producing function since they serve as breeding grounds for fish, have important esthetic and recreational value, and have research and educational importance. Preservation of wetland areas has become an important environmental concern because there has been a very large loss of wetland areas to development. It has been estimated that more than one third of all wetlands in the United States, and more than half of the wetlands in Florida have been drained. Utilizing the Fish and Wildlife Service definition, from 900 to 1400 acres of the 1705 acre Fox Property can be classified as wetland. Only approximately 60 acres of the tract is aquatic, in other words wet at all times. Other areas are, however, sufficiently dominated by an excess of water to fall within the Fish and Wildlife definition. The Fox Property is not without human influence. The dikes which surround the property have effected the flow of water. "All terrain vehicles" have crossed the area and left their tracks. In some locations this vehicle use has been sufficiently significant that trails have been identified. There has been considerable hunting in the area. Some trash has been dumped, particularly in the areas adjacent to Okeechobee Boulevard. Trees have been removed, and potholes left in their place. In the area south of Okeechobee Boulevard it is apparent that there was considerable agricultural usage in the past which has affected the land. It is also apparent that there has been burning, although not to the extent that the ecological viability of the area has been violated. Exotic pest plants have infiltrated portions of the property. Melaleuca is the most dramatic of these. In small areas of the property melaleuca has become the dominant vegetation. Over a period of time melaleuca will tend to dry out a wetland, but the process is a lengthy one, which may take centuries to complete. Large airplanes fly low over the property disturbing the area with loud noises. Despite these intrusions, the Fox Property is dominated primarily by natural as opposed to human caused conditions. Nine hundred to fourteen hundred acres of the Fox Property display high or moderate wetland values. The remainder of the property displays low wetland values. Some parts of the property display outstanding wetland values. The most significant wetland attribute displayed by the Fox Property is the wildlife habitat that it provides. The habitat on the property is quite varied, and that contributes to its importance for wildlife. Several species on the Florida Game and Fresh Water Fish Commission "Threatened Species List" were actually observed on the property. These are the American alligator, the Florida great white heron, the osprey, the southeastern kestrel, the audubon's caracara, and the Florida sandhill crane. Several species on the Florida Game and Fresh Water Fish Commission "Species of Special Concern List" were also observed. Wildlife on this list are considered to be not as threatened with extinction as those on the "Threatened Species List", but nonetheless of concern. Observed were the little blue heron, the great egret, the snowy egret, the white ibis, the Cooper's Hawk, and the roundtail muskrat. Several other species on these lists thrive in such habitats as the Fox Property, and potentially could be there. The Florida Endangered Species List promulgated by the Game and Fresh Water Fish Commission constitutes species, that are in eminent danger of becoming extinct. None of these species were actually observed on the Fox Property, but the Fox Property provides viable habitat for the wood stork, the Florida Everglade kite, the red cockaded woodpecker, the, Florida grasshopper sparrow, and, the Florida panther. The Everglade kite, the red cockaded woodpecker, and the Florida panther are also on the Federal Endangered Species List. It is because of loss of habitat that these species are of concern, or are threatened, or are endangered. The Fox Property lies adjacent to a wetland area known as the Loxahatchee Slough. This is a major north south surface water drainage basin in eastern Palm Beach, County. Surface water moves across the Slough to the north, feeding the Loxahatchee River, or to the south into what is known as Conservation Area One within the Loxahatchee Preserve. The Fox property is in effect the western boundary of the Slough. The Loxahatchee Slough is a wetlands ecosystem. The Slough, and the National Wildlife Refuge, which surrounds and encompasses it, amount to 145,635 acres. This is primarily wetland. There are other viable wetland areas in the vicinity of the Fox Property which encompass as much as 850,000 acres. The fact that extensive wetlands are near to the Fox Property does not, however, lessen the wetland values of the Fox Property. In fact, the adjoining wetlands augment the wetland values that can be ascribed to the Fox Property, especially in terms of the property's importance to endangered wildlife. The proposed development would include a lake with an area of more than 490 acres. The lake system would provide viable habitat for the Florida alligator, but not for the other species discussed above, except perhaps as an occasional feeding area. These species are becoming scarce because their available habitat is shrinking. They are reclusive, and do not flourish in human residential areas. If the proposed development is approved, the Fox Property will effectively be obliterated as a viable wildlife habitat for many species, including some whose existence is threatened. The proposed lake system would also not perform other important wetland functions to the extent that the Fox Property now does so. The TCRPC has contended that the proposed development would have an adverse impact upon water quality in the region. This contention has not been supported by the evidence. It is apparent that the lake system will not serve the water purifying function that the Fox Property as a viable wet land presently serves. It does appear from the evidence, however, that the lake system can be maintained in such a manner as to not cause an adverse impact upon water quality. One witness testified that the lake is likely to suffer from algal blooms in part because it would be overloaded with phosphorus. This testimony did not, however, consider the effect that the swale system proposed by the Developer will have in filtering phosphorus from runoff which will enter the lake system. The testimony reveals that artificial lakes in the South Florida area have frequently been plagued with poor water quality. It is apparent that if the proposed lake were not properly maintained, its water quality could seriously deteriorate. With proper management, however, good water quality could be maintained. The evidence presented respecting the impact of the proposed development in environmental terms related solely to the proposed development. Whether less ambitious developments could be undertaken on the property without damaging the wildlife habitat or the wetland values was not addressed, and would not have been relevant.
Findings Of Fact In 1987 the City of St. Petersburg sought permission to file an application for an Areawide Development of Regional Impact (DRI) for the Intown Area. On July 23, 1987, notice was sent to each property owner within the proposed Areawide DRI. The notice indicates that a public hearing would be held on August 27, 1987, from which the St. Petersburg City Council would decide whether to authorize the City of St. Petersburg to proceed to apply for the DRI. Petitioner, John Warren, received said notice and owns property within the area encompassing the Areawide DRI. Further notices were provided to property owners within the area, including a notice of the petition filed by the City which was published in the St. Petersburg Times on July 27, 1987; a notice to property owners dated September 1, 1987, advising that the City was authorized to proceed with the Intown Areawide DRI; and three other notices regarding public hearings and consideration of the DRI. After all required notice, the St. Petersburg City Council considered the proposed Areawide DRI on December 15, 1988, and formally adopted the DRI by Ordinance No. 1072-F. The ordinance was signed on December 15, 1988. A Notice of Adoption of a Development Order was executed and recorded in the public records on December 20, 1988. The development order enacted on December 15, 1988, was transmitted to the Department of Community Affairs and the Tampa Bay Regional Planning Council on December 19, 1988, and to the City Clerk on December 20, 1988. A certified copy of the DRI Ordinance 1072-F as enacted on December 15, 1988, is a part of the record as Exhibit K and it is incorporated by reference. Thereafter the Tampa Bay Regional Planning Council appealed the DRI pursuant to Section 380.07(2), Florida Statutes, to the Florida Land and Water Adjudicatory Commission. The City and Tampa Bay Regional Planning Council reached an agreement for settling the appeal and said settlement was finalized in the Stipulated Settlement Agreement. Pursuant to the Stipulated Settlement Agreement, the St. Petersburg City Council, at its February 2, 1989, meeting, adopted the terms of the Settlement Agreement, modified Ordinance 1072-F to incorporate the settlement terms, and adopted Ordinance 1072-F as modified. Based upon the settlement and modification of the DRI by the St. Petersburg City Council, on February 7, 1989, the Tampa Bay Regional Planning Council filed a Notice of Voluntary Dismissal of its appeal to the Florida Land and Water Adjudicatory Commission. The Florida Land and Water Adjudicatory Commission entered a Final Order of Dismissal on February 20, 1989. Warren filed his Petition on Appeal on March 20, 1989. The Petition is filed pursuant to Sections 380.06(25)(h) and 380.07, Florida Statutes, and Rule 42-2.002, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a Final Order granting the Amended Motion to Dismiss and dismissing the Petition on Appeal filed by John Warren. DONE and ENTERED this 16th day of June, 1989 in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1989. COPIES FURNISHED: Peter B. Belmont Patty Woodworth, Secretary Attorney at Law Planning and Budgeting 511 31st Avenue North Executive Office of the Governor St. Petersburg, Florida 33704 The Capitol, PL-05 Tallahassee, Florida 32399-0001 Michael S. Davis Mirelle Murphy James Honorable Bob Martinez Mark A. Winn Governor, State of Florida Attorneys at Law The Capitol Post Office Box 2842 Tallahassee, Florida 32399 St. Petersburg, Florida 33731 Honorable Robert A. Butterworth Roger S. Tucker Attorney General Attorney at Law State of Florida Tampa Bay Regional Planning The Capitol Council Tallahassee, Florida 32399-1050 Suite 209 9455 Koger Boulevard Honorable Doyle Conner St. Petersburg, Florida 33702 Commissioner of Agriculture State of Florida Jeffrey N. Steinsnyder The Capitol Attorney at Law Tallahassee, Florida 32399-0810 Department of Community Affairs 2740 Centerview Drive Honorable Betty Castor Suite 138 Commissioner of Education Tallahassee, Florida 32399-2100 State of Florida The Capitol James C. Vaughn, Jr. Tallahassee, Florida 32399 Governmental Analyst Florida Land and Water Honorable Jim Smith Adjudicatory Commission Secretary of State The Capitol State of Florida Tallahassee, Florida 32399 The Capitol Tallahassee, Florida 32399-0250 Honorable Tom Gallagher Treasurer and Insurance Honorable Gerald Lewis Commissioner Comptroller, State of Florida State of Florida The Capitol The Capitol Tallahassee, Florida 32399-0350 Tallahassee, Florida 32399-0300 =================================================================
The Issue The issues in this case are whether the Respondent, Robert Dugger, committed the violations alleged in an Amended Administrative Complaint, DPBR Case Number 2002-007094, filed by the Petitioner Department of Business and Professional Regulation on April 11, 2006, and, if so, the penalty that should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the state agency charged with regulating the practice of community association management pursuant to Chapters 455 and 468, Florida Statutes. (Stipulated Fact). Robert Dugger, is and was at the times material to this proceeding a licensed Florida Community Association Manager (hereinafter referred to as a “CAM”), having been issued license number CAM 1148. (Stipulated Fact). At the times material to this proceeding, Mr. Dugger’s address of record was 7401 Beach View Drive, North Bay Village, Florida 33141. Miramar Gardens. At the times material to this proceeding, Mr. Dugger was employed by Timberlake Group, Inc. (hereinafter referred to as “Timberlake”). In his capacity with Timberlake, Mr. Dugger served as the CAM for 30 homeowners’ associations. In particular, Mr. Dugger served as the CAM for Miramar Gardens Townhouse Homeowners’ Association, Inc. (hereinafter referred to as the “Association”). (Stipulated Fact). The Association is made up of approximately 350 homeowner members. The Association was initially created by the Miramar Gardens Townhouse Homeowners Association, Inc., Declaration of Covenants, Conditions and Restrictions adopted on or about December 16, 1975. By-Laws for the Association were also adopted on December 16, 1975. Article X of the By-Laws provides the following homeowners’ rights concerning the books and records of the Association: The books, records and papers of the Association shall at all times, during reasonable business hours, be subject to inspection by any Member. The Declaration, the Articles and these By-Laws shall be available for inspection by any Member at the principal office of the Association, where copies may be purchased at reasonable cost. Prior to 2001, the Association, along with Vista Verde Townhome Homeowners Association (hereinafter referred to as “Vista Verde”), an adjacent community association, had been placed in receivership and was managed by a civilian board. These events came about due to the dismal state the two communities were in. Crime was rampant, there were no street signs or lights, common areas and alleys were unkempt, there were abandoned vehicles, and the associations for both areas were essentially non-existent. Miami-Dade County had taken over ownership of many homes in the community by foreclosure. Mr. Dugger became involved early with the reorganization and revitalization of the Association and Vista Verde. In 1997, Mr. Dugger was appointed by the receiver as the CAM for the Association and Vista Verde. At the end of 2000, the Association was ready to govern itself. Toward that end, on or about December 21, 2000, the Association and Timberlake, entered into a Management Agreement (hereinafter referred to as the “Management Agreement”). Pursuant to the Management Agreement, Timberlake was designated as the “Exclusive Managing Agent” for the Association commencing January 1, 2001. Among the duties assumed by Timberlake, are the following: 2) MAINTENANCE OF ASSOCIATION FILES: The Manager will collect, organize and maintain in the office of the Manager, all Association information, including but not limited to the Articles of Incorporation, By-Laws, Declaration of, [sic] Covenants, Conditions and Restrictions, site plans, owner lists, correspondence, rules and regulations, blue prints, specifications, corporate minutes, all maintenance and service contracts in effect and the necessary administrative financial information related to the Association. 8) ASSISTANCE TO THE BOARD OF DIRECTORS: The Manager will provide administrative support services to the Board of Directors, to include notifying Directors of Board meetings, circulating minutes of the preceding meeting, as prepared by the Secretary . . . . Timberlake has continued to provide the services of Mr. Dugger as CAM since 2001. During his tenure, street signs and lights have been installed, the common areas have been cleared, and the community has greatly improved. Proposed findings of fact 14 through 19 of Mr. Dugger’s Proposed Recommended Order generally describe Mr. Dugger’s efforts as CAM, the improvement of the community, and Mr. Dugger’s reputation as CAM. Count I: Criminal Violations. During 2003, Mr. Dugger served as a city commissioner for the City of North Bay Village, Florida (hereinafter referred to as the “Village”). On or about December 12, 2003, Mr. Dugger was charged with eight criminal violations in an Information issued in case number F03-33076, in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. The alleged violations arose out of Mr. Dugger’s activities as a city commissioner for the Village. Two of the criminal charges, Counts 2 and 8, are of pertinence to this matter: (a) Count 2 alleges a violation of Section 2-11.1(d), Miami-Dade County Code, and Section 125.69, Florida Statutes; and (b) Count 8 alleges a violation of Section 2-11.1(i), Miami-Dade County Code, and Section 125.69, Florida Statutes. As to Count 2 of the Information, it was more specifically alleged, in pertinent part, as follows: . . . ROBERT A. DUGGER SR., on or about April 08, 2003, in the County and State aforesaid, being a member of THE NORTH BAY VILLAGE COMMISSION, in Miami-Dade County, did vote on a matter presented to said COMMISSION, to wit: ITEM 7A, AN ORDINANCE AMENDING SECTION 152.029 OF THE NORTH BAY VILLAGE CODE OF ORDINANCES (FIRST READING), when said defendant would or might, directly or indirectly, profit or be enhanced by this action of said COMMISSION on said matter, in violation of Miami-Dade County Code s.2.11.1(d) and s. 125.69, Fla. Stat. . . . As to Count 8 of the Information, it was more specifically alleged, in pertinent part, as follows: . . . ROBERT A. DUGGER SR., on or about July 01, 2003, in the County and State aforesaid, being a MUNICIAL OFFICAL to wit: MEMBER OF THE NORTH BAY VILLAGE COMMISSION, in Miami-Dade County, did fail to comply with the financial disclosure requirements of Chapter 112 (Part III) of the Florida Statutes by failing to DISCLOSE ALL LIABILITIES IN PART E. OF FORM 1 STATEMENT OF FINANCIAL INTERESTS FOR 2002, filed with the City Clerk of THE CITY OF NORTH BAY VILLAGE, in violation of Miami-Dade County Code s. 2-11.1(i) and s. 125.69, Fla. Stat. . . . Counts 2 and 8 were based upon the following allegations of the Complaint/Arrest Affidavit: Robert A. Dugger was elected Village Commissioner for the City of North Bay Village on November 19, 2002. On September 21, 2002, Mr. Robert Dugger filed his Statement of Financial Interest for the calendar year 2001, as required by Miami- Dade County ordinance. In Part E of the Statement of Financial Interest (this section is designated for Liabilities – major debts-and asks for the name and address of creditor), Mr. Dugger marked N/A in this section. Commissioner Robert Dugger has substantial indebtedness to Al Coletta that was incurred when Al Coletta assumed the mortgage on one of Dugger’s properties and paid off the mortgage on another. Rachael Dugger admitted these debts under oath during her sworn statement. Commissioner Dugger failed to report these debts on his Statement of Financial Interest. Additionally, on March 15, 2001, a Summary Final Judgement of Foreclosure was ordered and adjudged on behalf International Financial Bank, against Tomin Incorporated, and Robert Dugger and Rachael Dugger personally, in the amount of $1,154,427.50. Following the Judgement on March 15, 2001, title of the property in question was acquire by International Finance Bank on Mary [sic] 2, 2001 and sold to a third party on June 1, 2001. The sale amount of the property was $750,000. A short fall of $404,427.50 remained after the sale and is still unpaid. Commissioner Dugger also failed to report this debt on his Statement of Financial Interest for the year 2001. . . . . Based on Commissioner Robert Dugger’s indebtedness to Al Coletta, he had a Conflict of Interest by voting on matters involving Al Coletta, that came before the North Bay Village Commission, each vote is a separate violation of the Miami-Dade Code, Section 2-11.1(d), a second [degree] misdemeanor. Commissioner Dugger violated the aforementioned Section 2-11.1(d), of the Miami-Dade Code on the following occasions: April 8, 2002, Item 7A, Page 7 of the Regular City Commission Meeting Minutes: A zoning amendment concerning property owned by Al Coletta. Page 14 of the Regular City Commission Meeting Minutes, Commissioner Dugger voted – yes, for approval of the ordinance. . . . . . . . . This action is in violation of Miami-Dade Code, Section 2-11.1(d), a second-degree misdemeanor . . . . Additionally, Commissioner Dugger is in violation of Section 2-11.1(i)(3), Miami- Dade County Conflict of Interest and Code of Ethics Ordinance. This Section required that candidates for County and municipal office must comply with the filing requirements, under Chapter 112, Florida State Statutes. This is a second-degree misdemeanor. . . . Section 2-11.1(d) of the Miami-Dade County Code, prohibits, in pertinent part, the following: Additionally, no person included in the term defined in subsection (b)(1) shall vote on or participate in any way in any matter presented to the Board of County Commissioners if said person has any of the following relationships with any of the persons or entities which would be or might be directly or indirectly affected by any action of the Board of County Commissioners: (i) officer, director, partner, of counsel, consultant, employee, fiduciary or beneficiary; or (ii) stockholder, bondholder, debtor, or creditor, if in any instance the transaction or matter would affect the person defined in subsection (b)(a) in a manner distinct from the manner in which it would affect the public generally. . . . Section 2-11.1(i)(3), of the Miami-Dade County Code, requires that candidates for County and municipal elective office meet the filing requirements of Chapter 112, Part III, Florida Statutes, “at the same time that candidate files qualifying papers.” Section 125.69, Florida Statutes, which provides procedures for the prosecution of county ordinances, states that they are to be prosecuted “in the same manner as misdemeanors are prosecuted.” On July 29, 2005, Mr. Dugger entered a plea of nolo contendere to Counts 2 and 8 of the Information, in case number F03-33076, both second-degree misdemeanor violations of Section 2-11.1 of the Miami-Dade County Code, and Section 125.69, Florida Statutes. (Stipulation of Fact). Mr. Dugger was adjudicated guilty of the violations alleged in Counts 2 and 8, and was ordered to pay $468.00 in fines and costs. Mr. Dugger was, therefore, adjudicated guilty of having voted on a matter in which he had a conflict of interest because the matter involved an individual to whom he was indebted; and of having failed to fully disclose liabilities on financial disclosure forms he was required to file pursuant to Florida law at the time he qualified to run for public office. Neither of the convictions directly involved Mr. Dugger’s practice as a CAM. Nor has the Department made such an argument. Instead, the Department presented expert testimony in support of its position that at least one of the convictions relates to Mr. Dugger’s ability to practice as a CAM. That testimony was convincing. All CAMs are involved in a fiduciary relationship with the associations they manage. It takes little expert testimony to support a finding that such a fiduciary relationship requires trust and integrity. CAMs must be trusted to handle association money, maintain the records of the association, and to deal on behalf of the association with potential and existing vendors. The association must be able to assume that a CAM will fully disclose any possible conflict the CAM may have with the association’s vendors. Mr. Dugger is responsible for billing, writing checks, paying insurance premiums, and maintaining a payment book for the Association. Paragraph 10 of the Management Agreement specifically provides that Timberlake “shall provide financial management services to the Association . . . .” Paragraph D(11)(a) authorizes Timberlake to “solicit and analyze bids for necessary insurance coverage.” Mr. Dugger has similar responsibilities with Vista Verde. Clearly, the Association must be able to trust that Mr. Dugger will carry out all these duties without having any conflict of interest. The Association must be able to assume that Mr. Dugger is acting in its best interest and not his own. In his defense as to the voting of interest conflict charge, Mr. Dugger, prior to the pertinent vote, made disclosure of his relationship with Mr. Coletta, the owner of the property which was the subject of the vote, to the attorney for the City of the Village. The Department failed to prove that Mr. Dugger did not make full disclosure. Mr. Dugger was advised that no conflict existed. Mr. Dugger cast his vote after receiving this advice. Subsequent to the vote, Mr. Dugger sought an opinion from the Miami-Dade County Commission on Ethics & Public Trust (hereinafter referred to as the “Commission”). The Commission, like the city attorney, opined in writing that no conflict of interest existed. Mr. Dugger entered his plea on the two charges in order to avoid the cost of litigation. The evidence, however, failed to prove why prosecutors agreed to accept a plea on only two of the eight counts. Count IV: Alleged Denial of Access to the Records of the Association. During 2003, Miryam Ruiz lived in Miramar Gardens Township and was a member of the Association. While she had been in arrears for 2001 and 2002, presumably in her association dues, she became current when she paid all outstanding dues in March 2003. On March 14, 2003, during normal business hours, Ms. Ruiz went to the office of Timberlake and requested that she be allowed to inspect certain records of the Association. She made her request verbally and in writing, leaving Petitioner’s Exhibit 13 with a Timberlake employee, apparently the receptionist, which listed the documents she wanted to inspect. She was told by the receptionist that she could not see the documents until she had made an appointment to do so. By letter dated Thursday, March 27, 2003, Ms. Ruiz was informed by Mr. Dugger’s wife, Rachel, that Ms. Ruiz could review the documents. She was also told that, “[i]f you would like, call us to make an appointment at your convenience.” On the morning of Monday, March 31, 2003, not having received Ms. Dugger’s March 27th letter, Ms. Ruiz sent a letter by facsimile to Timberlake stating that she would be at the office at 11:00 a.m. that morning to “pick up” the documents. When Ms. Ruiz arrived at the Timberlake office at 11:00 a.m. she was again told that she could not review the documents because she had no appointment. Ms. Ruiz left the office. Later that day, Ms. Ruiz sent a second facsimile letter addressed to Ms. Dugger. Ms. Ruiz ended the letter by informing Ms. Dugger that she would be at the office the next day, April 1, 2003, “for the inspection and copying of records at 9:30 a.m.” On April 1, 2003, Ms. Ruiz returned to the Timberlake office and was again told that the records were not available because no appointment had been made. Ms. Ruiz told the receptionist that she would return on Friday, April 4, 2003, at 9:30 a.m. to inspect the documents. In a letter to Ms. Dugger dated April 1, 2003, she stated that she was confirming the date and time. The evidence failed to prove whether the letter was received prior to April 4, 2003. When Ms. Ruiz arrived at the Timberlake office on April 4, 2003, she was again denied access to the documents and was told by Ms. Dugger that she had no appointment because the date and time suggested by Ms. Ruiz had not been confirmed by Timberlake. Ms. Ruiz left the office. The following day, April 5, 2003, Ms. Ruiz sent a letter by certified mail addressed to Mr. Dugger describing the events leading up to that moment and asking what it would take for her to be allowed to inspect the records. Mr. Dugger did not respond to this letter. In response to Ms. Ruiz’ April 5th letter, a letter dated April 22, 2003, was sent by Ms. Dugger. That letter indicated that the records would be available for inspection at 1:00 p.m. on Tuesday, May 6, 2003. The letter, which was postmarked May 2, 2003, ten days after the date of the letter, was not received by Ms. Ruiz prior to May 6th. Sometime during the month of May 2003, approximately two months after first attempting to review the records of the Association, Ms. Ruiz was finally allowed to inspect the records. Ms. Ruiz, without doubt, had the right to review the records of the Association she had requested. Pursuant to the Management Agreement, Mr. Dugger was required to collect, organize and maintain the records of the Association. The Management Agreement also required that Mr. Dugger was to assist the Board of Directors in their enforcement of the provisions of the “Association documents and rules and regulations ” Pursuant to Article X of the By-Laws of the Association, also quoted, supra, gives Association members the right to inspect and copy all Association documents The right to inspect association documents is not an unfettered one. In light of the duty and responsibility of a CAM to “maintain” records, it is not unreasonable for a CAM to set reasonable safeguards for a member’s review of those records. The Department did not produce evidence to refute the evidence presented by Mr. Dugger concerning the reasonableness of a CAM insisting on being present during the inspection of documents. The evidence also failed to prove that, given the fact that Mr. Dugger is the CAM for as many as 30 associations, he is not always available at his office to supervise a review of documents. The procedure followed with regard to reviews of the Association’s had been announced at an Association meeting. Members were told that anyone who wished to review records could contact the Timberlake office and make an appointment so Mr. Dugger could be present during an inspection, or that a copy of a document could be obtained upon payment for the document. It is clear that not all of the requests to Timberlake made by Ms. Ruiz were totally reasonable: (a) her first request on April 14, 2003, was without any notice; (b) her notice of March 31, 2003, gave only three hours notice; (c) her request for review on April 1, 2003, gave only one day notice; and (d) her request for review on April 4, 2003, gave only 3 days notice. While Ms. Ruiz eventually was allowed to review the documents, it took approximately two months after her initial request had been made. It is also clear that, although she did not always give reasonable notice for appointments she announced, Mr. Dugger (and his employees) could and should have done more to remedy the situation. Mr. Dugger first became aware of the request on March 14, 2003. It took 13 days to respond to that request. When Ms. Ruiz mailed a certified letter to Mr. Dugger dated April 5, 2003, it was not until May 2, almost a month later that a letter in response to that letter was post-marked. Based upon the foregoing, while neither Ms. Ruiz nor Mr. Dugger did much to ameliorate the situation, for at least part of the two months it took Ms. Ruiz to obtain access to the records of the Association, Mr. Dugger “denied” Ms. Ruiz access to the records of the Association. Count VI: Alleged Failure to Maintain Association Records. Pursuant to the Management Agreement entered into by Mr. Dugger with Miramar Gardens, at paragraph D(2), quoted, supra, Mr. Dugger agreed to collect, organize, and maintain all Association documents in the offices of Timberlake. Beginning in 2001, the minutes of meetings of the Association (held jointly with the meeting of Vista Verde) were usually taken by Claudette Brinson, president of the Association. On occasions, they were taken by others. Minutes taken by Ms. Brinson were written by hand and, after the meeting, were taken home with her. On some occasions, Ms. Brinson would ensure that her hand-written minutes were typed at various locations, including Mr. Dugger’s office. When typed at Mr. Dugger’s office, a copy was retained by Mr. Dugger and maintained with the records of the Association. Ms. Brinson’s testimony at hearing as to whether Mr. Dugger was given a copy of all minutes was in conflict. She initially testified that she had provided him with a copy of all minutes. When recalled by Mr. Dugger, she testified that on some occasions, when she did not have the minutes typed at Mr. Dugger’s office, while maintaining a copy at her home, she did not always provide him with a copy. While the latter testimony was more convincing and has been credited, the bottom line is that Mr. Dugger did not maintain a copy of the minutes from all meetings of the Association. At hearing, Mr. Dugger admitted that when he was served an Investigative Subpoena Duces Tecum issued by the Department on or about August 30, 2004, he realized that he did not have all the records the subpoena sought. In particular, Mr. Dugger did not have all of the documents requested in item number 5 of the subpoena: “[t]he minutes of all meetings of the board of directors and of the members of Miramar Gardens Townhouse Homeowners Association, Inc.” Mr. Dugger, therefore, contacted Ms. Brinson and asked her if she could provide a copy of the minutes of Association meetings that he did not have. She was not able to do so within the time Mr. Dugger had to respond to the subpoena. In a letter to the Department dated September 17, 2004, Mr. Dugger indicted the following with regard to the minutes requested in item number 5 of the subpoena: “The Minutes in our possession. Original minute meetings are in the hands of the Receiver, which were retained for his records. Some additional minutes are in the hands of Board members, which we will attempt to locate.” During calendar year 2002, minutes had been kept for meetings held during February, March, April, May, June, July, October, and December. During calendar year 2003, minutes had been kept for meetings held during January, February, March, May, June, July, August, September, October, and November. Finally, during calendar year 2004, minutes were kept for meetings held in January, February, March, April, July, August and September. Mr. Dugger at the time of responding to the Department’s subpoena did not have minutes for all of these meetings. For example, for 2002 he only had minutes for the meetings held in February, March, and June, and for 2003, he only had minutes for the meetings held in January and December. While Ms. Brinson adequately explained why she was not always able to provide a copy of meeting minutes to Mr. Dugger, Mr. Dugger did not provide an adequate explanation as to why he had not made sure that he obtained a copy of all minutes so that he could fulfill his obligation under the Management Agreement. No evidence was presented to suggest that Mr. Dugger’s failure to maintain all minutes was the result of bad faith or any intent on the part of Mr. Dugger to circumvent the rules of the Department or the requirements of the Management Agreement. Prior Discipline Against Mr. Dugger’s CAM License. Mr. Dugger’s CAM license was disciplined in DBPR Case Number 00-02226, pursuant to a Stipulation entered into by the Department and Mr. Dugger which was accepted by Final Order entered on April 9, 2001. The Stipulation provides that Mr. Dugger “neither admits or denies the . . . facts alleged in the Administrative Complaint ”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order finding that Mr. Dugger committed the violations described in this Recommended Order and imposing the following penalties: A stayed suspension of his license for six months, with the stay being lifted should Mr. Dugger be found to have committed any additional violation with regard to his CAM license within two years of the issuance of the final order in this case; An administrative fine in the amount of $1,500.00; Attendance at continuing education classes in records maintenance in an amount to be determined by the Department; and Payment of the costs of this matter. DONE AND ENTERED this 22nd day of January, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2009. COPIES FURNISHED: Charles Tunnicliff, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Philip F. Monte, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 E. Gary Early, Esquire Messer, Caparello & Self, P.A. 2618 Centennial Place Tallahassee, Florida 32308 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Anthony B. Spivey, Executive Director Regulatory Council of Community Association of Managers Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Respondent violated Subsection 112.3145(2)(b), Florida Statutes (1996 Supp.), by failing to file a CE Form 1, Statement of Financial Interests, within 30 days of her appointment to the Northeast Florida Regional Planning Council and/or Subsection 112.3145(2)(b), Florida Statutes (1997), by failing to timely file her 1997 CE Form 1, Statement of Financial Interests.
Findings Of Fact Based on the evidence presented, the following findings of fact are made: The Respondent, Betty Burney, was appointed to the Northeast Florida Regional Planning Council on October 16, 1996, for a term expiring October 1, 1998. The Northeast Florida Regional Planning Council is a broad-based agency that is authorized by Section 186.504, Florida Statutes. The Northeast Florida Regional Planning Council has two primary statutory responsibilities: (1) reviewing local government comprehensive plans under Section 163.3174, Florida Statutes; and (2) coordinating the developments of regional impact process under Section 380.06, Florida Statutes. Both of these activities are land planning responsibilities. The Respondent, as a member of the Northeast Florida Regional Planning Council, held a public position and, as such, was subject to the requirements of Subsection 112.3145(l)(a), Florida Statutes. As a member of the Northeast Florida Regional Planning Council, the Respondent was required to file a CE Form 1, Statement of Financial Interests, within 30 days of her appointment. The Respondent was specifically advised of the requirement to file a CE Form 1, Statement of Financial Interests, within 30 days in her appointment letter. In addition, the Executive Director of the Northeast Florida Regional Planning Council reviewed this requirement with the Respondent in an orientation session. The disclosure required to be filed within 30 days would have been for calendar year 1995. The Respondent did not file a CE Form 1, Statement of Financial Interests, within 30 days of her appointment. The Respondent filed a CE Form 1, Statement of Financial Interests, dated April 21, 1997, for the calendar year 1996. As a member of the Northeast Florida Regional Planning Council, the Respondent was required to file a CE Form 1, Statement of Financial Interests, for the year 1997. The 1997 CE Form 1, Statement of Financial Interests, was due to be filed by July 1, 1998, with a grace period extending to September 1, 1998. The Respondent's name was on the list of persons required to file financial disclosures provided to the Duval County Supervisor of Elections by the Ethics Commission in 1998, filings required for calendar year 1997. A CE Form 1, Statement of Financial Interests, was mailed to the Respondent by the Duval County Supervisor of Elections for 1997. When the Respondent failed to file her financial disclosure by July 1, 1998, the Duval County Supervisor of Elections sent her a certified letter notifying her of her delinquency. The Respondent did not claim the certified letter, and never filed a CE Form 1, Statement of Financial Interests, for the year 1997.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order and public report be entered finding that the Respondent, Betty Burney, violated Subsection 112.3145(2)(b), Florida Statutes, in the two instances alleged, and imposing a civil penalty of $2,000 for her failure to file a CE Form 1, Statement of Financial Interests within 30 days of her appointment to the Northeast Florida Regional Planning Council and $2,000 for her failure to file her 1997 CE Form 1, Statement of Financial Interests for a total fine of $4,000. DONE AND ENTERED this 20th day of February, 2002, 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 20th day of February, 2002. COPIES FURNISHED: Betty Burney 2553 Soutel Drive Jacksonville, Florida 32208 Virlindia Doss, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Kaye Starling, Agency Clerk Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Commission on Ethics 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issue is whether the Florida Land and Water Adjudicatory Commission should promulgate a rule establishing the Poinciana Community Development District.
The Issue The issue in this case is whether the amendment to the Lee County Comprehensive Plan adopted by Ordinance No. 05-20 is "in compliance," as that term is defined in Section 163.3184(1)(b), Florida Statutes (2005),1 for the reasons set forth in the Petition for Formal Administrative Hearing and Statement of Intent filed by the Department of Community Affairs ("the Department").
Findings Of Fact The Parties The Department is the state land planning agency and is statutorily charged with the duty of reviewing comprehensive plans and their amendments, and determining whether a plan or amendment is “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes. Lee County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to Section 163.3167(1)(b), Florida Statutes. Leeward is a Florida limited liability company that owns a portion of the real property that is the subject of the amendment at issue. The Amendment The amendment would change the future land use designation for 41.28 acres in the northeast quadrant of the Interstate 75 (I-75)/State Road 80 (SR 80) interchange from General Commercial Interchange to Urban Community, as shown on the FLUM. The General Commercial Interchange land use is described in the County Plan as “intended primarily for general community commercial land uses: retail, planned commercial districts, shopping, office, financial, and business.” It does not allow residential development. The Urban Community land use provides for a mix of residential, commercial, public, quasi-public, and limited light industrial uses. The standard density range for residential uses in the Urban Community category is one to six dwelling units per acre (du/a). The 41.28 acres affected by the amendment ("the amendment site") consist of 19.28 acres of lands along the Orange River owned by Leeward, a platted subdivision known as Dos Rios of approximately 11 acres, and the remaining acreage consists of right-of-way for SR 80 and I-75. Currently operating on Leeward's property is a vessel repair facility, a marina with wet and dry slips, and an ecotourism company. Leeward also has its office on the site. The Dos Rios subdivision includes 26 single-family lots. Apparently, only a few of the lots (the number was not established in the record) have been developed. Because residential land uses are not allowed in the General Commercial Interchange category, the Dos Rios lots were non-conforming uses. Maximum Allowed Density The County Plan provides residential density bonuses to promote various County objectives, such as the provision of affordable housing. With density bonuses, lands designated Urban Community can boost their density to a maximum of ten du/a. There was testimony presented by Leeward that the County has not often approved applications for density bonuses. Even if the practice of the County in approving density bonuses were relevant, the practice can change. It is reasonable for the Department to consider the maximum intensity or density associated with a future land use designation when determining whether a FLUM amendment is in compliance. Therefore, in this case, it is reasonable to consider the Urban Community land use designation as allowing up to ten du/a. The Department asserts that the amendment would allow the 41.2 acres affected by the amendment to have a total of 412 dwelling units (41.2 acres x 10 du/a). Leeward disputed that figure because the 41.2 acres includes road right-of-way and the Dos Rios subdivision. A hearing officer appointed to review a Lee County development order recently determined that right-of-way external to a development should not be included in calculating allowable units, and the County accepted the hearing officer's recommendation based on that determination. The definition of "density" in the County Plan supports the determination.2 Therefore, for the purposes of this case, the right-of-way in the northeast quadrant should not be included in calculating the maximum residential density that would result from the amendment. On the other hand, Leeward's argument that the Dos Rios subdivision acreage should not be included in the ten du/a calculation is rejected. For the purposes of an "in compliance" determination, it is reasonable for the Department to apply the maximum potential densities to all developable and re- developable acreage. Using 29 acres as the approximate acreage affected by the amendment when road right-of-way is subtracted, the amendment would create the potential for 290 residences in the northeast quadrant of the interchange. Adoption of the Amendment The amendment was initiated as part of the County's reexamination of the existing land use designations in the four quadrants of the I-75/SR 80 interchange. Following the County planning staff's completion of a study of the entire interchange, it recommended several changes to the County Plan, but no change was recommended for the northeast quadrant. Apparently, the amendment at issue was urged by Leeward, and, at a public hearing held on June 1, 2005, the Board of County Commissioners voted to adopt the amendment. Pursuant to Section 163.3184(6), Florida Statutes, the proposed amendment was forwarded to the Department for an "in compliance" review. Following its review, the Department issued its ORC Report on August 19, 2005. In the ORC Report, the Department objected to the proposed amendment based upon what it considered to be inappropriate residential densities in the coastal high hazard area (CHHA) and floodplain. The Department recommended that the County not adopt the proposed amendment. On October 12, 2005, another public hearing was held before the Board of County Commissioners to consider adoption of the amendment. At the public hearing, the County planning staff recommended that the land use designation in the northeast quadrant not be changed to Urban Community "due to the potential increase in density in the Coastal High Hazard Area." Nevertheless, the Board of County Commissioners approved the amendment. Representatives of Leeward appeared and submitted comments in support of the amendment at the public hearings before the Board of County Commissioners. On December 16, 2005, the Department issued its Statement of Intent to Find Comprehensive Plan Amendment Not in Compliance, identifying three reasons for its determination: (1) inconsistency with state law regarding development in the CHHA and flood prone areas, (2) internal inconsistency with provisions of the County Plan requiring the consideration of residential density reductions in undeveloped areas within the CHHA, and (3) inconsistency with the State Comprehensive Plan regarding subsidizing development in the CHHA and regulating areas subject to seasonal or periodic flooding. On January 5, 2006, the Department filed its petition for formal hearing with DOAH. Coastal High Hazard Area The Florida Legislature recognized the particular vulnerability of coastal resources and development to natural disasters and required coastal counties to address the subject in their comprehensive plans. [I]t is the intent of the Legislature that local government comprehensive plans restrict development activities where such activities would damage or destroy coastal resources, and that such plans protect human life and limit public expenditures in areas that are subject to destruction by natural disaster. § 163.3178(1), Fla. Stat. The statute also requires evacuation planning. Until 2006, the CHHA was defined as the "category 1 evacuation zone." § 163.3178(2)(h), Fla. Stat. In 2006, the CHHA was redefined as "the area below the elevation of the category 1 storm surge line as established by the Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model."3 Ch. 2006-68, § 2, Laws of Fla. The County Plan defines the CHHA as "the category 1 evacuation zone as delineated by the Southwest Florida Regional Planning Council." Map 5 of the County Plan, entitled "Lee County Coastal High Hazard Area (CHHA)," shows the entire amendment site as being within the CHHA. Nothing on Map 5, however, indicates it was produced by the Regional Planning Council. Daniel Trescott, who is employed by the Southwest Florida Regional Planning Council and is responsible for, among other things, storm surge mapping, stated that the Category 1 evacuation zone is the storm surge level for the worst case scenario landfall for a Category 1 storm. He stated that the Category 1 storm surge for Lee County was determined by the SLOSH model to be 5.3 feet. Mr. Trescott stated that the 5.3 foot contour (shown on Plate 7 of the Regional Planning Council's "Hurricane Storm Tide Atlas - Lee County") more accurately delineates the CHHA than Map 5 of the County Plan. Although Mr. Trescott's testimony suggests a conflict between the County Plan's definition of the CHHA and Map 5's depiction of the CHHA, the two can be reconciled by a finding that Map 5 is a gross depiction of the CHHA for general public information purposes, but the precise location of the CHHA boundary is the one delineated by the Regional Planning Council, and the latter is controlling. Using the 5.3 contour on the amendment site, Leeward's witness, Michael Raider, estimated that there are approximately 16 acres of the amendment site within the CHHA. Applying the maximum allowable residential density under the Urban Community land use designation (with bonuses) of ten du/a means the amendment would result in a potential for 160 dwellings in the CHHA. Florida Administrative Code Rule 9J-5.012(3)(b)6. and Rule 9J-5.012(3)(c)7., respectively, require each local government’s coastal management element to contain one or more specific objectives that "[d]irect population concentrations away from known or predicted coastal high-hazard areas” and limit development in these areas. The parties' evidence and argument regarding whether the amendment was "in compliance" focused on these rules and the following goal, objective, and policy of the County Plan related to the CHHA: GOAL 105: PROTECTION OF LIFE AND PROPERTY IN COASTAL HIGH HAZARD AREAS. To protect human life and developed property from natural disasters. OBJECTIVE 105.1: DEVELOPMENT IN COASTAL HIGH HAZARD AREAS. Development seaward of the 1991 Coastal Construction Control Line will require applicable State of Florida approval; new development on barrier islands will be limited to densities that meet required evacuation standards; new development requiring seawalls for protection from coastal erosion will not be permitted; and allowable densities for undeveloped areas within coastal high hazard areas will be considered for reduction. POLICY 105.1.4: Through the Lee Plan amendment process, land use designations of undeveloped areas within coastal high hazard areas will be considered for reduced density categories (or assignment of minimum allowable densities where ranges are permitted) in order to limit the future population exposed to coastal flooding. In the opinion of Bernard Piawah, a planner employed by the Department, the amendment is inconsistent with the goal, objective and policy set forth above because these provisions only contemplate possible reductions of residential densities in the CHHA and there is no provision of the County Plan that addresses or establishes criteria for increasing residential densities in the CHHA. Population Concentrations As stated above, Florida Administrative Code Rule 9J-5.012(3)(b)6. directs local governments to include provisions in their comprehensive plans to direct population concentrations away from the CHHA. The term "population concentrations" is not defined in any statute or rule. The term apparently has no generally accepted meaning in the planning profession. The word "population" has the ordinary meaning of "all of the people inhabiting a specific area." The American Heritage Dictionary of the English Language (1981). The word "concentration" has the ordinary meaning of "the act or process of concentrating." Id. The word "concentrate" means "to direct or draw toward a common center." Id. In the context of Florida Administrative Code Rule 9J-5.012, the term "population concentrations" suggests a meaning of population densities (dwelling units per acre) of a certain level, but the level is not stated. Leeward argues that, because there is no state guidance on the meaning of the term "population concentrations," surrounding land uses should be examined to determine whether a proposed density would be "proportionate to its surroundings." According to Leeward, in order to be a population concentration, the density under review would have to be greater than the surrounding density. This comparative approach is rejected because the overarching Legislative objective is protection of life, which plainly calls for a straightforward consideration of the number of lives placed in harm's way. The Department, in its Proposed Recommended Order, states: By assigning either zero residential density to land by virtue of an Open Space land use designation, or a maximum density of one unit per acre by assigning a low density land use designation, the County Plan fulfills the mandates of State law that development be limited in and residential concentrations be directed away from the CHHA. Thus, not surprisingly, the Department does not consider one du/a to be a population concentration. A density of ten du/a is an urban density, as indicated by the fact that it is the maximum density allowed in the Urban Community land use designation and the highest density within the "standard density range" for the County's Central Urban land use designation. It is a generally known fact, of which the undersigned takes notice, that urban areas are areas where populations are concentrated. It is a another generally known fact, of which the undersigned takes notice, that ten dwelling units on one acre of land amounts to a lot of people living in a small space. Leeward, itself, described the residential density allowed under the Urban Community designation as "relatively intense." Leeward's Proposed Recommended Order, at 7. Whether measured by density alone (ten du/a) or by Leeward's estimate of 160 residences on 16 acres, the amendment places a population concentration in the CHHA. Offsets in the CHHA Leeward presented evidence that the County has been reducing residential densities, sometimes referred to as "down- planning," in other areas of the CHHA in Lee County. The reduction in dwelling units in the CHHA over the past several years may be as high as 10,000 units. The Department did not present evidence to dispute that there has been an overall reduction in dwelling units in the CHHAs of Lee County. Leeward argues that these reductions "offset" the increase in dwelling units in the CHHA that would result from the amendment and this "overall" reduction in densities in the CHHA must be considered in determining whether the amendment is "in compliance" with state law and with provisions of the County Plan related to directing population concentrations away from the CHHA. At the hearing and in its Proposed Recommended Order, the Department argued that the consideration of offsets in the CHHA was improper and unworkable, but that argument conflicts with the Department's actual practice and official position as described in the January 2006 "Department of Community Affairs Report for the Governor's Coastal High Hazard Study Committee." In that report, the Department acknowledged there is no statutory or rule guidance regarding what the maximum density should be in the CHHA. The Report notes that some local governments have established maximum densities for the CHHA (e.g., Pinellas County, 5 du/a; Franklin County 1 du/a). The Department states in the report that it reviews amendments to increase density in the CHHA on a "case by case" basis, and explains further: When a Comprehensive Plan Amendment in the CHHA proposes a density increase, DCA's review considers the amount of the density increase, the impact on evacuation times and shelter space, and whether there will be a corresponding offset in density through "down planning" (generally accomplished through public acquisition). One of the visual aides used in conjunction with the 2006 report to Governor's Coastal High Hazard Study Committee, entitled "Policy Issue #2 - Densities in High Hazard Areas," also describes the Department's practice: Without locally adopted density limits, DCA conducts a case by case review of amendments without any defined numeric limit. DCA considers amount of density increase, impact on evacuation times and shelter space, and whether there will be a corresponding offset in density through "down planning" in other areas of the CHHA. These statements use the phrase "there will be a corresponding offset," which suggests that for an offset to be considered, it would have to be proposed concurrently with an increase in residential density on other lands within the CHHA. However, according to the director of the Department's Division of Community Planning, Valerie Hubbard, offsets in the CHHA do not have to be concurrent; they can include previous reductions. Furthermore, although the Department pointed to the absence of any criteria in the County Plan to guide an offset analysis, Ms. Hubbard said it was unnecessary for a comprehensive plan to include express provisions for the use of offsets. To the extent that this evidence of the Department's interpretation of relevant law and general practice conflicts with other testimony presented by the Department in this case, the statements contained in the report to the Governor's Coastal High Hazard Study Committee and the testimony of Ms. Hubbard are more persuasive evidence of the Department's policy and practice in determining compliance with the requirement that comprehensive plans direct population densities away from the CHHA and limit development in the CHHA. As long as the Department's practice when conducting an "in compliance" review of amendments that increase residential density in the CHHA is to take into account offsets, the Department has the duty to be consistent and to take into account the County's offsets in the review of this amendment. The County planning director testified that he believed the applicable goal, objective, and policy of the County Plan are met as long as there has been a reduction in residential densities in the CHHAs of the County as a whole. The Department points out that the planning director's opinion was not included in the County planning staff's reports prepared in conjunction with the amendment. However, it necessarily follows from the Board of County Commissioners' adoption of the amendment that it does not interpret Objective 105.1 and Policy 105-1.4 as prohibiting an increase in residential density in the CHHA. Although these provisions make no mention of offsets, the Department has not required offset provisions in a comprehensive plan before the Department will consider offsets in its determination whether a plan amendment that increases density in the CHHA is in compliance. The wording used in Objective 105.1 and Policy 105-1.4 requiring "consideration" of density reductions in the CHHA can be harmonized with the County planning director's testimony and with the County's adoption of the amendment by construing these plan provisions consistently with the Department's own practice of allowing increases in the CHHA when the increases are offset by overall reductions in dwelling units in the CHHA. Seeking to harmonize the amendment with the provisions of the County Plan is the proper approach because, as discussed later in the Conclusions of Law, whether an amendment is consistent with other provisions of the plan is subject to the "fairly debatable" standard which is a highly deferential standard that looks for "any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction." Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997). Shelter Space and Clearance Time Prior to the hearing in this case, Leeward moved to strike certain statute and rule citations in the Department's petition related to shelter space and clearance time4 because they were not included in the Department's ORC Report. The motion was denied because, although Section 163.3184(8)(b), Florida Statutes, limits the Department's petition to issues raised in the "written comments" in the ORC Report, the statute does not indicate that the Department is barred from citing in its petition, for the first time, a rule or statute that is directly related to the written comments. The CHHA is defined in the County Plan as the category one "evacuation zone." It is the area most in need of evacuation in the event of a severe coastal storm. Shelter space and clearance time are integral to evacuation planning and directly related to the Department's comment in the ORC Report that the amendment would, "expose a substantial population to the dangers of a hurricane." Therefore, the Department was not barred from presenting evidence on shelter space and clearance time in support of this comment. The Department's practice when reviewing an amendment that increases residential density in the CHHA, described in its 2006 report to the Governor's Coastal High Hazard Area Study Committee, is to consider not only dwelling unit offsets in the CHHA, but also the effect on shelter space and clearance time. That report did not elaborate on how shelter space and clearance time are considered by the Department, but evidence that a comprehensive plan amendment would have a significant adverse effect on shelter space or clearance time could presumably negate what would otherwise appear to the Department to be an acceptable offset of residential density in the CHHA. On this record, however, the Department did not show that a significant adverse impact on shelter space or clearance time would be caused by this particular amendment.5 Special Planning Areas Leeward argues that, even if the amendment were determined to be inconsistent with Objective 105.1 and Policy 105-1.4, that inconsistency should be balanced against other provisions in the County Plan that are furthered by the amendment, principally the provisions related to the Caloosahatchee Shores Community Planning Area and the Water- Dependent Use Overlay Zone. There is no authority for such a balancing approach that can overcome an inconsistency with an objective or policy of the comprehensive plan. Therefore, whether the amendment furthers the provisions of the County Plan related to the Caloosahatchee Shores Community Planning Area, Water-Dependent Use Overlay Zone, or other subjects is irrelevant to whether the amendment is consistent with Objective 105.1 and Policy 105-1.4. On the other hand, the Department's contention that the amendment is inconsistent with the provisions of the County Plan related to the Caloosahatchee Shores Community Planning Area is contrary to the more credible evidence. 100-Year Floodplain The amendment site is entirely within the 100-year floodplain. In its Statement of Intent, the Department determined that the amendment was not in compliance, in part, because the amendment site's location in the 100-year floodplain made it unsuitable for residential development. In addition, the Department determined that the amendment caused an internal inconsistency with the following policies of the County Plan related to development in the floodplain: POLICY 61.3.2: Floodplains must be managed to minimize the potential loss of life and damage to property by flooding. POLICY 61.3.6: Developments must have and maintain an adequate surface water management system, provision for acceptable programs for operation and maintenance, and post-development runoff conditions which reflect the natural surface water flow in terms of rate, direction, quality, hydroperiod, and drainage basin. Detailed regulations will continue to be integrated with other county development regulations. According to Mike McDaniel, a growth management administrator with the Department, "we try to discourage increasing densities in floodplains and encourage that it be located in more suitable areas." The policies set forth above are intended to aid in the achievement of Goal 61 of the Community Facilities and Service Element "to protect water resources through the application of innovative and sound methods of surface water management and by ensuring that the public and private construction, operation, and maintenance of surface water management systems are consistent with the need to protect receiving waters.” Plainly, Goal 61 is directed to regulating construction and surface water management systems. There is no mention in this goal or in the policies that implement the goal of prohibiting all development or certain kinds of development in the 100-year floodplain. The Department's argument in this case regarding development in the 100-year floodplain is rejected because it ignores relevant facts and law. First, substantial portions of Lee County and the State are within the 100-year floodplain. Second, there is no state statute or rule that prohibits development in the 100-year floodplain. Third, the Department of Environmental Protection, water management districts, and local governments regulate development in the floodplain by application of construction standards, water management criteria, and similar regulatory controls to protect floodplain functions as well as human life and property. Fourth, there has been and continues to be development in the 100-year floodplain in Lee County and throughout the State, clearly indicating that such development is able to comply with all federal, state, and local requirements imposed by the permitting agencies for the specific purpose of protecting the floodplain and the public. Fifth, the Department "discourages" development in the floodplain but has not established by rule a standard, based on density or other measure, which reasonably identifies for local governments or the general public what development in the floodplain is acceptable to the Department and what development is unacceptable. Finally, the Department's practice in allowing offsets in the CHHA, as discussed previously, necessarily allows for development in the 100-year floodplain in that particular context.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Florida Land and Water Adjudicatory Commission determining that the amendment adopted by Lee County in Ordinance No. 05-10 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes. DONE AND ENTERED this 25th day of August, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2006.
Conclusions Based on the entire record in this matter, it is concluded that the evidence supports or meets each of the criteria listed in section 19o.005(1)(e), F.S. That all statements contained within the Petition as corrected at the hearing are true and correct. That the creation of the District is consistent with all applicable elements of the State Comprehensive Plan, the Brevard County Comprehensive Plan as amended, and the City of Rockledge Comprehensive Plan. That the area of land within the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. That the District is the best alternative available for delivering community development services and facilities to the area that will be served by the District. That the community development services and facilities of the District will be compatible with the capacity and uses of existing local and regional community development services and facilities. That the area to be served by the District is amenable to separate special district government. DONE and ENTERED this 22nd day of January, 1991, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1991. APPENDIX APPENDIX A PETITIONER'S WITNESSES John R. Maloy The Viera Company 1802 South Fiske Boulevard Rockledge, Florida 32955 Fred Greene Gee & Jenson One Harvard Circle West Palm Beach, Florida 33409 Jack F. Glatting Glatting Lopez Kercher Anglin 33 East Pine Street Orlando, Florida 32801 Henry H. Fishkind, Ph.D. Fishkind & Associates, Inc. 507 North New York Avenue Suite 301 Winter Park, Florida 32789 Gary L. Moyer 10300 Northwest Eleventh Manor Coral Springs, Florida 33065 APPENDIX B LIST OF EXHIBITS AT HEARING Exhibit Description Composite exhibit of notice Petition to Establish the Viera East Community Development District as filed, with the exhibits: District Location Map Metes & Bounds Description Documentation of Ownership Map of Existing Uses Land Use Plan Existing Drainage Basins and Outfall Canals Estimated Infrastructure Cost Brevard County Comprehensive Plan City of Rockledge Comprehensive Plan Economic Impact Statement Designation of Agent Receipts for filing fee from City of Rockledge and Brevard County DRI Development Order for the Viera East Project -- Brevard County DRI Development Order for the Viera East Project -- City' of Rockledge Approved Brevard County Comprehensive Plan Amendments for Viera East DRI APPENDIX C MEMBERS OF THE PUBLIC John Fleming 944 Bridle Lane Rockledge, Florida Lee Wenner 1060 Matador Drive Rockledge, Florida Robert Preston 939 Bridle Place Rockledge, Florida Al Miller 26 South Hardee Circle Rockledge, Florida Janice Peterson 975 Beechfern Lane Rockledge, Florida APPENDIX D VIERA EAST COMMUNITY DEVELOPMENT DISTRICT CHAPTER 42 - VIERA EAST COMMUNITY DEVELOPMENT DISTRICT 42 - Creation. 42 - Boundary. 42 - Supervisors 42 - Creation. The Viera East Community Development district is hereby created. 42 - Boundary. The boundaries of the district are as follows: PARCEL 1 All of Section 27 and portions of Sections 22, 26, 28, 33, 34 and 35, Township 25 South, Range 36 East, and portions of Sections 2, 3, 4, 10 and 11, Township 26 South, Range 36 East, all in Brevard County, Florida, being more particularly described as follows: Commence at the Southeast corner of said Section 10 and run N00058'45"W along the East line of said Section 10, for a distance of 50.04 feet to the North right of way line of Wickham Road and the POINT OF BEGINNING of the following described parcel; thence S86240'00"W along said North right of bay line of Wickham Road 1,791.05 feet; thence continue along said North right of way line S89231'32"W for 1,232.48 feet to the East line of Official Records Book 876, Page 569 of the Public Records of Brevard County, Florida; thence N14232'54"W along said East line for 766.98 feet to the North line of said Official Records Book 876, page 569; thence S75227'06"W along said North line for a distance of 768.49 feet to the Easterly right of way line of Interstate 95; thence N26201'27"W along said Easterly right of way line for a distance of 745.31 feet; thence N14232'54"W along said Easterly right of way line for a distance, of 2,308.02 feet; thence N60244'50"E for 346.47 feet; thence N37249'35"E for 170.97 feet; thence N52208'55"E for 84.63 feet; thence N75227'05"E for 550.00 feet; thence N77247'23"E for 75.00 feet; thence S83203'16"E for 75.00 feet; thence S83200'14"E for 410.74 feet; thence N06259'46"E for 104.22 feet to a point on a curve concave to the North, having a radius of 813.27 feet and to which a radial line bears S01209'22"W; thence Easterly along the arc of said curve for 328.78 feet, through a central angle of 23209'46 to the point of tangency; thence N67259'36"E for 243.76 feet to a point lying 30.00 feet West of the Westerly right of way line of Murrell Road, (a 120.00 foot wide right of way), as described in Official Records Book 2953, Page 2101 of the Public Records of Brevard County, Florida; thence Northerly and 30.00 filet West of 25 said Westerly right of way line the following seven (7) courses: (1) thence N22000'24"W for 742.63 feet to the point of curvature of a curve concave to the East and having a radius of 1,235.92 feet; (2) thence Northerly along the. arc of said curve for 582.56 feet, through a central angle of 27200-24 to the point of tangency; (3) thence N05200'00"E for 468.53 feet to the point of curvature of a curve concave to the West, having a radius of 1,055.92 feet; (4) thence Northerly along the arc of said curve for 497.59 feet, through a central angle of 27200'00" to the point of tangency; (5) thence N22200'00"W for 1,399.77 feet to the point of curvature of a curve concave to the East, having a radius of 1,235.92 feet; (6) thence Northerly along the arc of said curve for 593.20 feet, through a central angle of 27230'00 to the point of tangency; (7) thence N05236'00"E along said line lying 30.00 feet West of the Westerly right of way line of Murrell Road and its Northerly extension thereof, said line being the Westerly right of way line of proposed Murrell Road (150.00 foot wide right of way) for a distance of 1,365.19 feet; thence run N84230'00"W for 600.00 feet, to the point of curvature of a curve to the left, having a radius of 640.00 feet and a central angle of 48208'20"; thence run Southwesterly, along said curve, an arc distance of 537.72 feet; thence run N42238'20"W, a distance of 493.95 feet; thence run N14233'28"W, a distance of 580.00 feet; thence S75226'32"W for a distance of 1437.64 feet to said Easterly right of way line of Interstate 95; thence N14232'54"W along said Easterly right of way line of Interstate 95 for a distance of 8,929.18 feet to the point of curvature of a curve concave to the Southwest, having a radius of 5,879.65 feet; thence Northwesterly along the arc of said curve and said Easterly right of way line, for a distance of 2,592.25 feet, through a central angle of 24223'02" to the North line of the Northwest 1/4 of Section 28, Township 25 South, Range 36 East; thence N89234'55"E along said North line 2,011.71 feet to the North 1/4 corner of said Section 28; thence N89235'49"E along the North line of the Northeast 1/4 of said Section 28 for a distance of 2,649.14 feet to the Southwest corner of, said Section 22; thence N89244'33"E along the South line of said Section 22, for a distance of 4,533.48 feet to the West line of lands described in Official Records Book 2237, Page 2896 of the Public Records of Brevard County, Florida; thence N00215'56"W along said West line of Official Records Book 2237, Page 2896 for a distance of 1,969.91 feet to the South right of way line of Barnes Boulevard; thence S89247'58"E along said South right of bay line of Barnes Boulevard for a distance of 800.00 feet to the East line of said Section 22; thence S00215'56"E along said East line of Section 22, for a distance of 1,963.51 feet to the Southeast corner of said Section 22, said corner also being the Northeast corner of Section 27, Township 25 South, Range 36 East, Brevard County, Florida; thence S00221'41"E along the East line of the Northeast 1/4 of said Section 27, for a distance of 2,659.87 feet to the Northeast corner of the Southeast 1/4 of said Section 27; thence 26 S00240'49"W along the East line of the Southeast 1/4 of said Section 27, for a distance of 2,181.04 feet; thence S38250'18"E for 1,283.83 feet; thence South for 1,950.00 feet; thence S40214'11"E for 170.29 feet; thence South for 1,020.00 feet; thence S40236'05"E for 322.68 feet; thence S39242'36"W for 383.47 feet; thence S01247'24"E for 160.08 feet; thence S56218'36"E for 396.61 feet; thence S60238'32"E for 91.79 feet; thence S03216'14"E for 350.57 feet; thence S40227'54"W for 467.47 feet to the South line of aforesaid Section 35, Township 25 South, Range 36 East, Brevard County, Florida; thence S88257'29"W along said South line of Section 35, for a distance of 1,034.11 feet to the Northeast corner of Section 3, Township 26 South, Range 36 East; thence S01017'09"W along the East line of said Section 3, for a distance of 1,245.78 feet to the Northeast corner of INDIAN RIVER COLONY CLUB, P.U.D., PHASE 2, UNIT 1, as recorded in Plat Book 34, Page 92 of the Public Records of Brevard County, Florida; thence S88235'03"W along the North line of said INDIAN RIVER COLONY CLUB, P.U.D., PHASE 2, UNIT 1, and along the North line of INDIAN RIVER COLONY CLUB, P.U.D. PHASE 1, UNIT 2, as recorded in Plat Book 34, Page 36 of the Public Records of Brevard County, Florida, for 2,634.30 feet; thence S88228'04"W along the North line of said INDIAN RIVER COLONY CLUB, P.U.D., PHASE 1, UNIT 2, and along the North lines of INDIAN RIVER COLONY CLUB, P.U.D., PHASE 1, UNIT 1, as recorded in Plat Book 34, Pages 31 and 32 of the Public Records of Brevard County, Florida and INDIAN RIVER COLONY CLUB, P.U.D., PHASE 1, UNIT 3, as recorded in Plat Book 35, Page 91 of the Public Records of Brevard County, Florida, for a distance of 883.63 feet to the Easterly right of way line of Murrell Road, as recorded in Official Records Book 2953, Page 2101 of the Public Records of Brevard County, Florida; thence for the following seven (7) courses along said Easterly right of way line: (1) S05230'00"W for 785.19 feet to the point of curvature of a curve concave to the East, having a radius of 1,085.92 feet; (2) thence Southerly 521.20 feet along the arc of said curve through a central angle of 27230'00" to the point of tangency; (3) thence S22200'00"E for 1,399.77 feet to the point of curvature of a curve concave to the West, having a radius of 1,205.92 feet; (4) thence Southerly 568.28 feet along the arc of said curve, through a central angle of 27200'00" to the point of tangency; (5) thence S05200'00"W for 468.53 feet to the point of curvature of a curve concave to the East, having a radius of 1,085.92 feet; (6) thence Southerly 511.85 feet along the arc of said curve through a central angle of 27200'24" to the point of tangency; (7) thence S22200'24"E for 592.63 feet to the point of curvature of a curve concave to the Northeast, having a radius of 50.00 feet; thence Southeasterly 78.54 feet along the arc of said curve, through a central angle of 90200'00" to the point of tangency; thence N67259'36"E for 423.19 feet to the point of curvature of a curve concave to the South, having a radius of 960.00 feet; thence Easterly 318.71 feet along the arc of said curve, through a central angle of 19201'19 to the point of 27 tangency; thence N87200'55"E for 221.13 feet; thence N02259'05"W for 692.95 feet to the South line of INDIAN RIVER COLONY CLUB, P.U.D., PHASE 2, UNIT 4, as recorded in Plat Book 35, Pages 65 thru 67 of the Public Records of Brevard County, Florida; thence N86030'29"E along said South line of said INDIAN RIVER COLONY CLUB, P.U.D., PHASE 2, UNIT 4, for a distance of 1,620: .78 feet to the Southwest corner of said Section 2; thence N01217'32"E along the West line of said Section 2, for a distance of 2,506.96 feet to the North line of the West 1/2 of the Southwest 1/4 of said Section 2; thence N87227'20"E along said North line of the West 1/2 of the Southwest 1/4 of Section 2, for a distance of 1,347.22 feet to the East line of the West 1/2 of the Southwest 1/4 of said Section 2; thence S00255'23"W along said East line of the West 1/2 of the Southwest 1/4 of Section 2, for a distance of 2,563.88 feet to the Southeast corner of the West 1/2 of the Southwest 1/4 of said Section 2, said Southeast corner also being the Northeast corner of the Northwest 1/4 of the Northwest 1/4 of Section 11, Township 26 South, Range 36 East; thence, S00231'25"E along the East line of said Northwest 1/4 of the Northwest 1/4 of Section 11, for a distance of 1,336.40 feet to the South line of said Northwest 1/4 of the Northwest 1/4 of Section; 11; thence N89231'57"W along said South line 1,350.78 feet to the Southwest corner of said Northwest 1/4 of the Northwest 1/4 of Section 11, said corner being on the East line of said Section 10; thence S00258'45"E along said East line of Section 10, for a distance of 1,322.94 feet to the East 1/4 corner of said Section 10; thence continue along said East line S002058'45"E for 541.60 feet to the North line of lands described in Official Records Book 2812, Page 2063 of the Public Records of Brevard County, Florida; thence for the following eight (8) courses along the Northerly line of said lands described in Official Records Book 2812, Page 2063: (1) S87255'44"W for 650.12 feet; (2) thence S00258'45"E for 288.82 feet; (3) thence S59001'15"W for 245.81 feet; (4) thence N88024'23"W for 501.94 feet; (5) thence S59001'15"W for 503.09 feet; (6) thence S00258'45"E for 575.00 feet; (7) thence S44201'15"W for 159.04 feet; (8) thence S87255'44"W for 359.20 feet to the East right of way line of said Murrell Road; thence S12228'28"E along said East right of way line 152.51 feet to the South line of said lands described in Official Records Book 2812, Page 2063; thence N87255'44"E along said South line for 2,241.61 feet to the East line of said Section 10; thence S00258'45"E along said East line 600.08 feet to the POINT OF BEGINNING, said lands containing 2,790.73 acres, more or less. TOGETHER WITH THE FOLLOWING DESCRIBED PARCEL 2 A parcel of land lying in Section 33, Township 25 South, Range 36 East, Brevard County, Florida, more particularly described as follows: Commence at the Northwest corner of Section 28, Township 25 South, Range 36 East, Brevard County, Florida; thence N89234'55"E along the North line of said Section 28, a distance of 236.62 feet to the Westerly right of way line of Interstate 95, (a 300.00 foot wide right of way), and a point of intersection with a non-tangent curve, concave Southwesterly, having a radius of 5,579.65 feet and a central angle of 26252'46"; thence Southeasterly along said Westerly right of way line and along the arc of said curve to the right, a distance of 2,617.62 feet, (said arc subtended by a chord which bears S27259'17"E a distance of 2,593.68 feet) to a point of tangency; thence S14232'54"E along said Westerly right of way line, a distance of 3,416.81 feet to the POINT OF BEGINNING of the herein described parcel; thence continue along said Westerly right of way line S142032'54"E, a distance of 4,994.84 feet; thence N15241'39"W a distance of 1,203.33 feet to the point of curvature of a curve to the left, having a radius of 1,051.92 feet, a central angle of 35221'15"; thence North Westerly along the arc of said curve, an arc length of 649.08 feet to the point of tangency of said curve; thence N51202'54"W, a ,distance' of 978.47 feet to the point of curvature of a curve to the left, having a radius of 1,051.92 feet, a central angle of 33200'00"; thence Westerly along the arc of said curve, an arc length of 605.86 feet to the point of tangency of said curve; thence N84202'54"W a distance of 136.38 feet; thence N88202'54"W a distance of 76.74 feet; thence N01257'06"E a distance of 247.75 feet; thence S88202'54"E a distance of 600.00 feet; thence N43230'28"E a distance of 193.49 feet; thence N21215'19"E, a distance of 750.65 feet to the point of curvature of a curve to the left, having a radius of 1,051.92 feet, a central angle of 31248'13"; thence Northerly along the arc of said curve, an arc length of 583.89 feet to the Point of Tangency of said curve; thence N102032'54"W, a distance of 652.65 feet to the POINT OF BEGINNING, parcel contains 35.03 acres, more or less. 42 - Supervisors. The following five persons are designated as the initial members of the Board of Supervisors: Jack Maloy, Don Spotts, David Duda, Tracy Duda and Gordon P. Masterson. COPIES FURNISHED: Douglas M. Cook, Director Florida Land and Water Adjudicatory Commission Office of the Governor Office of Planning and Budgeting 419 Carlton Building Tallahassee, FL 32399-0001 Wade L. Hopping, Esquire Cheryl G. Stuart, Esquire Hopping, Boyd, Green & Sams P.O. Box 6526 Tallahassee, FL 32314
The Issue Whether Respondent discriminated against Polly Leggitt on the basis of her handicap, violating Sections 760.23(1), (2) and (7)(a), Florida Statutes (1992). If discriminatory conduct has been proven, whether quantifiable damages, or other allowable remedies, have been proven under Section 760.35(3)(b), Florida Statutes. Whether Florida Commission on Human Relations’ failure to conclude its investigation within one year requires dismissal of the complaint/charge; and Whether Florida Commission on Human Relations’ delay has prejudiced the Respondent and whether the complaint should be dismissed on the basis of violation of the statute of limitations or laches.
Findings Of Fact Petitioner is charged with the administration of the Florida Civil Rights Act of 1992, as amended, Section 760.30, Florida Statutes (1995). If Petitioner is unable to obtain voluntary compliance with sections 760.20-760.37, Florida Statutes, or has reasonable cause to believe a discriminatory housing practice has occurred, Petitioner may institute an administrative proceeding under Chapter 120, Florida Statutes on behalf of the aggrieved party. On February 3, 1993, Leggitt filed a complaint with the Petitioner, and the United States Department of Housing and Urban Development. The complaint names Carole Naylor, Property Administrator, as the person who discriminated against her. On March 24, 1993, the Petitioner notified Regency Place Apartments and Carole Naylor that the complaint had been filed, and stated that within 100 days the Petitioner would investigate the complaint and give notice whether there was or was not reasonable cause to believe that a discriminatory housing practice had occurred. The Notice further provided that a final administrative disposition of the complaint would be completed within one year (on or about February 3, 1994). A Notice of Determination: Cause and Issuance of an Administrative Charge was made and issued by document dated and served on August 28, 1996. It named Regency Place Apartments; Carole Naylor, Property Administrator; Frank Cutrona, Property Manager; and Robert Stitzel, Owner. The notice was issued more than one year after the filing of the complaint. Respondent was the developer and owner of Regency Place Apartments in Melbourne, Florida, at all times relevant. Respondent hired Frank Cutrona as manager of Regency Place Apartments and was the manager during the relevant period. Respondent hired Carole Naylor as a clerical worker and gave her the title of Property Administrator. On September 9, 1992, Regency Place Apartments located in Melbourne, Florida, responded to a letter of inquiry from Polly Leggitt, and offered certain apartments for rent. The letter of September 9, 1992, was signed by Frank Cutrona and his wife (resident managers) offered a $100.00 discount, and invited Leggitt to visit the complex. At that time, Leggitt was a resident of Richardson Apartments located in Fort Myers, Florida. Leggitt indicated that she wanted to leave that area and move to Brevard County, Florida. On or about October 11 or 12, 1992, Leggitt visited the apartment complex and was shown an upstairs one-bedroom apartment, by a woman who she did not identify. Leggitt did not advise the woman that she had a disability, and Leggitt did not have a seeing-eye dog with her at that time. Leggitt found that the price and location of the apartments were suitable to her needs. Leggitt wanted to move to Regency Place because the apartments were accessible to all that was important to her. She used a guide dog at the time to help her with traffic. There was a veterinary clinic nearby; a light to cross the street; a bus stop so that she could get the mall; and a bank and grocery store directly across the street. Leggitt did not contact the apartment complex again until after Christmas of 1992, at which time she called and spoke to a person she believed was Frank Cutrona, the apartment manager. Leggitt was sent an application which she filled out and returned sometime after January 8, 1993. On the application she noted in the place where it requested information about automobiles, “None- (legally blind - no license)”. The application form requested information regarding pet ownership and indicated that there would be a separate application for pets. She wrote in the application that she had a guide dog, and that federal and state laws prohibited discrimination by charging a fee for guide dogs. The application stated that she was self-employed and obtained $281.34 per month in Social Security disability income. In the application, she stated “Mom pays rental and ut’s” (presumably utilities). The proposed monthly rental for a one-bedroom apartment was $380 per month, plus utilities. Leggitt sent a deposit and application fee on or about January 11, 1993. No specific amount of contribution towards Leggitt’s income was shown for her mother on the application. By letter dated January 18, 1993, Leggitt’s application was declined, citing the unavailability of the kind and location of the apartment which she desired and insufficient income to qualify. The letter was signed by Carole Naylor, “Property Administrator.” The original cashiers check for the deposit was also returned. Subsequent conversations took place between Leggitt and Frank Cutrona regarding her ability to pay and whether or not her mother’s income could be considered for credit requirements. Leggitt asked him to speak to her mother. Leggitt stated that she did not submit any information regarding her mother being a co-signer. Polly testified “[t]hey told me they would send her an application.” Christine Puchalski testified that she knew Leggitt as a resident of the apartment complex where she was a resident manager. In response to an inquiry by an unknown person calling on behalf of Regency Place Apartments, Puchalski stated that she did not go into any details other than that Leggitt paid her rent on time, that she did not have any returned checks, and there were no problems with Leggitt’s tenancy. By letter of January 28, 1993, Leggitt was advised that her application was not approved, stating that “We require the tenant/occupant to have sufficient income to qualify. Your mother living out of state, and not occupying the apartment would preclude her income from being part of the calculation.” This letter was signed by Carole Naylor, Property Administrator. Leggitt acknowledged that her application was not very specific as to income and that there were times that her mother paid rent directly to the apartment complex and sometimes she sent the sum directly to her. Following the rejection of her application, Leggitt moved to Titusville, Florida, to an apartment that was not accessible for her handicap. This apartment was on a very dangerous road, with no reliable public transportation and three miles to the grocery store. She had to buy a bicycle and risk her life on the dangerous road leading to the apartment, to buy groceries. She lived there eight-and-a-half months before moving to Merritt Island, Florida. Regency Apartments, containing 219 units, was built by Robert Stitzel in 1983 and owned by him until it was sold on April 30, 1993, to a third party corporation. The contract to sell the property had been executed in December, 1992. Frank Cutrona had worked for Stitzel between 4 and 6 years. He died on December 26, 1996. Carole Naylor did not work in the rental office. She made no judgments regarding the rental of the apartment, nor the creditworthiness of the prospective tenants. Her title “Property Administrator” appears to be a title only. Her duties were administrative, typing, and bookkeeping. She composed and typed the two letters that were sent to Leggitt, but the contents of the letters were given to her by Cutrona. She had no conversations with Polly Leggitt or Frances Leggitt. Robert Stitzel made no judgments regarding the tenants. Regency Apartments would require income equaling three times the gross rental. The creditworthiness and the determination of who would rent apartments was left solely with the resident manager. The proposed rent for a one-bedroom apartment was $380. Therefore, three times that amount equals $1,140.00. Respondent demonstrated that many disabled people had lived in the apartment complex. There was a person who was legally blind. There were amputees and physically challenged people of many different disabilities over the years. Accommodations were made for people with disabilities by Cutrona and such costs for these accommodations were paid by Regency. It does not appear that Regency Apartments is a legal entity. The owner of the apartment complex at the time of the alleged discrimination was Regency Place, Ltd., a Florida limited partnership, which no longer owns the apartment complex. Frank Cutrona is deceased, and his estate has not been made party to this proceeding. Cutrona has been described as a caring, disabled man who was kind and considerate of his tenants with disabilities and made innovative accommodations for their benefit. The specific reasons or motivations for the rejection of the application by Cutrona cannot be clarified because of his death in December, 1996. Respondent was aware that the complex could not discriminate on the basis of race, color, sex or disabilities. The Petitioner has made a prima facie case of discrimination in that Leggitt is a handicapped person, who is otherwise qualified to rent the apartment, and she suffered a loss of a housing opportunity, under circumstances which lead to an inference that Respondent based its action solely upon her handicap. Respondent presented evidence that Regency’s requirement of gross income equaling three times the monthly rent had not been satisfied by Leggitt’s mother’s agreement to contribute $550 per month. Leggitt’s income of $281.34, plus her mother’s contribution, would come to $831.34 per month. Three times the monthly rent was $1,140, thus rendering their income short by $308.66 per month. The motivation for rejecting the application is recited in those letters which stated that the apartment which Leggitt wanted was not available, and Leggitt did not have sufficient income to qualify. There is no evidence of a discriminatory motive on the part of Cutrona, Naylor, Stitzel, or Regency Apartments, other than conjecture. There is no evidence that suggests the reasons given were not true at the time the letters were written or that they were merely pretextual. Further, it does not appear from the evidence that any discriminatory motive has been proven. There is nothing in the evidence that proves that Leggitt’s legal blindness was a cause of the rejection of her application. There is no evidence of any act or conduct which would suggest discriminatory conduct or a discriminatory animus by any of the persons named as Respondents. Taken as a whole, the credible evidence indicates that the sole basis for rejecting her application was the unavailability of the unit that she requested, and her failure to satisfy management of her financial ability to meet the financial requirements of Regency Apartments. Although Leggitt testified as to her inconvenience caused by the denial of her application, there is no evidence of any quantifiable damages.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order denying the relief sought and dismissing the petition filed in this matter. RECOMMENDED this 7th day of July, 1997, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1997. COPIES FURNISHED: Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, Esquire Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Evelyn Davis Golden, Esquire Assistant General Counsel Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Ms. Polly Leggitt 505 Landings Way, Apartment Number 12 Merritt Island, Florida 32952 Mike Krasny, Esquire Krasny & Dettmer Post Office Box 428 Melbourne, Florida 32902-0428
