Findings Of Fact The Subject Property. During 1973, Mode, Inc., applied for and obtained approval of Planned Unit Development (hereinafter referred to as "PUD") zoning for approximately 620 acres of real property known as Ridaught Landing located on County Road 209 in Clay County. In December of 1986, Mode, Inc., sold approximately 470 acres of Ridaught Landing to Village of Fireside, Inc. This 470 acre parcel (hereinafter referred to as the "Property"), is the subject of this proceeding. Purchase money financing and construction financing for the purchase and development of the Property was provided by Barnett Bank of Jacksonville, N.A. (hereinafter referred to as "Barnett"). In November of 1988 Barnett assigned its interest in the Property to the Petitioner simultaneously with the closing of financing by the Petitioner on the Property to Villages of Fireside, Inc. Villages of Fireside, Inc., subsequently defaulted on its indebtedness to the Petitioner and in April, 1992, the Petitioner accepted a Deed in Lieu of Foreclosure for the Property. Development of the Property; Government Action Relied Upon by the Petitioner. In November of 1985, the PUD was amended. As a condition of the amendment, Clay County required that 212 acres of uplands and associated wetlands be dedicated to a homeowner's association associated with the Property. The 212 acres were to be used as preservation area and for the construction of nature walks, gazebos and recreational areas. In January of 1988 Villages of Fireside, Inc., applied for approval of a further amendment to the PUD. Among other things, approval of a separate entrance to the Property was requested. The amendment was approved. As a result of the January, 1988 amendment, the PUD properties are to be developed as two separate subdivisions, known as Ridaught Landing and the Villages of Fireside. Development of the Villages of Fireside subdivision was approved for up to 400 single-family dwelling units within the residential portion, (b) 16 acres of recreational and private services uses, including a day-care center and a private park, and (c) the 212 acre preservation area. Villages of Fireside, Inc., submitted a plat to Clay County for the Villages of Fireside subdivision Unit One in 1988. The final plat for Unit One was approved March 22, 1988. Clay County required that the entrance to Unit One be constructed with an 80 foot right of way to accommodate the development of the entire project as approved by the PUD, as amended. The Petitioner's Detrimental Reliance. In reliance upon Clay County's approval of the PUD and amendments thereto and approval of the final plat of Unit One Villages of Fireside, Inc.: Constructed master infrastructure improvements (water and sewer systems, master roads and an oversized drainage facility) for the project at a cost of approximately $706,427.00. These improvements were made between February and October of 1988. Constructed entry features for the project at a cost of approximately $21,465.00. These improvements were made between December of 1988 and June of 1989. Constructed a nature walk through the 212 acre preservation area at a cost of approximately $97,593.00. These improvements were made between November of 1988 and January of 1989. Upon the assignment of Barnett's interest in the Property to the Petitioner in November of 1988, financing by the Petitioner for the Property to Villages of Fireside, Inc., closed. The Petitioner, therefore, refinanced construction of improvements made by Villages of Fireside, Inc., in reliance on Clay County's approval of the PUD, with amendments, and the final plat for Unit One. The Petitioner refinanced the project in reliance upon Clay County's approval of the PUD, with amendments, and the final plat for Unit One. The Petitioner considered the PUD zoning to be true and correct at the time of refinancing and the Petitioner's loan officer believed that the Property was approved for development of at least 400 single-family residential units at the time of refinancing. In reliance on Clay County's actions, proceeds were distributed by the Petitioner for construction of the nature walk through the 212 acre preservation area. The Petitioner also released the 212 acre preservation area from the lien of its mortgage on the Property so that it could be conveyed to the homeowner's association as common area. This release was made in reliance on Clay County's actions. Rights That Will Be Destroyed. Development of the Property will impact County Road 220. Pursuant to the Clay County 2001 Comprehensive Plan, there is insufficient capacity on the portion of County Road 220 that will be impacted by development of the Property to accommodate traffic projected to be generated by the Property as approved. If the Petitioner must comply with the Clay County 2001 Comprehensive Plan it will be required to delay completion of the project until County Road 220 is improved. Such a delay will have a substantial adverse financial impact upon the Petitioner. Procedural Requirements. The parties stipulated that the procedural requirements of Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended, have been met.
The Issue The ultimate issue is whether the Respondent, Liberty National Life Insurance Company (Liberty National), engaged in an unlawful employment practice be discriminating against the Petitioner, Samuel L. Day, Jr., (Day) on account of sex.
Findings Of Fact Day was employed by Liberty National, or its predecessor, from March 23, 1970, until his termination on May 8, 1991. Day was an agent selling life and health insurance. On April 18, 1991, Day and all of the agents in the Panama City district office were told that those who did not show positive growth by the end of the second quarter of that year (June 30, 1991) would be terminated. Day and other male and female agents had negative growth for the first quarter. About a week later on April 24, 1991, Day and the others were reminded of the need to show some positive growth or face termination. On May 8, 1991, Day was terminated by Don Horton, a vice-president of Liberty National. The reason for the termination was not related in any way to the district's requirement that agents show positive growth by June 30, 1991, or be terminated. Instead, the sole reason for Day's termination was that he had an excessive loss ratio for accident and health policies. Exhibit 8 shows the loss claims ratios for all the employees in the Panama City office for 1988 to 1990. The loss ratio is the ratio between premiums brought in and claims paid; it is determined by dividing paid claims by earned premiums for a specified time period with respect to policies sold by the agent. For 1990, Day had a 268 percent loss ratio. The women had loss ratios of between 13 and 52 percent. Day's loss ratios for 1988 and 1989, from issue through the next calendar year, were 94% and 48% respectively; and for the second calendar year after issue, Day's total loss percentage was 214. One woman, Linda Suggs had a loss ratio for 1988 of 190%, but the grand total of her loss ratio was 33%. Day's claims experience and loss ratio were higher for each relevant time period than all other agents in his office, male or female. Because Day's termination had nothing to do with negative or positive growth, all the testimony regarding the policy requiring positive growth is simply not relevant. Additionally, no evidence was offered to prove that any female agent was terminated for having no positive growth as of June 31, 1991.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief of Samuel L. Day, Jr., and DENYING the request for attorneys fees and costs filed by Liberty National Life Insurance Company. DONE and ENTERED this 4th day of December, 1992, in Tallahassee, Florida. DIANE K. KIESLING 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 4th day of December, 1992. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Samuel L. Day, Jr. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 6(4). Proposed findings of fact 1-5 and 7-10 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 11-14, 17, and 18 are irrelevant. Proposed findings of fact 15, 16, and 19 are unsupported by the competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Liberty National Life Insurance Co. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 14 & 15(1); 16(5); 18(5); 19(8); 23(5); and 25(8). Proposed findings of fact 17, 20-22, 24, 30, 31, and 43 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 33-42 are irrelevant. Proposed findings of fact 26-29 and 32 are argument and not facts. Paragraphs 1-13 are not proposed findings of fact. COPIES FURNISHED: Samuel L. Day, Jr. Post Office Box 1444 Lynn Haven, FL 32444 David C. Ashburn Attorney at Law Post Office Drawer 1838 Tallahassee, FL 32302 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Margaret Jones, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149
The Issue The issue is whether Petitioners' Motions for Attorney's Fees should be granted, and if so, in what amount.
Findings Of Fact Based upon the stipulation of counsel, the papers filed herein, and the underlying record made a part of this proceeding, the following findings of fact are determined: Background In this attorney's fees dispute, Petitioners, Anderson Columbia Company, Inc. (Anderson Columbia) (Case No. 00-0754F), Panhandle Land & Timber Company, Inc. (Panhandle Land) (Case No. 00-0755F), Support Terminals Operating Partnership, L.P. (Support Terminals) (Case No. 00-0756F), Commodores Point Terminal Corporation (Commodores Point) (Case No. 00-0757F), and Olan B. Ward, Sr., Martha P. Ward, Anthony Taranto, Antoinette Taranto, J.V. Gander Distributors, Inc., J.V. Gander, Jr., and Three Rivers Properties, Inc. (the Ward group) (Case No. 00-0828F), have requested the award of attorney's fees and costs incurred in successfully challenging proposed Rule 18-21.019(1), Florida Administrative Code, a rule administered by Respondent, Board of Trustees of the Internal Improvement Trust Fund (Board). In general terms, the proposed rule essentially authorized the Board, through the use of a qualified disclaimer, to reclaim sovereign submerged lands which had previously been conveyed to the upland owners by virtue of their having filled in, bulkheaded, or permanently improved the submerged lands. The underlying actions were assigned Case Nos. 98- 1764RP, 98-1866RP, 98-2045RP, and 98-2046RP, and an evidentiary hearing on the rule challenge was held on May 21, 1998. That proceeding culminated in the issuance of a Final Order in Support Terminals Operating Partnership, L.P. et al. v. Board of Trustees of the Internal Improvement Trust Fund, 21 F.A.L.R. 3844 (Div. Admin. Hrngs., Aug. 8, 1998), which determined that, except for one challenged provision, the proposed rule was valid. Thereafter, in the case of Anderson Columbia Company, Inc. et al. v. Board of Trustees of the Internal Improvement Trust Fund, 748 So. 2d 1061 (Fla. 1st DCA 1999), the court reversed the order below and determined that the rule was an invalid exercise of delegated legislative authority. Petitioners then filed their motions. Fees and Costs There are eleven Petitioners seeking reimbursement of fees and costs. In its motion, Anderson Columbia seeks reimbursement of attorney's fees "up to the $15,000 cap allowed by statute" while Panhandle Land seeks identical relief. In their similarly worded motions, Support Terminals and Commodores Point each seek fees "up to the $15,000 cap allowed by statute." Finally, the Ward group collectively seeks $9,117.00 in attorney's fees and $139.77 in costs. In the Joint Stipulations of Fact filed by the parties, the Board has agreed that the rate and hours for all Petitioners "were reasonable." As to all Petitioners except the Ward group, the Board has further agreed that each of their costs to challenge the rule exceeded $15,000.00. It has also agreed that even though they were not contained in the motions, requests for costs by Support Terminals, Commodores Point, Anderson Columbia, and Panhandle Land in the amounts of $1,143.22, $1,143.22, $1,933.07, and $1,933.07, respectively, were "reasonable." Finally, the Board has agreed that the request for costs by the Ward group in the amount of $139.77 is "reasonable." Despite the stipulation, and in the event it does not prevail on the merits of these cases, the Board contends that the four claimants in Case Nos. 00-754F, 00-755F, 00-0756F, and 00- 757F should be reimbursed only on a per case basis, and not per client, or $7,500.00 apiece, on the theory that they were sharing counsel, and the discrepancy between the amount of fees requested by the Ward group (made up of seven Petitioners) and the higher fees requested by the other Petitioners "is difficult to understand and justify." If this theory is accepted, it would mean that Support Terminals and Commodores Point would share a single $15,000.00 fee, while Anderson Columbia and Panhandle Land would do the same. Support Terminals and Commodores Point were unrelated clients who happened to choose the same counsel; they were not a "shared venture." Each brought a different perspective to the case since Commodores Point had already received a disclaimer with no reversionary interest while Support Terminals received one with a reversionary interest on June 26, 1997. The latter event ultimately precipitated this matter and led to the proposed rulemaking. Likewise, in the case of Anderson Columbia and Panhandle Land, one was a landowner while the other was a tenant, and they also happened to choose the same attorney to represent them. For the sake of convenience and economy, the underlying cases were consolidated and the matters joined for hearing. Substantial Justification From a factual basis, the Board contends several factors should be taken into account in determining whether it was substantially justified in proposing the challenged rule. First, the Board points out that its members are mainly lay persons, and they relied in good faith on the legal advice of the Board's staff and remarks made by the Attorney General during the course of the meeting at which the Board issued a disclaimer to Support Terminals. Therefore, the Board argues that it should be insulated from liability since it was relying on the advice of counsel. If this were true, though, an agency that relied on legal advice could never be held responsible for a decision which lacked substantial justification. The Board also relies upon the fact that it has a constitutional duty to protect the sovereign lands held in the public trust for the use and benefit of the public. Because lands may be disclaimed under the Butler Act only if they fully meet the requirements of the grant, and these questions involve complex policy considerations, the Board argues that the complexity and difficulty of this task militate against an award of fees. While its mission is indisputably important, however, the Board is no different than other state agencies who likewise are charged with the protection of the health, safety, and welfare of the citizens. The Board further relies on the fact that the rule was never intended to affect title to Petitioners' lands, and all Petitioners had legal recourse to file a suit to quiet title in circuit court. As the appellate court noted, however, the effect of the rule was direct and immediate, and through the issuance of a disclaimer with the objectionable language, it created a reversionary interest in the State and made private lands subject to public use. During the final hearing in the underlying proceedings, the then Director of State Lands vigorously supported the proposed rule as being in the best interests of the State and consistent with the "inalienable" Public Trust. However, he was unaware of any Florida court decision which supported the Board's views, and he could cite no specific statutory guidance for the Board's actions. The Director also acknowledged that the statutory authority for the rule (Section 253.129, Florida Statutes) simply directed the Board to issue disclaimers, and it made no mention of the right of the Board to reclaim submerged lands through the issuance of a qualified disclaimer. In short, while the Board could articulate a theory for its rule, it had very little, if any, basis in Florida statutory or common law or judicial precedent to support that theory. Although Board counsel has ably argued that the law on the Butler Act was archaic, confusing, and conflicting in many respects, the rule challenge case ultimately turned on a single issue, that is, whether the Riparian Rights Act of 1856 and the Butler Act of 1921 granted to upland or riparian owners fee simple title to the adjacent submerged lands which were filled in, bulkheaded, or permanently improved. In other words, the ultimate issue was whether the Board's position was "inconsistent with the . . . the concept of fee simple title." Anderson Columbia at 1066. On this issue, the court held that the State could not through rulemaking "seek to reserve ownership interests by issuing less than an unqualified or unconditional disclaimer to riparian lands which meet the statutory requirements." Id. at 1067. Thus, with no supporting case law or precedent to support its view on that point, there was little room for confusion or doubt on the part of the Board. E. Special Circumstances In terms of special circumstances that would make an award of fees unjust, the Board first contends that the proposed rule was never intended to "harm anyone," and that none of Petitioners were actually harmed. But the substantial interests of each Petitioner were clearly affected by the proposed rules, and the appellate court concluded that the rule would result in an unconstitutional forfeiture of property. The Board also contends that because it must make proprietary decisions affecting the public trust, it should be given wide latitude in rulemaking. It further points out that the Board must engage in the difficult task of balancing the interests of the public with private rights, and that when it infringes on the private rights of others, as it did here, it should not be penalized for erring on the side of the public. As previously noted, however, all state agencies have worthy governmental responsibilities, but this in itself does not insulate an agency from sanctions. As an additional special circumstance, the Board points out that many of the provisions within the proposed rule were not challenged and were therefore valid. In this case, several subsections were admittedly unchallenged, but the offending provisions which form the crux of the rule were invalidated. Finally, the Board reasons that any moneys paid in fees and costs will diminish the amount of money to be spent on public lands. It is unlikely, however, that any state agency has funds set aside for the payment of attorney's fees and costs under Section 120.595(2), Florida Statutes (1999).
The Issue Whether the Appellant, Devoe L. Moore, has demonstrated, by a preponderance of the evidence, that development rights in certain real property he owns have vested against the provisions of the Tallahassee-Leon County 2010 Comprehensive Plan?
Findings Of Fact The Property at Issue. On September 18, 1987, Devoe Moore acquired a tract of approximately 28 acres of real estate (hereinafter referred to as the "Property"), located on Lake Bradford Road just south of Gaines Street, in the City of Tallahassee, Leon County, Florida. The Property was the former location of the Elberta Crate and Box Company. The Property was at the time of purchase, and still is, zoned M-2, Industrial. Development of the Property. Mr. Moore intended to develop the Property consistent with the Property's M-2, Industrial zoning. Mr. Moore intended to build a service/commercial/mini-storage development similar to another such development of Mr. Moore in the City. In December, 1987, Mr. Moore had his engineer prepare grading and drainage plans for the Property. On January 29, 1988, Mr. Moore had an application for an amendment to a stormwater permit, Environmental Management Permit 87-1087, filed with the Leon County Department of Public Works. At that time, Leon County issued such permits for property in unincorporated areas and inside the City's limits. The grading and drainage plans for the Property were filed with the application. Leon County had not been delegated any responsibility or authority to make land-use decisions for the City. The requested amendment to Permit 87-1087 was based on an assumption of Mr. Moore that the Property would consist of 80% coverage with impervious surface. Therefore, the City was aware or should have been aware that Mr. Moore intended to construct a major development on the Property. Such a development was consistent with the zoning on the Property at the time. Neither Leon County nor the City, however, approved or in anyway addressed the issue of whether 80% coverage of the Property with impervious surface was acceptable. Nor did the City or Leon County make any representation to Mr. Moore different from that made by the City's zoning of the Property. Mr. Moore filed a site plan showing a development of 80% coverage with the application for amendment to Permit 87-1087. These plans showed a development consisting of thirteen rectangular buildings, driveways and parking area. The indicated development, however, was not reviewed or in anyway approved by Leon County or the City. On May 6, 1988, a Stormwater Permit, amending Permit 87-1087, was issued to Mr. Moore. This permit only approved the construction of a holding pond and filling on the Property. The issuance of the permit did not constitute approval of any proposed development of the Property. In 1988, Mr. Moore began clearing the Property of buildings on the Property which the City had condemned. Mr. Moore also began filling and grading the Property in 1988, and has continued to do so to varying degrees through July 16, 1991. From January 1989, through August, 1990, SANDCO placed 1,174 loads of fill on the Property. Jimmy Crowder Construction Company has also performed filling and grading work on the Property since 1988. As of the date the City's vesting ordnance was adopted and as of the date of the hearing before the Division of Administrative Hearings Mr. Moore has not completed filling on the Property. Mr. Moore also has not completed filtration improvements to the storm water hold pond to be constructed on the Property. Additional water treatment facilities on the Property must be constructed to handle runoff from the Property. No roadways, water services, sewer services or electric services have been constructed on the Property. Site preparation on the Property has not been completed so that construction of vertical improvements can begin. At the time that Mr. Moore acquired the Property, only building permits were required for the development of the Property. The evidence failed to prove that Mr. Moore obtained the required building permits. The law was changed, however, to require approval of a site plan. Mr. Moore decided not to submit a site plan at least in part because of the City's work on the sewer main. The weight of the evidence, however, failed to prove that Mr. Moore was prohibited by the City from obtaining site plan approval. The City has not approved or reviewed a site plan for the Property. At the time Mr. Moore purchased the Property, and continuing to the present, a City sewer main which runs along the southern border of the Property has been a problem. The sewer main is a health hazard because it is located in proximity to the surface of the ground and it has numerous leaks. The City indicated that it intended to build a new sewer main across the Property and Mr. Moore agreed to give the City an easement for the sewer main. After Mr. Moore purchased the Property and before February, 1989, Mr. Moore made a number of requests to the City that the City identify the easement it desired and prepare the easement grant so that the City could construct the new sewer main and Mr. Moore could proceed with his development. Requests were also made by some City employees of the City Attorney that the easement be prepared and executed because of the problem with the existing sewer main. In April, 1989, the easement grant was prepared and executed. On August 3, 1990, James S. Caldwell, Assistant Director of the City Water and Sewer Department, wrote the following letter to Mr. Moore: It has been brought to my attention that your are proceeding with construction of a stormwater holding pond on the referenced site [the Elberta Crate Site]. As discussed with you this date and as you are aware, the City has a sewer line on this property. The sewer line would be damaged by your construction activity. The City has designed a relocation and upgrade of the sewer line to be constructed on an easement previously acquired from you. Our schedule for the sewer line construction is completion by January 1, 1991. A review of your stormwater holding pond drawings and the proposed sewer line reveals a potential conflict between the proposed line and the holding pond. We shall have City staff stake out and flag the existing sewer line and the proposed sewer line. We are requesting that your construction activity stay away from the existing sewer line. After stakeout of the proposed sewer line, you may check your stormwater pond plans to assure that there is no conflict. [Emphasis added]. Mr. Moore was also told on other occasions to avoid interfering with the existing sewer line and the construction of the new sewer line. Construction of the new sewer main on the Property was not commenced until January, 1991. The construction had not been completed as of March, 1991. Part of the delay in completing the sewer main was caused by contemplated changes in the location of the sewer main and the possible need for a different easement. The weight of the evidence failed to prove that Mr. Moore was told to cease all activity on the Property. Costs Incurred by Mr. Moore. Mr. Moore paid approximately $1,000,000.00 for the Property. The weight of the evidence failed to prove that this cost was incurred in reliance upon any representation from the City as to the use the Property could be put other than the existing zoning of the Property. Mr. Moore spent approximately $247,541.22, for demolition of existing buildings, site clearing and grading, engineering costs, fill, permitting fees and partial construction of the stormwater management system for the Property. Mr. Moore also donated an easement to the City with a value of approximately $26,000.00. The weight of the evidence failed to prove that these expenditures were made in reliance upon any representation by the City as to the use to which the Property could be put other than the existing zoning of the Property and the stormwater management permit. Mr. Moore also incurred approximately $100,000.00 in expenditures similar to those addressed in the previous finding of fact for which Mr. Moore was unable to find documentation. The weight of the evidence failed to prove that these expenditures were made in reliance upon any representation by the City as to the use to which the Property could be put other than the zoning of the Property and the stormwater management permit. Development of the Property Under the 2010 Comprehensive Plan. Mr. Moore's proposed development of the Property appears to meet the concurrency requirements of the Tallahassee-Leon County 2010 Comprehensive Plan. Mr. Moore's proposed development of the Property, however, appears to be inconsistent with the 2010 Plan because the Future Land Use Element district in which the Property is located does not permit industrial uses and the intended industrial use of the Property is incompatible with some of the uses to which adjacent property has been put. Procedure. Mr. Moore filed an Application for Vested Rights Determination prior to the filing of the application at issue in this proceeding. That application was denied by the City on October 16, 1991. In the first application Mr. Moore indicated that the Property was to be used for student housing. On or about November 13, 1991, Mr. Moore filed an Application for Vested Rights Determination (hereinafter referred to as the "Application") (Application VR0295T), with the City. "Devoe L. Moore" was listed as the owner/agent of the Property in the Application. It is indicated that the project at issue in the Application is "[i]ndustrial development of former Elberta Crate and Box Company site by Devoe L. Moore." "Progress . . . Toward Completion" is described as (1) Owner/contractor estimate; (2) Environmental Management Permit; (3) Site preparation from December, 1987, to the date the Application was filed; and (4) Construction of the stormwater system in 1990. In a letter dated February 6, 1991, Mr. Moore was informed that his Application was being denied. By letter dated February 18, 1991, Mr. Moore requested a hearing before a Staff Committee for review of the denial of his Application. On March 11, 1991, a hearing was held to consider the Application before the Staff Committee. The Staff Committee was comprised of Jim English, City Attorney, Mark Gumula, Director of the Tallahassee-Leon County Planning Department and Buddy Holshouser, Director for the City's Growth Management Department. At the conclusion of this hearing the Staff Committee voted 2 to 1 to deny the Application. By letter dated March 19, 1991, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department, informed Mr. Moore that the Application had been denied. By letter dated April 4, 1991, to Mr. Gumula, Mr. Moore appealed the decision to deny the Application. By letter dated July 3, 1991, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter. By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on August 27, 1991. F. Other Projects Approved by the City. Mr. Moore submitted, without objection from the City, other vesting rights applications and final orders concerning such applications which were ultimately approved by the City. All of those cases are distinguishable from this matter. See the City's proposed finding of fact 30.
The Issue Whether Respondent's licenses as a health insurance agent, a life and health insurance agent, and a life including variable annuity agent should be suspended or revoked based on the allegations set forth in the Department's Administrative Complaint.
Findings Of Fact Respondent Gary L. Koniz (Respondent) is currently licensed by the Department as a health insurance (2-40) agent, a life and health insurance (2-18) agent, and a life including variable annuity (2-14) agent. On August 17, 1988, Respondent plead guilty to operating a vehicle while under the influence of alcohol (DUI), a felony, in the County Court in and for Ulster County, New York, Case No. 88-57. Respondent was sentenced to five years' probation, license revocation, and payment of a fine. On or about September 30, 2000, Respondent submitted an application to the Department for licensure as health agent, a life and health agent, and a life including variable annuity agent, on which he was asked the following two questions: Have you ever been convicted, found guilty, or pleaded guilty or nolo contendere to a felony under the laws of any municipality, county, state, territory, or country, whether or not adjudication was withheld or a judgment of conviction was entered? Have you ever been convicted, found guilty, or pleaded guilty or nolo contendere to a crime punishable by imprisonment of one year or more under the laws of any municipality, county, state, territory, or country, whether or not adjudication was withheld or a judgment of conviction was entered? Respondent answered each of the aforementioned questions, "no." On the application dated September 30, 2000, Respondent signed and swore to the statement that read: Under penalty of perjury, I declare that I have read the foregoing application for licensure, related information and related attachments, and that the facts as stated in it are true. I understand that misrepresentation of any fact required to be disclosed through this application is a violation of the Florida Insurance and Administrative Code and may result in the denial of my application and/or the revocation of my insurance license. Respondent testified at hearing. Respondent made a court appearance at which he entered a plea as part of a plea bargain to a misdemeanor. He did not comply with one of the conditions and the matter was called back up before the court. At this second hearing, the court asked how he plead. Respondent indicated he had already plead. The court took this response as a plea to the DUI felony and imposed the aforementioned penalties. Respondent did not knowingly answer the questions on the application for licensure incorrectly.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a final order finding Respondent Gary L. Koniz guilty of violating Sections 626.611 and 626.621, Florida Statutes, and suspending his licensure as a health insurance agent, a life and health insurance agent, and a life including variable annuity agent for a period of up to 18 months. DONE AND ENTERED this 23rd day of April, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 23rd day of April, 2002. COPIES FURNISHED: Gary L. Koniz 9480 Princeton Square Boulevard, South Apartment 815 Jacksonville, Florida 32256 Matthew A. Nowels, Esquire Department of Insurance 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
The Issue Whether Petitioner, the Charles J. Harris Trust, has demonstrated, pursuant to the Vested Rights Review Process of Clay County, Florida, that a vested rights certificate to undertake development of certain real property located in Clay County should be issued by Clay County, notwithstanding the fact that part of such development will not be in accordance with the requirements of the Clay County 2001 Comprehensive Plan?
Findings Of Fact The Property. The Applicant, Charles J. Harris Trust, is the owner of real property located in Clay County, Florida. The Applicant's property (hereinafter referred to as the "Property") is more fully described in Exhibit "A" of the documentation offered in support of the Applicant's application. The Property consists of approximately 29 acres located on Lake Geneva. The Property was purchased by Charles J. Harris and Bonnie Lee Harris, husband and wife, on January 14, 1970. On May 4, 1972, the Property was transferred by the Harris' to the Charles J. Harris Trust. The beneficiaries of the Applicant are the three adult children of the Harris'. One of those children, Becky Harris, is profoundly retarded and requires constant care. While room and board are provided for Becky, the Harris provide funds for other needs. Development of the Property; Government Action Relied Upon. On January 14, 1970, the Harris' entered into an contract to purchase the Property. See Exhibit B of the documentation in support of the Applicant's application for the specific terms of the purchase agreement. Prior to entering into the purchase contract, Winfred Crawford, a registered real estate broker, wrote a letter dated January 12, 1970, on behalf of the Harris' to George A. Gnann of the Zoning Board for Clay County, Florida. Ms. Crawford informed Mr. Gnann of the following: The property is being purchased with the thought of subdividing and the buyer has requested that we obtain for him the Clay County requirements, as to lot sizes, road sizes and etc., also please advise the zoning now on this property and what the requirements would be to change the zoning necessary to meet the County Requirements. All information that would be informative will be appreciated. By letter of January 14, 1970, Ms. Crawford wrote another letter to Mr. Gnann memorializing information provided by Mr. Gnann verbally in response to Ms. Crawford's letter of January 12, 1970. A copy of this letter was provided to the Harris' on January 14, 1970, prior to their purchase of the Property. In part, Ms. Crawford wrote the following: I understood the requirements and procedure as follows: The Clay County required lot size- 15,000 square feet, no lot to be less than 70 feet in width. The set back line from any street would be 25 feet, and set back from side lot lines 10 feet. . . . Proposed Plat would be submitted to you for your approval and signature. (This would be for approval of lot sizes and set back lines). Proposed Plat then would be submitted Louis McKee, Clay County Engineer, Orange Park, Florida, for his approval of width and location of streets. Proposed Plat would require his signature. Proposed Plat then would be submitted to Mr. Harry Riggs, County Health Department, Green Cove Springs, Florida, for his approval for sewerage disposal. Proposed Plat would require his signature. Proposed Plat would then be submitted for the approval and acceptance of the County Commissioners, requiring the Chairmans [sic] signature of acceptance before the Plat could be recorded. Based upon the foregoing, Clay County represented to the Harris' how the Property could be developed according to zoning and Clay County laws governing development of property in existence in 1970. Clay County also informed the Harris' of the steps that they needed to follow in order to plat the Property according to Clay County law in 1970. Detrimental Reliance. In reliance upon Clay County's representations, the Harris' purchased the Property. The Harris' paid $35,000.00 for the Property. The Harris' also paid interest of $29,380.00 to finance the purchase price for the Property. On July 18, 1972, the Clay County Zoning Commission gave notice that it would hold a public hearing on Thursday, August 3, 1972, to consider rezoning certain properties in Clay County. Among other things, the Clay County Zoning Commission gave notice that it planned to consider rezoning the Property from Agricultural, "A", to Single-Family Residential, "RA". The RA zoning category changed the minimum residential lot size allowed for the Property from 15,000 square feet to 20,000 square feet. Prior to the Harris' purchase of the Property, the shoreline of the Property had been modified. A natural cove along the shoreline of the Property was closed in with a spoil dike and island. After purchasing the Property the Harris' began seeking approval from the Florida Department of Environmental Regulation (now the Department of Environmental Protection)(hereinafter referred to as the "Department") of a permit to restore the shoreline to its original condition. In connection with the restoration of the Property's shoreline, costs were incurred by the Applicant for the services of engineers and surveyors. A "Study of Proposed Reconnection of Pond to Lake Geneva" was prepared by Barry A. Benedict, Ph.D., and plans for the restoration of the shoreline were prepared. On March 26, 1982, the Department approved a permit for the restoration of the shoreline. The evidence failed to prove that Clay County made any representations to the Applicant as a result of the process of obtaining the permit. The restoration of the shoreline of the Property was completed by the Applicant in 1982. The costs of the restoration project incurred by the Applicant was approximately $11,940.00. During the early 1980's the Applicant incurred costs of $22,319.00 to clear a dirt road from the western boundary of the Property to most of the lots along the shoreline, including four lots subsequently sold by the Applicant. The four lots sold by the Applicant were sold Between approximately 1983 and 1984. The lots were sold to unrelated third parties. Non-exclusive easements of ingress and egress were also conveyed to the owners of the sold lots. All of the sold lots are located along the shoreline of the Property. One of the sold lots, Lot 1-L (1.163 acres), is located along the northern boundary of the Property and has ingress/egress along the northern boundary of the Property. Another of the sold lots, Lot F (0.823 acres), requires ingress/egress along the cleared road that was cut through unsold lots. The other two sold lots, Lots C (0.681 acres) and D (0.731 acres), are contiguous and require ingress/egress along the cleared road that was cut through unsold lots. Lots C and D are separated by Lot E, a 0.691-acre unsold portion of the Property. In 1985, after selling the four lots, the Applicant had a Boundary Survey of the Property prepared by Joseph G. Knapp, Registered Land Surveyor. The Boundary Survey was completed June 22, 1985. The Boundary Survey identifies how the Applicant intends to subdivide the Property into 34 lots. Three of the lots are just over one acre. The rest of the lots are between 0.6 acres and just under one acre. The Boundary Survey prepared for the Applicant could have served as a recorded plat but was not recorded with Clay County by the Applicant. Steps 3 through 6 outlined in Ms. Crawford's letter of January 14, 1970, setting out the representations from Clay County concerning the laws governing development of the Property in 1970, and in particular, recording a plat of the Property, were not followed by the Applicant. At the time of the formal hearing of this case, approximately 23 acres of the Property remain unsold. Rights that will be Destroyed. Clay County adopted a comprehensive growth management plan in January 1992. Pursuant to the plan, the land use for he Property was designated as "Agriculture." Land designated with a land use of "Agriculture" pursuant to the plan may be developed at a density of one residential unit per 20 acres. The land use designation was modified in 1994 to "RA 2" but not in any material respect. Property designated "Agriculture" or "RA 2" may also be used for agricultural purposes as long as they are "bona fide" agricultural purposes, or "good faith commercial agricultural use of the land." Prior to the adoption of the Clay County comprehensive plan, the Applicants could have sold the remaining 23.7 acres of the Property as the remaining 30 unsold lots designated in the Boundary Survey prepared for the Applicant. As a result of the land use designation for the Property adopted in Clay County's comprehensive plan, the remaining 23.7 acres of the Property with easements for ingress and egress to sold lots may be developed with one residential unit only. Procedural Requirements. The parties stipulated that the procedural requirements of Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended, have been met.
Findings Of Fact On August 15, 2007, Respondent, Department of Financial Services (DFS) entered a Notice of Intent (the agency's proposed final agency action) to the effect that it proposed to enter a final order approving the claim for unclaimed property filed by “Christine Margrave and Anthony Richard Margrave as Trustees of the Florence Alice Cassidy Trust for the benefit of Peter Cassidy” and to withhold no amount on behalf of Petitioner. The certificate of service of that Intent is dated August 16, 2007, as evidenced by its attachment to the Department's Motion to Dismiss. The Notice of Intent was received by Petitioner on August 20, 2007, as evidenced by a signed "return receipt requested" form, a copy of which is attached to the Department's Motion to Dismiss. On September 11, 2007, Petitioner filed its Petition with DFS. The date of receipt by the Agency is evidenced by the Agency’s date stamp on the Petition, a copy of which is attached to the Department's Motion to Dismiss. On or about September 24, 2007, the cause was referred to the Division of Administrative Hearings and assigned to the undersigned. Enclosed in the referral packet was Respondent Agency's timely Motion to Dismiss with all attached exhibits. On October 3, 2007, an Order was entered, pointing out (to Petitioner) that Respondent Agency's Motion to Dismiss had been incorporated in the Agency referral packet received at the Division on or about September 24, 2007, and that, in an abundance of caution, Petitioner was being granted 12 days from October 3, 2007 (that is, until October 15, 2007), to file any response in opposition to the Agency’s Motion to Dismiss. Petitioner filed no timely response. On October 25, 2007, an Order was entered taking the Agency’s Motion to Dismiss under advisement. On September 28, 2007, the “Response of Jennifer Christine Margrave and Anthony Richard Margrave” was filed. This item has been treated as the Trust’s motion to intervene. By another October 3, 2007 Order, Petitioner and Respondent were granted the time provided in Florida Administrative Code Rule 28-106.204, in which to respond in support or opposition to the Trust’s motion to intervene. This would have been 12 days from the date of the October 3, 2007, Order. Respondent Agency filed a timely response in support of the Trust’s intervention. Petitioner has filed nothing to date. On October 11, 2007, the Trust filed a Motion to Dismiss, incorporating by reference Respondent's Motion to Dismiss and relating that the Trust had declined to sign a power of attorney to Petitioner which would have required it to pay more than 40 percent of the value of the unclaimed asset here at issue. Petitioner filed no timely response. Because it appeared that the Trust had served its two motions upon Petitioner by e-mail and to a street address which was not Petitioner’s street address of record before the Division of Administrative Hearings, the undersigned, in an abundance of caution, utilized the following procedure to ensure that Petitioner would have every opportunity to respond to those motions or object to any of the exhibits attached to any motion. By attachments to an Order entered October 25, 2007, the Trust’s Motion to Intervene and Motion to Dismiss were re-served upon Petitioner by U.S. Mail at the Petitioner’s correct street address of record before the Division. The Order further invited a timely response per rule. A timely response would have to have been filed with the Division on or before November 6, 2007. Petitioner filed no timely response in opposition, and has filed nothing to date. On November 6, 2007, an Order was entered, granting the Trust’s motion to intervene and taking the Trust’s Motion to Dismiss under advisement. This Recommended Order of Dismissal is entered without oral argument, as permitted by Florida Administrative Code Rule 28-106.204. The pleadings of record show that on or about April 12, 2006, "P. (Peter) Cassidy" had executed a written power of attorney to Petitioner Corporation restricted to authorizing Petitioner to effect distribution of assets legally belonging to the estate of his father, Jerome G. Cassidy, to which Peter was legally entitled as sole legal beneficiary. The agreement specified a fee of $6,845.57 to Petitioner and a net of $10,000.00 to Peter. However, Peter, in proper person, was not the legal owner of the asset. The Florence Alice Cassidy Trust for the benefit of Peter Cassidy, is the beneficiary. Oral agreements are recognized by the Florida Statutes as follows: Section 717.1381 Any oral or written agreement or power of attorney for compensation or gain or in the expectation of compensation or gain, that includes an unclaimed property account valued at more than $250 which was made on or before 45 days after the holder or examination report was processed and added to the unclaimed property database, subsequent to a determination that the report was accurate and that the reported property was the same as the remitted property, is void as contrary to public policy. Any oral or written purchase agreement that includes an unclaimed property account valued at more than $250, owned by another and made on or before 45 days after the holder or examination report was processed and added to the unclaimed property database, subsequent to a determination that the report was accurate and that the reported property was the same as the remitted property, is void as contrary to public policy. (2) A person may not enter into a power of attorney or an agreement, or make solicitation to enter into a power of attorney or an agreement, that is void under this section. However, there is nothing in Chapter 717, Florida Statutes, that makes the Department or the Division the determinor of such oral agreements. The Petition herein represents that an oral agreement existed between Petitioner and Intervenors (the Trust), whereby the Trust as "Claimant" agreed to pay Petitioner a "fee" or "costs" (the Petition uses both terms) for the Petitioner's services for locating the account (asset) at issue; for obtaining the necessary documents to successfully claim the account; and by Petitioner doing any and all other acts necessary in the procurement of any additional items as might be required for Petitioner to file a complete claim on Intervenors' behalf. Petitioner bases the instant claim on a February 9, 2007, e-mail transmission from Intervenors to Petitioner and the circumstances surrounding it, the most notable circumstance being that prior to the February 9, 2007, e-mail, Petitioner had advised Intervenors that all necessary documents had been secured and would be forwarded to them. The Trust's February 9, 2007, e-mail reads: I can confirm however that I have now obtained a certified death certificate for Mr. Cassidy which has a similar seal to that which you describe. All the documents I shall be sending you, including the death certificates for Mr. & Mrs. Cassidy, will be copies of the originals and which will have been certified and sealed by a Notary Public. You have confirmed that the copy [sic] driving licenses of Mr. & Mrs. Margrave which I will provide as proof of identity do not need to be certified. Perhaps you would kindly confirm that all the above will be in order and on receipt of the document by mail you will be able to complete the claim. Perhaps you could also let me know how long completion of the claim and issue of the funds will take. On a final note I, like you, have been christened with the male version of my name but am in fact Mrs. Gabriel Gray! Petitioner also relies on its own February 12, 2007, e-mail transmission to Intervenors, which sets forth as follows: As a reminder, the Limited Powers of Attorney must also accompany the documents . . . Upon receipt of the documents and Limited Powers of Attorney the claim will be submitted for approval. Intervenors/Trustees and their English solicitor never executed a written power of attorney on behalf of the Trust. On or about March 19, 2007, Intervenors filed their own claim, as Trustees of the Florence Alice Cassidy Trust for the Benefit of Peter Cassidy, for the unclaimed property of Jerome G. Cassidy. Intervenors have presented documentation to satisfy the Agency that Jerome Cassidy pre-deceased his spouse, Florence Alice Cassidy, who is also deceased; that both Jerome and Florence died in England; that Ms. Margrave is the personal representative of the estate of Florence Alice Cassidy for the benefit of Peter Cassidy, who is the son of the decedents. Ms. Margrave and Anthony Richard Margrave are trustees of the discretionary trust. The Petition represents that it would have been impossible for Intervenors to have obtained the necessary origination of the asset (bank account) in question using the Respondent Agency's database alone. Upon the foregoing and other information, Respondent Agency has determined that Petitioner has no standing and that disbursement of the asset should be made exclusively to the Trust/Intervenors.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order dismissing the Petition herein. DONE AND ENTERED this 6th day of December, 2007, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 6th day of December, 2007. COPIES FURNISHED: Paul C. Stadler, Jr., Esquire Department of Financial Services 200 E. Gaines Street Tallahassee, Florida 32399-0333 Gerald E. Daugherty Worldwide Research Services Corporation 3221 Hansen Court Tallahassee, Florida 32301 Anthony Richard Margrave Jennifer Christine Margrave Courtyard Entrance, the Old Post Office 130 Epsom Road, Merrow, Guildford, Surrey GU1 2PX Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
