The Issue The issue in this case is whether the Florida Land and Waiter Adjudicatory Commission should grant or deny the petition filed under Chapter 190, Florida Statutes, for the establishment of the Tampa Palms Open Space and Transportation Community Development District.
Findings Of Fact The following findings constitute a summary of the evidence, and are based upon the presentation and testimony presented at the public hearing, as well as Exhibits A through L of the petition and Exhibits 1 through 3 presented at the public hearing: On June 23, 1989, a petition for creation of the Tampa Palms Open Space and Transportation Community Development District was filed with the Secretary of the Florida Land and Water Adjudicatory Commission. After staff review of the petition, the Secretary determined that it satisfied all requirements of Section 190.005(1)(a) and (b), Florida Statutes, and forwarded the petition to the Division of Administrative Hearings for assignment of a Hearing Officer to conduct a local public hearing, pursuant to Section 190.005(1)(d), Florida Statutes. The Secretary's letter of transmittal to the Division of Adminstrative Hearings constitutes certification that the petition addresses all those elements required by Section 190.005(1)(a), including a metes and bounds description of the district, written consent to the establishment of the district by owners of the property to be included in the district, a designation of five persons to be initial members of the board of supervisors, the proposed name of the district, a map showing major trunk water mains and sewer interceptor and out falls currently in existence on the property, proposed time tables for construction and related estimates of costs, a proposed master plan for the district and abutting property, and an economic impact statement. There was no dispute at the public hearing concerning the sufficiency of the petition, or the payment of all required fees. The date of September 15, 1989, was established for the local public hearing by Notice of Hearing issued on July 25, 1989. Notice of the local public hearing was published in The Tampa Tribune on August 17, 24, 31 and September 7, 1989, and was also published in the Florida Administrative Weekly on August 18, 1989. No persons filed written statements in support of, or in opposition to, the petition as authorized by Rule 42-1.012(3), Florida Administrative Code. Neither the City of Tampa nor Hillsborough County conducted a public hearing under Section 190.005(1)(c), Florida Statutes. Therefore, this recommendation and report is based solely on the testimony, presentation, and exhibits received at the local public hearings including the petition. The Petitioner has proposed the creation of the Tampa Palms Open Space and Transportation Community Development District to provide the major transportation network and open space improvements to certain designated properties, composed of approximately 5,200 acres located in the City of Tampa's northeast annexation area, and bounded on the east by County Road 581 and Interstate 75, and on the west by Interstate 275. A community development district is a local unit of special purpose government. Over a fifteen year period, this district is proposed to develop into a community with approximately 8,700 dwelling units, and approximately 22 million square feet of office and commercial development. The proposed development constitutes a planned mixed use development of regional impact. This newly proposed district will lie adjacent to, and overlap a portion of, an existing district known as the Tampa Palms community Development District which was created in 1982. The overlapping areas were referred to as Tracts 3 and 4, and constitute approximately 2,000 acres of the new district's total acreage. To the southwest of these overlapping tracts, are Tracts 1 and 2 of the existing district, and to the northeast of these overlapping tracts is an area to be included in the new district comprised of about 3,200 acres which has been acquired subsequent to the creation of the existing district, and therefore, is not included within the current district boundaries. Since its creation in 1982, the Tampa Palms community Development District has issued bonds, to be repaid through special assessments, for the immediate installation of. infrastructure and landscaping that otherwise would likely have taken the developer longer to complete on a less financially advantageous basis. In Tracts 1 and 2, infrastructure is being completed in advance of home building. The existing district has also undertaken maintenance functions for its open spaces. Special assessments made in Tracts 1 and 2 will not be made by the existing district in Tracts 3 and 4, the overlapping tracts, if this new district is created. Instead, special assessments in Tracts 3 ands 4, as well as the remaining areas of the new district, will be made through this new Proposed district. Thus, the existing Tampa Palms Community Development District will not levy special assessments in the overlapping area if the Tampa Palms Open Space and Transportation Community Development District is approved. This will be done in the overlapping area through the new district so that those residents and property owners in this overlapping area will not be subject to special assessments by two different districts. However, residents in the overlapping area will be subject to ad valorem taxes by both districts, although the ad valorem assessments by the new district would only be for district administration and not for maintenance. Thus, the ad valorem assessments of the new district in the overlapping area are expected to be nominal, and the representatives of property owners present at the public hearing expressed no objection to this. The Petitioner intends to apply to extend the boundaries of the existing district in the future to include the entirety of the new district, if created. When this occurs, the Tampa Palms Community Development District will have all operation and maintenance functions, and all special assessments will be made through the Tampa Palms Transportation and Open Space Community Development District. The district which is here at issue will then be phased out over a twenty year period, and only the Tampa Palms Community Development District will remain to operate the total acreage. The existing district is better suited to have on-going maintenance functions because it already has a maintenance facility, vehicles and equipment, and a staff of maintenance workers, and thus, the costs associated with establishing a second maintenance unit can be avoided. The initial board of supervisors for this proposed district are shown as Exhibit D to the petition, to include: William I. Livingston, Chairman Tampa Palms Development Corporation 5209 Tampa Palms Boulevard Tampa, FL 33647 James W. Apthorp, Vice Chairman Gulfstream Development Corporation 5209 Tampa Palms Boulevard Tampa, FL 33647 Charles Davis, Sr. Davis Brothers Insurance Agency, Inc. 4401 West Kennedy Boulevard Tampa, FL 33602 Steven J. Kuzma Ernst & Whinney 1 Tampa City Center, Suite 2000 Tampa, FL 33602 Joseph House United Services Automobile Association Southeast Regional Home Office 5505 West Cypress Street Tampa, FL 33607 Based upon the representation of counsel for the Petitioner who prepared the petition, the absence of any dispute among those persons in attendance at the local public hearing, and upon review and consideration of said petition and evidence presented at the public hearing, it is found that statements contained therein are true and correct, as required by Section 190.005(1)(e)1, Florida Statutes. The creation of the district is found to be consistent with the State and City of Tampa Comprehensive Plans, as required by Section 190.005(1)(e)2. A specific analysis is as follows: State Comprehensive Plan Natural Systems and Recreational Lands (Section 187.201(10)(a),(b)10-13, Florida Statutes) -- The proposed district will provide residents of the Tampa Palms community with recreational opportunities which would not otherwise be available. Residents of the existing Tampa Palms Community Development District have three parks, jogging and bike paths, as well as sidewalks throughout the community. These parks also provide a means of preserving environmentally sensitive lands and protected species habitat. Similar natural systems and recreational lands will be provided in the proposed district. Land Use (Section 187.201(16)(a),(b)1, Florida Statutes) -- The location of this proposed district has been designated as a regional activity center in the City of Tampa and Regional Comprehensive Plans. Thus, this is an area which has been recognized as appropriate for growth. The lands within the proposed district are subject to an existing development order that was approved prior to the City's adoption of its North Tampa Transportation Network, and which is currently under review in order to approve a change in alignment of the transportation network to match the network within the community with the City's proposed network. The City has constructed a major sewer force main along County Road 581 through the proposed boundaries of the district, and therefore, approval of this district will maximize the City's investment by encouraging planned growth in an area in which the City has a considerable investment. Public Facilities (Section 187.201(18)(a), (b)3, 4,6,7,9, Florida Statutes) -- The planning and financing mechanisms available to the district for providing public facilities are consistent with this goal and policies. Bonding capabilities provide an innovative but stable source of revenue, and the benefit-allocation analysis which will be performed as part of the bond validation process will ensure that costs incurred will be allocated to those who will benefit from available facilities. Since private investment will be required to finance part of the improvements, a partnership between the private and public sectors will be formed, with costs allocated to those who benefit from the resulting improvements. Transportation (Section 187.201(20)(a), (b)13,14, Florida Statutes) -- The transportation network within the proposed district will be aligned with the North Tampa Transportation Network, and thereby provide a coordinated approach to transportation improvements. Financing mechanisms and private-public sector financing partnerships will provide the means by which the district will be able to acquire dedicated rights-of-way prior to commencement of development, and this will result in lower costs for the district. Government Efficiency (Section 187.201(21)(a), (b)1, 2,5,13 Florida Statutes) -- This proposal would create an independent special taxing district, and will promote cooperation in governmental activities between the City of Tampa, Hillsborough County and the Petitioner. Neither the City nor County expressed any opposition to this petition at the public hearing. It is reported that residents within the existing Tampa Palms Community Development District have stated at public hearings held for two bond issues, that they support the added costs for services which the existing district provides. The Petitioner intends to negotiate the terms of an agreement with local government which will set forth the plan for development of the district's proposed transportation network in order to ensure that the district constructs those facilities which the City believes will be compatible with its long-term plans. City of Tampa Comprehensive Plan Recreation and Open Space Element -- The City of Tampa northeast annexation area, which is the area in which the proposed district is located, has been designated as an area which will have a major impact upon future recreational needs, requiring at least 48 acres of neighborhood park space to be established through a cooperative use agreement with the property owners within the annexation area. One of the purposes informing this district is to provide residents of Tampa Palms with recreational opportunities which would not otherwise be available. The existing Tampa Palms Community Development District provides residents with three parks, including playground, picnic, volleyball, tennis and restroom facilities, as well as jogging and bike paths, and sidewalks. While these existing recreational facilities were established jointly by the developer and the existing district, the district has ongoing maintenance responsibilities which will continue even after development activities have ceased. Similar open space and recreational uses are proposed for this new district. Land Use Element -- The establishment of this district will provide a means of financing the construction of the transportation network set forth in the Transportation and Capital Improvement Elements of the City's Plan. Additional financing sources are needed to fund the network for already approved development, and the district will be able to issue bonds, which special assessments will be pledged to repay. Since the Tampa Palms area has been designated as a regional activity center in the City and Regional Comprehensive Plans, this area is recognized as appropriate for growth. Approval of this district is consistent with this designation, and will encourage growth in an area in which the City has a substantial capital investment, having constructed a major sewer force main along County Road 581 through the district's boundaries. Capital Improvement Element -- With additional planning and financing mechanisms available to the District, such as the issuance of bonds, a stable source of revenues and financing will be provided which will allow those who benefit from the facilities which will become available to pay their share of the costs of improvements. The district proposes to provide, and finance, needed transportation and open space facilities in an area designated for growth within the City. Thus, approval of the district is consistent with the City's stated capital improvement goal. The land within the proposed district encompasses approximately 5,200 acres, is contiguous and compact, and includes an area which has undergone review as a development of regional impact under Chapter 380, Florida Statutes. When fully developed, it is proposed that the district will contain 8,700 dwelling units and over 20 million square feet of office and retail uses in a type of urban village. According to Toxey A. Hall, P.E., of the civil engineering firm of Heidt and Associates, Inc., the area of the land within the proposed district is of sufficient size, compactness and contiguity to be developed as one functional interrelated community, as required by Section 190.005(1)(e)3. The creation of this district will allow the transportation and open space requirements of this community to be addressed without having to wait for local governments to finance infrastructure, and would avoid the usual situation where growth occurs before services are available resulting in significant traffic congestion, and the lack of other basic services for residents. The lands in this district are primarily under one ownership and one master plan. The Petitioner has prior experience with the Tampa Palms Community Development District. Therefore, the Petitioner has the knowledge and ability to carry out organized, efficient and planned growth and development which will match the size and cost of facilities needed to actual development in the district. The creation of this district will result in the availability of lower financing costs than would otherwise be available to a private developer. The presently forecasted interest rate which would be available to the district is nine and one-half per cent, whereas for private developers the forecasted rate is one and a half to two per cent over the prime rate of ten and one-half to eleven per cent. Additionally, the rate available to the district is fixed, while for private developer's it is an adjustable rate. The formation of this district presents a way by which capital infrastructure can be delivered in an area appropriate for growth without overburdening local government and taxpayers. Thus, the district is the best alternative available for delivering community development services and facilities to the area to be serviced by the district, as required by Section 190.005(1)(e)4. The development within the proposed district is governed by Chapter 380, Florida Statutes. Previously, development orders were issued for Tampa Palms and a portion of the proposed new district known as Tampa Tech. These two development orders are now being combined into one development order, and it is represented that local, regional and state governmental agencies regulating developments of regional impact have reviewed and approved the level of development planned, including the plans for infrastructure. The City of Tampa's comprehensive plan has been approved by the Department of Community Affairs, and, as found above, the creation of this new district will be consistent with major elements of the City's Plan. Thus, the proposed services and facilities of this district will be compatible with the services and uses of existing local and regional community development services and facilities, as required by Section 190.005(1)(e)5. The residents within the existing Tampa Palms Community Development District have attended numerous meetings and public hearings of the district at which they have confirmed their willingness to pay additional taxes to receive an increase in public services. They have experienced the quality of open space maintenance and the effectiveness of the transportation network in the existing district, and it is represented that the residents support the increased costs associated with the district as long as infrastructure is provided in advance of development. The Petitioner has established that this is an area which is amenable to separate special-district government, as required by Section 190.005(1)(e)6, and in fact, the City of Tampa has designated this specific area as one for which a community development district would be a viable alternative.
Recommendation Based upon the foregoing, it is recommended that the Florida Land and Water Adjudicatory Commission grant this Petition and establish the Tampa Palms Open Space and Transportation Community Development District in accordance with Section 190.005(1)(f), Florida Statutes, with those boundaries set forth in the legal description contained at Exhibit B of the Petition, and with those initial members of the board of supervisors shown at Exhibit D of the Petition. RESPECTFULLY SUBMITTED AND ENTERED this 18th day of October, 1989 in Tallahassee, Florida. DONALD D. CONN 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 18th day of October, 1989. COPIES FURNISHED: Cynthia Henderson, Esquire 5209 Tampa Palms Boulevard Tampa, FL 33647 John Dixon Wall, Esquire Assistant County Attorney 725 East Kennedy Boulevard Tampa, FL 33602 Jeffrey T. Shear, Esquire Assistant City Attorney Fifth Floor, City Hall 315 East Kennedy Boulevard Tampa, FL 33602 Patty Woodworth, Secretary Florida Land and Water Adjudicatory Commission Executive Office of the Governor The Capitol, PL-05 Tallahassee, FL 32399-0001 Information Copies to Persons In Attendance: Gordon J. Schiff, Esquire P.O. Box 1531 Tampa, FL 33601 Keith W. Bricklemyer, Esquire 777 South Harbour Island Blvd. Suite 350 Tampa, FL 33602 Richard D. Eckhard, Esquire P.O. Box 1288 Tampa, FL 33601
The Issue DOAH Case No. 04-0262: Whether Respondent, West Florida Landscaping & Landscaping, Inc. ("West Florida Landscaping"), owes Petitioner, South Florida Sod, Inc. ("South Florida Sod"), $29,360.80 for the sale of sod during the months of July and August 2003. DOAH Case No. 04-0306: Whether Respondent, West Florida Landscaping, owes Petitioner, Bayside Sod, Inc. ("Bayside Sod"), $18,750.68 for the sale of sod during the month of October 2003.
Findings Of Fact Petitioners, South Florida Sod and Bayside Sod, are producers of agricultural products as defined by Subsection 604.15(5), Florida Statutes (2003). Both Petitioners grow and sell sod. South Florida Sod is located in Arcadia, Florida. Bayside Sod is located in Sarasota, Florida. Respondent, West Florida Landscaping, located in Plant City, Florida, is a dealer in agricultural products as defined by Subsection 604.15(1), Florida Statutes (2003). At the time of the transactions in question, West Florida Landscaping was licensed as a dealer in agricultural products supported by a surety bond provided by Old Republic Surety Company. West Florida Landscaping began purchasing sod from South Florida Sod in early 2003. The sod was purchased by a man named Dallas Justice. Bryant McCall, vice president of South Florida Sod, testified that Robert Owens, the owner of West Florida Landscaping, told him that Mr. Justice worked for him and would do the ordering for West Florida Landscaping. The initial purchases were cash transactions. At some point during the course of dealings, Mr. Owens contacted South Florida Sod to request a line of credit. Mr. Owens completed a credit application, and thereafter West Florida Landscaping purchased sod on credit. Mr. McCall testified that West Florida Landscaping was never a model credit customer. He had to "hound" West Florida Landscaping to pay its bill. However, up until July and August 2003, West Florida Landscaping always paid the bill, though often well after payment was due. From July 11 through August 27, 2003, Mr. Justice placed 43 orders for sod with South Florida Sod in the name of West Florida Landscaping. The sod was picked up at South Florida Sod's place of business by truckers sent by Mr. Justice. The total price for all these orders was $29,360.80. Invoices for each of these orders were sent to West Florida Landscaping, which neither paid them nor disputed their validity. Mr. McCall contacted Mr. Owens about payment of the invoices. Mr. McCall testified that Mr. Owens stated that he had been out of town during the period of the unpaid invoices. Mr. Owens told Mr. McCall that upon returning, he discovered that Mr. Justice was defrauding him. Mr. Justice was ordering the sod and completing the work for West Florida Landscaping projects, but was also collecting the customers' payments and keeping the money for himself. Mr. Owens did not fire Mr. Justice or turn him over to law enforcement authorities because he wanted Mr. Justice to work off the debt. Mr. Owens promised Mr. McCall that he would make good on the debts incurred by Mr. Justice with South Florida Sod. Mr. McCall testified that a payment schedule was established, but that Mr. Owens did not observe it, forcing South Florida Sod to file a Producer Complaint. As of December 5, 2003, the balance owed South Florida Sod by West Florida Landscaping was $29,360.80. West Florida Landscaping began purchasing sod from Bayside Sod on a cash basis sometime in the middle of 2003. A man named "Gene," later identified as Dallas Justice, ordered the sod on behalf of West Florida Landscaping. Bayside Sod sold 11 truckloads of sod to Mr. Justice and was paid cash. On October 1, 2003, Bayside Sod first extended credit to Mr. Justice at his request. Between October 2 and October 22, 2003, Mr. Justice took delivery of 23 orders for various amounts of sod worth $18,750, with Florida sales tax. None of these deliveries was paid for by Mr. Justice or West Florida Landscaping. Paul Bispham, owner and president of Bayside Sod, testified that he spoke with Mr. Owens on December 13, 2003. Mr. Owens assured Mr. Bispham that he and Mr. Justice would pay the debt. Benjamin Strong is a field superintendent for Trent Colony Landscaping. He gave West Florida Landscaping's name to Mr. Bispham as a reference when the latter contacted him to solicit new business. Mr. Strong had done business with Mr. Justice and West Florida Landscaping. His practice was to make out checks to West Florida Landscaping and give the checks to Mr. Justice. Mr. Strong testified that Mr. Owens later told him emphatically not to give any West Florida Landscaping checks to Mr. Justice. At the hearing, Mr. Owens denied that Mr. Justice was ever an employee of West Florida Landscaping. Rather, Mr. Justice was an independent contractor whom Mr. Owens would hire on a per-job basis to lay sod. However, Mr. Owens admitted that he gave Mr. Justice authority to order sod for West Florida Landscaping, thus mooting the significance of Mr. Justice's status as an employee or independent contractor. Mr. Owens further admitted that he signed the letter seeking a line of credit from South Florida Sod. Mr. Owens testified that he was in New Orleans for an extended period. While Mr. Owens was gone, Mr. Justice began ordering sod for jobs of his own, but had the purchases billed to West Florida Landscaping. Mr. Owens testified that he has paid for any sod that Mr. Justice ordered for West Florida Landscaping projects, but that he believed himself under no obligation to pay for sod that Mr. Justice ordered for his own jobs. He discovered, belatedly, that Mr. Justice was "a liar and a cheat." Mr. McCall credibly testified that Mr. Owens said nothing to him about Mr. Justice having used West Florida Landscaping's name to fraudulently obtain sod. Rather, Mr. Owens told him that Mr. Justice was, in Mr. Owens' absence, completing West Florida Landscaping jobs, but then cashing the checks made out to West Florida Landscaping and pocketing the money. This testimony is consistent with that of Mr. Strong and is credited. Mr. Owens admitted to making some efforts to deduct money from Mr. Justice's pay in order to settle the debts with South Florida Sod, but stated that he did not feel a legal obligation to do so. Mr. Justice was subpoenaed to appear and testify at the hearing in this matter, but he did not appear. By the weight of the evidence and by his own admission, Mr. Owens authorized Mr. Justice to order sod on behalf of West Florida Landscaping. The evidence established that a course of dealing was established between Mr. Justice, on behalf of West Florida Landscaping, and the Petitioners in these cases, whereby Mr. Justice would order and take delivery of the sod from the Petitioners, and West Florida Landscaping would pay the invoices for the sod. The greater weight of the evidence is that Mr. Justice was acting on behalf of West Florida Landscaping in all his dealings with South Florida Sod and Bayside Sod. In light of the established course of dealing, West Florida Landscaping failed to establish any reasonable basis for its contention that South Florida Sod and Bayside Sod should have inquired as to Mr. Justice's continuing authority on each occasion that he ordered their sod. Mr. Owens' testimony that the sod ordered by Mr. Justice from South Florida Sod and Bayside Sod was not for West Florida Landscaping jobs cannot be credited based on the testimony of other witnesses and Mr. Owens' own actions subsequent to learning these suppliers had not been paid. While there is no question that Mr. Justice was the actual wrongdoer in these cases, there is also no question that it was West Florida Landscaping that lent the name of its legitimate business to Mr. Justice and, thus, enabled him to defraud South Florida Sod and Bayside Sod.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order ordering Respondent, West Florida Irrigation & Landscaping, Inc., to pay $29,360.80 to South Florida Sod, Inc., and $18,750.68 to Bayside Sod, Inc., together with pre-judgment interest calculated at the rate specified in Section 55.03, Florida Statutes (2003); and further requiring Old Republic Surety Company to make payment, up to the amount of its bond, in the event that West Florida Irrigation & Landscaping, Inc., fails to make payment in a timely manner. DONE AND ENTERED this 1st day of March, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 1st day of March, 2005.
The Issue The issue is whether Respondents, individually or collectively, constitute an employer as defined in Section 760.02(7), Florida Statutes (2005), for purposes of conferring jurisdiction on the Florida Commission on Human Relations (FCHR) to consider the Employment Charge of Discrimination filed by Petitioner against Respondents.
Findings Of Fact Petitioner is a licensed real estate agent. Sometime in 1999, Petitioner began working in Panama City, Florida, for Florida Media Group, Inc. Mr. Pace and Edward Hines own Florida Media Group, Inc., a full-service marketing company that is located in Tallahassee, Florida. Mr. Pace hired Petitioner to promote the real estate sales in Bay County, Florida, of Palm Cove, a land development company. Petitioner received a United States Internal Revenue Service (IRS) Form 1099 from Florida Media Group, Inc. in 2001. From 2002 through April 2004, Petitioner worked directly for Palm Cove selling real estate in Palm Cove’s single-family housing subdivision in Bay County, Florida. Mr. Pace owns 25 percent of Palm Cove. The other three owners are Gary Wakstein, Hubert Green, and Edward Hines. Petitioner received an IRS Form 1099 in 2002, 2003, and 2004 from Palm Cove for commissions she earned by selling real estate for the developer. On or about April 27, 2004, Palm Group Realty was incorporated. Palm Group Realty is owned by Ms. Reed, Mr. Pace, Mr. Hines, Mr. Green, and Mr. Wakstein. In September 2004, Ms. Reed became the designated real estate broker for Palm Group Realty. Petitioner began working for Palm Group Realty soon after it was incorporated. She worked for the real estate agency until September 30, 2004. Petitioner received an IRS Form 1099 from Palm Group Realty in 2004 based on her commissions. Some of the commissions must not have been paid until 2005 because Palm Group Realty provided Petitioner with an IRS Form 1099 in 2005. The relevant time period here is November 1, 2003, through September 30, 2004. Regarding that time period, Petitioner sold real estate for Palm Cove from November 1, 2003, through April 27, 2004, and for Palm Group Realty from April 27, 2004, through September 30, 2004. Palm Cove and Palm Group Realty have the same address and overlapping but not precisely the same ownership. However, there is no evidence that Palm Cove, as the land developer, and Palm Group Realty, as the real estate agency, had overlapping operations after Palm Group Realty was incorporated. Since April 2004, Palm Cove’s business has been limited to land development and home construction on a contracting basis. Palm Group Realty’s business is limited to real estate transactions. There is no evidence that Palm Cove has ever had employees who received a salary and IRS Form W-2. Palm Cove has provided two real estate agents, one of which was Petitioner, with an IRS Form 1099. During the relevant time period, Palm Group Realty had four employees who received an IRS Form W-2: Rachel Housler, Brandi Long, Beverly Wakstein, and Katherine Wilson. Palm Group Realty provided three people with IRS Form 1099: Andrew Sullivan, Harriette Reed, and Petitioner. Palm Group Realty provided the following people with an IRS Forms 1099 and W-2: Jon-Aric Long, Martha Osborne, and David Oswalt. Apparently Florida Media Group, Inc., continues to handle some of the marketing aspects of the land development project for Palm Cove. At the most, Florida Media Group, Inc., has three employees. Management Information Systems (MIS) is a bookkeeping company with approximately 20 independent clients, including Palm Cove and Palm Group Realty. There is no competent evidence regarding the ownership or the number of employees of MIS. The most credible evidence indicates that operations of MIS are separate and distinct from Palm Group Realty and Palm Cove. Palm Group Realty, Palm Cove, and Florida Media Group, Inc., had a total of 14 salaried employees and/or independent contactors receiving commissions during the relevant period. It is impossible to determine from the record whether all 14 persons were working for one of the companies at the same time. Mr. Pace and Ms. Reed testified that they personally did not have any employees during the relevant time period. Petitioner did not present any persuasive evidence to dispute their testimony. The companies referenced here did not have overlapping/integrated operations such that they could be considered a solitary employer. Petitioner’s testimony to the contrary is not credible, as it is, for the most part, based on hearsay or uncorroborated by properly authenticated documentary evidence, which would constitute the best evidence of the contested facts.
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That FCHR enter a final order finding that it is without jurisdiction to proceed in these cases based upon Petitioner's failure to show that Respondents constitute "an employer" as defined in Section 760.02(7), Florida Statutes. DONE AND ENTERED this 29th day of December, 2006, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 29th day of December, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Harriette Reed Palm Group Realty, LLC 11812 Cabana Court Panama City, Florida 32407 B. R. Hutto, Esquire Post Office Box 2528 620 McKenzie Avenue Panama City, Florida 32402-2528 Kathryn Whaley 3509 Brooke Lane Panama City, Florida 32404
Findings Of Fact The Respondent is licensed by the Florida State Board of Nursing as a Licensed Practical Nurse. On or about January 2, 1979, the Respondent and Linda Sue Hilton, another Licensed Practical Nurse, resided together as roommates in an apartment in the town of Indian Harbor Beach, Florida. They were both at that time employed as Licensed Practical Nurses at the Holmes Regional Medical Center, which is also known as Brevard Hospital. On the evening of January 2, Respondent was the victim of a knife attack by an unknown assailant. Respondent was taken to the hospital accompanied by Linda Sue Hilton. The police were notified, and Stephen D. Hand, a detective employed by the City of Indian Harbor Beach Police Department, conducted the investigation. He came to the Respondent`s apartment on the night of January 2. Two other police officers were already at the scene, and the apartment door was open. He observed a towel full of blood on the couch in the living room and one on the floor in the bathroom of the apartment. He entered the bathroom and found syringes and various pills. There was a trail of blood leading into one bedroom. He followed the trail, and found additional pills in the bedroom, and several small plants which were later identified as cannabis sativa on the window sill. On his way out of that bedroom he observed through the open door of another bedroom several pills on a dresser. He seized all of the pills and the cannabis sativa plants. He also seized from the living room of the apartment a pipe, a smoking device called a "bong", and cigarette rolling papers. Residue of cannabis sativa was later identified in the Pipe. At the time he conducted this investigation, Detective Hand was 22 years old and had been employed as a detective for only a few months. He is the only, and the first detective employed by the Indian Harbor Beach Police Department. At no time during the investigation did he obtain a search warrant, despite the fact that he observed drugs which he thought might be illicit, and despite the fact that he had ample opportunity to secure the premises and obtain a search warrant. No criminal charges were ever brought against the Respondent, or against Linda Sue Hilton. The drugs which Detective Hand seized were turned over to the Holmes Regional Medical Center. On January 12, 1979, the Director of Nursing at Holmes Regional Medical Center, Sally A. Taylor, confronted the Respondent and Hilton with the drugs that had been seized from their apartment. The Respondent told her that some of the pills had been obtained by prescription, and that some were not prescription drugs. The Respondent admitted that she had taken some Surfak, a non- prescription drug which is also a a controlled substance, from the hospital. Both the Respondent and Hilton admitted to taking some used syringes home from the hospital. The Respondent and Hilton told Miss Taylor that the drugs were taken inadvertently . Taylor testified at the hearing that they did not tell her the drugs were taken inadvertently, and that she felt the Respondent and Hilton admitted to stealing the drugs. The testimony of the witness Taylor is in conflict with testimony that the witness had given earlier at a deposition. The deposition was received in evidence as Hearing Officer Exhibit 1. The testimony is also contrary to the testimony of Virginia Bixby, the Assistant Director of Nursing at Holmes Regional Medical Center, who was present during the interview. The testimony of the witness Taylor that the Respondent and Hilton admitted to taking the drugs home other than through a mistake is not creditable. There is no competent evidence in the record in this case from which it could be concluded that any drugs were taken from the hospital other than inadvertently. The testimony in this matter does not reveal which of the seized drugs were taken from the bathroom, and which were seized from which of the two bedrooms. Neither does the testimony reveal which of the Respondents used which bedroom. Detective Hand testified that he recalled either McDonald or Hilton telling him at a later date that the bedroom where the cannabis sativa was found was Respondent's bedroom. His memory in this regard was, however, quite blurred, and is not worthy of reliance. There is no competent evidence in this matter from which it could be concluded that the Respondent was in possession of any particular combination of the pills and drugs seized from her apartment, or that Hilton was in possession of any of them. Indeed, it was not established whether other persons than the Respondent and Hilton occupied the apartment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED: That a final order be entered dismissing the complaint filed against the Respondent, Kathie Verlene McDonald. RECOMMENDED this 1st day of June, 1979, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jerrold A. Bross, Esquire MITCHELL, LITUS, BROSS, & HENDERSON 2323 S. Washington Avenue Suite 117 Titusville, Florida 32780 Julius Finegold, Esquire 1107 Blackstone Building Jacksonville, Florida 32201 Geraldine B. Johnson Investigation & Licensing Coordinator Florida State Board of Nursing 111 East Coastline Drive Jacksonville, Florida 32202 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA STATE BOARD OF NURSING IN THE MATTER OF: Kathie Verlene McDonald 201 Harbor City Parkway Apt. F331 CASE NO. 79-416 Indian Harbor Beach, Florida 32939 As a Licensed Practical Nurse License Number 0468641 /
The Issue The Respondents have all been charged with multiple violations of Chapter 48, Florida Statutes. The specific violations charged raise the following issues: Whether the Respondents violated Section 489.023(1), Florida Statutes, by offering, disposing, or participating in the offer or disposition of subdivided lands located in Dade and Osceola Counties, Florida, without a valid order of registration from the Division of Florida Land Sales, Condominiums and Mobile Homes. Whether the Respondents violated Section 498.023(2), Florida Statutes, by disposing or participating in the disposition of subdivided lands located in Dade and Osceola Counties, Florida, without furnishing each purchaser with a public offering statement, approved by the Division of Florida Land Sales, Condominiums and Mobile Homes, prior to the purchase. Whether the Respondents violated Section 498.023(3), Florida Statutes, by disposing or participating in the disposition of subdivided lands principally offered by long distance telephone solicitation without furnishing the prospective purchaser with a copy of a synopsis or summary of the sales script, approved by the Division of Florida Land Sales, Condominiums and Mobile Homes prior to the execution of the sales agreement Whether Melvin Lewis, Larry Burton Lewis, Virginia G. Young, or Julio Bercowicz are jointly and severally liable with one or more of the other Respondents for the foregoing violations because of materially participating in the offer or disposition of subdivided lands located in Florida, which offers or dispositions were made in violation of Chapter 498, Florida Statutes, and involved fraud, deception, false pretenses, misrepresentation, or false advertising. Underlying all of the foregoing issues is the issue of whether the activities of the Respondents alleged in the several Notices To Show Cause constitute a "common promotional plan" within the meaning of Rule 7D-1.003(3), Florida Administrative Code.
Findings Of Fact At all times material to these cases, Melvin Lewis and Fay Lewis were and are husband and wife. Larry Burton Lewis ("Larry Lewis") and Cindy Morales are their son and daughter. During the period June 11, 1984, through March 16, 1987 (and perhaps later), Helen Lewis was married to Larry Lewis. Julio Bercowicz is the brother of Helen Lewis. From 1980 through 1987, Virginia Young was employed by Melvin Lewis as a secretary. South Florida Properties, Inc., was a Florida corporation created on April 26, 1977, for purposes which included selling real property located in section 21, township 54 south, range 37 east, Dade County, Florida, comprising 48 lots known as South Florida Properties. West Miami Estates, Inc., is an active Florida corporation created on July 20, 1978, for purposes which included selling the following real property: approximately 40 acres in the southeast 1/4 of the northwest 1/4 of section 19, approximately 10 acres in the northeast 1/4 of the southeast 1/4 of the southeast 1/4 of section 33, and approximately 21.25 acres in the northwest 1/4 of the northeast 1/4 of section 34, all in township 55 south, range 37 east, Dade County, Florida, comprising 48 lots known as West Miami Estates. Miami Kendall Estates, Inc., is an active Florida corporation created on October 12, 1979, for purposes which included selling approximately 60 acres in both the southwest 1/4 and the southern 1/2 of the northwest 1/4, of the southwest 1/4 of section 17, township 54 south, range 38 east, and approximately 10 acres in the east 1/2 of the east 1/2 of the southeast 1/4 of the southeast 1/4 of section 35, township 55 south, range 37 east, Dade County, Florida, comprising 48 lots known as Miami Kendall Estates. Randy Landes was the original incorporator, director, and president of Miami Kendall Estates, Inc. Miami Kendall West Inc., was a Florida corporation created on April 15, 1980, for purposes which included selling approximately 10 acres in the south 1/2 of the south 1/2 of the southwest 1/4 of section 32, township 54 south, range 38 east, and approximately 40 acres in the northeast 1/4 and approximately 20 acres in the west 1/2 of the southwest 1/4, both in the southwest 1/4 of section 34, township 55 south, range 37 east, section 34, Dade County, Florida, comprising 46 lots known as Miami Kendall West. Gateway Acres, Inc., is an active Florida corporation created on February 9, 1984, for purposes which included selling approximately 60 acres located in the western 1/2 of the southeast 1/4 of section 16, township 25 south, range 27 east, Osceola County, Florida, comprising 48 lots, numbered 27 through 39 and 42 through 76, known as Gateway Acres. Maingate Acres, Inc., is an active Florida corporation created on June 11, 1984, for purposes which included selling approximately 35 acres located in the western 1/2 of the southeast 1/4 and in the northeastern 1/4 of the southwest 1/4 of section 16, township 25 south, range 27 east, Osceola County, Florida, comprising 28 lots, numbered 1 through 26, 40, and 41, known as Maingate Acres. Central Florida Estates, Inc., is an active Florida corporation created on November 4, 1985, for purposes which included selling approximately 60 acres located in the southern 3/4 of the south 1/2 of the northeast 1/4 of section 19, township 25 south, range 27 east, Osceola County, Florida, comprising 48 lots known as Central Florida Estates. Mid-Florida Acres, Inc., is an active Florida corporation created on December 18, 1985, for purposes which included selling approximately 60 acres located in the north 1/2 of the northeast 1/4 of section 19, township 25 south, range 27 east, Osceola County, Florida, comprising 48 lots known as Mid-Florida Acres. Melvin Lewis controlled or participated in the formation, operation, or business of South Florida Properties, Inc., West Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., Maingate Acres, Inc., M and L Management, Inc., and Central Florida Estates, Inc., as follows: Melvin Lewis was a subscriber to the formation of South Florida Properties, Inc., Gateway Acres, Inc., and M and L Management, Inc., and participated in the formation of Central Florida Estates, Inc. Melvin Lewis is and has been the sole shareholder of Gateway Acres, Inc., since 1984, of Maingate Acres, Inc., since 1986, and of Miami Kendall Estates, Inc., and Central Florida Estates, Inc., since 1988. Melvin Lewis was the president of South Florida Properties, Inc., from 1977 through 1983; the president and a director of Miami Kendall Estates, Inc., from 1988 to the present; the president of Gateway Acres, Inc., from 1984 to present; the president of M and L Management, Inc., from 1985 to the present; the president and a director of Maingate Acres, Inc., from 1987 to the present; and the president and a director of Central Florida Estates Inc., from 1988 to the present. Melvin Lewis has been the registered agent for Gateway Acres, Inc., from 1984; for Maingate Acres, Inc., from 1986; for M and L Management, Inc., from 1985; and for Central Florida Estates, Inc., from 1988. Melvin Lewis executed the following checks, drawn on the indicated bank accounts, to pay the necessary filing fees to the Florida Secretary of State for the incorporation of the indicated corporations: Gateway Acres, Inc., paid by check number 161, and Maingate Acres, Inc., paid by check number 186, both drawn on the account of Melvin Lewis Licensed Real Estate Broker, account number 0104101960, with the Executive National Bank. M and L Management, Inc., paid by check number 50 drawn on the account of Gateway Acres, Inc., account number 0104105354, Executive National Bank. Central Florida Estates, Inc., paid by check number 2333 drawn on the account of Melvin Lewis and Fay Lewis, account number 0107205147, Executive National Bank. Melvin Lewis participated in dividing into lots for resale those parcels known as Miami Kendall Estates, Gateway Acres, Maingate Acres, and Central Florida Estates. Melvin Lewis directed and controlled the sale of lots in Miami Kendall Estates, Gateway Acres, and Maingate Acres. He further directed and controlled the sale of lots in Central Florida Estates as the real estate broker for Central Florida Estates, Inc. Melvin Lewis was authorized to execute agreements for deed as an agent for west Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., and Maingate Acres, Inc. As an authorized agent for each corporation, he executed at least two agreements for deed for west Miami Estates, Inc. (November 6, 1978 and August 15, 1979), one each for Miami Kendall Estates, Inc. (January 12, 1980), and Miami Kendall West, Inc. (January 28, 1981), four for Gateway Acres, Inc. (September 12, 26, 30 and October 5, 1984), and three for Maingate Acres, Inc. (September 7, 10, 14, 1984). As a notary public commissioned by the State of Florida, Melvin Lewis notarized the signature of Cindy Morales on six agreements for deed for Miami Kendall west, Inc. (dated from March 22 through September 21, 1982), and on one agreement for deed for Central Florida Estates, Inc. (January 28, 1986). He also notarized the signature of Fay Lewis on forty agreements for deed for Gateway Acres, Inc. (dated from April 23, 1984, through August 8, 1985), and on twenty agreements for deed for Maingate Acres, Inc. (dated from July 8 through October 31, 1984). He also notarized the agreement for deed, dated November 11, 1984, between Maingate Acres Inc., and Irma Jean DeWitt and/or Jean M. Hutchens for Maingate Acres lot 11. Melvin Lewis also notarized the corporate execution for deeds conveying lots to purchasers from West Miami Estates, Inc., Miami Kendall Estates, Inc., and Miami Kendall West, Inc. Larry Lewis controlled or participated in the formation, operation, or business of South Florida Properties, Inc., West Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., Maingate Acres, Inc., Central Florida Estates, Inc., and Mid-Florida Acres, Inc. as follows: Larry Lewis was a subscriber in the formation of West Miami Estates, Inc., and South Florida Properties, Inc., and participated in the formation of Central Florida Estates, Inc. Larry Lewis was president and a director of West Miami Estates, Inc., from 1979 through 1984, and from 1987 to the present; an officer of South Florida Properties, Inc., from 1977 to 1979; and the president of Mid-Florida Acres; Inc., from 1987 to the present. Larry Lewis has been the sole shareholder of West Miami Estates, Inc., since 1978 and the sole shareholder of Mid-Florida Acres, Inc., since 1986. Larry Lewis participated in dividing into lots for resale those parcels known as West Miami Estates and Mid-Florida Acres. From the inception of West Miami Estates, Inc., and of Mid-Florida Acres, Inc., Larry Lewis has controlled the daily operations and sale of lots by each corporation. Purchasers for lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid- Florida Acres were solicited by Larry Lewis using long distance telephone calls. Fay Lewis controlled or participated in the formation, operation or business of South Florida Properties, Inc., West Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., and Maingate Acres, Inc., as follows: Fay Lewis was a subscriber to the formation of South Florida Properties, Inc., and Miami Kendall West, Inc. Fay Lewis was the president and a director of Miami Kendall West, Inc., from its inception in 1980 until its dissolution in 1988. As president of West Miami Estates, Inc., Fay Lewis executed the warranty deed conveying lot 35A of West Miami Estates to Troy Johnson. From April 30, 1984, to August 12, 1985, Fay Lewis executed at least forty agreements for deed on behalf of Gateway Acres, Inc.; thirty-eight as corporate secretary and two as an agent for the corporation. From July 17 to November 19, 1984, Fay Lewis executed at least twenty agreements for deed on behalf of Maingate Acres, Inc.; eighteen as corporate secretary and two as an agent for the corporation. Fay Lewis executed two separate warranty deeds conveying lots in Miami Kendall Estates as a witness to the execution by the president of Miami Kendall Estates, Inc. Cindy Morales participated in the operation or business of Miami Kendall Estates, Inc., Miami Kendall West, Inc., and Central Florida Estates, Inc., as follows: From April 29 to September 28, 1982, Cindy Morales executed six agreements for deed as an authorized agent for Miami Kendall West, Inc. From January 21 to February 27, 1986, Cindy Morales executed fifteen agreements for deed as an authorized agent for Central Florida Estates, Inc. Cindy Morales also executed two separate warranty deeds conveying lots in Miami Kendall Estates as a witness to the execution by the president of Miami Kendall Estates, Inc. In 1985, Virginia Young participated in the formation of Central Florida Estates, Inc., and was listed as the sole subscriber, president, and registered agent. She participated in the daily operations of the corporation, including the filing of annual reports with the Florida Secretary of State. In 1987, she resigned her positions with Central Florida Estates, Inc., and transferred the corporation to Melvin Lewis. Saundra Bonduel ("Bonduel"), who was Melvin Lewis' accountant, was an officer in South Florida Properties, Inc., West Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., Maingate Acres, Inc., M and L Management, Inc., and Central Florida Estates, Inc., as follows: Bonduel was a vice president of South Florida Properties, Inc., from 1978 to 1983; of West Miami Estates, Inc., from 1979 to the present; of Miami Kendall West, Inc., from 1981 to 1987; of Gateway Acres, Inc., and Maingate Acres, Inc., from 1985 to the present; of M and L Management, Inc., from 1987 to the present, and of Miami Kendall Estates, Inc.; and Central Florida Estates, Inc., from 1988 to the present. Bonduel was a director and the corporate secretary of Miami Kendall Estates, Inc., from 1980 to 1988. In the foregoing capacities, Bonduel executed the annual reports filed with the Florida Secretary of State for each corporation as follows: South Florida Properties, Inc. (1978-1983); West Miami Estates, Inc. (1979-1989); Miami Kendall Estates, Inc. (1980, 1982-1989); Miami Kendall West, Inc. (1982- 1987); Gateway Acres, Inc., and Maingate Acres, Inc. (1985-1989); M and L Management, Inc. (1987-1988); and Central Florida Estates, Inc. (1988-1989). South Florida Properties, Inc., West Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., Maingate Acres, Inc., M and L Management, Inc., Central Florida Estates, Inc., and Mid- Florida Acres, Inc. have shared common offices and telephones, as follows: All of the corporations are or have been located at 633 N.E. 167th Street, North Miami Beach, Florida 33162, as follows: South Florida Properties, Inc.: Suite 519 (1978); Suite 1020 (1979); Suite 810 (1980-1983) West Miami Estates, Inc.: Suite 1020 (1979); Suite 810 (1980 to the present) Miami Kendall Estates, Inc., and Miami Kendall West, Inc.: Suite 810 (1981 to the present). Gateway Acres, Inc., and Maingate Acres, Inc.: Suite 810 (1985 to the present) M and L Management, Inc.: Suite 810 (1987 to the present). Mid-Florida Acres, Inc.: Suite 810 (1986 to the present). Central Florida Estates, Inc.: Suite 810 (1988 to the present). 2114 N.E. 182nd Street, North Miami Beach, Florida, was the personal address for Larry Lewis from 1979 through 1984; the personal address of Randy L. Landes, incorporator of Miami Kendall Estates, Inc., from 1979 through 1984; the personal address of Helen Lewis from 1984 through 1986; the corporate address of Miami Kendall Estates, Inc., in 1979 and 1980; and the corporate address of Maingate Acres, Inc., in 1984. 4927 S.W. 139th Court, Miami, Florida 33175 was the corporate address for Gateway Acres, Inc., in 1984 and for M and L Management, Inc., in 1985 and 1986. (305) 652-8523 was the telephone number given for the officer executing each of the annual reports listed below for the following corporations: West Miami Estates, Inc., and Miami (Kendall Estates, Inc. (1980-present); South Florida Properties, Inc. (1980-1983); Miami Kendall West, Inc. (1981-1987); Gateway Acres, Inc., and Maingate Acres, Inc. (1985-present); M and L Management, Inc. (1986-present); Central Florida Estates, Inc. (1988-present); Mid-Florida Acres, Inc. (1986). Mel Lewis, Larry Lewis, and Fay Lewis are authorized signers for the following corporate bank accounts with Executive National Bank, Miami, Dade County, Florida; each account opened on the indicated date: Miami Kendall West, Inc., Account Number 010-410-176-6-06, opened on October 12, 1982; Miami Kendall Estates, Inc., Account Number 010-410-179-0-06, opened on October 12, 1982; West Miami Estates, Inc., Account Number 010-410-177-4-06, opened on October 12, 1982. West Dade Acres, Inc., Account Number 010- 410-178-2-06, opened on October 12, 1982, with Cindy Morales listed as an additional signer; Gateway Acres, Inc., Account Number 101- 010-410-5354-06, opened on July 12, 1984; Maingate Acres, Inc., Account Number 010- 410-6350-06, opened on June 25, 1984. Mel Lewis, Larry Lewis, and Fay Lewis were the authorized signers for Skylake State Bank, Account Number 102-007-6, opened July 28, 1978, for West Miami Estates, Inc. Mel Lewis and Larry Lewis were the authorized signers for the bank account of South Florida Properties, Inc., at Skylake State Bank, Account Number 101-526-9. Julio Bercowicz executed agreements for deed as an authorized agent of Mid-Florida Acres, Inc. Julio Bercowicz was the original incorporator of Mid- Florida Acres, Inc., and was, at one time, the sole stockholder. He was president of Mid-Florida Acres, Inc., until at least March 17, 1986. The properties offered as West Miami Estates, Miami Kendall Estates, and Miami Kendall West share certain characteristics. All are located in the portion of the Everglades lying east of the Everglades National park. The parcels are typical Everglades wetland: primarily sawgrass prairie with occasional hardwood hammocks on slightly elevated areas and subject to seasonal flooding. Several of the small parcels comprising West Miami Estates, Miami Kendall Estates, and Miami Kendall West are located close together. One of the parcels sold as West Miami Estates and two of those sold as Miami Kendall West; are located within the one square mile of section 34, township 55 south, range 37 east, Dade County, Florida. A second parcel of West Miami Estates and the smaller parcel of Miami Kendall Estates are located in sections 33 and 35, respectively, township 55 south, range 37 east, on either side of the foregoing section 34. The parcels sold as Gateway Acres and Maingate Acres are contiguous and were formed from the single large parcel conveyed by Sand Hills Corporation to Melvin M. Lewis Licensed Real Estate Broker, Inc., on March 30, 1984. The single parcel was divided into a total of seventy-six consecutively-numbered lots; lots 1-26, 40, and 41 were then apportioned to Maingate Acres and lots 27- 39 and 42-76 to Gateway Acres. On more than one occasion, when a lot in Gateway Acres or Maingate Acres was deeded, Melvin Lewis, individually, would convey the lot by warranty deed to the applicable corporation for nominal consideration (as shown by the documentary stamps affixed to each document). If the lot was in those apportioned to Gateway Acres, Inc., he would then execute a second warranty deed as corporate president, on the same date and before the same witnesses and notary, conveying the lot to the purchaser for substantial consideration. If the lot was in Maingate Acres, the warranty deed conveying the lot to the purchaser would be executed on the same day. Fay Lewis witnessed, and Mel Lewis witnessed and notarized, the execution of at least one warranty deed by Helen Lewis as president of Maingate Acres, Inc. Those parcels sold as Central Florida Estates and Mid-Florida Acres were created from a single 140-acre parcel, acquired by M and L Management, Inc., on January 6, 1986, from David Alan Siegel and Betti L. Siegel, comprising almost the entire northeast 1/4 of section 19, township 25 south, range 27 east, Osceola County, Florida. On the same date, Melvin Lewis, as president of M and L Management, Inc., executed a warranty deed conveying to Kissimmee Hills, Inc., a 20-acre strip 2,640 feet long and 330 feet wide. This conveyance divided the single parcel conveyed by the Siegels into northern and southern portions. On January 7, 1986, Melvin Lewis, as president of M and L Management, Inc., executed a warranty deed conveying to Central Florida Estates, Inc., the remaining portion of the original parcel to the immediate south of the strip of property conveyed to Kissimmee Hills, Inc. Cindy Morales and Fay Lewis executed the deed as witnesses to the signature of Melvin Lewis. Mid-Florida Acres is comprised of the northern 60 acres remaining after 60 acres were conveyed to Central Florida Estates, Inc., and 20 acres to Kissimmee Hills, Inc. Identical or substantially identical form contracts were used to sell lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, and Central Florida Estates. The form of the contracts was also similar to the types of contracts used by many other people in the business of selling undeveloped real estate in Florida. Each sale was made by executing an unrecorded agreement for deed which reserved to the seller both the title and possession of the property until payment under the contract was complete. The use of agreements for deed is not an unusual practice in the business of selling undeveloped real estate in Florida. Purchasers of lots in South Florida Properties exchanged their lots for lots in Miami Kendall Estates, Miami Kendall West, West Dade Acres, or West Miami Estates. Melvin Lewis solicited people who had purchased lots from South Florida Properties, Inc., to exchange their lots for ones in West Miami Estates, Miami Kendall Estates, Miami Kendall West, or West Dade Acres. He subsequently sent letters to each of such purchasers verifying their discussions and providing the documents necessary for the exchange of lots. Casimir T. Brudzinski purchased lot 94-B in South Florida Properties by an agreement for deed executed by Melvin Lewis as president of South Florida Properties, Inc. After being solicited by Melvin Lewis to exchange his lot, Mr. Brudzinski agreed to exchange his lot for lot 7WD in West Dade Acres. Delbert D. Oldenburg purchased lot 126-D, South Florida Properties, by an agreement for deed executed by Melvin Lewis as president of South Florida Properties, Inc. After being solicited by Melvin Lewis to exchange his lot, Mr. Oldenburg agreed to exchange his lot for lot 43WDA in West Dade Acres, which exchange agreement was countersigned by Melvin Lewis. Ralph J. and Beryl G. Hanchin purchased lots 100A and 100B in South Florida Properties, making monthly payments to South Florida Properties, Inc. The Hanchins continued to make payments after October 1982, which payments were credited toward the purchase of lots 55A and 55B in Miami Kendall Estates. The following sales were made in each indicated parcel: at least 19 in West Miami Estates, 22 in Miami Kendall Estates, 19 in Miami Kendall West, 44 in Gateway Acres, (lots 38, 53, 67, 71 appear to have been resold due to purchaser default or refund), 24 in Maingate Acres, at least 15 in Central Florida Estates, and at least 43 in Mid-Florida Acres. None of the lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid- Florida Acres were sold as part of a reservation program approved by the Division pursuant to Section 498.024, Florida Statutes. West Miami Estates, Inc., Miami Kendall Estates, Inc., Miami Kendall West, Inc., Gateway Acres, Inc., Maingate Acres, Inc., Central Florida Estates, Inc., and Mid-Florida Acres, Inc., are neither governments nor governmental agencies. The lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres, were not offered as cemetery lots or interests in cemetery lots. The offer or disposition of lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres was not registered with either the Florida Department of Banking and Finance or the United States Securities and Exchange Commission. Each offer or disposition of a lot in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres was for the actual sale of real property and not for the sale of a debt secured by a mortgage on real property. The sale price for each separate lot sold in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres did not exceed 50,000.00. The lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres were each offered or sold without any residential or commercial buildings. The lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres were each offered or sold without any obligation of the seller to construct a residential or commercial building thereof for the purchaser. No plat or series of plats describing each lot in South Florida Properties, West Dade Acres, West Miami Estates, Miami Kendall Estates, or Miami Kendall West, was recorded or accepted for recordation in the official records of Dade County, Florida, prior to any lot sales. No plat or series of plats describing each lot in Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres, was recorded or accepted for recordation in the official records of Osceola County, Florida, prior to any lot sales. The Division did not issue any order exempting West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres from the registration requirements of Chapter 498, Florida Statutes, prior to any lot sale or other disposition being made. The Division has not issued a valid order of registration for lots in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres pursuant to Chapter 498, Florida Statutes. No purchaser of a lot in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres received a current public offering statement which had been approved by the Division. No purchaser of a lot in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres received a synopsis or summary, approved by the Division, of the sales script used in conjunction with the long distance telephone solicitation of the lot purchaser. The Division has not approved a public offering statement for West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres. The Division has not approved a synopsis or summary of any long distance telephone solicitation sales script for West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres. Both Melvin Lewis and Larry Lewis were familiar with the subdivided land registration requirements of Chapter 493, Florida Statutes. West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres were each created to hold less than 50 lots in an attempt to avoid the registration requirements of Chapter 498. The physical characteristics of the parcels of land offered and sold by the Respondents made those parcels unacceptable for registration under Chapter 498. Rodney A. Lein purchased lot 73 in Miami Kendall West on July 13, 1980, after a telephone call from Larry Lewis in which Larry Lewis offered Mr. Lein "income property" on land slated for development. In the conversation, Larry Lewis guaranteed he could resell the land at a profit within 3 to 4years. After the call, but before the purchase, Mr. Lein traveled to Miami to inspect the property. Larry Lewis took him to the end of west Kendall Drive in Dade County, Florida. Larry Lewis said the property offered was some 2 1/2 to 3 miles to the west of the pavement's end, but that Kendall Drive would be extended out past the property. Larry Lewis further said that as the urban area developed, the city would pay for extending such services as roads and water utilities to the property. Thomas Bezelik purchased lot 54 D, Miami Kendall Estates in January 1980 after a telephone solicitation in which the caller said the property would be a good investment and possibly purchased for industrial use. Bezelik was told an aerospace business was located close to the property he was being offered and was a potential purchaser of the site. Bezelik is still paying for the property. Robert Welch was solicited by telephone to purchase a lot in Central Florida Estates and was told the subdivision had been improved with paved streets and all utilities such as electricity, gas, telephone service, water, and sidewalks. He was further told the property would definitely appreciate in value. On the basis of this and other telephone conversations with the solicitor, Mr. Welch purchased lot 28 in Central Florida Estates. He subsequently spoke with Virginia Young by telephone, who identified herself as the president of Central Florida Estates, Inc., and affirmed the statements that had been made in soliciting him to purchase the property. She also stated Welch could redivide his 1 1/4-acre parcel into 4 lots. Eileen O. Gometz, together with her husband, since deceased, purchased a lot in West Miami Estates as a result of a telephone conversation with Larry Lewis. Larry Lewis said the property was suitable for building and would be developed within 3 to 4 years from purchase. Larry Lewis told her the property was close to a large commercial company but that the actual property itself would be home sites. At no time was she advised of the actual zoning or any rezoning of the property. Paul J. Matrullo purchased a lot in Gateway Acres after a telephone call from Larry Lewis in which Lewis assured him the property was good quality, "buildable land." Prior to his purchase, Mr. Matrullo visited the general area of the property with Larry Lewis. During the physical inspection, Lewis stated the land would be developed for residential housing or the State of Florida would purchase the property to develop a highway. Lewis further stated the property had been purchased by himself and his father, and the land was of such quality that it would double or triple in value within 12 months to 2 years. Larry Lewis gave no information specifically describing the zoning of the property. Primarily based on Lewis' representation that the property would double or triple in value within a 2-year period, Mr. Matrullo purchased lot 56 in Gateway Acres. He is currently paying for the property. William Somerset purchased lot 17 in Maingate Acres after receiving a telephone solicitation. He was told the intent of the offering was not to develop the land but to hold it as an investment for approximately 1 1/2 years and then sell it to developers. He purchased lot 17 because he was told the property would be quickly resold at a profit within "...perhaps a year and a half." He is still paying for the property. Similar sales methods were utilized in the marketing of the lots in all of the subject subdivisions. For example, solicitations for sales were made by telephone and prospective purchasers were told that they should purchase for investment purposes. Much of the land offered for sale by the Respondents was a poor investment at any price. The uses to which the property in sections 16 and 19, township 25 south, range 27 east in Osceola County, Florida, may be put are primarily agricultural. The minimum lot area is five acres and the density for residential development is one residence per five-acre lot. The purchasers of lots in Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres would not be permitted to build a separate structure on their individual lots; a minimum of four contiguous lots would have to be merged in order to create a parcel on which one residence could be built. The property purchased from Sand Hills Corporation and resold as Gateway Acres and Maingate Acres is entirely contained within the "Davenport Creek Swamp." The property is low, poorly drained, wet Florida swampland subject to periodic flooding. The single parcel sold as Central Florida Estates and Mid-Florida Acres, and in part conveyed to Kissimmee Hills, Inc., contains three distinct types of property. Roughly 45 percent of the tract is a "typical central Florida grass pond." During periods of dry weather portions of the pond dry up, but the property is subject to periodic flooding during the year. The second portion of the property is a "transitional zone" between the actual grass pond and potentially more usable land. The transitional property is low and poorly drained, again subject to occasional flooding. The smallest portion of the property, primarily found in the northern portion sold as Mid-Florida Acres, is sufficiently elevated and dry. No clear public access exists to either Gateway Acres or Maingate Acres. Access is obtained either by four-wheel drive vehicle or by foot. In soliciting purchasers for either Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres, Larry Lewis stated the offered real property was located in an area undergoing rapid growth and development. In fact, none of the parcels sold as West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, or Mid-Florida Acres have been developed. Nor has West Kendall Drive in Miami, Florida, been extended westward to Lot 73, Miami Kendall West. Neither South Florida Properties, Inc., nor Melvin Lewis explained to the previous purchasers of South Florida Properties that the reason that they were being offered an exchange of their property was because South Florida Properties had been deeded back to the original mortgage holder in lieu of foreclosure. The lots offered for sale by the Respondents in West Miami Estates, Miami Kendall Estates, Miami Kendall West, Gateway Acres, Maingate Acres, Central Florida Estates, and Mid-Florida Acres were all offered as part of a common promotional plan by Melvin Lewis and Larry Lewis, with the assistance of a few of their relatives, friends, and employees. In his various capacities described in paragraph 11 of these Findings of Fact, Melvin Lewis participated in the disposition of 143 lots of subdivided lands in Florida. In his various capacities described in paragraph 12 of these Findings of Fact, Larry Lewis participated in the disposition of 186 lots of subdivided lands in Florida. In her capacities described in paragraph 15 of these Findings of Fact, Virginia Young participated in the disposition of 15 lots of subdivided lands in Florida. In his capacities described in paragraph 19 of these Findings of Fact, Julio Bercowicz participate in the disposition of at least 2 lots of subdivided lands in Florida.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the Division of Florida "Land Sales, Condominiums and Mobile Homes enter a final order in this case to the following effect: Finding each Respondent in these consolidated cases guilty of the violations charged in the respective Notices to Show Cause and Amended Notices to Show Cause. Melvin Lewis shall be ordered to pay to the Division civil penalties totaling One Million Four Hundred Forty Thousand Dollars ($1,440,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 143 dispositions of lots in which he participated. Larry Lewis shall be ordered to pay to the Division civil penalties totaling One Million Eight Hundred Seventy Thousand Dollars ($1,870,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 186 dispositions of lots in which he participated. Virginia Young shall be ordered to pay to the Division civil penalties totaling One Hundred Sixty Thousand 43 Dollars ($160,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 15 dispositions of lots in which she participated. Julio Bercowicz shall be ordered to pay to the Division civil penalties totaling Thirty Thousand Dollars ($30,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 2 dispositions of lots in which he participated. West Miami Estates, Inc., shall be ordered to pay to the Division civil penalties totaling Two Hundred Thousand Dollars ($200,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 19 dispositions of lots in which it participated. Miami Kendall Estates, Inc., shall be ordered to pay to the Division civil penalties totaling Two Hundred Thirty Thousand Dollars ($230,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 22 dispositions of lots in which it participated. Gateway Acres, Inc., shall be ordered to pay to the Division civil penalties totaling Four Hundred Fifty Thousand Dollars ($450,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 44 dispositions of lots in which it participated. Maingate Acres, Inc., shall be ordered to pay to the Division civil penalties totaling Two Hundred Fifty Thousand Dollars ($250,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 24 dispositions of lots in which it participated. Central Florida Estates, Inc., shall be ordered to pay to the Division civil penalties totaling One Hundred Sixty Thousand Dollars ($160,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 15 dispositions of lots in which it participated. Mid-Florida Acres, Inc., shall be ordered to pay to the Division civil penalties totaling Four Hundred Forty Thousand Dollars ($440,000.00) comprised of one $10,000.00 penalty for participating in the offering of unregistered lots and one $10,000.00 penalty for each of the 43 dispositions of lots in which it participated. In addition to the civil penalties recited above, West Miami Estates, Inc., Miami Kendall Estates, Inc., Gateway Acres, Inc., Maingate Acres, Inc., Central Florida Estates, Inc., and Mid-Florida Acres, Inc., each shall be ordered to, under the supervision and approval of the Division, offer each purchaser of a lot from each respective corporation, the opportunity to rescind the purchase contact and receive a refund of all principal and interest paid in purchasing the lot. The offers of rescission and refund should be made to each purchaser. The offer to rescind shall be made within 60 days from the rendition of the final order by the Director of the Division. Those purchasers who elect to rescind their contract and receive a refund shall receive their payments no later than 90 days from the date they request their refund. The Division should impose such terms of compensation and require such security as will assure the maximum recovery by those purchasers selecting a refund, including, but not limited to requiring full disclosure of all facts material to the actual lot acquired by each respective purchaser, escrowing funds or posting bonds, or the appointment of a trustee or receiver to supervise the programs of rescission and refund whose fees are to be paid by the Respondents. Melvin Lewis and Larry Lewis shall also be ordered to be jointly and severally liable for the civil penalties and other remedies ordered against West Miami Estates Inc., Miami Kendall Estates, Inc., Gateway Acres, Inc., and Maingate Acres, Inc. Melvin Lewis, Larry Lewis, and Virginia Young shall also be ordered to be jointly and severally liable for the civil penalties and other remedies ordered against Central Florida Estates, Inc. Julio Bercowicz and Larry Lewis shall also be ordered to be jointly and severally liable for the civil penalties and other remedies ordered against Mid-Florida Acres, Inc. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of November 1989. MICHAEL M. PARRISH 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 3rd day of November, 1989.
Conclusions On May 6, 1994, a public hearing was held in this cause in St. Augustine, Florida, for the purpose of considering the petition of Atlantic Gulf Communities Corporation (Petitioner) to adopt a rule authorizing the establishment of the Julington Creek Plantation Community District (District) in St. Johns County, Florida, pursuant to Chapter 190, Florida Statutes. At hearing, petitioner was represented by Cheryl G. Stuart, Esquire, and David L. Powell, Esquire. An appearance was also entered by Daniel J. Bosanko, Esquire, for St. Johns County. Petitioner presented the testimony of J. Thomas Gillette, III, vice president of Atlantic Gulf Communities Corporation, general manager of Julington Creek Plantation, and agent of petitioner in this proceeding, Douglas C. Miller, an expert in civil engineering with emphasis in public infrastructure design, public infrastructure prmitting, public infrastructure cost estimation, construction administration and survey, and Gary R. Walters, an expert in planning with emphasis in long-range community planning, economic development, and special district establishment and management. Offering testimony in the role of public witnesses were Kathleen T. Minnis and John R. Sanders. The names and addresses of all witnesses are set forth in Appendix A attached to this Report and a summary of their testimony is contained in the findings set forth in a subsequent part of this Report. Petitioner offered exhibits 1-14 which were accepted and made a part of this record. Also, two late-filed exhibits have been received as petitioner's exhibits 15 and 16. A list of the exhibits is contained in Appendix B attached to this Report. A posthearing comment in the form of a letter was filed by Kathleen T. Minnis, who testified at the public hearing. A response to the letter has been filed by petitioner. Both documents have been considered by the undersigned. Finally, a copy of the text of the rule is contained in Appendix C attached to this Report. This Report and Conclusions is submitted to the Florida Land and Water Adjudicatory Commission (Commission) pursuant to Rule 42-1.013, Florida Administrative Code. PRELIMARY STATEMENT This proceeding began when petitioner filed a petition with the Secretary of the Commission on March 2, 1994, seeking authorization to establish a community development district in an unincorporated area of St. Johns County, Florida. The contents of the petition are found in petitioner's exhibit 1 accepted into the record. After certifying that all elements and contents of the petition were complete, the Secretary forwarded the petition to the Division of Administrative Hearings on March 11, 1994. A notice of public hearing was issued setting this matter for hearing on May 6, 1994, in St. Augustine, Florida. In addition, petitioner was required to publish notice of the public hearing in a newspaper of general circulation in the affected area. Such notice was published in the St. Augustine Record, a daily newspaper in St. Augustine, Florida, on April 4, 11, 18, and 25, 1994. Proof of publication is found in petitioner's exhibit 7 accepted into the record. As required by Rule 42-1.011, Florida Administrative Code, a copy of said notice was also served on the Department of Community Affairs. Finally, notice of the hearing was published by the Secretary in the Florida Administrative Weekly on April 22, 1994, as required by Rule 42-1.010(1)(b), Florida Administrative Code. A copy of said notice is found in petitioner's exhibit 2 accepted into the record. Petitioner also filed a copy of the petition with the St. Johns County Board of County Commissioners and paid the required $15,000 filing fee to that body. A public hearing on the petition was held by the Economic Development Committee of the County Commission on April 5, 1994. The Board of County Commissioners held optional public hearings on April 12 and 26, 1994. After the hearings were concluded, the Board of County Commissioners adopted a resolution supporting the establishment of the District. A copy of the resolution has been received into evidence as petitioner's exhibit 3. The hearing in this matter was conducted in accordance with the provisions of Subsection 190.005(1)(d), Florida Statutes, and Rule 42-1.012, Florida Administrative Code. A transcript of the proceeding was filed with the undersigned on May 23, 1994, and is being transmitted with the Report and Conclusions. Finally, petitioner submitted a proposed report of findings and conclusions which has been considered by the undersigned. Overview of the Case Petitioner is seeking the adoption of a rule by the Commission to establish a community development district of approximately 4,119 acres in northwestern St. Johns County, located about fifteen miles from St. Augustine. If established, the District will be an independent special district authorized pursuant to Chapter 190, Florida Statutes. The District will have all powers set forth in Chapter 190, Florida Statutes, including but not limited to the ability to finance, own, operate and maintain certain community facilities and services. Generally, the property is bounded by low density residential development and Julington Creek to the north, agricultural lands and low density residential development to the south, and low density residential development to the west. The lands within the proposed District are largely undeveloped, except for an eighteen-hole golf course. All land within the District will be developed as a mixed-use project pursuant to St. Johns County Ordinance No. 93-43, the development order for the Julington Creek Plantation Planned Unit Development (PUD), and St. Johns County Resolution No. 93-159, the development order for the Julington Creek Development of Regional Impact (DRI), both adopted by the St. Johns Board of County Commissioners (Board) on September 28, 1993. The Julington Creek Plantation community will be primarily a residential development. The approved plan of development authorizes approximately 6,400 residential dwelling units as well as commercial, recreational and utility land uses within the project in three phases. Petitioner at present contemplates the construction of approximately 5,700 dwelling units, 41.9 acres of commercial space, and other authorized development within the District in three phases. At present there are approximately 24 households within the District. Petitioner presently intends for the District to participate in the construction of certain road improvements as required by the current DRI development order. These road improvements include portions of Racetrack Road and State Road 13. The District also will assist in financing the improvement of Russell Sampson Road, located one-half mile east of the Julington Creek Plantation community, connecting Racetrack Road with County Road 210 and Interstate Highway 95. Petitioner further presently intends for the District to finance, construct, own, operate, and maintain a multi-purpose recreational facility within its boundaries. The estimated cost in 1993 dollars for these capital improvements is $11,431,515, with construction scheduled to take place from 1995 through 1998. Actual construction costs and timetables may vary for a variety of reasons, including final design and permitting criteria, and future changes in economic conditions upon labor, services, materials, interest and general market circumstances. Petitioner proposes that the District utilize special assessment or revenue bonds to finance the planned infrastructure. The bonds are expected to be repaid through non-ad valorem assessments on the land within the District, or rates and charges established by the District. Petitioner has no current plans for the District to issue general obligation bonds or to impose ad valorem taxes. Petitioner proposes for the District to impose user charges for use of the recreation center. Petitioner presently proposes for the District to maintain certain arterial and subdivision roadway lighting. Petitioner also intends for the District to maintain the water management system and wetland and conservation areas to be constructed or established by others. Maintenance of State Road 13, Racetrack Road and Russell Sampson Road will be by state or county transportation agencies. The Board concluded that, so far as the County is concerned, the District would satisfy the criteria set forth in Section 190.005(1)(e)2.-6., Florida Statutes, and recommended that the Commission adopt a rule to establish the District as proposed by Petitioner. The sole purpose of this proceeding is to consider the establishment of the District as proposed by Petitioner to provide the community development facilities and services for the Julington Creek Plantation community as approved by the County. Summary of Evidence and Testimony Whether all statements contained within the petition have been found to be true and correct. Gillette identified Petitioner's Exhibit 1 as a copy of the petition and its exhibits as filed with the Commission. At the hearing, he provided a revised legal description to more accurately describe the area to be included within the District. This revised legal description expressly excluded an additional area, identified as "Exception (10)," from the boundaries of the District and omitted unnecessary preamble language. Gillette provided a revised map of the area described in the legal description. The revised legal description and map were substituted for the legal description and map included as attachment 2 to the petition as filed. Gillette also corrected the petition to specify that approximately 4,119 acres would be included within the District, rather than the 4,125 stated in the petition as filed. This revised figure was calculated to account for the deletion of "Exception (10)," which totalled 5.73 acres. Gillette provided additional consent and joinder forms from landowners who had purchased property within the District subsequent to the filing of the petition. These consent and joinder forms supplemented the forms submitted with the petition. Walters testified that two changes were necessary for the economic impact statement (EIS) submitted with the petition as Petition Exhibit 9. First, acreage figures in the EIS must be corrected. The total acreage in the District is approximately 4,119. The land use mix, as corrected, includes 1,639 acres for open space, conservation, rights of way, golf course and parks. Approximately 2,480 acres are to be used for residential, neighborhood and community commercial land uses. Second, Walters clarified the District's proposed maintenance duties for street lighting. The District will pay for electric service for street lighting. Physical maintenance will be performed by the Jacksonville Electric Authority. With the changes and additions set forth in paragraphs 26-30, all statements in the petition and its attached exhibits are true and correct. Whether the creation of the district is inconsistent with any applicable element or portion of the State Comprehensive Plan or of the effective local government comprehensive plan. Walters reviewed the District in light of the requirements of the State Comprehensive Plan, Chapter 187, Florida Statutes, and the 1990-2005 St. Johns County Comprehensive Plan, adopted pursuant to Chapter 163, Part II, Florida Statutes (Local Comprehensive Plan). In addition, the Board and the Department of Community Affairs reviewed the District in light of the requirements of the Local Comprehensive Plan. State Comprehensive Plan From a planning perspective, four goals of the State Comprehensive Plan, and policies supporting those goals, apply directly to the District. From an economics perspective, three goals and policies supporting those goals apply directly to the District. Goal 16, Land Use, recognizes the importance of locating development in areas with the fiscal ability and service capacity to accommodate growth. From both a planning and an economic perspective, the District will have the fiscal capacity to provide a range of services to a population in a designated growth area of northwestern St. Johns County. Goal 18, Public Facilities, provides that the state shall protect substantial investments in public facilities and plan for and finance new facilities to serve residents in a timely, orderly and efficient manner. From both a planning and an economics perspective, the District will provide capital improvements to designated portions of a state and two county roads and a recreational center in the Julington Creek Plantation community at no cost to the County, allowing County resources to be devoted to needs of the population outside the District. Goal 21, Governmental Efficiency, provides that governments shall economically and efficiently provide the amount and quality of services desired by the public. From both a planning and an economics perspective, the District would provide services and facilities to residents and property owners of the District at a level and quality demanded by them. Goal 26, Plan Implementation, provides that systematic planning shall be integrated into all levels of government, with emphasis on intergovernmental coordination. From a planning perspective, all District board meetings will be publicly noticed and open to the public, therefore, all citizens may participate. In addition, Section 189.415, Florida Statutes, requires the District to file annual public facilities reports with the County which the County may use and rely on in any revisions to the Local Comprehensive Plan. From both a planning and economics perspective, the District would not be inconsistent with any applicable element or portion of the State Comprehensive Plan. Local Comprehensive Plan From a planning perspective, the Future Land Use Element and Map and the Intergovernmental Coordination Element of the Local Comprehensive Plan apply directly to the District. From an economics perspective, the Capital Improvements Element applies directly to the District. The Future Land Use Element, Goal A.1 and supporting policies, seeks to manage growth and development by designating areas of anticipated future development which satisfy demand in a cost-efficient and environmentally acceptable manner. From a planning perspective, the District would further this goal by means of effective infrastructure planning, public finance, and community-wide maintenance. The Intergovernmental Coordination Element, Goal I.1 and supporting objectives and policies, acknowledges the need for alternative providers of facilities and services and requires appropriate mechanisms to coordinate, monitor, and evaluate their activities where such activities have a bearing on required levels of service and land planning decisions by the County. From a planning perspective, the District satisfies that need. The Capital Improvements Element, Goal J.1 and supporting policies and objectives, is intended to ensure the orderly and efficient provision of certain public facilities and services, including roads and park and recreation facilities. From an economics perspective, the District furthers that intent because it would finance and/or construct road improvements and a recreation center to serve the community. Nothing in the Local Comprehensive Plan precludes the establishment of a community development district in St. Johns County. The Local Comprehensive Plan is mostly silent on the powers of such districts but it does not prevent a community development district from exercising any of the general or optional powers set forth in Sections 190.011 and 190.012, Florida Statutes. The Board concluded the District would not be inconsistent with any relevant or material portion or element of the Local Comprehensive Plan. The Department of Community Affairs concluded that the District would not be inconsistent with the Local Comprehensive Plan. From both a planning and an economics perspective, the District would not be inconsistent with any applicable element or portion of the Local Comprehensive Plan. Whether the area of land within the district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Testimony on this criterion was provided by Gillette, Miller and Walters. The lands that comprise the District consist of approximately 4,119 acres bounded to the north by Julington Creek and Durbin Creek, to the southwest partially be Cunningham Creek, and to the west by State Road 13. The site is transected east-to-west by Racetrack Road. The southernmost portion of the District, called "Mill Creek," is located west of State Road 13 and is bordered by Mill Creek and Cunningham Creek. The approved plan of development for the area within the District includes approximately 2,480 acres comprised of predominantly single-family residential homes and selected multi- family residential areas supported by both neighborhood and community-wide commercial. Within the District, the approved plan of development also includes approximately 1,639 acres of open space, conservation, rights of way, golf course, and parks. It is designed as a functionally interrelated residential community that will provide its residents with a complete range of facilities, services and amenities in a secluded setting. The land use plan for the area to be included within the District is set forth in the development order for the Julington Creek Development of Regional Impact, which was approved on September 28, 1993, pursuant to St. Johns County Resolution No. 93- 159, amending and replacing St. Johns County Resolution No. 82-37, as amended. All of the land in the District is subject to the development order. The DRI development order specifies that it governs approximately 4,150 acres. A surveyor hired by Petitioner concluded that the area governed by the DRI development order is 4,263.81 acres, with the discrepancy ascribed primarily to interpretations of meandered boundaries on Durbin and Cunningham creeks. Based on these figures, approximately 144 acres covered by the DRI development order would be outside the District. These areas were developed prior to commencement in 1993 of the process to establish the District. The portions of Julington Creek Plantation excluded from the District include approximately 300 residential lots, located in previously developed subdivisions identified as The Greens, Timber Trace and Oak Pointe I, of which approximately 290 had been sold to third parties as of the date of the local public hearing. Petitioner concluded it would not be practical to seek the consent of those owners to creation of the District, as required by law if they were to be included. There was no agreement between Petitioner and its predecessor, General Development Corporation, or residents of these areas with respect to establishment of the District. Functional interrelation means that each community purpose has a mutual relationship to one another. Each function must be designed to contribute to the development or maintenance of the larger whole, in this case, the Julington Creek Plantation community. Each function requires a management capability, funding source, and an understanding of the size of the community's needs so as to handle the growth and development of the community. The size of the District as proposed is approximately 4,119 acres. From a planning perspective, this size is sufficient to constitute a functionally interrelated community. The Julington Creek Plantation community will have sufficient population density and property size to require all the basic facilities and services of a community. These facilities require adequate planning, design, financing, construction and maintenance. Compactness relates to the location in distance between the lands and land uses within a community. From a planning perspective, the property that comprises this community is compact because all the property is part of a single project, is close together, and has no barriers separating it. Contiguous means touching along a boundary or point. From a planning perspective, the property is sufficiently contiguous when all parts of a project are either in actual contact or are separated by no more than a roadway. All parts must be close enough to allow the efficient design and use of infrastructure. The land need not be functionally connected, especially when planning specialized governmental systems, facilities and services. Nor need it be actually touching to be sufficiently contiguous for planning purposes. The Julington Creek Plantation community is sufficiently contiguous for planning purposes and for the purpose of district governance. From an engineering perspective, the area is designed to function as one interrelated community. All of the systems and facilities to be constructed or maintained by the District will be integrated into the overall design of the community. From an economics perspective, the physical configuration of the District is ideal. The area to be included in the District is compact and contiguous. The size of the District allows economical construction of road improvements and maintenance of the water management and wetlands conservation system in a long-term cost-effective manner. The Board concluded that the area of land within the District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as a single functional interrelated community. From planning, economics and engineering perspectives, the area of land to be included in the District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as a single functionally interrelated community. Whether the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district. The community development services and facilities expected to be delivered by the District include ownership, operation and maintenance of the water management and wetlands conservation system and the community recreation center, and to pay the operating costs of the collector and subdivision road lighting system. In addition, the District plans to finance improvements for portions of State Road 13 and two County roads, Racetrack Road and Russell Sampson Road. Capital costs for the road improvements are expected to be defrayed through non-ad valorem assessments levied on all benefitted property in the District. Capital costs for the recreation center are expected to be defrayed through non-ad valorem assessments. Expenses for operation and maintenance of District facilities are expected to be paid through maintenance assessments and/or user fees. Three alternative methods were identified for delivering community development facilities and services to the Julington Creek Plantation community -- County delivery, including use of a dependent special district, County delivery through a municipal service taxing unit, and private delivery by the developer or a property owners association. In evaluating alternative methods for delivering community development facilities and services, factors to consider include whether an alternative can deliver the best focused service and facilities; whether the alternative has an entity to manage the delivery; whether the alternative can provide a long-term perspective; whether the alternative is a stable provider; and whether the alternative can secure low-cost long-term financing to pay for all benefits at a sustained level of quality. Delivery by the County or a Dependent Special District The County, either directly or through a dependent special district, can provide a long-term perspective and is stable. Further, it can provide low- cost financing at sustained levels of quality. However, the County has substantial demands over a broad geographic area which places a heavy management load on its staff. Any financing by the County, including through a dependent special district, would count against the County's bonding capabilities and further limit the County's ability to provide infrastructure to other portions of St. Johns County. Delivery by a Municipal Service Taxing Unit The area to be served by the District is currently served by the Julington Creek Municipal Services Taxing Unit (MSTU), established by St. Johns County on April 13, 1982, by Ordinance No. 82-17. It is currently responsible for paying for electricity for street lighting and for maintaining lakes in the Julington Creek Plantation community. To date, the MSTU has not met all the facility and service needs of the area to be included in the District. If the District is created, it will assume responsibility for providing street lighting and maintaining lakes within the portion of the community included within the District. In the few areas of the community outside the District, those responsibilities will be taken over by the property owners association. Petitioner will request that St. Johns County abandon the MSTU. The County anticipates this request from Petitioner. The MSTU can provide focused, though limited, service delivery to an area with the direct attention of the County staff and eventual policy direction by the Board. It can also provide low-cost financing. However, any debt incurred by the MSTU would count against the debt capacity of the County. Further, the County would incur direct costs for planning, financing and building infrastructure with its own revenues and staff. Compared to the District, the MSTU also would provide a more limited means for providing additional facilities and services to the community, in the event the residents of Julington Creek Plantation decide later to seek and pay for such facilities and services. Private Delivery Private means for delivering community development services and facilities include delivery through a master neighborhood-type property owners association or by a private developer. Either of these means can satisfy the demand for focused service and facilities and managed delivery. However, neither can assure a long-term perspective, act as a stable provider of services and facilities, or qualify as a low-cost source of financing. A property owners association could provide staffing and decisionmaking for these services and facilities, but such associations lack the capability to issue bonds or other forms of long-term debt. Therefore, it could not effectively finance the necessary infrastructure. The developer could provide community development services and facilities by utilizing long-term financing from private lenders, however, such financing would be more expensive than financing through a public entity. In addition, a private developer generally is not the long-term stable entity which can maintain necessary facilities. Delivery by the District The District is an independent special purpose unit of local government designed to focus its attention on providing the best long-term services to its specific benefitting properties and residents. It has limited powers and jurisdiction. It will be governed by its own board of supervisors and managed by those whose sole purpose is to provide long-term planning, financing and management of services and facilities for the District. Sources of funding assure that District services and facilities will be adequately managed at sustained levels of quality. The District will focus most directly on the proposed capital improvement needs of the area. Its attention will not be diverted by numerous other activities and projects, which will help ensure timely and cost effective completion. Construction of the road improvements, if undertaken by the District, will be completed sooner than otherwise required. That would be a distinct benefit from an engineering standpoint. The District is the only alternative that has all the advantages of each of the other alternatives without any of the disadvantages of any one of the alternatives. The Board expressly contemplated the establishment of a community development district when it authorized the Julington Creek Plantation community in a restated DRI development order in 1993. The DRI development order provides: If a Community Development District is established by the Developer pursuant to Chapter 190, Florida Statutes, it may finance, fund, plan, establish, acquire, construct or reconstruct, enlarge or extend, equip, operate and maintain projects, systems and facilities for the purposes set forth in Chapter 190, F.S. (1991). St. Johns County expressly approves and consents to the construction or funding by the District of all such projects within or without the boundaries of the District required by this development order or necessary to serve the development approved by this development order. If the Developer is required by this development order to provide, pay for or otherwise cause to be provided infrastructure, projects, systems or facilities set forth in Chapter 190, F.S., including without limitation those in Section 190.012(1) and (2), F.S. (1991), then it is intended that the Community Development District independently may satisfy such obligations and St. Johns County consents to the District's role. To the extent any such obligation under this development order is met or performed by the District, then the Developer shall no longer be subject to the obligation. Nothing in this Section shall be construed as approval of or consent by the County to the establishment of a Community Development District (CDD) by the Developer pursuant to Chapter 190, F.S., and the County expressly maintains all rights available to it pursuant to Chapter 190, F.S., related to the proposed establishment of a CDD by the Developer. The Board subsequently concluded that the District appears to be a viable alternative so far as County matters and interests are concerned for delivering community development systems, services and facilities to the area that will be served by the District in a timely manner. From planning, economics and engineering perspectives, the District is the best alternative available for delivering community development services and facilities to the area that will be served by the District. It is the best way to assure that growth will pay for itself. Whether the community development services and facilities of the district will be incompatible with the capacity and uses of existing local and regional community development services and facilities. The land area of the District is relatively isolated within the County and in part surrounded by conservation areas. There are no local or regional facilities within the area served by the District which duplicate proposed facilities of the District. The road improvements and recreational center do not yet exist. Petitioner plans for the District to maintain the water management system and wetlands conservation areas in perpetuity. Two arterial roads are to be improved with the assistance of the District. These projects include the four-laning of State Road 13 from Racetrack Road to Davis Pond Boulevard, and the four- laning of Racetrack Road from State Road 13 to Russell Sampson Road, which lies east of the District. In addition, the District proposes to participate in financing improvements to Russell Sampson Road. All these improvements are required by the DRI development order. None are currently funded by any governmental entity. State Road 13 will be maintained by the Department of Transportation. St. Johns County will maintain Racetrack Road and Russell Sampson Road. Maintenance by these agencies will include paying for electricity for road lighting. Internal roads within the District are proposed to be developed, constructed and financed by Petitioner. Road lighting within the District will be constructed and owned by the County, but the District will be responsible for electrical costs for those lights. Facilities proposed to be financed or constructed by the District have not been undertaken by the MSTU, so the MSTU would not duplicate any of those services or facilities. The MSTU currently provides certain street light and lake maintenance services, but Petitioner intends to request that the County abandon the MSTU after creation of the District to avoid even the potential for duplication. Petitioner intends for the District to plan, finance and construct the master recreation center. The facility will include an adult pool, junior olympic pool, and ancillary facilities. In addition, a volleyball court, basketball court, snack bar, restrooms, parking and reception/office facilities are expected to be included. The District will maintain the water management system and wetlands conservation areas. The facilities and services to be provided by the District will accelerate local and regional improvements and provide operation and maintenance services not currently provided. The Board concluded that the community development systems, services and facilities of the District will not be incompatible with the capacity and uses of existing community development services and facilities so far as County considerations are concerned. From planning and engineering perspectives, the services and facilities to be provided by the District will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. Whether the area that will be served by the district is amenable to separate special-district government. Two criteria are needed to evaluate a land area for suitability for separate special district governance. They are whether the area is of sufficient size, compactness and contiguity to be the basis for a functional interrelated community, and whether the land area needs, and the owners and residents will benefit from, the community development services and facilities. From planning, economic and engineering perspectives, the area of land to be included in the District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as a single functionally interrelated community. The Julington Creek Plantation community needs basic infrastructure and services including maintenance of the water management system for drainage, maintenance of wetland conservation areas, roadway improvements as required by the DRI development order, electricity for street lights, and recreational facilities. The District will undertake those services on a perpetual basis. The Board concluded that the area to be served by the District is amenable to separate special district government so far as the County is apprised. From planning and engineering perspectives, the area that will be served by the District is amenable to separate special-district government. Other requirements imposed by statute or rule. Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, impose specific requirements regarding the petition and other information to be submitted to the Commission. Elements of the Petition Section 190.005(1)(a)1., Florida Statutes, requires the petition to contain a metes and bounds description of the external boundaries of the District. Petitioner's Exhibit 1, as corrected at hearing by Petitioner's Exhibit 6, contains such a description. Section 190.005(1)(a)2., Florida Statutes, requires the petition to contain written consent to establishment of the District by the owners of 100 percent of the real property to be included in the District. Petitioner's Exhibit 1, as amended and supplemented at hearing by Petitioner's Exhibit 13, contains consents from a total 14 persons. All landowners within the District as of the date of the local public hearing have consented to being included in the District. Section 190.005(1)(a)3., Florida Statutes, requires the petition to contain the names of five persons, all residents of the State of Florida and citizens of the United States, to serve on the initial board of supervisors. The five persons designated in the petition to serve on the initial board of supervisors are: Kimball D. Woodbury 7500 SW 75th Street Miami, Florida 33143 David A. Branson 6641 Wedgewood Avenue Davie, Florida 33331 John H. Fischer 9500 SW 94th Court Miami, Florida 33176 J. Thomas Gillette, III 9965 Richfield Drive Jacksonville, Florida 32257 Terrell R. Jones 9334 SW 172nd Terrace Miami, Florida 33157 All of the designees are residents of the State of Florida and citizens of the United States. Section 190.005(1)(a)4., Florida Statutes, requires the petition to propose a name for the District. The petition proposes the name "Julington Creek Plantation Community Development District." Section 190.005(1)(a)5., Florida Statutes, requires that the petition show current major trunk water mains and sewer interceptors and outfalls if in existence. Petition Exhibit 7 shows the location of those facilities within the District. Section 190.005(1)(a)6., Florida Statutes, requires the petition to set forth the proposed timetable for construction of services and facilities and estimated cost for such construction. Petitioner's Exhibit 1 provides such a timetable and estimate. Section 190.005(1)(a)7., Florida Statutes, requires the petition to designate the future general distribution, location and extent of public and private uses of land. The petition provides that information. Section 190.005(1)(a)8., Florida Statutes, requires the petition to include an EIS which meets the requirements of Section 120.54(2), Florida Statutes. The petition contains an EIS and it meets all requirements of Section 120.54(2), Florida Statutes. Economic Impact Statement The EIS assumes it is socially desirable to use the least expensive, least intrusive, most responsive method to achieve delivery of any given public improvement and to provide selected system maintenance. An entity that is directly accountable for costs and derives the benefits is more likely to achieve the desired result. The District is such an entity. The District is a severely limited and highly specialized unit of local government which serves as an important tool for the County under Florida's growth management laws. It is a special unit of local government with a single purpose: the provision of infrastructure and services for new communities. Its economic benefits exceed its economic cost to all affected parties. Petitioner proposes that the District utilize special assessment or revenue bonds for capital to provide planned infrastructure. The bonds will be repaid through non-ad valorem assessments on the land within the District, or rates and charges established by the District. Petitioner has no current plans for the District to issue general obligation bonds or to impose ad valorem taxes. Such bonds may not be issued or taxes be imposed until after District residents elect the District Board of Supervisors on a one-person, one-vote basis. The EIS contains an estimate of the costs and benefits to all persons directly affected by the proposed rule to establish the District -- the State of Florida and its citizens, St. Johns County and its citizens, Petitioner, and consumers. Beyond administrative costs related to rule adoption, the State and its citizens will incur no costs from establishment of the District. The District will require no subsidies from the State. Benefits will include improved planning and coordination of development, which is difficult to quantify but substantial nevertheless. Administrative costs incurred by the County related to rule adoption should be more than offset by the $15,000 filing fee paid by Petitioner. Benefits to the County will include improved planning and coordination of development, without incurring any administrative or maintenance burden for facilities and services within the District except for those it chooses to accept. Petitioner incurred substantial costs in seeking establishment of the District and will be required to provide technical assistance to the District after establishment. As a landowner, Petitioner will pay substantial sums in non-ad valorem assessments for property within the District. These sums in the initial period amount to more than $9 million. Benefits to Petitioner include public bond financing for certain improvements and a long-term stable source of capital, which will benefit Petitioner's development project. In addition, needed infrastructure will be in place earlier than might otherwise be possible, and consistently high levels of quality should be maintained. Consumers will pay District special assessments or fees for certain facilities, however, the District's facilities would be required even in the absence of the District itself. The cost would have to be recovered in some other way. Generally, district financing may be no more expensive than the alternative of an MSTU and, in most cases, may be less expensive than a property owners association or developer-financed loans. Benefits to consumers will include a higher level of public services and amenities than otherwise would be the case, completion of District-sponsored improvements on a timely basis and earlier than otherwise expected, and a larger share of direct control over community development services and facilities. The EIS concluded that the benefits from the District would outweigh the costs to each affected person or class of persons. Other Requirements Section 190.005(1)(b), Florida Statutes, requires Petitioner to pay a $15,000 filing fee to the County. Petitioner paid the fee. Section 190.005(1)(d), Florida Statutes, requires Petitioner to publish notice of the local public hearing in a newspaper of general circulation in St. Johns County for four consecutive weeks prior to the hearing. The notice was published in the St. Augustine Record for four consecutive weeks, on Mondays, starting April 4, 1994. Rule 42-1.011(1)(a), Florida Administrative Code, requires Petitioner to furnish proofs of publication of the notice of local public hearing to the Secretary of the Commission. The original proofs of publication were furnished to the Secretary on May 11, 1994, as required. Rule 42-1.011(1)(b), Florida Administrative Code, requires Petitioner to mail a copy of the notice of local public hearing to all persons named in the proposed rule, the affected local government, and the Secretary of the Department of Community Affairs. Such individual notice was mailed as required by the rule. Petitioner voluntarily mailed individual written notice of the local public hearing, together with information on community development districts, to all persons residing in the District or under contract to purchase a lot in the District prior to May 6, 1994. Section 190.012(2)(a), Florida Statutes, provides that the District may exercise certain powers with respect to parks and facilities for indoor and outdoor recreational, cultural and educational uses with the consent of the local general-purpose government. On April 26, 1994, by Resolution No. 94-78, the Board consented to the District exercising all powers pursuant to Section 190.012(2)(a), Florida Statutes, necessary to finance, construct, own, operate, and maintain parks and facilities for indoor and outdoor, recreational, cultural and educational uses effective upon adoption, within 45 days of establishment of the District, of a resolution by the District's Board of Supervisors confirming its intention to utilize such authority. Questions by Kathleen P. Minnis, a resident of the area to be included in the District, in a letter dated May 15, 1994. During the period allowed for post-hearing submittals, Kathleen P. Minnis, a resident of the area to be included within the District, submitted a letter to the Hearing Officer, dated May 15, 1994, with a series of questions regarding the District. John P. Sanders, who has a contract to purchase a lot within the District but does not live in the District at the present time, also raised some of the same questions in his testimony at the public hearing. Petitioner addressed these issues at the hearing with testimony by Gillette and Walters, and in a post-hearing submittal, dated May 26, 1994. That submittal has been received in evidence as petitioner's exhibit 16. Some of Ms. Minnis' questions were legal questions which can be answered by reference to Chapter 190, Florida Statutes. In her letter, Ms. Minnis' questions centered on special assessments and fees to be imposed by the District -- who would establish them, when they would begin, how they would be set, how much they would be, what measures would exist to preclude increased assessments, whether there would be a maximum, and how fees would be set for nonresident use of the recreation center. Ms. Minnis also asked whether the District would begin the transition to the one-person, one-vote system for the Board of Supervisors on the schedule set forth in Section 190.006(3)(a)2.b., Florida Statutes. The fiscal powers of the District will be governed by Chapter 190, Florida Statutes. (Tr. 69) The Board of Supervisors will levy all special assessments and fees for District facilities, including the recreation center. See 190.035(1), Fla. Stat. (1993). Neither the County nor Petitioner will levy assessments or fees for the District. Petitioner has not proposed a date for assessments to begin, but Petitioner does not expect the District to levy assessments in 1994. Assessments and fees will be levied in order to finance the District's capital improvements, which Petitioner has estimated will cost approximately $11.4 million in 1993 dollars. Petitioner proposes that these capital improvements be financed with twenty- year revenue bonds to be repaid by assessments levied on property within the District and, in the case of the recreation center, user fees. Operation and maintenance costs of District improvements would be paid by similar assessments and fees. Petitioner proposes that the District levy a special assessment on each lot or parcel based on the benefit it receives from the facilities and services. Once the debt attributable to that parcel or lot is paid, the homeowner or landowner cannot be made to pay debt-related assessments for other parcels or lots. The bondholder accepts the risk that some assessments may not be paid. This method of financing will protect each homeowner or landowner from paying more than his or her fair share. Petitioner does not intend to propose that the District levy assessments based on the assessed value of the land. That would constitute an ad valorem tax, which may not be levied by the District until the Board of Supervisors is elected by and composed of registered voters residing in the District. See 190.006(3)(a)1., Fla. Stat. (1993). Therefore, the cost of a home or lot, or the assessed value of developed or undeveloped land, would not be the basis for determining the amount of assessments. Just as no one can determine how much a homeowner within the District will pay in taxes to St. Johns County in future years, no one can definitely determine how much such a homeowner will pay in special assessments to the District. As a practical matter, Petitioner will share with homeowners such as Ms. Minnis an interest in holding special assessments to a minimum consistent with the requirement or need for certain facilities. Because Petitioner owns the vast majority of the land during the initial years of the development, it will pay the vast majority of the assessments during those years. In addition, Petitioner is interested in holding down the amount of special assessments so that the land it seeks to sell will be competitively priced. With respect to nonresident use of the recreation center, Section 190.035(3), Florida Statutes, provides that rates, fees and charges must be "just and equitable and uniform for users of the same class." The District may not unjustly or unfairly discriminate in access to or charges for its facilities, including the recreation center. See 190.035(1), (3), Fla. Stat. (1993). At present, Petitioner intends to ask the Board of Supervisors to establish a fee for nonresident use that would approximate the operation and maintenance assessment to be paid by District residents. In the initial years, the Board of Supervisors will be elected by landowners on a one-acre, one-vote basis as provided by law. See 190.006(2)(b), Fla. Stat. (1993). Section 190.006(3)(a)2.b., Florida Statutes, provides that if there are 250 registered voters residing in the District six years after its creation, the method of selecting the Board of Supervisors will change on a phased schedule from election by landowners to election by registered voters within the District. Petitioner expects there will be 250 households occupied within the District six years after establishment. Whether that will result in 250 registered voters within the District is beyond Petitioner's ability to know or control. Finally, Ms. Minnis said in her letter that, when purchasing her home in the Willow Pond I subdivision, she was misled by a real estate agent affiliated with Panitz Homes regarding assessments that might be imposed by the District. However, the real estate agents were not affiliated in any way with Petitioner, and Petitioner was unaware of any misrepresentation, if one occurred. Petitioner's intention to propose establishment of the District was disclosed to Ms. Minnis prior to the purchase, as demonstrated by her signing the Addendum for Ultimate Consumer. In addition, Petitioner's intention to propose establishment of the District was set forth in the recorded declaration of covenants and restrictions for the Willow Pond I subdivision. That disclosure included a statement describing the facilities and services which the District might undertake. Conclusions Based upon the record of this proceeding, it is concluded that: The proceeding was properly noticed pursuant to Section 190.005(1)(d), Florida Statutes, by publication of an advertisement in a newspaper of general paid circulation in St. Johns County and of general interest and readership once each week for the four consecutive weeks immediately prior to the hearing. As required by Section 190.005(1)(b), Florida Statutes, Petitioner paid St. Johns County a $15,000 filing fee intended to offset the County's costs in reviewing the petition. All portions of the petition and other submittals have been completed and filed as required by law. All statements contained within the petition as corrected and supplemented at the hearing are true and correct. The creation of the District is not inconsistent with any applicable element or portion of the State Comprehensive Plan or the 1990-2005 St. Johns County Comprehensive Plan, as amended. The area of land within the District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. The District is the best alternative available for delivering community development services and facilities to the area that will be served by the District. The community development services and facilities of the District will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. The area to be served by the District is amenable to separate special district government. Respectfully submitted this 10th day of June, 1994, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administative Hearings DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1994. COPIES FURNISHED: David K. Coburn, Secretary Florida Land and Water Adjudicatory Commission 311 Carlton Building Tallahassee, FL 32301 Cheryl G. Stuart, Esquire David L. Powell, Esquire Post Office Box 6526 Tallahassee, Florida 32314 Daniel J. Bosanko, Esquire P. O. Box 349 St. Augustine, Florida 32085-0349 APPENDIX A Names and Addresses of Witnesses J. Thomas Gillette, III 1111 Durbin Creek Boulevard Jacksonville, Florida 32259 Douglas C. Miller 3131 St. Johns Bluff Road South Jacksonville, Florida 32246 Gary R. Walters 12 Crooked Tree Trail Ormond Beach, Florida 32174 Kathleen T. Minnis 317 Chickasaw Court Jacksonville, Florida 32259 John P. Sanders 11247 San Jose Boulevard, Apt. 1805 Jacksonville, Florida 32223 APPENDIX B List of Petitioner's Exhibits Number Description Petition to Establish the Julington Creek Plantation Community Development District Notice of Receipt of Petition by Florida Land and Water Adjudicatory Commission, Published in the Florida Administrative Weekly, on April 22, 1994 St. Johns County Resolution No. 94-78, in Support of Establishment of the Julington Creek Plantation Community Development District, Adopted on April 26, 1994 Revised Map of Existing Land Uses Within and Adjacent to the District (Exhibit 4 to the Petition) Letter from Linda Loomis Shelley, Secretary, Department of Community Affairs, to David K. Coburn, Secretary, Florida Land and Water Adjudicatory Commission, dated April 6, 1994 Revised Legal Description by Metes and Bounds of Area to be Included Within the District (Exhibit 2 to the Petition) Copies of Proofs of Publication of Notice of Local Hearing, Published in the St. Augustine Record on April 4, 11, 18 and 25, 1994 Receipts for Certified Mail of Copies of Notice of Local Public Hearing to Persons Specified in Rule 42-1.011(b), F.A.C. Copy of Check for Filing Fee Submitted to St. Johns County on March 2, 1994 Affidavits of Citizenship and Residency for the Initial Board of Supervisors DRI Development Order and Planned Unit Development Development Order for Julington Creek Plantation as Adopted on September 28, 1993 Copies of Individual Notices Voluntarily Sent by Petitioner to Residents and Purchasers in Julington Creek Plantation Within the District, with Attachment Additional Consent and Joinder Forms Copies of Additional Individual Notices Voluntarily Sent by Petitioner to Residents and Purchasers in Julington Creek Plantation Within the District Letter Transmitting Original Proofs of Publication of Notice of Local Public Hearing to Secretary of the Florida Land and Water Adjudicatory Commission as Required by Rule 42-1.011(1)(a), F.A.C. Letter from Cheryl G. Stuart and David L. Powell, attorneys for Petitioner, to Donald R. Alexander, Hearing Officer, dated May 26, 1994, with attachments Appendix C APPENDIX C Text of Proposed Rule CHAPTER 42_-1 JULINGTON CREEK PLANTATION COMMUNITY DEVELOPMENT DISTRICT 42_-1.001 Creation. 42_-1.002 Boundary. 42_-1.003 Supervisors. 42_-1.001 Creation. The Julington Creek Plantation Community Development District is hereby created. Specific Authority 190.005 FS. Law Implemented 190.005 FS. History--New _- - . 42_-1.002 Boundary. The boundaries of the district are as follows: PARCEL "A" A portion of Sections 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 49, 54, and 57, Township 4 South, Range 27 East, St. Johns County, Florida, together with a portion of Sections 2, 4, and 5, Township 5 South, Range 27 East, St. Johns County, Florida, all being more particularly described as follows: For a Point of Beginning, commence at the point of intersection of the Easterly right-of-way line of State Road No. 13, as now established for a width of 100 feet, with the Southwesterly right- of-way line of Racetrack Road, as now established for a width of 66 feet, said point being the Northwest corner of the aforementioned Julington Creek Unit One, according to plat thereof recorded in Map Book 16, Pages 35 - 51, of the Public Records of the aforementioned St. Johns County, Florida; thence South 76_ 22' 54" East, along said Southwesterly right-of-way line of Racetrack Road, a distance of 876.51 feet; thence North 13_ 37' 06" East, a distance of 66.00 feet to a point lying in the Northeasterly right-of-way line of said Racetrack Road, said point being the most Westerly corner of Tract "A", as shown on the aforementioned plat of Julington Creek Unit Two recorded in Map Book 16, Pages 52 - 63, Public Records, said County; thence along the Northerly boundary of said Tract "A" and Easterly prolongation thereof, North 89_ 13' 56" East, a distance of 1044.60 feet to a point lying in the Westerly boundary of said Julington Creek Unit Two; thence along and with the boundary of said Julington Creek Unit Two the following courses: North 00_ 55' 04" West, a distance of 2895.00 feet; thence North 65_ 37' 46" East, a distance of 261.31 feet to the point of curvature of a curve to the right, said curve being concave to the Southwest, having a radius of 270.00 feet and a central angle of 56_ 49' 50"; thence 267.81 feet Southeasterly, around the arc of said curve, to the point of tangency thereof, said arc being subtended by a chord which bears South 85_ 57' 19" East, a distance of 256.96 feet; thence South 57_ 32' 24" East, a distance of 535.49 feet to the point of curvature of a curve to the left, said curve being concave to the Northeast, having a radius of 530.00 feet and a central angle of 15_ 32' 00"; thence 143.69 feet Southeasterly, around the arc of said curve, to the point of tangency thereof, said arc being subtended by a chord which bears South 65_ 18' 24" East, a distance of 143.25 feet; thence South 73_ 04' 24" East, a distance of 287.74 feet to the point of curvature of a curve to the left, said curve being concave to the North, having a radius of 490.40 feet and a central angle of 33_ 03' 19"; thence 282.92 feet Southeasterly, around the arc of said curve, to the point of tangency thereof, said arc being subtended by a chord which bears South 89_ 36' 04" East, a distance of 279.02 feet; thence North 73_ 52' 17" East, a distance of 359.21 feet to the Northerly corner common to said Julington Creek Unit Two and the aforementioned Julington Creek Unit Three, according to plat thereof recorded in Map Book 16, Pages 64 - 88, Public Records, said County; thence along and with the boundary of said Julington Creek Unit Three the following courses: North 73_ 52' 17" East, a distance of 116.99 feet to the point of curvature of a curve to the right, said curve being concave to the South, having a radius of 470.00 feet and a central angle of 35_ 29' 03"; thence 291.08 feet Southeasterly, around the arc of said curve, to the point of tangency thereof, said arc being subtended by a chord which bears South 88_ 23' 11" East, a distance of 286.45 feet; thence South 70_ 38' 40" East, a distance of 1031.69 feet to the point of curvature of a curve to the right, said curve being concave to the Southwest, having a radius of 2260.00 feet and a central angle of 04_ 59' 59"; thence 197.21 feet Southeasterly, around the arc of said curve, to the point of tangency thereof, said arc being subtended by a chord which bears South 68_ 08' 40" East, a distance of 197.15 feet; thence South 65_ 38' 41" East, a distance of 135.97 feet; thence South 00_ 36' 59" East, a distance of 622.42 feet; thence South 89_ 24' 51" West, a distance of 294.90 feet; thence South 00_ 34' 55" East, a distance of 1624.92 feet; thence South 76_ 25' 30" East, a distance of 1360.52 feet; thence North 00_ 33' 43" West, a distance of 1957.64 feet; thence South 89_ 23' 37" West, a distance of 324.80 feet; thence North 00_ 36' 59" West, a distance of 504.45 feet to a point lying in the Southerly right-of-way line of Bishop Estates Road, as now established for a width of 60 feet; thence along said Southerly right-of-way line, and continuing along and with the boundary of said Julington Creek Unit Three, North 72_ 46' 03" East, a distance of 847.61 feet to the point of curvature of a curve to the right, said curve being concave to the South, having a radius of 559.55 feet and a central angle of 38_ 38' 26"; thence 377.36 feet Easterly, around the arc of said curve, to the point of tangency thereof, said arc being subtended by a chord which bears South 87_ 54' 44" East, a distance of 370.25 feet; thence South 68_ 35' 31" East, a distance of 1163.87 feet to the point of curvature of a curve to the right, said curve being concave to the Southwest, having a radius of 896.04 feet, and a central angle of 14_ 33' 05"; thence 227.57 feet Southeasterly, around the arc of said curve, to the point of tangency thereof, said arc being subtended by a chord which bears South 61_ 18' 59" East, a distance of 226.96 feet; thence South 54_ 02' 26" East, a distance of 621.97 feet to the point of curvature of a non-tangent curve to the left, said curve being concave to the Northeast, having a radius of 654.89 feet and a central angle of 35_ 19' 25"; thence 403.75 feet Southeasterly, around the arc of said curve, said arc being subtended by a chord which bears South 71_ 42' 08" East,a distance of 397.38 feet; thence North 89_ 21' 50" East, a distance of 321.10 feet to the point of curvature of a non-tangent curve to the right, said curve being concave to the South, having a radius of 690.01 feet and a central angle of 25_ 21' 57"; thence 305.48 feet Easterly, around the arc of said curve, said arc being subtended by a chord which bears South 76_ 40' 52" East, a distance of 302.99 feet; thence South 63_ 59' 54" East, a distance of 158.64 feet to the point of curvature of a curve to the left, said curve being concave to the Northeast, having a radius of 1268.20 feet, and a central angle of 42_ 29' 40"; thence 940.59 feet Southeasterly, around the arc of said curve, to a point of reverse curvature, said arc being subtended by a chord which bears South 85_ 14' 44" East, a distance of 919.18 feet to said point of reverse curvature of a curve to the right, said curve being concave to the South, having a radius of 228.00 feet and a central angle of 20_ 36' 14"; thence 81.99 feet Northeasterly, around the arc of said curve, to the point of tangency thereof, said arc being subtended by a chord which bears North 83_ 48' 33" East, a distance of 81.55 feet; thence South 85_ 53' 20" East, a distance of 328.46 feet to the Northerly corner common to said Julington Creek Unit Three and the aforementioned Julington Creek Unit Four, according to plat thereof recorded in Map Book 16, Pages 89 - 111, Public Records, said County; thence along and with the boundary of said Julington Creek Unit Four the following courses: South 85_ 53' 20" East, a distance of 171.26 feet to the point of curvature of a curve to the right, said curve being concave to the South, having a radius of 690.01 feet, and a central angle of 20_ 15' 14"; thence 243.92 feet Easterly, around the arc of said curve, to the point of tangency thereof, said arc being subtended by a chord which bears South 75_ 45' 43" East, a distance of 242.65 feet; thence South 65_ 38' 06" East, a distance of 299.43 feet to the point of curvature of a curve to the left, said curve being concave to the Northeast, having a radius of 1451.18 feet, and a central angle of 16_ 27' 36"; thence 416.90 feet Southeasterly, around the arc of said curve, to the point of tangency thereof, said arc being subtended by a chord which bears South 73_ 51' 54" East, a distance of 415.47 feet; thence South 82_ 05' 42" East, a distance of 616.54 feet to the point of curvature of a curve to the right, said curve being concave to the Southwest, having a radius of 1642.47 feet, and a central angle of 00_ 17' 36"; thence 8.41 feet Southeasterly, around the arc of said curve, said arc being subtended by a chord which bears South 81_ 56' 54" East, a distance of 8.41 feet to a point of intersection with the Southerly prolongation of the most Westerly boundary of the aforementioned Julington Creek Unit Six, according to plat thereof recorded in Map Book 17, Pages 22 - 52, Public Records, said County; thence along and with said Westerly boundary and Southerly prolongation thereof, and along and with the boundary of said Julington Creek Unit Six the following courses: North 00_ 36' 03" East, a distance of 319.20 feet to an angle point in the boundary of said Julington Creek Unit Six; thence North 03_ 08' 57" West, a distance of 230.12 feet; thence North 02_ 45' 57" West, a distance of 284 feet, more or less, to the mean high water line of Durbin Creek; thence Southeasterly and Easterly, along said mean high water line of Durbin Creek and the meanderings thereof, a distance of 9880 feet, more or less, to the East line of Section 35 of the aforementioned Township 4 South, Range 27 East,; thence South 01_ 33' 04" East, along said East line of Section 35, a distance of 3752 feet, more or less, to a point lying in the aforementioned Northeasterly right- of-way line of Racetrack Road; thence South 76_ 22' 54" East, along said Northeasterly right-of- way line, a distance of 147.01 feet to the most Westerly corner of Tract "A", as shown on the aforementioned plat of Julington Creek Unit Seven recorded in Map Book 18, Pages 6 - 32, Public Records, said County; thence North 89_ 11' 36" East, along the Northerly boundary of said Julington Creek Unit Seven, a distance of 2538.40 feet to the Northeast corner thereof; thence along the Easterly boundary of said Julington Creek Unit Seven, and along the extension of said Easterly boundary across the aforementioned Racetrack Road, South 00_ 33' 34" East, a distance of 1320.75 feet to a point lying in the line dividing the aforementioned Townships 4 and 5 South, Range 27 East, said point being the Southeast corner of said Julington Creek Unit Seven; thence continue along and with the boundary of said Julington Creek Unit Seven the following courses: South 89_ 13' 19" West, a distance of 2656.47 feet to the Southeast corner of the aforementioned Section 35, Township 4 South, Range 27 East; thence South 89_ 15' 04" West, a distance of 660.28 feet; thence North 01_ 36' 48" West, a distance of 1320.37 feet; thence South 89_ 13' 37" West, a distance of feet; thence South 01_ 47' 18" East, a distance of 1320.15 feet; thence South 02_ 14' 04" East, a distance of 1340.96 feet; thence South 89_ 33' 39" West, a distance of 662.34 feet; thence North 02_ 10' 39" West, a distance of 1336.69 feet; thence South 89_ 12' 29" West, a distance of 660.57 feet; thence South 89_ 13' 36" West, a distance of 2641.92 feet; thence South 89_ 14' 24" West, a distance of 2676.55 feet; thence South 89_ 14' 31" West, a distance of 1369.31 feet to the Southerly corner common to said Julington Creek Unit Seven and the aforementioned Julington Creek Unit Eight, according to plat thereof recorded in Map Book 18, Pages 33 through 51, Public Records, said County; thence along and with the boundary of said Julington Creek Unit Eight the following courses: South 89_ 14' 31" West, a distance of 1258.94 feet; thence South 00_ 48' 07" East, a distance of 1331.35 feet; thence South 00_ 47' 45" East, a distance of 2682.06 feet; thence South 89_ 35' 54" West, a distance of 2649.95 feet; thence South 89_ 33' 43" West, a distance of 1328.72 feet; thence South 89_ 31' 34" West, a distance of 1342.28 feet; thence South 89_ 26' 51" West, a distance of 1345.27 feet; thence North 00_ 44' 34" West, a distance of 1341.60 feet; thence North 00_ 39' 54" West, a distance of 295.39 feet to the Westerly corner common to said Julington Creek Unit Eight and the aforementioned Julington Creek Unit Nine, according to plat thereof recorded in Map Book 18, Pages 77 - 121, Public Records, said County; thence along and with the boundary of said Julington Creek Unit Nine the following courses: North 00_ 39' 54" West, a distance of 1024.75 feet; thence North 89_28' 29" East, a distance of 1342.18 feet; thence North 00_ 28' 51" West, a distance of 1322.45 feet; thence South 89_ 28' 29" West, a distance of 1342.18 feet; thence North 00_ 28' 51" West, a distance of 379.92 feet to the centerline of Cunningham Creek; thence Westerly along a meander line that approximates the centerline of said Cunningham Creek as follows: North 58_ 00' 56" West, a distance of 135.23 feet; thence South 88_ 24' 34" West, a distance of 220.36 feet; thence North 70_ 24' 07" West, a distance of 355.69 feet; thence South 76_ 06' 53" West, a distance of 348.16 feet; thence South 89_ 11' 02" West, a distance of 300.67 feet; thence North 83_ 03' 30" West, a distance of 252.48 feet; thence North 80_ 29' 16" West, a distance of 336.30 feet; thence North 88_ 42' 35" West, a distance of 311.27 feet; thence South 71_ 01' 54" West, a distance of 85.28 feet; thence North 85_ 52' 03" West, a distance of 313.97 feet; thence South 58_ 08' 46" West, a distance of 305.31 feet; thence South 88_ 56' 58" West, a distance of 160.43 feet; thence South 68_ 08' 31" West, a distance of 239.34 feet; thence South 88_ 49' 46" West, a distance of 474.71 feet; thence North 38_ 38' 53" West, a distance of 193.24 feet; thence North 87_ 42' 49" West, a distance of 351.51 feet; thence South 70_ 43' 49" West, a distance of 537.95 feet; thence South 59_ 45' 23' West, a distance of 666.17 feet to a point lying in the aforementioned Easterly right-of-way line of State Road No. 13; thence North 04_ 51' 47" East, along said Easterly right-of-way line, a distance of 1961.82 feet to the Westerly corner common to said Julington Creek Unit Nine and the aforementioned Julington Creek Unit One, according to plat thereof recorded in Map Book 16, Pages 35 - 51, Public Records, said County; thence along and with the boundary of said Julington Creek Unit One the following courses: North 04_ 51' 47" East, a distance of 2087.46 feet to an angle point in said boundary; thence North 88_ 25' 39" East, departing said Easterly right-of-way line of State Road No. 13, a distance of 191.74 feet; thence North 00_ 18' 11" West, a distance of 833.50 feet; thence North 89_ 13' 41" East, a distance of 676.09 feet; thence South 00_ 17' 20" East, a distance of 160.48 feet; thence North 89_ 15' 59" East, a distance of 670.35 feet; thence North 00_ 16' 32" West, a distance of 660.03 feet; thence South 89_ 17' 37" West, a distance of 670.00 feet; thence South 89_ 17' 50" West, a distance of 747.26 feet to a point lying in the aforementioned Easterly right-of-way line of State Road No. 13; thence North 04_ 51' 47" East, along said Easterly right-of-way line, a distance of 1490.97 feet to the Point of Beginning. Containing 4,270 acres, more or less. EXCEPTING THEREFROM, however, lands described and recorded in Official Records Volume 569, Page 331, and Official Records Volume 790, Page 554, and also lands described and recorded in Official Records Volume 910, Page 1091 (including the EXCEPTION mentioned therein), all of the Public Records of St. Johns County, Florida, and containing 29.13 acres, more or less. EXCEPTING THEREFROM, however, lands described and recorded in Official Records Volume 721, Page 1090, of the Public Records of St. Johns County, Florida, and containing 5.16 acres, more or less. EXCEPTING THEREFROM, however, lands described and recorded in Official Records Volume 716, Page 690, and Official Records Volume 878, Page 92, all of the Public Records of St. Johns County, Florida, and containing 10.20 acres, more or less. EXCEPTING THEREFROM, however, the First Replat in Julington Creek Unit One, as recorded in Map Book 26, Pages 82 and 83, of the Public Records of St. Johns County, Florida, and containing 31.53 acres, more or less. EXCEPTING THEREFROM, however, all of Tracts G-5, G-6 and G-7, all of Lots 1 through 52, Block 5, and all of Lots 1 through 39, Block 6, together with the road rights-of-way known as Larkspur Loop, Canna Court, Catalpa Court, and Calico Court, all as shown on plat of Julington Creek Unit One as recorded in Map Book 16, Pages 35 through 51, of the Public Records of St. Johns County, Florida, and containing 39.41 acres, more or less. EXCEPTING THEREFROM, however, all of Lots 1 through 11, Block 7, and the road right-of-way known as Little Loop, all as shown on plat of Julington Creek Unit One as recorded in Map Book 16, Pages 35 through 51, of the Public Records of St. Johns County, Florida and containing 6.85 acres, more or less. EXCEPTING THEREFROM, however, all of Tracts G-1, G-2, G-13 and G-14, all of Lots 1 through 21, Block 41, all of Lots 1 through 24, Block 42, all of Lots 1 through 11, Block 43, all of Lots 1 through 20, Block 44, all of Lots 1 through 5, Block 45, and all of Lots 1 through 14, Block 46, together with the road rights-of-way known as Linwood Loop, Castleberry Court, and Chesswood Court, all as shown on plat of Julington Creek Unit Five as recorded in Map Book 17, Pages 1 through 21, of the Public Records of St. Johns County, Florida, and containing 45.93 acres, more or less. EXCEPTING THEREFROM, however, lands described and recorded in Official Records Volume 328, Page 644, and Official Records Volume 443, Page 451, of the Public Records of St. Johns County, Florida, together with a parcel of land being bounded on the North by Racetrack Road, as now established for a width of 66 feet, and bounded on the West by the aforementioned lands described in Official Records Volume 443, Page 451, and bounded on the South and the East by the aforementioned lands described in Official Records Volume 328, Page 644, all as recorded in the Public Records of St. Johns County, Florida, and containing 53.94 acres, more or less. EXCEPTING THEREFROM, however, lands described and recorded in Official Records Volume 350, Page 229, of the Public Records of St. Johns County, Florida, and containing 10.80 acres, more or less. EXCEPTING THEREFROM, however, all of Tract F as shown on plat of Julington Creek Unit Five as recorded in Map Book 17, Pages 1 through 21, of the Public Records of St. Johns County, Florida, and containing 5.73 acres, more or less. AND FURTHER EXCEPTING THEREFROM, however, any portion of the above described lands lying within the rights-of-way of Racetrack Road, as now established for a width of 66 feet, or Bishop Estates Road, as now established for a width of 60 feet, or Orange Street as now established for a width of 60 feet, all of which contain 44.69 acres, more or less. Lands thus described, exclusive of all exceptions therein, contain 3,986 acres, more or less. TOGETHER WITH, PARCEL "B" (Record Description) Part of Section 57, Rebecca Pengree Grant, Township 4 South, Range 27 East, Portions of Section 38., William Harvey Grant, Section 39, F.P. Fatio Grant, Section 42, Rebecca Pengree Grant, all being in Township 5 South, Range 27 East, St. Johns County, Florida, being more particularly described as follows: For a Point of Reference, commence at the intersection of the line dividing Section 39 and Section 42 with the Southeasterly line of Section 38 aforementioned; run thence South 40o 10' 48" East along the dividing line of Sections 38 and 39, a distance of 945.12 feet, more or less, to the Westerly Right of Way line of State Road No. 13, as now established as a 100 foot Right of Way, said point lying and being in a curve concave Westerly, having a radius of 2814.79 feet, for a Point of Beginning; thence in a Northerly direction, along the arc of said radius and Westerly Right of Way line of State Road No. 13, an arc length of 229.86 feet, said arc being subtended by a chord bearing North 21o 07' 03" East, a chord distance of 229.8 feet; thence North 53o 25' 45" West, a distance of 471.92 feet; thence North 36o 34' 15" East, a distance of 200.0 feet; thence South 53o 25' 45" East, a distance of 399.29 feet, more or less, to the Westerly Right of Way line of State Road No. 13, aforementioned; thence in a Northerly direction, along the arc of curve having a radius of 2814.79 feet and Westerly Right of Way line of State Road No. 13, an arc length of 487.38 feet to the P.C. of curve, said arc being subtended by a chord bearing of North 09o 29' 07" East, a chord distance of 486.78 feet; thence North 04o 31' 30" East, along the Westerly Right of way line of State Road No. 13, a distance of 3125 feet, more or less, to the waters of Cunningham Creek; thence in a Southwesterly and Southeasterly direction along the waters following the meandering of Cunningham Creek and Mill Creek respectively, a distance of 8000 feet, more or less, to the Westerly Right of Way line of State Road 13, aforementioned, said point being an arc distance of 310 feet, more or less, Southwesterly from the Point of Beginning; thence in a Northeasterly direction, along the arc of a curve having said radius of 2814.79 feet and Westerly Right of Way line of State Road No. 13, an arc distance of 310 feet, more or less, to the point of beginning. EXCEPTING that portion of said Sections 39 and 42, Township 5 South, aforementioned, more particularly described as follows: For a Point of Reference, commence at the intersection of the line dividing Section 39 and Section 42, with the Southeasterly line of said Section 38; run thence South 40o 10' 48" East along the dividing line of Sections 38 and 39, a distance of 945.12 feet, more or less, to the Westerly Right-of-Way line of State Road No. 13, aforementioned, for the Point of Beginning; thence in a Northerly direction, along the arc of said radius and Westerly Right of Way line of State Road No. 13, an arc length of 167.06 feet, said arc being subtended by a chord bearing North 21o 45' 24" East, a chord distance of 167.03 feet; thence North 53o 25' 45" West, a distance of 100.0 feet; thence South 26o 16' 55" West, a distance of 500 feet, more or less, to the waters of Mill Creek; thence in a Southeasterly direction, along the waters following the meanderings of Mill Creek, a distance of 110 feet, more or less, to the Westerly Right of Way line of State Road No. 13, aforementioned, said point being an arc distance of 310 feet, more or less, Southwesterly from the Point of Beginning; thence in a Northeasterly direction, along the arc of a curve having said radius of 2814.79 feet and Westerly Right of Way line of State Road No. 13, an arc distance of 310 feet, more or less, to the Point of Beginning. Lands thus described, exclusive of all exceptions therein, contain 133 acres, more or less. Total Parcel Area 4119 acres, more or less. Specific Authority 190.005 FS. Law Implemented 190.004, 190.005 FS. History--New _- - . 42_-1.003 Supervisors. The following five persons are designated as the initial members of the Board of Supervisors: Kimball D. Woodbury; David A. Branson: John H. Fischer; J. Thomas Gillette, III; Terrell R. Jones. Specific Authority 120.53(1), 190.005 FS. Law Implemented 190.006(1) FS. History--New _- - .
