Findings Of Fact Respondent, Robert Zahner (Zahner), has been the city attorney for the City of Coral Gables (City) since 1967. The Country Club of Coral Gables (Country Club) was established by City founder George Merrick, prior to the City's incorporation. Since 1929, the City which owns the land and buildings from which the Club operates, has leased the property to private entities. Since 1935, the lessee of the property has been the Country Club, a non-profit corporation run by a board of directors elected by the Country Club membership. Between 1935 and 1958, the lease underwent various modifications and extensions. In 1958, the City Commission voted to extend the lease to July 31, 1990. Under the terms of the lease, the Country Club paid three percent of its gross annual income, but in no case less than $5,000 per year, to the City as rent. In 1977, the Country Club again came before the City Commission requesting a lease extension, this time to the year 2002. There was no change in the rent amount. The request for extension was to allow the Country Club to borrow money for construction, and the request was approved. In 1978 the Country Club asked the City Commission for rezoning so that it could expand its tennis courts. This request was approved. In May, 1980, the Country Club asked the City Commission for a $23,000 loan to repair its roof. The City Attorney advised that the City could not lawfully make such a loan, and no further action was taken on the matter. In 1981 the Country Club asked to expand its tennis club facilities, and this request was approved. In 1983 a significant portion of the Country Club burned down. A request by the Country Club to support its efforts to raise funds from citizens for the Country Club, was on the July 26, 1983, City Commission agenda, but was not taken up. A discussion of the status of the building was held on that date, but no action was taken. Instead of rebuilding the burned section with the insurance money, the Country Club decided to construct an already planned new section. On November 22, 1983, representatives of the Country Club presented a plan for restoration to the City Commission, which on motion of Commissioner Kerdyk approved the plan. On March 27, 1984, the City Commission authorized the City Manager to sign an affidavit needed by the Country Club to obtain a building permit. In April 1984, the Country Club requested extension of its lease to the year 2020. On motion of Commissioner Kerdyk, the City Commission agreed to the extension. In September 1984, the Country Club asked that the lease be reworded in order to satisfy the lending institutions from which the Country Club was borrowing money for renovations. The request was approved. When the Country Club initially undertook its restoration and remodeling plan, the Country Club leadership believed that there would be sufficient funds to accomplish both the rebuilding and the new construction. Cost overruns, diminishing membership, and other factors combined, however, to leave the Country Club with a new section, an old, burned-out section, and a significant debt. In 1987, the Country Club asked the City Commission to assist it, by contributing funds or otherwise, in overcoming that debt. On November 24, 1987, the City Commission met and discussed the problem. The only action taken was to invite the Country Club leadership to an up coming City Commission meeting to discuss proposed improvements. On January 26, 1988, the City Commission met with the Board of Directors of the Country Club to discuss the Country Club's request. The City Commissioners were informed that the Country Club's rent payments had been generating approximately $40,458.64 per year in income to the City. The Country Club vice-president proposed that the City rebuild the outside shell of the building, at a cost of $1,000,362 and the Country Club finance the remainder of the construction, about $1,900,000. The City Attorney advised that the City could not loan funds to the Country Club, because it was a private club. However, he opined that the City could participate in the rebuilding because it was the owner of the property. Action was postponed until the next meeting. On February 3, 1988, the Country Club made an offer to the City to increase its rent payment from three percent to six percent, if the City would rebuild the shell. The matter was raised at the February 9, 1988, meeting of the City Commission. Mayor Corrigan proposed that the City finance the rebuilding, but made no motion. Commissioner Wolff proposed that the City obtain funds from the Sunshine State Governmental Financing Commission and lend that money to the Country Club. The motion was seconded by Commissioner Kerdyk, and ultimately the City Commission resolved to refer the matter to the acting city manager to "work out financing without using taxpayer dollars." At the February 9 meeting, discussion was had on the issue of whether the City Commissioners had conflicts of interest, since they all had complimentary memberships to the Country Club. Mr. Zahner, the City Attorney, advised that they had no conflict. The issue of conflict of interest was again raised in subsequent meetings. Alternative proposals identified by the City Manager for funding the Country Club's rebuilding were discussed at the City Commission's March 8, 1988 meeting, but no action was taken. On June 30, 1988, the Country Club proposed that the City forgive lease payments until the year 2000. On August 30, 1988, the City Commission voted to suspend the lease payments, with the funds going instead to the maintenance and reconstruction of the facility. Membership in the Country Club is open to any person, provided they can pay the initiation fee and membership dues. At all times pertinent to this proceeding, the initiation fee was $1,000, although it sometimes was reduced to $500 during membership drives. The annual fee was $750. Membership entitles the member and his or her family to use the swimming pool, health club, tennis courts, and bar and restaurant. Members must pay for their meals. For more than twenty years the Country Club traditionally has awarded memberships to city officials and various other persons. The Country Club bylaws provide for such memberships. The bylaws provide for honorary memberships and complimentary memberships. Only one honorary membership has been given. The only difference between what the Country Club calls a complimentary membership and an honorary membership is the duration of the membership. Complimentary memberships run from year to year. Persons awarded complimentary memberships include the City Commissioners, Mayor, City Manager, Assistant City Managers, the City Clerk, City Attorney, Director of Public Works, Finance Director, City Architect, Fire and Police Chief, the University of Miami President, Football Coach, and Assistant Athletic Director, the Golf Pro at the City golf course, and the editor of the local social magazine. The complimentary memberships are reviewed each year and are not renewed after the recipient leaves his or her office. The Coral Gables Executive Club (Executive Club) is located in an office building at 550 Biltmore Way. The building and the Executive Club are owned by Albert Sakolsky, a local real estate developer. The Executive Club, which opened in the late 1980's, consists of a dining room and health club. Membership costs $700.00 initiation, and $50.00 per month dues. Mr. Sakolsky hired a public relations firm to promote the Executive Club. The firm recommended that complimentary memberships be given to community leaders and developed a list of persons who would receive the memberships. Over a hundred free memberships were granted. In February, 1989, Mr. Sakolsky wrote to Coral Gables City Manager Jack Eads, presenting the City with a "permanent corporate membership." Although the letter appeared to infer that the use of the health facilities would be free to those applying through the City's corporate membership, the practice was to charge holders of complimentary memberships such as Zahner $30 a month for the use of the health facilities if they desired to use them. With his letter, Mr. Sakolsky included membership applications for all the City Commissioners, as well as the Mayor the City Attorney, and Mr. Eads. Mr. Sakolsky and the City had had numerous disputes over the years on various issues. His presentation of the free corporate membership was an effort to, in his words, "bury the hatchet." A complimentary membership entitled the member to use the dining facilities. Soon after its inception, the Executive Club was opened to the public. The only privilege members received over non-members was a discount on their meals. A non-member could be given a complimentary membership after his first visit, thereby entitling him to receive a discount on subsequent visits. In September, 1989, the City Commission voted to lease space in the 550 Building. The rental rate was $20 per square foot. When the lease expired, the owner of the builder proposed a higher rate, which the City did not accept. The City vacated the building and rented space elsewhere. Zahner has been a member of the Country Club for more than 35 years and served as city attorney for the City for 26 years. Subsequent to his appointment as city attorney, Mr. Zahner's membership was changed by the Country Club to a complimentary membership. Under the terms of the complimentary membership, Zahner was not allowed to vote in Country Club elections or hold an office in the Country Club, but continued to retain all the other benefits he had been entitled to as a paying Country Club member. Zahner paid for his initiation fees to the Country Club, and paid his own dues until he became city attorney. Zahner used the Country Club for meetings of the Tenth Holder's Club, which is a golf social club. In order to belong to the Tenth Holder's Club, a person must also belong to the Country Club. About once a month, he went to dinner at the Country Club. Zahner had always considered the complimentary Country Club memberships honorary. As City Attorney, he advised several City Commissioners that receiving the Country Club membership created no conflict and that the membership did have to be reported on the financial disclosure forms. Zahner has no vote on the City Commission. No vote concerning the Country Club was pending before the City Commission when Zahner received his complimentary membership. Zahner was not involved in negotiating or drafting the lease with the Country Club, or any of the amendments to the lease; however, he did approve the amendments. Zahner understood that the complimentary memberships were a tradition in the City. He thought that the Country Club wanted more members from the city. No one from the Country Club ever asked him for any favors. No vote regarding the Executive Club was pending before the Commission at the time he was given the membership. Zahner believed that the complimentary membership was given to him to generate business for the Executive Club. No one connected with the Executive Club or the 550 Biltmore Building has ever asked Zahner for any favors. Zahner was not involved in negotiating the lease with the 550 Biltmore Building; however, he did approve the final draft.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a final order and public report finding that Robert Zahner violated Section 112.313(4), Florida Statutes, by accepting a free membership to the Coral Gables Country Club and by accepting a free membership to the Executive Club. I therefore recommend a civil penalty of $1,000 and restitution of $750 for the violation involving the Coral Gables Country Club and a civil penalty of $1,000 and restitution of $600 for the violation involving the Executive Club for a total penalty of $3,350. The restitution in both cases is the amount a member of the general public would have had to pay for one year's dues. DONE AND ENTERED this 23rd day of May, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3911EC To comply with the requirements of Section 120.59(2), Florida Statutes, (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact Paragraphs 1-18: Accepted. Paragraph 19: The first sentence is rejected as unnecessary. The remainder of the paragraph is accepted in substance. Paragraph 20: The first sentence is accepted. The second sentence is accepted in substance. Paragraph 21: Accepted. Paragraph 22: The first sentence is accepted. The second sentence is accepted in substance. Paragraphs 23-26: Accepted. Paragraph 27: Accepted in substance. Paragraphs 28-33: Accepted. Paragraph 34: The first sentence is rejected as constituting a conclusion of law. The second sentence is accepted. The third sentence is rejected as constituting argument. The fourth sentence is accepted in substance. Paragraphs 35-36: Rejected as constituting argument. Paragraphs 37-40: Accepted. Paragraph 41: The first and second sentences are accepted in substance. The third sentence is accepted in substance to the extent that the city officials who were receiving complimentary memberships through the City's corporate membership could use the health facilities for an additional fee of $30 per month but rejected to the extent that it implies that the city officials could use the health facilities at no cost. Paragraphs 42-44: Accepted. Paragraph 45: The first sentence is rejected as constituting a conclusion of law. The second sentence is accepted. The third sentence is rejected as constituting argument. Paragraphs 46-47: Rejected as constituting argument. Respondent's Proposed Findings of Fact Paragraphs 1-4: Accepted. Paragraph 5: Rejected as subordinate to the facts actually found. Paragraph 6: Rejected as unnecessary. Paragraph 7: Accepted. Paragraph 8: The last sentence is rejected as unnecessary. The remainder of the paragraph is accepted. Paragraphs 9-12: Accepted. Paragraph 13: The last sentence is rejected as constituting a conclusion of law. The remainder of the paragraph is accepted in substance. Paragraph 14: Accepted in substance. Paragraphs 15-16: Accepted. Paragraphs 17-19: Accepted in substance. Paragraphs 20-21: Accepted. Paragraphs 22-29: Accepted in substance. COPIES FURNISHED: Raoul G. Cantero, Esquire Suite 1600 2601 South Bayshore Drive Miami, Florida 33133 Virlindia Doss, Esquire Department of Legal Affairs The Capitol, PL-01 Tallahassee, Florida 32399-1050 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahasee, Florida 32317-5709
Findings Of Fact At all times pertinent to the allegations contained herein, Respondents were licensed real estate salesmen in the State of Florida, with Mr. Blanc's license being 0406481 and Ms. Kirkland's license being 0399466. The Division of Real Estate is a state government licensing and regulatory agency charged with the responsibility of regulating the practice of real estate in this state. In November, 1985, Mr. and Mrs. William A. McKie were owners of Week 43 in Unit 1 of a time share condominium located at the Anchorage Resort and Yacht Club in Key Largo, Florida. About that time, they received a card issued by the Florida Bay Club to visit a time share condominium there. Because they were somewhat disappointed in the condition of their Anchorage unit, they went to see the Florida Bay Club facility and met with Respondent Kirkland who took them on a tour of the facility and the model apartment. Mrs. McKie was quite impressed with it, but indicated she could not afford it, because she and her husband already owned a time share unit at the Anchorage. When told that, Ms. Kirkland introduced the McKies to Respondent Blanc, who in the course of his sales presentation, suggested that the McKies use their ownership at the Anchorage as a trade-in worth $4,000 off of the in excess of $11,000 price of the Florida Bay Club unit. The McKies agreed and signed certain documents incident to the purchase including a worksheet, purchase agreement, disclosure agreement, and settlement statement, all prepared by Respondent Blanc. The worksheet reflected that the unit being purchased by the McKies, Week 44 in Unit A-5, had a purchase price of $6,500 toward which the McKies made a down payment of $650 by three separate charges to their Master Card and Visa cards, two for $300 each and one for $50. This left a mortgage balance to be financed of $5,850 payable for 7 years at 15 1/2 percent with monthly payments of $114.54. No reference was made in the worksheet to a trade in of the Anchorage unit. The purchase agreement also signed by the McKies and by Respondent Kirkland for the Florida Bay Club reflects a purchase price of $6,500 with a down payment of $650. The truth in lending form reflects that the amount financed would be $5,850 at 15.5% resulting in a finance charge of $3,771.36 with a total monthly payment amount of $9,621.36 which, when added to the $650 deposit, showed a total sales price of $10,271.36. The settlement statement signed by the McKies reflects a sales price of $6,500 with a $650 deposit. At no place, on any of the documentation, is the $4,000 trade-in for the Anchorage unit reflected. As a part of the transaction and at the suggestion of Respondent Blanc, the McKies were to sign a quitclaim deed to him as the representative of the seller to receive credit for the $4,000 trade-in. The documents, except for the quitclaim deed, were signed by the McKies on their first visit to Florida Bay Club on November 17, 1985. Mrs. McKie does not recall either Respondent signing the documentation, but there is evidence that Ms. Kirkland signed the purchase agreement and the worksheet and Mr. Blanc approved the worksheet. Neither the disclosure statement, the settlement statement nor the quitclaim deed, which was prepared by Respondent, Blanc, and furnished to the McKies on their second visit, was signed by either Respondent. The McKies went back to Florida Bay Club approximately a week later to sign for the prize they had been notified they had won and to sign the quitclaim deed, which had not been ready for them on their first visit. Respondent Blanc explained what the quitclaim deed was for and according to both McKies, they would not have purchased the property at Florida Bay Club had they not been able to trade-in their Anchorage unit. They definitely could not afford to pay for both units, a fact which was repeatedly explained to Respondents on both visits. Mrs. McKie believed that when she signed the quitclaim deed to the Anchorage unit, she would no longer be responsible for making payments there and in fact, the McKies notified the Anchorage Resort Club that Respondent Blanc had assumed their Week at the Anchorage, a fact which was confirmed by the Anchorage to Mr. Blanc by letter dated February 13, 1986. It is further noted that on January 30, 1986, Ms. Berta, general manager of the Florida Bay Club, by letter of even date, notified Mr. Blanc who was no longer an employee of Florida Bay, that the McKies' payment book, invoices for taxes due on the Anchorage property, and the quitclaim deed were being forwarded to him as evidence of the change of ownership of the Anchorage Resort unit from the McKies to Respondent Blanc. In this letter, Blanc was requested to notify the Anchorage of the change so the McKies would not be dunned for continuing payments. At the closing of the Florida Bay unit, when Mrs. McKie and her husband signed the quitclaim deed, Respondent Blanc told her she would continue to get payment notices from the Anchorage while the transfer was being processed, but she should bring those payment notices to him at the Florida Bay Club and he would take care of them. When Mrs. McKie received the first notice, she brought it to the Florida Bay Club to give to Mr. Blanc, but he was no longer located there. On this visit, she spoke to Ms. Berta, who advised her that the Florida Bay Club did not take trades. Ms. Berta called Respondent Blanc at his new place of business by phone in Mrs. McKie's presence and Respondent indicated at that time that he would buy the Anchorage unit himself and assume the payments. As a result, Mrs. McKie sent the delinquent notices to him at his new place of business, Gulf Stream Manor. In the meantime, she continued to make her new payments at the Florida Bay Club. Notwithstanding Respondent Blanc's agreement to assume payments, Mrs. McKie continued to receive mortgage payment delinquent notices from the bank for the Anchorage unit. During later negotiations with the bank regarding this, Mrs. McKie was told that she would still be responsible for making the payments even if Respondent Blanc took over and didn't pay and as a result, in order to relieve herself from this impending burden, she made arrangements to pay off the entire amount due for the Anchorage unit. After that she made several efforts to get Respondent Blanc to pay her back for the amount paid. Respondent Blanc agreed to make the payments and said he would pay the taxes on the unit, but he never reimbursed the McKies for any of the amount they had to pay. The McKies now own the Anchorage unit and have worked out a settlement agreement with the Florida Bay Club to get out of the responsibility for the unit there. Review of the quitclaim deed in question, prepared by Respondent Blanc and signed by the McKies, reflects that the McKies are both the grantors and grantees of the property and that Respondent Blanc's name nowhere appears on the document. It is of no force and effect. Respondent contends that when the McKies indicated they were unable to purchase a new unit since they still had a prior unit to pay for, relying on his understanding that the marketing organization selling the Florida Bay Club units had in the past taken a unit in trade, he discussed the matter with his supervisor who advised that he could offer up to $4,000 in trade on the unit. In order to do this, Respondent Blanc had to price the new unit at $10,500 and credit the McKies with $4,000. However, none of the documentation shows this was ever done. At no place on any of the documentations is the $4,000 trade-in referenced. It is clear the offer of a trade-in was a sham to induce the McKies to purchase a unit at Florida Bay Club. Ms. Berta, who was manager at Florida Bay Club at the time in question, indicated that no trade-ins were ever taken by the club. The prior trade-in referenced by Mr. Blanc was a unit which was completely paid for as opposed the McKies' which still had a substantial outstanding balance on it. Respondent Kirkland who was not a party to any of the negotiations subsequent to her initial interview with the McKies indicates that she "probably" quoted the McKies a price of $10,500. When Mrs. McKie indicated that they could not afford such a high price, she turned them over to Mr. Blanc who thereafter handled the entire transaction. Respondent Blanc tells a somewhat different story about the reaction of the McKies when his failure to assume responsibility for the trade-in unit at the Anchorage Bay Club came to light. He indicates that it was never intended that he would take title to this unit at first. The trade in was to be absorbed by the marketing company, Resort Sales International, for whom he worked, and he assumed, when he left the following week to go to a different facility, the company would follow through with its agreement to assume the McKie's Week at the Anchorage. He was quite surprised, he contends, to learn that this had not been done and since he wanted a unit in the Key Largo area anyway, he agreed to then assume it personally after first offering Mrs. McKie the opportunity to back out of the purchase. When she said that she wanted to be at Florida Bay Club, he was sent the payment books and the deed. He called the bank to notify them that he was going to assume responsibility for the loan, but the bank would give him no information regarding it and the bank official, Ms. Brown, was adamant in her representation that the McKies could not quitclaim deed the property to him. No reason was given for this, however. Mr. Blanc claims he made a series of telephone calls between January 30 and March 31, 1986, in an attempt to straighten out the difficulty involved. These included sixteen calls to Ms. Berta, eight calls to his former supervisor at Resort Sales, four calls to the Anchorage, three calls to the bank and three calls to Mrs. McKie. Mrs. McKie denies receiving calls from the Respondent and contends that her numerous calls to him remained unanswered. In a call he made after she paid off the loan on the Anchorage and settled with Florida Bay Club for approximately $2,183, Mrs. McKie advised Blanc to forget about it, that they were tired of messing with him and with the property. As a result, he admittedly gave up and did and heard nothing more regarding the property until he was contacted by a DPR investigator. On January 30, 1988, Mr. Blanc offered to buy Mrs. McKie's unit at the Anchorage for $2,900 which was exactly the amount owed on the property when she paid it off. She refused to accept that offer since she had paid $6,800 for the unit initially.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Administrative Complaint against Respondent Sandra Kirkland be dismissed and that Respondent Blanc's license as a real estate salesman in Florida be suspended for six months. RECOMMENDED in Tallahassee this 19th day of April, 1988. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1988. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Darlene F. Keller Department of Professional Acting Executive Director Regulation DPR, Division of Real Estate Division of Real Estate Post Office Box 1900 Post Office Box 1900 Orlando, Florida 32801 Orlando, Florida 32801 Sandra S. Kirkland Post Office Box 9264 Panama City, Florida 32407 John G. Blanc 17501 West Highway 98 Panama City, Florida 32407
Findings Of Fact Respondent, Robert Hildreth (Hildreth), was a city commissioner for the City of Coral Gables (City) from 1983 through 1993. The Country Club of Coral Gables (Country Club) was established by City founder George Merrick, prior to the City's incorporation. Since 1929, the City which owns the land and buildings from which the Club operates, has leased the property to private entities. Since 1935, the lessee of the property has been the Country Club, a non-profit corporation run by a board of directors elected by the Country Club membership. Between 1935 and 1958, the lease underwent various modifications and extensions. In 1958, the City Commission voted to extend the lease to July 31, 1990. Under the terms of the lease, the Country Club paid three percent of its gross annual income, but in no case less than $5,000 per year, to the City as rent. In 1977, the Country Club again came before the City Commission requesting a lease extension, this time to the year 2002. There was no change in the rent amount. The request for extension was to allow the Country Club to borrow money for construction, and the request was approved. In 1978 the Country Club asked the City Commission for rezoning so that it could expand its tennis courts. This request was approved. In May, 1980, the Country Club asked the City Commission for a $23,000 loan to repair its roof. The City Attorney advised that the City could not lawfully make such a loan, and no further action was taken on the matter. In 1981 the Country Club asked to expand its tennis club facilities, and this request was approved. In 1983 a significant portion of the Country Club burned down. A request by the Country Club to support its efforts to raise funds from citizens for the Country Club, was on the July 26, 1983, City Commission agenda, but was not taken up. A discussion of the status of the building was held on that date, but no action was taken. Instead of rebuilding the burned section with the insurance money, the Country Club decided to construct an already planned new section. On November 22, 1983, representatives of the Country Club presented a plan for restoration to the City Commission, which on motion of Commissioner Kerdyk, approved the plan. On March 27, 1984, the City Commission authorized the City Manager to sign an affidavit needed by the Country Club to obtain a building permit. In April 1984, the Country Club requested extension of its lease to the year 2020. On motion of Commissioner Kerdyk, the City Commission agreed to the extension. In September 1984, the Country Club asked that the lease be reworded in order to satisfy the lending institutions from which the Country Club was borrowing money for renovations. The request was approved. When the Country Club initially undertook its restoration and remodeling plan, the Country Club leadership believed that there would be sufficient funds to accomplish both the rebuilding and the new construction. Cost overruns, diminishing membership, and other factors combined, however, to leave the Country Club with a new section, an old, burned-out section, and a significant debt. In 1987, the Country Club asked the City Commission to assist it, by contributing funds or otherwise, in overcoming that debt. On November 24, 1987, the City Commission met and discussed the problem. The only action taken was to invite the Country Club leadership to an up coming City Commission meeting to discuss proposed improvements. On January 26, 1988, the City Commission met with the Board of Directors of the Country Club to discuss the Country Club's request. The City Commissioners were informed that the Country Club's rent payments had been generating approximately $40,458.64 per year in income to the City. The Country Club vice-president proposed that the City rebuild the outside shell of the building, at a cost of $1,000,362 and the Country Club finance the remainder of the construction, about $1,900,000. The City Attorney advised that the City could not loan funds to the Country Club, because it was a private club. However, he opined that the City could participate in the rebuilding because it was the owner of the property. Action was postponed until the next meeting. On February 3, 1988, the Country Club made an offer to the City to increase its rent payment from three percent to six percent, if the City would rebuild the shell. The matter was raised at the February 9, 1988, meeting of the City Commission. Mayor Corrigan proposed that the City finance the rebuilding, but made no motion. Commissioner Wolff proposed that the City obtain funds from the Sunshine State Governmental Financing Commission and lend that money to the Country Club. The motion was seconded by Commissioner Kerdyk, and ultimately the City Commission resolved to refer the matter to the acting city manager to "work out financing without using taxpayer dollars." At the February 9 meeting, discussion was had on the issue of whether the City Commissioners had conflicts of interest, since they all had complimentary memberships to the Country Club. Mr. Zahner, the City Attorney, advised that they had no conflict. The issue of conflict of interest was again raised in subsequent meetings. Alternative proposals identified by the City Manager for funding the Country Club's rebuilding were discussed at the City Commission's March 8, 1988 meeting, but no action was taken. On June 30, 1988, the Country Club proposed that the City forgive lease payments until the year 2000. On August 30, 1988, the City Commission voted to suspend the lease payments, with the funds going instead to the maintenance and reconstruction of the facility. Membership in the Country Club is open to any person, provided they can pay the initiation fee and membership dues. At all times pertinent to this proceeding, the initiation fee was $1,000, although it sometimes was reduced to $500 during membership drives. The annual fee was $750. Membership entitles the member and his or her family to use the swimming pool, health club, tennis courts, and bar and restaurant. Members must pay for their meals. For more than twenty years the Country Club has awarded memberships to city officials and various other persons. The Country Club bylaws provide for such memberships. The bylaws provide for honorary memberships and complimentary memberships. There is only one honorary member of the Country Club, a founding member who was also at one time mayor of the City. The difference between what the Country Club calls a complimentary membership and an honorary membership is the difference in the duration of the membership. A complimentary membership is given on a year-to-year basis and ends when the person no longer holds the position which entitled him to have the free membership. Complimentary memberships run from year to year. Persons awarded complimentary memberships include the City Commissioners, Mayor, City Manager, Assistant City Managers, the City Clerk, City Attorney, Director of Public Works, Finance Director, City Architect, Fire and Police Chief, the University of Miami President, Football Coach, and Assistant Athletic Director, the Golf Pro at the City golf course, and the editor of the local social magazine. The complimentary memberships are reviewed each year and are not renewed after the recipient leaves his or her office. Hildreth has been a member of the Country Club since October 1, 1982, and was a member when he was elected to the City Commission in 1983. Subsequent to his election, Hildreth's membership was changed by the Country Club to a complimentary membership. Under the terms of the complimentary membership, Hildreth was not allowed to vote in Country Club elections or hold an office in the Country Club, but continued to retain all the other benefits he had been entitled to as a paying Country Club member. Hildreth understood that the complimentary memberships were a tradition in the City. Hildreth did not report the Country Club membership as a gift on his 1989 or 1990 financial disclosure statements. He was told by the City Attorney, Robert Zahner, that the membership was not a gift and was not required to be reported. Hildreth relied on that advice in deciding not to report the membership on his financial disclosure form. Hildreth used the Country Club for meetings of the Tenth Holer's Club, which is golf social club. In order to belong to the Tenth Holer's Club, a person must also belong to the Country Club. Hildreth also used the Country club eight times in ten years for dining purposes. He did not use the swimming pool, the workout room, the tennis courts, or the cardroom. Hildreth paid his own initiation fees. The County Court has dismissed criminal charges against Hildreth and two other members of the City Commission as well as City Attorney, Robert Zahner, concerning alleged violations of Section 2-11.1(e) of the Dade County Code. That section mirrors the provisions of Section 112.3148, Florida Statutes. Those cases are currently on appeal. The County Court refused to dismiss an identical charge against City Police Chief, Charles Skalaski.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a final order and public report finding that Robert Hildreth violated Section 112.313(4), Florida Statutes, for accepting a free membership in the Coral Gables Country Club and Section 112.3148, Florida Statutes for failing to disclose the free membership in 1989 and 1990 on his financial disclosure statement. I recommend a civil penalty of $750 and restitution of $750 for violation of Section 112.313(4), and a civil penalty of $1.00 for each of the failure to report violations, for a total penalty of $1502. The civil penalty is mitigated for the Section 112.313(4) violation because of the advice which Hildreth received from the City Attorney concerning a conflict of interest. The civil penalties for each of the disclosure violations is mitigated by Hildreth's seeking advice from the City Attorney on whether the membership had to be disclosed and relying on the City Attorney's advice that the membership was honorary and did not have to be disclosed. DONE AND ENTERED this 23rd day of May, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23th day of May, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3908EC To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. Paragraphs 1 18: Accepted. Paragraph 19: The first sentence is rejected as unnecessary. The remainder of the paragraph is accepted in substance. Paragraph 20: The first sentence is accepted. The second sentence is accepted in substance. Paragraph 21: Accepted. Paragraph 22: The first sentence is accepted. The second sentence is accepted in substance. Paragraphs 23-26: Accepted. Paragraph 27: Accepted in substance. Paragraphs 28-33: Accepted. Paragraphs 34-35: Rejected as unnecessary. Paragraph 36: The first sentence is accepted. The remainder of the paragraph is accepted in substance. Paragraph 37: Rejected as unnecessary. Paragraphs 38-39: Accepted. Paragraph 40: The first sentence is accepted. The remainder of the paragraph is rejected as constituting argument. Paragraphs 41-42: Rejected as constituting argument. Respondent's Proposed Findings of Fact. Paragraphs 1-4: Accepted. Paragraphs 5: Rejected as subordinate to the facts actually found. Paragraph 6: Rejected as unnecessary. Paragraphs 7-8: Accepted. Paragraph 9: The first three sentences are accepted. The last sentence is rejected as unnecessary. Paragraph 10-13: Accepted. Paragraph 14: The first and third sentences are accepted in substance. The last sentence is rejected as constituting a conclusion of law. The remainder of the paragraph is rejected as not supported by the greater weight of the evidence. Paragraph 15: Accepted in substance. Paragraphs 16-17: Rejected as unnecessary. Paragraph 18: Accepted. Paragraph 19: The first two sentences are accepted. The last sentence is accepted in substance. Paragraphs 20-23: Accepted in substance. Paragraph 24: Accepted. COPIES FURNISHED: Raoul G. Cantero, Esquire Suite 1600 2601 South Bayshore Drive Miami, Florida 33133 Virlindia Doss, Esquire Department of Legal Affairs The Capitol, PL-01 Tallahassee, Florida 32399-1050 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahasee, Florida 32317-5709
The Issue Whether Respondent discriminated in its hiring and employment practices against Petitioner based upon his age.
Findings Of Fact Petitioner, Timothy Cahill, is a 1976 graduate of the University of Iowa with a degree in education. He spent ten years working as a manager for Hy-Vee Foods, Inc. (Hy-Vee), one of the larger privately held food and grocery chain stores in the country. Petitioner was also a skilled, competitive golfer. After working for Hy-Vee for ten years, Petitioner decided to change careers and pursue a career as a golf professional. In 1986, he began working as an assistant golf professional at a private golf club in Omaha, Nebraska. The following year, he was hired as an assistant golf pro at Tiger Point Golf and Country Club in Gulf Breeze, Florida, which was owned by Jerry Pate, a well-known playing professional and golf course architect. Petitioner worked at Tiger Point for two years completing the Professional Golf Association’s (PGA) Golf School Business School curriculum, the player’s ability test, oral comprehensives, and apprenticeship program. This certified him as a PGA “Class A” Professional (Class A Professional). Petitioner was employed as the Head Golf Professional at Musgrove Country Club an 18-hole facility in Jasper, Alabama, from 1989-1992. There was an average of 15,000 rounds of golf played at this club annually when he resigned to take a position at Oxmoor Valley. Petitioner was employed in 1992 as the property manager and director of golf at Oxmoor Valley, the first of the Robert Trent Jones Golf Trail courses in Alabama. In this position he coordinated and developed a $2.1 million budget for the facility in Birmingham, Alabama. This course was a 36-hole course that immediately drew 83,000 rounds of golf a year. In 1994, Petitioner was recruited to return to Tiger Point, which had been purchased by K.S.L. Fairways Group (KSL), as the “Director of Golf/Head Golf Professional.” He managed golf operations at Tiger Point. At this time, Petitioner was 39 years old. He reported directly to the property manager at Tiger Point, Lance Guidry. The property manager’s office was in the club’s clubhouse, and Guidry was primarily responsible for club operations including food and beverage, coordinating course maintenance, and golf operations. Petitioner was primarily involved with operations of the golf store, where his office was located, scheduling golfing events, and golfing operations. He eventually oversaw the golf operations at affiliated courses as head golf professional. This permitted young golf professionals to apprentice under him, and he was a resource person for managing their operations. During all times material to Petitioner’s complaint, KSL owned and operated Tiger Point and 27 other golf courses and clubs around the country. At the time Petitioner was hired, KSL owned two smaller, 18-hole courses in the panhandle of Florida: Scenic Hills in Pensacola and Shalimar Point in Shalimar/Ft. Walton Beach. Shortly after August 1995, KSL purchased a fourth 18-hole course named Hidden Creek in Navarre. KSL is subject to the Florida Civil Rights Act. Tiger Point was typical of KSL’s operation. It was a country club; however, it was open to public play. In this regard, it was a drawing card to visitors enjoying golfing junkets to the region. Tiger Point drew over twice as many package rounds as the other clubs owned by KSL in the region. It was the primary draw, and Petitioner, as mentioned above, functioned as the PGA golf professional for the other clubs. This meant that the golf professionals at the other facilities could apprentice under him as a Class A Professional, and earn credit towards becoming Class A Professionals. This was a drawing card for these professionals, who were mostly young, former college golfers attempting to make careers as touring or club professionals. Joey Garon was the District Manager for club operations in the panhandle. When Petitioner was hired, Garon was physically located at the Scenic Hills golf course where he was also the property manager. In January 1995, Garon moved to Tiger Point, transferred Guidry to Shalimar Point, and took over as the property manager at Tiger Point. On March 29, 1995, Garon performed an evaluation of Petitioner’s performance of his duties as Head Golf Pro. See Petitioner’s Exhibit 5. Garon rated him highly; the sales from his golf store were among the highest in KSL. He was well respected by members, young professionals who worked under him, and guests at the facility. Property managers averaged $45,000 per year, and the Tiger Point Property Manager made $50,000 a year. Garon had additional duties and made more. Petitioner was making $40,000 in the early fall of 1995. In the late summer of 1995, Hurricane Erin stuck the Florida panhandle and did serious damage to the area, including Tiger Point. Damage was done to the club, to the course, and to facilities in the area such as hotels and motels. Power was lost in many areas for two to three weeks. Traffic was restricted to Santa Rosa Island. Less than two months later, Hurricane Opal struck the same region causing greater damage. Because of the nature of Tiger Point’s business, these storms seriously impacted business. Various cost-cutting measures were instituted and some assets were sold to reduce losses. A review of all the positions in the panhandle was conducted. Personnel expense on hourly employees was reduced by sending non-essential personnel home early. Garon and the President of KSL, Eric Affeldt, decided to reduce Petitioner’s salary by 25 percent, from $40,000 to $30,000. Petitioner was told in November that his salary would be reduced in this manner, and if he did not like it, he could leave. At the same time, his assistant club professional, Sam Harrell, was discharged. Garon explained to Petitioner that Harrell was being fired because “new blood was needed,” “Harrell did not fit the image,” and “new faces” and “younger legs” were needed. Harrell was in his late 30’s. No evidence was received that other salaried employees at Tiger Point or the other clubs were discharged or had their salaries reduced although there were salaried employees at the other KSL facilities whose profits had been impacted adversely by the storms. Petitioner accepted the salary cut because the holidays were coming up; he had a family to feed; and there was no way he could quit so abruptly. Sam Harrell was permitted to stay on at the facility at give golf lessons, however, as an independent contractor. In December 1995, while on a golfing trip to a KSL course in South Florida, Garon advised Petitioner that Eric Affeldt had decided to restore his former salary. Petitioner was not offered his lost salary. Garon stated at hearing that the reason this was done was that it was the right thing to do; his testimony in this latter regard is not credible. Nothing was mentioned to Petitioner at this time or at any other time about plans to eliminate or consolidate positions within the company because of the bad earnings. Two weeks after Petitioner’s pay was cut, KSL transferred Patrick Barrett to Tiger Point as the property manager and increased his salary to $50,000 year. Garon stayed on as Regional Manager until June of 1996. His pay was charged to Tiger Point for 60 days after he departed and assumed duties at a new KSL facility. On the morning of March 26, 1996, there was a staff meeting at Tiger Point chaired by Barrett. Barrett mentioned that there might be personnel reductions; however, after the meeting, Petitioner specifically asked Barrett about him and his staff. Barrett stated that they had done well and had added to the facilities' bottom line. Petitioner had worked to increase dues-paying club memberships as a means to offset financial losses from the loss of tourists’ dollars. That afternoon, Garon announced to Petitioner that Petitioner was terminated immediately. KSL wrote a letter that indicates that Petitioner’s discharge was in no way performance related. Garon testified at hearing that Petitioner had indicated in early 1995, before the storms and before the financial problems, that he did not want a club management position based upon his experience with these positions in Alabama. This was Garon’s rationale for not offering the property manager’s position to Petitioner, and promoting Barrett. It is not credible that Garon held an honest belief that Petitioner would not accept the position of property manager at an increase of $10,000 a year in salary as an alternative to discharge. Petitioner stated that he did not want to be in management in two off-hand remarks to an abstract inquiry about his interest in a management position. Petitioner's comments were irrelevant to the post-storm situation facing Petitioner. It is not controverted that Barrett is younger than Petitioner. Garon testified that Barrett performed the duties of Director of Golf and Property Manager. This is not supported by the facts. The testimony of those who were in a position to observe golf operations before and after Petitioner’s discharge indicated that Barrett was seldom in the golf store and had nothing to do with the day-to-day duties of the Director of Golf. He did not run the store; he did not organize events; he did not supervise the employees directly. The budget for 1996 had been prepared by Petitioner before his discharge. The duties previously performed by Petitioner were performed by a succession of younger, less qualified employees all of whom were paid substantially less than Petitioner. From March 26 until June 3, 1996, John Fell performed the duties. Fell was 29 or 30 years old. He ran the golf shop, he conducted tournaments, and he supervised the other employees. When he resigned in June, John Ferrel was brought in. Ferrel was approximately the same age as Fell. Ferrel handled golfing play; and Gary James was retail coordinator, ordering and selling merchandize. These men did what Petitioner had done at Tiger Point. Leah Head transferred to Tiger Point in late 1996. She was in her late 20’s or early 30’s. She started at $25,000 as the head golf pro, but when she realized that she was to be responsible for all of the shop and golf, she demanded and got a salary of $30,000. Her performance evaluation indicates that she was performing the duties of Director of Golf to include improving sales and service, managing inventory, golf operations, tournaments, conducting employee/department meetings, setting goals for the department, and taking responsibility for poor staff performance. She was unaware that Barrett was calling himself “Director of Golf,” and considered him the general manager of the property. Head and others testified there was no essential difference between the titles Director of Golf and Head Golf Professional. The facts reveal that Petitioner’s duties were performed by younger persons, in some instances, transferred to Tiger Point for that purpose. Barrett did not really assume responsibility for the golf, and was Director of Golf in name only as reflected in Head’s designation of duties on her performance evaluation by Barrett. Tamara Bass testified regarding her experience at Tiger Point. Bass was in her 20’s. She had begun at Tiger Point a month before Petitioner’s discharge. His discharge adversely impacted her plans for obtaining her Class A Professional’s certification. She spoke with Barrett about this, and Barrett stated to her that he was interviewing to replace Petitioner with someone younger, cheaper and less experienced. Within several months, Head was hired. Following his discharge, Petitioner sought employment in the Panhandle area. He owned a house adjoining the Tiger Point course, his wife was employed at a local hospital, and his school age children were in local schools. It was not practical to uproot the family at this juncture. His job search was not helped by the fact that KSL owned several of the courses in the area; however, he did find employment, and eventually reached the salary he was making when discharged by KSL. However, he was without meaningful employment for several months; he was under-employed for several months, and it was several years before he reached the salary he was making when he was discharged, and, then, had to commute 86 miles to work. Petitioner received unemployment from April until October 12, 1996, in the amount of $11,141. He would have made $19,994 at Tiger Point during that period, his expenses were estimated (See Exhibit 16) and are disallowed. His economic loss was $8,853 for this period. From October 13, 1996 until December 1996, Petitioner made $7,296 at Ft. Walton Beach Golf Club. He worked 66 days, and commuted each working day 76 miles. At $.31/mile he had $1,555 in travel expenses. His meals were included in his compensation at Tiger Point, and he had to pay for his meals at Ft. Walton Beach Golf Club. His lunch was $3.00 each working day for a total of $198. He would have earned $9,228 at Tiger Point. Petitioner’s economic loss for this period was $3,685. From January until October 1997, Petitioner made $24,320 at Ft. Walton Beach Golf Club. He would have made $30,760 at Tiger Point. His economic loss for the period was $6,440. From November until December 1997, Petitioner made $7,668 at Ft. Walton Beach Golf Club. He would have made $9,228 at Tiger Point. His lost wages for November and December are $1,560. His expenses to commute to Ft. Walton Beach for the year were based upon a 50-week year, working six days a week, and commuting 76 miles each day at $.31/mile. This was a total of $7,068. His meals for 298 days at $3.00 a day were $894. His total economic loss for 1997 was $15,962. From January until April 25, 1998, Petitioner made $12,780 at Ft. Walton Beach Golf Club. He would have made $15,380 at Tiger Point. He commuted a total of 96 days, 76 miles each day at a cost of $.31/mile. This was a total of $2,261.61. His meals for 96 days at $3.00/ day were $288. His total economic loss for the period was $5,149.61. From May until December 1998, Petitioner made $29,536 at Glen Lakes Golf and Country Club. He would have made $24,608 at Tiger Point. He commuted a total of 192 days, 86 miles each day at a cost of $.31/mile. This is a total of $5,118.72. His total economic loss for the period was $190.72. For 1999, Petitioner made $48,000 at Glen Lakes Golf and Country Club. He would have made $40,000 at Tiger Point. He commuted a total of 275 days, 86 miles a day at $.31/mile. This was a total of $7,331.50. For the first time since his discharge, Petitioner exceeded his prior salary by $668.50.
Recommendation Based upon the foregoing findings of fact and conclusion of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter its final order finding that Respondent engaged in age discrimination, directing Respondent to pay Petitioner the amount of Petitioner's economic losses and directing Respondent to cease and desist from discriminatory employment practices in its businesses. DONE AND ENTERED this 30th day of April, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2002. COPIES FURNISHED: John C. Barrett, Esquire 5 Calle Traviesa Pensacola Beach, Florida 32561 David S. Shankman, Esquire Post Office Box 172907 Tampa, Florida 33672-0907 Denise Crawford, Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 240 Tallahassee, Florida 32303-4149 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact The Subject Property. The Applicant is the owner of approximately 799.58 acres of land (hereinafter referred to as the "Country Club Property"), located on Loch Rane Boulevard, Clay County, Florida. In the early part of 1987, the Applicant applied to rezone the Country Club Property as a planned unit development district (hereinafter referred to as a "PUD"). The Country Club Property is to be developed in phases. At issue in this proceeding is that portion of the Country Club Property other than Unit One, which consists of lots 1 through 295. Development of the Property; Government Action Relied Upon by the Applicant. Prior to approving the rezoning of the Country Club Property requested in the early part of 1987, Clay County advised the Applicant that it would be required to commit to resignalize and expand the Loch Rane/Blanding Boulevards interchange as a condition to Clay County approving the rezoning of the Country Club Property as a PUD. Clay County approved the requested rezoning of, and the master land use plan for, the Country Club Property on March 24, 1987. The master land use plan specifies that the Country Club Property will include development of the following: (a) up to 599 single-family dwelling units within the residential portion; (b) ten acres of commercial uses, including retail shops, a day-care center and a restaurant; (c) a sales center; and (d) a golf course and club facilities. Engineering plans for phase one of the proposed development were submitted to Clay County in 1987. As part of the engineering plans, the Applicant obtained permits from the Army Corps of Engineers, the St. Johns' River Water Management District and the Florida Department of Environmental Regulation. The plat for phase one of the Country Club Property was submitted to Clay County and on May 12, 1987, Clay County approved the final plat for phase one. In April, 1989, the Applicant applied for building permits for construction of the golf course clubhouse, pool facilities and the golf cart storage barn. Permits for these facilities were issued by Clay County in October, 1989. In 1991, engineering plans for phase two of the Country Club Property were submitted to Clay County. They were approved effective January 1, 1992. On February 12, 1993, Clay County issued a Vested Property Certificate for phase one of the development, Lots 1 through 295 of Unit One, pursuant to Section 20.8-6 of the Vested Rights Review Ordinance of Clay County, Florida. The Applicant's Detrimental Reliance. In reliance on Clay County's actions in approving the PUD rezoning and accompanying master plan and the engineering plans for phase one and phase two, the Applicant constructed master infrastructure improvements for the project. Improvements have included drainage, water and sewer systems, a master road system designed and sized to serve the entire development at a cost of approximately $4,972,670.00. These improvements were made between November, 1988 and April, 1990. The Applicant has also constructed the entry features for the Country Club Property, master recreational facilities, including an eighteen-hole golf course, golf course clubhouse, pool and tennis facilities and a sales center. Total costs of these improvements were approximately $7,224,917.00. These improvements were made between November, 1988 and April, 1990. Finally, the Applicant has resignalized and expanded the Loch Rane/Blanding Boulevards interchange. The cost of these improvements was approximately $72,000.00. These improvements were made between October, 1991 and January, 1992. Rights That Will Be Destroyed. Pursuant to the Clay County 2001 Comprehensive Plan, the portion of Blanding Boulevard impacted by the Country Club Property development does not have sufficient capacity to develop the property as proposed. To comply with the comprehensive plan will require considerable delays in completion of the project which will result in a substantial adverse financial impact on the Applicants. Procedural Requirements. The parties stipulated that the procedural requirements of the Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended by Clay County Ordinance 92-22 have been met.
The Issue The issue in this case is whether the Petitioner, Geraldine Maguire, has demonstrated, pursuant to the Vested Rights Review Process of Clay County, Florida, that a vested rights certificate to develop certain real property located in Clay County should be issued by Clay County, notwithstanding the fact that such development will not be in accordance with the requirements of the Clay County 2001 Comprehensive Plan.
Findings Of Fact The Subject Property. The property at issue in this proceeding consists of approximately 28 acres of land located in Clay County, Florida. The subject property is known as “Elmwood Subdivision”. Elmwood was acquired in the early 1960s by Elliott Maguire and his spouse at that time. Elliott Maguire became sole owner of the Elmwood in 1964. Elmwood is bordered on the north by Shedd Road, on the east and part of the south by Brown’s Barn Road and on the west by Duval Avenue. All of the roads that surround Elmwood are unpaved Clay County roads. Clay County has maintained these roads before and after Mr. Maguire began to develop Elmwood. In 1978 Elliott Maguire and Geraldine Maguire deeded a sixty foot right of way on Barnes Barn Road to Clay County. Clay County accepted the right of way at a meeting of the County Commission on October 10,1978. The evidence failed to prove, however, that the right of way was given in reliance upon any promise or representation from Clay County concerning development of Elmwood. The easement was for right of way already used for Barnes Barn Road. The evidence failed to prove that the easement had anything to do with the development of Elmwood. Mr. Maguire decided to develop Elmwood during the 1970s. He created an unplotted subdivision with 23 lots, all over an acre in size. Mr. Maguire intended to sell the lots as single- family home sites. Mr. Maguire had the property cleared, swales and easements were graded and storm drainage structures were cleared and installed. Mr. Maguire hired a surveyor and an engineer for the project. Mr. Maguire, the surveyor and the engineer discussed the project with Mr. Bowles, Clay County Public Works Director at the time. The evidence failed to prove that John Bowles made any representations concerning the development of Elmwood. Easement and drainage work on Elmwood was completed in 1979. The first lots were sold in 1981. A total of 8 lots were sold between 1981 and 1984. A copy of the engineering plans for Elmwood were provided to Clay County in 1978. Government Action Relied Upon by Petitioner. Prior to September of 1985 Clay County did not require platting of subdivisions such as Elmwood. The only specific restriction on the development of Elmwood when Mr. Maguire began development was that the density was limited to one unit per acre. This restriction was part of the zoning category of the property. Detrimental Reliance. Mr. Maguire incurred costs in his development of Elmwood. Among other things, Mr. Maguire incurred expenses of approximately $20,000.00. Due to he adoption of the Clay County 2001 Comprehensive Plan in 1992, the remaining unsold 15 lots of Elmwood may be used for only 3 additional residences. The approximate fair market value of the 15 lots is approximately $12,000 to $15,000 per lot. The fair market value of the 3 allowable lots is $20,000 to $25,000. The evidence, however, failed to prove that any of the expenses incurred in developmenting Elmwood or the loss in value of the remaining lots is attributable to any representation of Clay County that Elmwood could be developed as an unplatted subdivision indefinitely into the future.
The Issue Whether Petitioner was the subject of unlawful discrimination in the terms, conditions, privileges, or provision of services in connection with the rental of a dwelling from Respondent, based on her race, in violation of section 804(b) or 804(f) of Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Act of 1988 and the Florida Fair Housing Act, chapter 760, Part II, Florida Statutes (2011).
Findings Of Fact Respondent owns and manages the Country Club Woods residential community in Starke, Florida. Country Club Woods is a racially-mixed community. The current residential mix includes 29 African-American families and 6 white families. County Club Woods receives low-income housing subsidies in the form of tax credits through the Florida Housing Finance Corporation. Some residents qualify for federal Section 8 housing subsidies. Petitioner is African-American. On February 4, 2011, Petitioner signed a lease agreement for a home in Country Club Woods. Rent was $698.00 per month. The home was vacant, and power and water had been turned off. Respondent asked Petitioner to activate power and water so that repairs and unit preparation could be performed, and she did so. Petitioner?s rent for February was partially prorated to account for the period during which she did not occupy the unit. The lease agreement required that all occupants of the house be listed, and provided that “[n]o other occupants are permitted.” Guests were limited to stays of no more than 14 consecutive days. Due to the status of Country Club Woods as an affordable housing community, it is subject to restrictions on the income and criminal history of its residents. Therefore, all permanent occupants are required to undergo income and background screening to ensure that the low income housing tax credit rules are being met. The failure to do so could jeopardize the tax credits. When she signed the lease, Petitioner knew what the lease required regarding the occupancy of the house. Petitioner listed Aulettia Russ and Aarian Russ, her daughter and son, as occupants with her in the home. After the lease contract was signed, Respondent performed a few repairs and updates to prepare the unit for Petitioner. Mr. Sam Baker, who performed maintenance services for County Club Woods, fumigated the house and painted some of the interior walls. He performed a minor repair to the roof, which consisted of applying tar around the cracked rubber boot of the roof drain vent. Mr. Baker moved a stove into the house from another unit because there was no stove when the lease was signed. He also replaced the toilet with a new one. Petitioner moved into the unit on February 16, 2010. She was joined by her fiancé, Kevin Sampson, and her older son, Kelsy Roulhac, neither of whom were listed as occupants. Mr. Sampson was on probation for several felony offenses. Both Mr. Sampson and Mr. Roulhac were residents for the entirety of Petitioner?s tenancy. At no time during the tenancy did Petitioner seek to add Mr. Sampson or Mr. Roulhac to the lease. Petitioner testified that Rebekkah Baker, the property manager, knew that Mr. Sampson was a permanent occupant, but had no objection. Ms. Baker denied that she consented to his occupancy, given that it would have been a violation of Country Club Woods policy against leasing to persons with a criminal history in the past seven years. Given the consequences of failing to meet the occupancy and background screening requirements, Ms. Baker?s testimony is credited. When Petitioner moved in, there were still problems with the unit. Problems noted by Petitioner included a broken dishwasher, mildew on a number of surfaces, dead insects -- likely from the fumigation -- in the cabinets, a hole in the foyer wall caused by the adjacent door?s doorknob, a ceiling stain from the roof leak, a missing shower head, a broken light fixture, and a missing smoke alarm. In addition, the carpet was stained and in generally very poor condition. Petitioner resolved the mildew problem by cleaning the affected surfaces with Tilex. Petitioner?s son, Mr. Roulhac, got rid of the dead insects and cleaned the cabinets. Petitioner replaced the showerhead on her own. Shortly after she moved in, Petitioner notified Respondent that her roof was leaking. Mr. Baker went to the house, advised Petitioner?s daughter that he was there to fix the roof, and went onto the roof. He determined that the leak was occurring at the location of his previous repair. He completed the repair by re-tarring the roof drain vent boot. Petitioner testified that the roof continued to leak after heavy rains. She indicated that she made a subsequent complaint via a message left on Ms. Baker?s telephone answering machine. Ms. Baker testified that she received no subsequent complaints, and there is no other evidence to suggest that Respondent received any subsequent complaints regarding the roof. Mr. Baker performed no further repairs. Petitioner complained that the dishwasher was holding water. She testified that Respondent never came to fix the dishwasher. Both Mr. Baker and Ms. Baker testified that Mr. Baker was tasked to repair the dishwasher, but upon arriving at the house was denied entry, with the explanation that the dishwasher had been fixed by a friend, and the problem resolved by removing a plastic fork that had clogged the drain. From the time Petitioner moved in, until the time she vacated the home, Mr. Baker fixed the hole in the foyer wall and the broken light fixture. In addition, Mr. Baker came to the house to fix the refrigerator, which was a problem that was not on the original list. From the beginning of her tenancy, Petitioner complained of the carpet. The carpet was badly stained and worn. In addition, the carpet contained a dye or some other substance that aggravated Aarian Russ?s asthma. It was Petitioner?s desire to have the carpet replaced before the time of her daughter?s graduation. Respondent agreed to replace the carpet, and had employees of a flooring company go to Petitioner?s house to measure for new carpet. The flooring company employees were allowed entry to the house by Petitioner?s daughter. They measured the rooms, except for Petitioner?s bedroom, which was locked. Respondent advised Petitioner that the measurements of the bedroom of an identical unit could be provided to the carpet company. It is not known if that was done. Due to difficulties on the part of the flooring company, the new carpet was not installed before Petitioner vacated the unit. There was no evidence offered to suggest any relationship between the failure to install new carpet and Petitioner?s race. Petitioner complained that she had not been given notice that the flooring company employees were coming, and complained that Respondent had not performed a background check on the workers. She argued that she was entitled to have a background check done on anyone providing services before she would have to allow them into her home. There is no relationship between Petitioner?s complaints regarding the lack of a background check on the workers and Petitioner?s race. The lease agreement provides that “[m]anagement will make repairs . . . after receipt of written notice.” Respondent occasionally prepared work orders describing the nature of the problem at a unit, and the work done to resolve the problem. However, the evidence demonstrates that written work orders were likely the exception rather than the rule. It appears that most problems were reported by verbal requests, and resolved by Mr. Baker?s maintenance and repairs. Most of Petitioner?s requests for repairs and maintenance were made verbally. At some point, due to the number of items, Petitioner provided Respondent with a list of items for repair. There is no evidence that any repairs at Petitioner?s home were documented with a work order. In any event, there was no evidence that the failure to document the work, which was common, was the result of Petitioner?s race. Petitioner did submit seven work orders in evidence. Six of the work orders reflected repairs made by Respondent to the homes of African-American families upon verbal requests. One of the work orders reflected repairs made by Respondent to the home of a white family upon a verbal request. Petitioner questioned why none of her repairs were memorialized in work orders. The work orders do not substantiate that Petitioner was discriminated against on account of her race, and in fact serve to indicate that Respondent provided maintenance services equally, without any consideration to the race of the person requesting such services. Petitioner complained that Mr. Baker did not have “credentials,” and questioned him regarding any education or licenses that qualified him to perform maintenance, including electrical work. Whether qualified to do so or not, Mr. Baker performed maintenance for all of the residents of Country Club Woods, regardless of their race. There is no relationship between Petitioner?s complaints regarding Mr. Baker?s credentials and Petitioner?s race. Beginning in April, 2011, Petitioner began to fall behind on her rent. Petitioner was paid bi-weekly, though how that affected her ability to plan for monthly rental payments was not clearly explained. On April 21, 2011, Ms. Baker posted a notice on Petitioner?s door demanding that the $279.60 balance of the April rent payment be made. Petitioner denied having seen the notice. However, the copy of the notice put in evidence includes the notation from Ms. Baker that “[p]romised to pay balance w/ May 2011?s rent.” On May 9, 2011, Ms. Baker posted a notice on Petitioner?s door demanding that the rent payment be made. The amount in arrears was calculated to be $1,077.60, which included a late fee. Petitioner denied having seen the notice. However, the copy of the notice put in evidence includes the notation from Ms. Baker that “pd. $698 on 5/11/11.” On June 1, 2011, Ms. Baker posted a notice on Petitioner?s door demanding that the rent payment be made. The amount in arrears remained at $1,077.60. Petitioner denied having seen the notice. On July 27, 2011, Respondent provided a notice to Petitioner indicating that due to unauthorized occupants and $1,975 in unpaid rent, Petitioner had until August 1, 2011, to vacate the premises, or Respondent would commence eviction proceedings. Petitioner admitted to having received that notice. Respondent?s resident history report indicates that by the time Petitioner vacated the home on August 31, 2011, her rent was $2,075.60 in arrears. Some of that was due to assessed late charges, but the majority reflected unpaid rent. When Petitioner vacated the unit, Petitioner?s security deposit was applied, the remaining arrearage was assigned to a collection company, and Respondent?s books were cleared. Ms. Sheila Palmer and Ms. Tynesha Epps testified at the hearing. They have been residents of Country Club Woods for 16 years and for 1 year and 3 months, respectively. Both are African-American. Both testified that they had never been refused maintenance at their homes, and that Respondent was responsive to their requests for maintenance which were generally verbal. Neither Ms. Palmer nor Ms. Epps was aware of any instance in which management of Country Club Woods had discriminated against any tenant due to their race, though neither personally knew Petitioner. Ms. Headrick, Ms. Baker, and Mr. Baker each testified that they never denied or limited repair and maintenance services to any resident of Country Club Woods account of their race. They each testified convincingly that race played no factor in their duties to their tenants. Ultimate Findings of Fact There was no competent, substantial evidence adduced at the hearing that Respondent failed or refused to provide services to Petitioner under the same terms and conditions that were applicable to all persons residing in the Country Club Woods community. There was not a scintilla of evidence that, in providing services to Petitioner, Respondent deviated from its standard practice of providing maintenance services to all residents of Country Club Woods regardless of their race, income, or any other reason. The evidence does support a finding that Petitioner materially breached the terms of the lease agreement, both by allowing undisclosed persons to reside at the house, and by failing to timely pay rent. Petitioner?s race had nothing to do with the timing or manner in which maintenance and repair services were provided to her by Respondent, and it is expressly so found. The evidence did not demonstrate that Respondent discriminated against Petitioner on the basis of her race. Therefore, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief filed in FCHR No. 2012H0004. DONE AND ENTERED this 16th day of February, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2012. COPIES FURNISHED: Eulinda M. Russ Post Office Box 902 Starke, Florida 32091 Sean Michael Murrell, Esquire Murrell Law, LLC 4651 Salisbury Road South, Suite 503 Jacksonville, Florida 32256 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether petitioners were required to obtain consent or authorization from Respondent to occupy and use sovereign submerged lands for the dock at issue herein; Whether petitioners obtained agency consent or authorization to occupy and use sovereign submerged lands; Whether petitioners are entitled to consent or authorization to occupy and use sovereign submerged lands after-the-fact; and If entitled, what terms and conditions should apply or be imposed incident to granting after-the-fact authorization to occupy and use sovereign submerged lands.
Findings Of Fact The Parties Gene R. Smith is an individual who holds title to real property in Merritt island, Brevard County, Florida, described as Tract A Sykes View Estates. Gene R. Smith originally owned, in its entirety, the upland tract that was developed as Sykes View Estates, a small six-lot residential subdivision. Sykes View Association, or Sykes View Homeowners' Association is an unincorporated entity with certain rights in Tract A, described on the recorded subdivision plat, filed for record on 10/8/87: Tract "A" is dedicated to the homeowners association for river access. Maintenance of Tract "A" is the responsibility of the homeowners association. (Joint Exhibit 1) The Department of Environmental Protection (DEP) was created by the Florida Legislature in 1993 with the merger of two previously separate state agencies, the Department of Environmental Regulation (DER) and the Department of Natural Resources (DNR). All existing legal authorities of the two agencies and all of their actions, pending and completed, were transferred to the new agency in Chapter 93-43, Laws of Florida. The Project The dock at issue extends from Tract A into waters of the State of Florida, more specifically, sovereignty submerged land lying within a water body known as Sykes Creek, part of the Banana River Aquatic Preserve in Brevard County, Florida. Sykes Creek generally runs north and south approximately 4.25 miles, from State Road 520 on the south to State Road 528 (the Beeline) on the north. Along the western side of Sykes Creek are approximately a hundred canals and thousands of homes. Sykes View Estates is also on the west side of Sykes Creek, and is surrounded on three sides by Catalina Isles Subdivision. Although virtually all of the west side of Sykes Creek from the Beeline to 520 is dredged and bulkheaded, with a myriad of man-made finger canals to access upland properties, the waterfront at Sykes View Estates is not dredged, and in its natural condition the water attains a depth of four feet approximately 220 feet from shore. Unlike the intensely developed west side of Sykes Creek, the east side of the water body is undeveloped; Audubon Park, a state-run park with extensive marshes and lakes, occupies the area east of and across from Sykes View. There are no homes at all on the east side of the Sykes Creek channel. Directly across the open water channel of Sykes Creek from the Sykes View Estates tract is a man-made dredge berm or dike, on the east side of which is both open water and marsh. Since construction of the dock in issue, the dredge berm across from Sykes View Estates has been filled and made into a roadway. For the purposes of this proceeding, the easterly extent of the Sykes Creek water body has not been surveyed. Prior to its development, the Sykes View Estates parcel was used as a dump site, full of trash and debris. In the late 1980's, Gene Smith, with the assistance of Richard Hefley, a licensed general contractor who had recently moved to Florida from Minnesota, determined to create a "tropical paradise." The Process In 1987, the subdivision plat was recorded and some houses were constructed, including houses for Gene Smith and Richard Hefley. Shortly thereafter, Gene Smith became very ill and asked Richard Hefley to help obtain permits for the docks they planned. Hefley had never been involved in the construction of docks, but started at the Brevard County building department for information about the process. He was told that the building department had no jurisdiction over open water but someone referred him to the Army Corps of Engineers, (ACOE), across the street. Hefley met with Irene Sadowski, staff person with ACOE; she gave him a copy of an instructional booklet titled, "State of Florida, Joint Application for permit" for the U.S. Army Corps of Engineers, Florida Department of Environmental Regulation and Florida Department of Natural Resources. He studied the booklet and retained Fredlund and Packard, a survey and engineering firm, to work on the application. An initial application was prepared in March of 1988. Richard Hefley took it to Irene Sadowski to look over and consulted with Wilbert Holiday from DNR about the water depth requirements; he then went back to the engineers with preparation of an application package for formal submittal. The first application submitted to DER is dated 5/10/89 and is signed by Richard Hefley, who is also listed as the applicant. The survey and engineer's drawings attached to the application show three docks, one each on lots 3, 4, and Tract A. The intent was to have a dock on Tract A for use by the subdivision homeowners and two private docks for the riparian lot owners, including Gene Smith. The application stated that ownership of all of the subdivision was by Gene Smith, except for lot 2, owned by Richard Hefley. The application is date-stamped received by DNR on June 20, 1989; and by DER on June 14, 1989. After the initial application submittal, DER required that Hefley segregate the three proposed docks into three separate applications and resubmit them. The application for the dock on Tract A, which is the subject of this proceeding, is dated June 30, 1989, and is signed by both Richard Hefley and Gene Smith. The applicant is shown as "Sykes View Association." The application is date-stamped received by DNR on August 16, 1989; by DER on July 17 and August 15, 1989; and by ACOE on July 6, 1989. processing of the applications for the two other proposed docks was suspended after the present dispute arose. After resubmitting the joint application, Richard Hefley paid a visit to the DER district office in Orlando, in early August, and met with staff person Barbara Bess. She agreed to see him without an appointment because she perceived he was confused about the process. She also considered the applications he submitted "a bit confusing" and she wanted to make sure that the agency would not need to go through several reviews before his files could be considered complete. In Ms. Bess' view, the application at that time was substantially complete, and she noted this in a handwritten memorandum to the file. DER permit #05-168716-4 for the dock in dispute was issued on October 27, 1989. The permittee is listed as Sykes View Association, and the permit provides that the permittee is authorized "to construct a private multi-dwelling dock 220 feet long by 5 feet wide terminating in a 25 foot T on Sykes Creek in Section 24, Township 24 South, Range 35 East." (Petitioner's exhibit #6) The permit, the application form, and the instruction booklet described in paragraph 10 above, each includes clear statements that all necessary state, federal and local permits must be obtained prior to commencing construction. Gene Smith and Richard Hefley were aware of those provisions. On the joint application, below the signature line with Hefley's signature is this printed statement: NOTICE TO PERMIT APPLICANTS This is a Joint Application; it is NOT a Joint Permit You Must Obtain All Required Local, State and Federal Authorizations or Permits Before Commencing Work (emphasis, underlining, bold, and extra spacing in original, Joint Exhibit 2, page 4) It is apparent that Richard Hefley knew that other agencies' permits and a consent from DNR were required. However, he was also relying on the instructional booklet that he had been given and had studied carefully. The booklet describes a procedure for processing applications and provides that DER will forward the application to the ACOE and DNR. The booklet describes the review by the ACOE, DER and DNR. The booklet also states: Where the proposed activity involves the use of state-owned submerged lands, DER shall not issue a permit before approval or consent of use is obtained from DNR, although DER will continue to process the application to the extent possible. The processing flow chart on page 29 of the booklet states: No time constraints on actions taken by [DNR, Bureau of Lands]. Application submitted to DER is not complete until action by [DNR, Bureau of Lands] is taken, if required. (Petitioners' exhibit #1) Understandably (and consistent with the typical applicant confusion acknowledged by Barbara Bess) Richard Hefley and Gene Smith were elated with their permit. A condition on the DER permit requires the applicant to notify the agency when it is ready to commence construction. Richard Hefley called Barbara Bess and asked if everything was done. He understood her to say "yes", and he said that he was notifying her that they were ready to commence and would get a contractor. He followed his telephone call with a written confirmation dated November 19, 1989. Hefley and Gene Smith retained Darrell's Docks, a qualified builder in Brevard County, and construction commenced on November 27, 1989. By Friday of that week the project was virtually complete. The pilings, stringers, cross- bracing and part of the decking were in place by Friday afternoon when Richard Hefley was notified that he needed to call DNR. He tried to reach Wilbert Holiday, but spoke instead to Todd Vandenberg who said that he needed to speak with Mr. Holiday, who had already left the office. The deck was finished the following day, a Saturday. When Richard Hefley reached Wilbert Holiday he was told there was a problem since the paperwork for the consent for use was not complete. Hefley met with Holiday in the local DNR office on December 5, 1989 and a lengthy process of exchange of questions and information commenced. This process continued for several months in 1990 and culminated in October 1990 with the notice of denial which triggered the request for formal hearing and the instant proceeding. The Controversy If the applicant was confused about the process, the agency reviewers were also confused about the application. The references to the Sykes View Homeowners Association on the joint applications made the ownership and the use intended unclear. During the permit review process and at the hearing these issues were partially resolved as reflected in these findings of fact. At all times relevant, Gene Smith was the record owner of Tract A, the upland parcel upon which the dock is sited. Smith's intent was that the dock would be used by the six homeowners in the small subdivision, for fishing and boating. While the initial plan was for four boat slips, Mr. Smith, at some stage of the review, agreed to reduce the number of slips to two. At all times relevant and throughout the application and review process, Richard Hefley was acting on behalf of Richard Smith, with his express authority. Neighbors enjoy the use of the dock, but there is no evidence of any maintenance by the homeowners' association. The dock, as designed and built, is approximately 220 feet long and five feet wide, with a 25 foot "T" cross at the end. It extends from the upland tract across approximately 29 percent of the width of Sykes Creek. It does not extend into the dredged channel and does not, therefore, interfere with navigation in that channel. The width of Sykes Creek at the dock site is approximately 750 feet, according to crude measurements with a U.S. Geological Survey map and a ruler. In an attachment to one of the application submittals, Petitioners' engineers reflect a width of 750 feet. During the course of its review and before the denial notice, DNR staff recommended that the dock be completely restructured to decrease the width of the walkway to four feet, shorten the length from shore to 150 feet, raise the height of the walkway to five feet above water, space the planks no closer than 1/2 inch, install guard rails and post "no mooring" signs. At any length less than presently existing, boat access is precluded, as the water is too shallow. Power boats would prop dredge the sandy bottom in the shallow water. Turbidity can affect sea grasses as distant as 100 feet from the boat. The modifications recommended by DNR staff would permit some fishing but no boating rights to the riparian owner. In the view of DNR's reviewing staff, boating at this site is inappropriate. The dock as built has received other permits and approvals in addition to the DER permit. The DNR shellfish environmental assessment section stated no objections, since the area is not a shellfish harvest area. The federal Environmental Protection Agency provided a letter stating no objection. The U.S. Fish and Wildlife Service conducted a review and issued a report and recommendation for approval of the dock. The ACOE issued an after-the-fact permit on July 2, 1992. The DNR consent or approval that is the subject of this proceeding requires a different review, since the Division of State Lands serves a proprietary function on behalf of the Board of Trustees of the Internal Improvement Trust Fund. No agency, including DER, had or claimed to have the authority to waive the requirements for consent of use for state-owned submerged lands. There is no credible evidence that the owner, Gene Smith, or anyone acting in his behalf deliberately acted to frustrate DNR review and approval process.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That a final order be entered, granting a consent of use to Gene Smith, or his successors, for the dock facility described in DER permit no. 05-168716-4, with these conditions: that he shall comply with all terms, conditions or restrictions of any other governmental authorities having jurisdiction over the project; b. that he assume full responsibility for future maintenance of the dock; that no more than two boat slips be maintained; that those slips be confined to the terminal end of the dock; and that guardrails along the main walkway be constructed to limit boat access to the dock except at the terminal end. DONE AND ENTERED this 10th day of August, 1995, in Tallahassee, Florida. MARY W. CLARK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1995. APPENDIX APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties: Petitioners' Proposed Findings 1. Adopted in Paragraphs 1 and 4. 2-6. Adopted in paragraph 5. 7-8. Adopted in Paragraph 6. 9-13. Adopted in substance in Paragraphs 7-9. 14. Adopted in Paragraph 10. 15. Adopted in substance in Paragraph 11. 16-17. Adopted in substance in Paragraphs 12 and 13. 18. Adopted in Paragraph 14. 19. Adopted in substance in Paragraph 17. 20. Adopted in substance in Paragraph 15. 21-23. Adopted in substance in Paragraphs 19 and 20. 24. Adopted in substance in Paragraph 21. 25-32. Adopted in summary in Paragraphs 22 and 30, otherwise rejected as unnecessary. 33-36. Adopted in Paragraph 28. Respondent's Proposed Findings 1. Adopted in Paragraph 3. 2 & 3. Adopted in Paragraphs 1 and 2. 4-6. Adopted in Paragraph 4. Adopted by implication in Paragraph 29. Adopted in Paragraphs 1 and 2. 9 & 10. Adopted in Paragraph 13. However, Smith and Hefley were also applicants. See Paragraphs 12 and 24. 11 & 12.Adopted in Paragraph 5. 13. Adopted in Paragraph 9. 14 & 15.Adopted in Paragraph 10. Adopted in Paragraphs 12 and 16. Adopted in Paragraph 13. Rejected as unsupported by competent evidence. It is clear that after the DER permit was received and the dock was built, Hefley received notice from DNR, but the record does not establish that the letter, however dated, was received in September or October 1989. Adopted in Paragraph 15. Adopted in substance in Paragraph 20. 21-22. Adopted in Paragraph 16. 23. Adopted by implication in Paragraph 29. 24-27. Adopted in Paragraph 25. Adopted in Paragraph 28. Rejected as unnecessary. Rejected as summary of testimony. Adopted in Paragraph 29. Adopted in Paragraph 26. Adopted by implication in Paragraph 25. Rejected as unsupported by the evidence, except for the finding that boats have been docked at the site, which is accepted. Adopted in Paragraph 27. Adopted in substance in Paragraph 24. Adopted in Paragraph 25. Adopted in Paragraph 27. Rejected a contrary to the weight of evidence, which evidence establishes that the water is four (4) feet deep at the terminal end of the dock. Rejected as unnecessary, except that in this instance, Smith is an individual owner seeking consent for a single-family dock. See Conclusion of Law, Paragraph 36. COPIES FURNISHED: Allen C. D. Scott, II 120 Commercial Avenue Federal Point, Florida 32131 M. B. Adelson, IV Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Blvd. Tallahassee, Florida 32399-3000 Kenneth Plante, General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Blvd. Tallahassee, Florida 32399-3000
The Issue Whether petitioner qualifies for a II-C Club alcoholic beverage license, which is issued to Nonprofit organizations or clubs devoted to promoting community, municipal, or county development or any phase of community, municipal or county development.
Findings Of Fact Code I is a nonprofit Florida corporation located at 3420-31 West Broward Boulevard, Ft. Lauderdale, Florida. In February, 1982, it applied for a II-C or Club alcoholic beverage license pursuant to Section 561.20(7)(a)3, Florida Statutes (1981) and Rule 7A-3.19, Florida Administrative Code. On August 3, 1982, DABT denied its application, asserting that it was not qualified for licensing under tie statute and rule. Code I was incorporated as a Florida nonprofit corporation in 1962. Ms. Bessie Walton and her former husband formed the corporation to raise funds to build a home for the elderly. With funds subsequently generated by the corporation, Tropical Home for Senior Citizens was constructed and continues to be operated in Ft. Lauderdale, Florida. In 1974, the corporation became inactive. According to several members of Code I, the goals and purposes of the Club are to support and make contributions to benevolent causes. This testimony, however, is based upon representations made to them by others concerning the goals and purposes of the Club. (Testimony of Troutman, Reddick) In the past, Code I has donated funds to numerous organizations or allowed them to use its facilities--without charge. These organizations, included Broward County Youth Football, Greater Bethel AME Church, Tropical Home for Senior Citizens, North Fork Elementary School, and Kappa Alpha Psi Fraternity (for scholarships). It has also sponsored foster families. Code I has charged, however, some organizations $175 for the use of its facilities. (Testimony of Troutman) The articles of Incorporation of Code I state that the objectives of the organization are to provide a meeting place for recreational purposes of its members, to provide aid and comfort for its members in case of sickness or death, and to assist in any other matters pertaining to the highest orders of American Citizenship. For carrying out these purposes, the corporation is authorized to buy, hold and sell real and personal property, to invest funds, and to construct and operate social club houses. (P-1) Neither the articles nor the bylaws of the corporation explicitly, or by reasonable inference, dedicate it to promoting community, municipal, or county development. (P-1, P-4) According to its treasurer, its main purpose is to provide a facility where the public can enjoy an evening on the town in a conducive club atmosphere. Membership is open to the general public. An alcoholic beverage license would enable the Club to earn additional funds for its operations.
Recommendation Based on the foregoing, it is RECOMMENDED: That Code I's application for a II-C Club alcoholic beverage license be DENIED, without prejudice to its right to reapply after amendment of its charter and bylaws. DONE AND ORDERED this 25th day of February, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1983.
The Issue The issue for determination in this cause is whether petitioner is entitled to a refund in the amount of $6,306.32 paid into the state treasury as sales tax. More specifically, the issue is whether the registration or participation fee charged by petitioner to its members at the 1975 summer national bridge tournament is taxable as an "admission" under Florida Statutes 212.02(16) and 212.04.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner, the American Contract Bridge League, Inc., is a nonprofit corporation incorporated under the laws of New York in 1938. Its membership is approximately 200,000, representing areas all over the North American continent. Its purposes include educational, cultural and charitable pursuits. Among other things, petitioner annually sponsors three national tournaments in various areas of the United States. In August of 1975, petitioner held its summer national tournament at the Americana Hotel in Bal Harbour, Dade County, Florida. Over 1,000 tables for approximately 5,500 members were in operation for the nine-day event. Many of these 5,500 members played in two or more events. In order to participate in each event, the member was required to pay a registration fee ranging from $3.00 to $4.50. No sales tax was included by petitioner in its registration fee. While spectators at the tournament were permitted, it was not intended as a spectator event. No special provision was made for the seating of spectators, whose number rarely exceeded one hundred and who were composed primarily of relatives or friends of the actual players or participants. No admission charges were made to spectators. On previous occasions, petitioner has held bridge events in Florida. On no such occasion has the State of Florida attempted to assess the sales tax on petitioner's registration or participation fees. No other state in which petitioner has held its tournaments has assessed petitioner for sales or other taxes on this fee. The respondent Department of Revenue informed petitioner that the registration fees collected at the 1975 summer national tournament constituted a taxable event, subject to the Florida sales tax, and petitioner, under protest, forwarded a check in the amount of $6,306.32. Thereafter, petitioner applied for a refund pursuant to the provisions of F.S. 215.26. The Comptroller denied the refund application.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's request for a refund in the amount of $6,306.32 be denied. Respectfully submitted and entered this 21st day of March, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1977. COPIES FURNISHED: Comptroller Gerald Lewis The Capitol Tallahassee, Florida 32304 Patricia Turner, Esquire Assistant Attorney General Department of Legal Affairs The Bloxham Building Tallahassee, Florida 32304 Paul J. Levine, Esquire 2100 First Federal Building One Southeast 3rd Avenue Miami, Florida 33131
