Findings Of Fact The Lake Breeze Motel sign was erected in 1968 or before and was issued tags for the years including 1971. Up to and including the year 1971 Petitioner sent notices to the owner of the sign that renewal of the permit was required and Respondent remitted the appropriate fee for each of those years. No further notices that the permit had to be renewed was received from Petitioner in subsequent years. In 1976 Respondent was told by another sign owner that the sign needed a current tag and he applied to Petitioner for a permit. This application was denied by Petitioner. Respondent verbally (over the telephone) told Petitioner's sign representative that he desired a hearing on the denial but nothing further was forthcoming from Petitioner until the Notice of Alleged Violation dated 16 May 1978 was issued. The Lake Breeze Motel sign is located on U.S. 27 some 9.4 miles south of the Polk County line. U.S. 27 is a federal-aid primary highway. Approximately 400 feet from Respondent's sign, and on the same side of the highway is a sign owned by Highway Display which is currently permitted. The Highway Display sign was erected in 1972, some 4 years after Respondent's sign was initially permitted. The Lake Breeze Motel is located approximately 6 miles off U.S. 27 and the sign is essential to provide motorists directions from U.S. 27 to the motel.
Findings Of Fact Biscayne Boulevard through the municipality of Miami, Florida, is a state highway, State Road 5 (U.S. 1,) which is operated and maintained by the State of Florida through its Department of Transportation. The state owns the right of way areas adjacent to Biscayne Boulevard. The Petitioner, Marina Park Associates ("Marina Park") is the owner of the Marina Park Hotel (the "Hotel") located at 340 Biscayne Boulevard, Miami, Florida. The Hotel is situated adjacent to the Department's right of way. Petitioner has applied to the Department of Transportation for approval to construct a canopy extending from the entrance of the Hotel over the state's right of way adjacent to Biscayne Boulevard. There is an existing canopy in front of the Hotel which was installed approximately 11 years ago. At the time the existing canopy was installed, the Hotel obtained a permit from the city. However, it does not appear that the State Department of Transportation was ever notified or considered the application for the existing canopy. Petitioner is seeking to replace the existing canopy with a new improved canopy at approximately the same location. The Hotel recently underwent renovations and the Petitioner is seeking to make the property more attractive by installing a new canopy. The plans for the proposed canopy were submitted by Petitioner to Respondent. Those plans indicate that the proposed canopy would violate at least three aspects of the Respondent's rules regarding canopies over state right of way areas. These rules were adopted to establish uniform safety standards, to limit or prevent obstruction of the sidewalks and to further emergency vehicle access. There is no provision in the rules for variances or exceptions to these requirements. While the evidence established that there are several obstructions along the right of way which contravene these rules, there is no evidence that the Department has ever approved such obstacles. The plans for the proposed canopy do not provide for a set back of at least two feet from the outside edge of the canopy to the face of the curb as required by the existing rules. This defect can be cured quite easily by adjusting the length of the canopy. However, the other problems with the canopy cannot be cured so easily. The Hotel has a recessed entrance. The proposed canopy would extend into the recessed area. As a result, there will not be a nine foot clearance between the bottom of the canopy and the sidewalk as required in the existing rules. Even more importantly, the building design provides insufficient support to cantilever the canopy out from the entraceway without columns. Therefore, the proposed canopy requires supports at the end of the canopy on the sidewalk. The existing rules prohibit any such supports and there is no provision for a variance from this requirement. Canopy supports extending below the nine foot clearance are prohibited because of the resulting obstruction of the sidewalk impairing pedestrian traffic and inhibiting access from passenger vehicles parked on the roadway. The existing canopy is apparently not in compliance with all of the provisions of the Respondent's rules. Respondent never reviewed or permitted the existing canopy nor has it cited the existing canopy for being in violation of the rules. There is no provision in the rules to grandfather in an existing canopy and/or to replace or improve an existing canopy.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Transportation enter a Final Order finding Petitioner's proposed canopy does not meet the requirements of Rule 14-43 and denying Petitioner's request for a variance by means of through application for a special permit. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24th day of June, 1991. J. STEPHEN MENTON 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 D Division of Administrative Hearings this 24th day of June, 1991. APPENDIX The Respondent has filed a Proposed Recommended Order. The following constitutes my rulings on the proposed findings of fact submitted by the parties. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 7, 8 and 9. Adopted in substance in Findings of Fact 9. Adopted in substance in Findings of Fact 4. COPIES FURNISHED: Russell A. Waldon Assistant General Counsel Department of Transportation Haydon Burns Building 605 Suwanee Street, M.S. #58 Tallahassee, FL 32399 M. L. Dayton Marina Park Associates 340 Biscayne Boulevard Miami, FL 33132 John Reilly Miami Awning Company 282 Northwest 36th Street Miami, FL 33127 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
The Issue The issue for consideration in this hearing is whether Respondent's Rule 6A-3.001, F.A.C., is a valid exercise of delegated legislative authority and a properly promulgated rule.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, School Board of Palm Beach County, (Board), was the agency responsible for providing public school bus transportation to eligible students in the public schools of Palm Beach County, Florida. The Petitioners were the parents of children enrolled in and attending Hammock Pointe Elementary School, a public school in Palm Beach County operated by the Respondent. Prior to January 17, 1992, the Petitioners' children were enrolled in and attending Whispering Pines Elementary School, operated by the Board, and, because that school was located sufficiently far from the students' homes, were receiving public school bus transportation furnished by the Respondent. After the beginning of the 1991-1992 school year, the Respondent advised the Petitioners that in January, 1992, their children would be reassigned from Whispering Pines to Hammock Pointe Elementary School located somewhat closer to their residences at the Boca Palms apartment complex located at 22573 Southwest 66th Avenue, Boca Raton, Florida. The program at the new school was to begin on January 21, 1992. The Petitioners were also advised that because Boca Palms was located within two miles of Hammock Pointe School, based upon the Board's interpretation of the pertinent rules regulating school bus transportation, Rule 6A-3.001, F.A.C., their children would not be provided with public bus transportation to that school. This interpretation was made by the Board's Director of school bus transportation. Rule 6A-3.001, which implements the provisions of Sections 230.23 and 234.01, Florida Statutes, requires school boards to provide bus transportation to those students whose homes are beyond a reasonable walking distance from the assigned public school. The term, "reasonable walking distance", for a student who is not handicapped, is defined by the rule as: ny distance not more than two (2) miles between the home and school or one and one- half (1 1/2) miles between the home and the assigned bus stop. Such distance shall be measured from the closest pedestrian entry point of the property where the student resides to the closest pedestrian entry point of the assigned school building or to the assigned bus stop. The District shall determine the shortest pedestrian route whether or not it is accessible to motor vehicle traffic. Though the rule does not specifically define it, the Board's Director of bus transportation interpreted the phrase, "closest pedestrian entry point of the property where the student resides" as meaning that point where the public right of way ends whether or not that point constitutes a pedestrian entry point. Measuring the shortest pedestrian route from the school building to the junction of the public street adjacent to the apartment complex and the complex entry drive, the Board indicates a distance of 1.9 miles, within the rule definition of reasonable walking distance. Mr. Wattenberg, the Petitioners' expert, who personally walked the route with a walking wheel, determined the distance from the gate to the school to be 10,692 feet. The distance from the aforementioned junction, down the complex entry drive to the actual gatehouse, is 277 feet. Subtracting that distance from Mr. Wattenberg's measured distance leaves a balance from the school to the junction of 10,415 feet. This is barely under 2 miles, (10,560 feet). From the gate to the closest residence within the complex is an additional 255 feet, and from the gate to the southwest corner of the complex is an additional 700 - 1,000 feet. Mr. Wattenberg considered those figures relevant on the basis of his interpretation of the term "entry point of the property" which, he feels, is the individual students' homes. All of those would lie well outside the 2 mile cut-off point. His position has some merit in light of the fact that the complex is surrounded by either a man made or vegetative fence which restrict pedestrian entry and exit to through the gate. Were the children to be able to walk directly from their homes to the school, they would have less distance to travel because all homes are currently located in an area to the south of the gate, and the walking route, for the most part, is to the south and east of the complex. However, under the circumstances here, the children have to walk the 10,416 feet to the junction, an additional 277 feet to the gate, and then from 255 to 1,000 feet more from the gate to their homes. Together, this is all in excess of 2 miles, but the Department's interpretation makes the controlling distance less than 2 miles. Even if the distance is less than 2 miles, however, the Board will provide transportation if it is determined that hazards exist along the route that would endanger the student. Here, the Board has also taken the position that the route to be followed by the students does not present any hazardous conditions within the meaning of Section 234.021, Florida Statutes. This position is supported by the opinion of Sergeant Szczepanski, the Sheriff Department's head of the school crossing division. She is familiar with the route proposed from Boca Palms to the school and drove it at the request of the Board's head of risk management. Her viewing convinced her that there was a hazard on S.W. 8th Street near S.W. 56th Avenue, but from her discussions with that individual was satisfied that the danger has been abated. If she felt it were unsafe she would say so and when she has done so in the past, the Board has uniformly acceded to her determination and provided bus transport. Whenever hazardous conditions are identified, the bussing is provided only so long as those conditions persist, and when the hazard is removed, the bussing is terminated. Ms. Falana, the Board's risk management expert reviewed the route several times while the school was being considered and built and found nothing which, to her, met the statutory criteria. As she saw it, going by the statutory criteria, there was no need even for crossing guards, but there is at least one guard along the projected route and a total of three for the entire school area. Ms. Falana walked the route herself and did not merely drive it. She was specifically looking for hazards to children and found none. She coordinated with Sgt. Szczepanski and determined that there were no complaints registered by any of the parents with the bussing division, with her office, or with Sgt. Szczepanski's office. Ms. Falana recognizes that along the projected route there is a dogleg with a rise in the side of the street, (without a walkway), where a child might slip down into the roadway. She feels this is not a problem, however, because there are other similar areas in the county and there has never been an accident at one of those sites. Only where children have to cross a major highway or an unusual traffic situation is a crossing guard required. Mr. Wattenberg disagrees with Ms. Falana's and Sgt. Szczepanski's assessments of the hazard situation and contends there are several. One is at the intersection of Edward Blvd. and Sandalfoot where high hedges obstruct the view of drivers. The intersection at 8th Street and 57th Avenue is also dangerous but there will be a crossing guard there. From 57th Avenue east the route is on a service road which runs along a canal that has no sidewalk or guardrail. Mr. Wattenberg, an adult, required 45 minutes to traverse the route which has 10 cross streets intersecting with it. There will be between 40 and 45 children who will have to make this walk at least twice a day, five days a week, in all kinds of weather. The evidence is not clearly dispositive of the issue. According to Mr. Baker, the Board's director of transportation, the decision on whether to provide bus transport is made on the basis of both distance and hazardous conditions. He measured the distance electronically with a measuring device calibrated for accuracy both before and after each use. There is no dispute as to the actual distances involved, only at what point the distance is to be measured. School Board policy requires that the distance be measured according to the terms of the Department of Education rule, (6A- 3.001(3)), which refers to "... the closest entry point of the property where the student resides." He measured the shortest route from the school to that point where the public sidewalk meet the private property on the abutting thoroughfare and found the distance to be 178 feet short of two miles. On that basis, the transportation was denied. Mr. Baker also looked at the issue of hazardous conditions and relied on the determination of Ms. Falana who has the authority to determine if there is such a condition. Here, she determined there was no hazard requiring transport within the criteria in the statute. To be certain of his position, Mr. Baker wrote to the State Department of Education which rendered an opinion that the starting point for measurement is the point of demarcation between the public street and the private property. According to Mr. McBride, the Department of Education's school bus chief, there is no statutory definition of "pedestrian entry point." However, the Department, and the state auditors, always use the property line between private and public property as the line of demarcation. In this case, then, even though the entry gate is 277 feet further in from the property line, the entry to the property, for bussing purposes, is at the property line at the street. To the best of his knowledge, there has been no official determination on this point by court, rule, or statute. Ms. Gudermuth, one of the Petitioners, indicates that at the present time, since the school change, the management at Boca Palms has been providing bus transport for the 35 or so children who are involved. If the complex did not do so, she would not allow her seven year old child to walk to the school. She could take her daughter to school in the morning, but because she works outside the home, could not come to get her after school without switching to part time work. Many other parents are in the same situation. Car pooling is not a viable option because she, and each other parent who participated, would still need to take time off from work when it was her or his turn to drive. Boca Palms has indicated that though it is currently providing transportation to its tenants by leased bus, it cannot continue to do so. Because of the cost of $1.00 per mile per student, plus insurance and driver salary, the cost cannot reasonably be passed on to tenants through rent increases because of existing economic conditions. When the issue was raised with several of the parents, they were uniformly opposed to it.
Findings Of Fact John Joseph Christ (Petitioner) on May 22, 1990 filed his application for licensure as a real estate salesman with the Florida Real Estate Commission (FREC). Question #7 of the application states "Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld?" Petitioner responded affirmatively and included an attachment setting forth information related to five separate offenses, identified as follows: In July or August of 1963, at the age of 17, Petitioner and friends traveled away from home to Pikeville, Kentucky. While in Pikeville, the group discovered a burning debris pile which contained scrap copper wiring. The youths later returned and stole the copper for resale. Petitioner was apprehended and charged with possession of stolen property. He was convicted and paid a fine of $50 plus court costs. In 1967 or 1968, Petitioner was gambling in an apparently unlawful Detroit, Michigan gambling facility. While on the premises, law enforcement officials raided the facility and issued citations to the occupants for loitering in an illegal establishment. Petitioner paid a $62 fine. In 1967 or 1968 at Dearborn, Michigan, Petitioner, attempting to return a defective power tool to the place of purchase, became involved in an altercation with a clerk, knocked over a display counter, and was charged with malicious destruction of property valued under $100. Petitioner was convicted, ordered to pay restitution and court costs, and sentenced to six months probation. The Petitioner also disclosed that he had been arrested while in his car with friends and charged with possession of a firearm, but that the charges were dropped. On April 2, 1985, Petitioner was charged in Naples, Florida, with driving under the influence. He was convicted and fined $450. In addition his license was suspended for nine months and he was required to perform 50 hours of community service. Question 8(a) of the application states "Has any judgement or decree of a court been entered against you in this state or any other state...in which you were charged...with any fraudulent or dishonest dealing?" In response, Petitioner directed attention to another attachment. The attachment discloses that a judgement of $25,000 plus court costs was entered against his former company, the result of civil litigation initiated by the parties to a real estate transaction arranged by Petitioner. The seller, whose property had been previously offered for sale at $42,000, agreed to sell the house to Petitioner on or about November 29, 1980, for $29,500. Petitioner agreed to send a written purchase agreement to the owner for execution. By December 10, 1991, Petitioner had not received the executed purchase agreement and contacted the Owner, who indicated that, rather than handle the transaction by mail, he would travel to Michigan and sign the purchase agreement just prior to the scheduled December 23, 1990 closing. Petitioner immediately thereafter contacted his associates and informed them that the property was available for sale at an asking price of $42,000. On December 11, 1980, an associate of the Petitioner contacted prospective buyers who suggested a willingness to purchase the property for a sales price in the mid-thirties. The associate relayed the offer to his office, and then told the prospective buyers that a $39,000 offer had been previously rejected, and that the Petitioner had since purchased the property. On December 13, 1990, the buyers offered the $42,000 asking price. 1/ The Petitioner accepted the offer. The closing was scheduled for December 23, 1980. At the time the buyers executed their contract to purchase, the Petitioner had no written agreement to purchase the property, and had no other legal interest in the house. Neither the owner nor the buyers were aware of each other. Petitioner did not disclose to the buyers the fact that he had no title to the property. Shortly after the closing the buyers discovered that Petitioner had purchased the property for $29,500 and sold it for $41,000, that Petitioner did not have a legal interest in the property at the time the agreement to purchase had been executed, and felt deceived by the Petitioner's nondisclosure of the situation. The parties filed a civil lawsuit and a complaint with the State of Michigan, Department of Licensing and Regulation, Board of Real Estate Brokers and Salespersons. The Petitioner does not believe the judgement to have resulted from fraudulent or dishonest dealing. The judgement remains unsatisfied. Question 14 of the application states "Have you ever been denied, or is there now pending a proceeding to deny your application for a license, registration, or permit to practice any regulated profession, occupation or vocation, or have you withdrawn an application for such a license, in this or any other state, province, district, territory, possession or nation, because of alleged fraudulent or dishonest dealing or violation of the law?" Question 15(a) of the application states "Has any license, registration, or permit to practice any regulated profession, occupation, or vocation been revoked, annulled or suspended in this or any other state, province, district, territory, possession or nation, upon grounds of fraudulent or dishonest dealing or violations of law, or is any proceeding now pending?" In response Petitioner directed attention to an attachment. The attachment is not included in the certified copy of the Respondent's files, admitted as Respondent's exhibit #1. At hearing, Petitioner identified the matter as that disclosed in response to question 8(a), which resulted in the civil judgement against the Petitioner. As a result of the complaint filed by the parties to the transaction described above, The Michigan Real Estate Commission, on the March 7, 1984, entered a Final Order imposing a fine of $10,000 payable within 30 days, and requiring a $5,000 bond be posted for three years. The Order provided that payment of the fine and posting of the bond would result in Petitioner being placed on probation for three years and that noncompliance would result in suspension of the license. The Petitioner has failed to pay the fine or post the required bond. Although Petitioner claims to have contacted Michigan authorities to determine whether a payment schedule could be arranged, there is no documentary evidence supporting the claim. For the past two years, Petitioner has been employed as a manufactured home salesman with Alligold Corporation/Landmark Estates. Petitioner is responsible for meeting with prospective buyers, determining their needs, selling the manufactured homes, writing contracts, receiving deposits and delivery of said deposits to the company accounting office. Kyle Shinbaum, vice president and general manager of Alligold Corporation testified on behalf of Petitioner. Mr. Shinbaum stated that Petitioner is an excellent salesperson and that he should receive his real estate sales license. Although Mr. Shinbaum was generally aware of the Petitioner's legal problems, he lacked detailed knowledge of the incidents. Alligold Corporation is undertaking development of a manufactured home park in which lots will be sold. Were Petitioner a licensed real estate salesman, he could sell the lots for Alligold Corporation. David S. Lundgren also testified on behalf of Petitioner. Mr. Lundgren has known Petitioner since late 1865 or early 1986, when Mr. Lundgren, working for a financial services company and prospecting for business, met Petitioner through the manufactured home sales business. Mr. Lundgren is now a mortgage broker and owner of Lundgren & Associates Mortgage Brokers. Mr. Lundgren recommended Petitioner for licensure. Although Mr. Lundgren was generally aware of the Petitioner's legal problems, he lacked detailed knowledge of the incidents. He stated that he believed Petitioner to have been "acquitted" of the Michigan charges.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Real Estate Commission enter a Final Order DENYING Petitioner John Joseph Christ's application for licensure as a real estate salesman. DONE and RECOMMENDED this 16th day of October, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1991.
The Issue The issues presented for determination are whether Florida Housing Finance Corporation’s determination that the three applicant-parties were eligible for the allocation of low-income housing tax credits; and its intended decision to award such tax credits to Ocean Breeze East Apartments, LLC, are contrary to governing statutes, rules, or the solicitation specifications.1/
Findings Of Fact Parties and Process Florida Housing is a public corporation and, for the purposes of these proceedings, is an agency of the State of Florida. Pursuant to section 420.5099, Florida Statutes, Florida Housing is designated as the housing credit agency for Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code and has the responsibility and authority to establish procedures for allocating and distributing low-income housing tax credits.3/ Florida Housing is authorized by law to allocate tax credits (and other funding) by means of requests for proposal or other forms of competitive solicitation. On October 6, 2017, Florida Housing published the RFA, starting the competitive application process being challenged in this proceeding. Completed applications were due December 28, 2017.4/ As explained below, all of the non-agency parties (HTG Heron, Channel Side, and Ocean Breeze) in this case applied for funding for a proposed development in Palm Beach County. According to the terms of the RFA, only one application for each county was to be funded. Moreover, the RFA’s stated goal was to fund one application wherein the applicant applied and qualified as a non-profit applicant. This non-profit goal did not apply within each of the six counties included in this RFA; one non-profit applicant in any of the six counties could satisfy the non-profit applicant goal for the entire RFA. No challenges were made to the terms or requirements of the RFA. HTG Heron is an applicant to the RFA, requesting an allocation of $1,541,751.00 in competitive tax credits. Its application, assigned number 2018-289C, was deemed eligible for consideration but was not selected for funding under the RFA. Channel Side is also an applicant to the RFA. It is requesting an allocation of $2,100,000.00 in competitive tax credits. Its application, assigned number 2018-278C, was deemed eligible for consideration but was not selected for funding under the RFA. Ocean Breeze is an applicant requesting an allocation of $2,070,000.00 in competitive tax credits. Its application, assigned number 2018-286C, was deemed eligible for consideration and was selected for funding under the RFA, subject to a credit underwriting review process. Florida Housing has adopted Florida Administrative Code Chapter 67-60 to govern the competitive solicitation process for several different programs, including the tax credit program. See § 420.507(48), Fla. Stat. The bid protest provisions of section 120.57(3) are adopted as part of the process for allocating tax credits, except that no bond is required. See Fla. Admin Code R. 67-60.009. A review committee was appointed to evaluate the applications and make recommendations to Florida Housing’s Board of Directors (the Board). Thirty-three applications for the RFA were received, processed, deemed eligible or ineligible, scored, and ranked, pursuant to the terms of the RFA; Florida Administrative Code Chapters 67-48 and 67-60; and applicable federal regulations. The review committee found 25 applications eligible and eight applications ineligible. Through the ranking and selection process outlined in the RFA, seven applications were recommended for funding, including Ocean Breeze. The review committee developed charts listing its eligibility and funding recommendations to be presented to the Board. On March 16, 2018, the Board met and considered the recommendations of the review committee for the RFA. The same day, the applicants to the RFA received notice of the Board’s determinations as to whether the applications were eligible or ineligible for consideration for funding, and which of the eligible applicants were selected for award of tax credits, subject to satisfactory completion of a credit underwriting process. Such notice was provided by the posting of two spreadsheets, one listing the “eligible” applications to the RFA and one identifying the applications which Florida Housing proposed to fund.5/ Relevant to this proceeding, Florida Housing announced its intention to award funding for Palm Beach County to Ocean Breeze, which received the maximum points available. Channel Side and HTG Heron were deemed eligible and scored the maximum number of points, but were not recommended for funding. Each applicant-party timely filed a Notice of Protest and Petition for Formal Administrative Proceedings. RFA The RFA contemplated a structure in which each applicant is scored on eligibility items and obtains points for other items. To determine if an application is eligible for funding, it must meet all of the requirements listed in section 5.A.1, of the RFA. The following eligibility terms and requirements are challenged in this proceeding: The evidence of control of the development site (site control) by Ocean Breeze and Channel Side; and The address of the development site provided by HTG Heron. For scoring the applications, the RFA allows up to a total of 20 points with the following point allocations: Submission of Principal Disclosure form stamped by Corporation as “Pre-Approved” (5 points); Development Experience Withdrawal Disincentive (5 points); and Local Government Contribution Points (5 points) or Local Government Area of Opportunity Points (10 points). As explained in pages 66-67 of the RFA, the first step in evaluating the applications is the sorting order. All eligible applications are ranked by first sorting all eligible applications from the highest score to the lowest score, with any scores that are tied separated in the following order: First, by the Application’s eligibility for the Proximity Funding Preference (which is outlined in Section Four A.5.e. of the RFA) with Applications that qualify for the preference listed above Applications that do not qualify for the preference; Next, by the Application’s eligibility for the Per Unit Construction Funding Preference which is outlined in Section Four A.11.e. of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); [sic] Next, by the Application’s eligibility for the Development Category Funding Preference which is outlined in Section Four A.4.b.(4) of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); [sic] Next, by the Application’s Leveraging Classification, applying the multipliers outlined in Item 3 of Exhibit C of the RFA (with Applications having the Classification of A listed above Applications having the Classification of B); [sic] Next, by the Application’s eligibility for the Florida Job Creation Funding Preference which is outlined in Item 4 of Exhibit C of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); and [sic] And finally, by lottery number, resulting in the lowest lottery number receiving preference. In other words, those competing for the RFA must first submit an application that meets all the eligibility criteria and does not have any significant omissions or errors before it is scored. After scoring, any tiebreakers are determined strictly by the luck of the draw. After applications are filed, but before they are scored, Florida Housing randomly assigned each a lottery number, and the highest scoring applicant with the lower number wins any ties, thus becoming the intended funding recipient. The notice of the intended award does not end the process, and the selection of an applicant for funding does not guarantee distribution of tax credits to that applicant. Florida Housing’s representative, Ms. Button, explained at the hearing: Q Okay. What happens once a preliminary agency action from Florida Housing becomes final agency action? A The awardees who are recommended or preliminarily approved for funding, once that becomes final, those applicants are then invited to credit underwriting by Florida Housing. * * * Q Can you provide some general information about credit underwriting? A Credit underwriting is essentially a de novo review of all the information that the applicant has provided in their application to proceed forward with the proposed development. Florida Housing retains their party underwriters who review that information and provide recommendations to Florida Housing. Similarly, the RFA provides that each selected awardee must complete a credit underwriting process before receiving funding or credits. The RFA states on page 68: Notwithstanding an award by the Board pursuant to his RFA, funding will be subject to a positive recommendation from the Credit Underwriter based on criteria outlined in the credit underwriting provisions in Rule Chapter 67-48, F.A.C. Rule 67-48.0072, in turn, provides in part: Credit underwriting is a de novo review of all information supplied, received or discovered during or after any competitive solicitation scoring and funding preference process, prior to the closing on funding, including the issuance of IRS Forms 8609 for Housing credits. The success of an Applicant in being selected for funding is not an indication that the Applicant will receive a positive recommendation from the Credit Underwriter or that the Development team’s experience, past performance or financial capacity is satisfactory. Thus, an application might fail in this de novo credit underwriting phase and never receive funding, even though it was “awarded” tax-credit funding as a result of a proceeding such as this one. In that event, page 67 of the RFA provides: 4. Returned Allocation Funding that becomes available after the Board takes action on the [Review] Committee’s recommendation(s), due to an Applicant withdrawing its Application, an Applicant declining its invitation to enter credit underwriting, or an Applicant’s inability to satisfy a requirement outlined in this RFA and/or Rule Chapter 67-48, F.A.C., will be distributed as approved by the Board. Therefore, if an intended applicant (such as Ocean Breeze), was nominally selected for funding at the end of the eligibility and scoring phase, but failed to garner a positive recommendation from the credit underwriting process, the next eligible applicants in the queue (such as HTG Heron and Channel Side) would be awarded the tax credits. As a result, in this consolidated proceeding, the objective of Petitioners is to displace any and all applicants in more favorable positions. Here, Petitioner Channel Side challenges the eligibility of both the Ocean Breeze and HTG Heron applications; and Petitioner HTG Heron challenges the eligibility of Ocean Breeze. Ocean Breeze, in turn, challenges both HTG Heron’s and Channel Side’s eligibility. The specific issues raised as to the three challenged applications will be discussed below. OCEAN BREEZE APPLICATION HTG Heron and Channel Side challenge Ocean Breeze’s eligibility based on the RFA requirements relating to site control. The parties have stipulated, and the undersigned finds, that site control must have been demonstrated as of the application deadline of December 28, 2017. The RFA provides three ways an applicant can demonstrate site control: (1) eligible contract, (2) deed or certificate of title, or (3) lease. Ocean Breeze utilized the first method to satisfy the site control requirement by submitting a document titled “Purchase and Development Agreement” (PDA) as Exhibit 8 to its Application. The PDA included two attachments: the “Legal Description” and a “Reverter Agreement.” Petitioners challenge the enforceability of the PDA on two apparent grounds: (1) it was not executed by the applicant6/; and (2) it was executed before the applicant was properly incorporated to do business within the State of Florida. The RFA, however, does not mention “enforceability” of a contract in its definition for “Eligible Contract.” The requirements for establishing site control though an eligible contract are found on page 30 through 31 of the RFA. Eligible Contract - For purposes of this RFA, an eligible contract is one that has a term that does not expire before June 30, 2018 or that contains extension options exercisable by the purchaser and conditioned solely upon payment of additional monies which, if exercised, would extend the term to a date that is not earlier than June 30, 2018; specifically states that the buyer’s remedy for default on the part of the seller includes or is specific performance; and the buyer MUST be the Applicant unless an assignment of the eligible contract which assigns all of the buyer’s rights, title and interests in the eligible contract to the Applicant, is provided. Any assignment must be signed by the assignor and the assignee. If the owner of the subject property is not a party to the eligible contract, all documents evidencing intermediate contracts, agreements, assignments, options, or conveyances of any kind between or among the owner, the Applicant, or other parties, must be provided, and, if a contract, must contain the following elements of an eligible contract: (a) have a term that does not expire before June 30, 2018 or contain extension options exercisable by the purchaser and conditioned solely upon payment of additional monies which, if exercised, would extend the term to a date that is not earlier than June 30, 2018, and (b) specifically state that the buyer’s remedy for default on the part of the seller includes or is specific performance. The initial paragraph of the PDA identifies the parties to the PDA as “Boyton Beach Community Redevelopment Agency,” as the “Seller,” and “Ocean Breeze East Apartments, LLC” as the “Purchaser.” Paragraph 14 of the PDA designates the following for purposes of notices: If to Purchaser: Ocean Breeze East Apartments, LLC Attn: Lewis Swezy 7735 NW 146 Street, Suite 306 Miami Lakes, FL 33016 Under the signature block, however, the PDA states it was executed on behalf of the “Purchaser” by “OCEAN BREEZE APARTMENTS LLC By Ocean Breeze East GP LLC” and signed by Lewis Swezy, “Title: Authorized Member” on December 8, 2017. “Ocean Breeze East, GP, LLC” does not exist and never has in Florida. The parties admit that this entity was not in existence on December 8, 2017, and was never subsequently formed. Ocean Breeze admits the identification of “Ocean Breeze East, GP, LLC” was in error. The PDA was executed on behalf of the “Seller” by BBCRA and signed by Steven B. Grant, “Title: Chair” on December 15, 2017. Paragraph 4 of the PDA indicates that its effective date is the date when the last party signed the PDA; in this case being the date the BBCRA executed the document--December 15, 2017. The Reverter Agreement is executed by the “Purchaser” “Ocean Breeze East Apartments, LLC” and signed by Lewis Swezy, “Title: Manager of Manager,” on December 12, 2017. The Reverter Agreement is executed by the “Seller,” BBCRA, and signed by Steven B. Grant, “Title: Chairman” on December 15, 2017. Mr. Swezy testified Ocean Breeze complied with all the terms of the PDA, including submitting an initial $25,000 deposit within two days of full execution of the PDA and a second deposit within 30 days. The Articles of Organization for Ocean Breeze East Apartments, LLC were filed on December 19, 2017, and effective December 14, 2017. Rachael Grice, Florida Housing Multifamily Programs Manager, scored the site control portion for this RFA based on the information in the application. Mrs. Grice found that Ocean Breeze met the RFA requirements for site control. It is unnecessary, and beyond the scope of the undersigned’s jurisdiction, to make a factual or legal determination as to the enforceability of the PDA. The RFA does not mention enforceability or validity as requirements for an “Eligible Contract” for site control purposes. There is no dispute that on its face, the PDA with the Reverter Agreement satisfied the RFA’s requirements for an “Eligible Contract” listed on page 30 and 31. In fact, as of the date of the application deadline the following was true: Ocean Breeze East Apartments, LLC, was listed as the applicant for the RFA. Ocean Breeze East Apartments, LLC, was listed as the “Purchaser” on the PDA. Mr. Swezy had signature authority to bind Ocean Breeze and was listed on the Ocean Breeze application as the “Authorized Representative.” Ocean Breeze East Apartments, LLC, and Mr. Swezy were identified in the notice provision in the PDA. The Reverter Agreement, which was signed after the PDA, correctly identified the applicant entity as Ocean Breeze East Apartments, LLC. Effective December 14, 2017, Ocean Breeze was incorporated. The PDA was fully executed on December 15, 2017. HTG Heron and Channel Side have not established that the PDA was fatally flawed or that Florida Housing erred in accepting the PDA as an “eligible contract” satisfying the RFA’s site control requirement. Even if the PDA contained errors by listing “Ocean Breeze East GP, LLC” in the signature block or was prematurely signed before Ocean Breeze was effectively incorporated, the evidence at the hearing established that it was a minor irregularity waivable by Florida Housing, and that Florida Housing would have waived any such errors. If the PDA is ultimately determined to be unenforceable and site control is not established at the credit underwriting stage, Petitioners would be next in line to be selected to receive the tax credits under the terms of the RFA. The preponderance of the evidence established that Ocean Breeze’s application is eligible for funding, it received the proper scoring, and should be the intended award for Palm Beach County. HTG HERON APPLICATION Channel Side and Ocean Breeze challenge the eligibility of the HTG Heron application because they claim it fails to satisfy the RFA eligibility requirement to provide a correct address of the proposed development site. Page 18 of the RFA requires in relevant part: Indicate (1) the address number, street name, and name of city, and/or (2) the street name, closest designated intersection, and either name of city or unincorporated area of county. Ms. Button testified the purpose of the address requirement in the RFA is to allow parties, including Florida Housing, to know where the proposed development will be built and to ensure the property has access to utility and other services. In that vein, the RFA does not require the street identified in an application to be a publicly maintained street. In its application, HTG Heron provided the address of the proposed development as “W 17th Ct., W 17th Ct. and North Congress Ave., Riviera Beach,” along with latitudinal and longitudinal coordinates of the development location. Ryan McKinless, Multifamily Programs Senior Analyst for Florida Housing, scored the development address section for this RFA. Mr. McKinless found that HTG Heron met the requirements in the RFA for providing an address of the proposed development. Here, Channel Side and Ocean Breeze argue Florida Housing erred in accepting the “W. 17th Ct.” address provided by HTG Heron because the address does not exist. They point to the site sketch submitted by HTG Heron in support of its application which references a “W. 17th Street” (not “W. 17th Ct.”) and has “W. 17th Street” intersecting with “Congress Avenue Extension,” (not “N. Congress Ave.”). In support of this position that “W. 17th Ct.” does not exist, Ocean Breeze and Channel Side also rely on a 1975 plat and a 1999 City of Rivera Beach Ordinance. The sketches attached to HTG Heron’s application each contain the disclaimer “NOT A SURVEY.” Although the sketches contain a reference to an abandonment relating to “W. 17th Ct.,” the 1999 Ordinance describing the abandonment relied on by Channel Side and Ocean Breeze was not submitted to Florida Housing. Regardless, this plat and ordinance information was not required by the RFA nor was it considered by Florida Housing in determining whether to accept the address submitted by HTG Heron for eligibility determination purposes. There was no evidence at the hearing that the “W. 17th Court” address misled Florida Housing (or anyone else) or caused confusion as to the location of HTG Heron’s proposed development. To the contrary, other information in the application supports accepting the provided address. The “Local Government Verification of Status of Site Plan Approval for Multifamily Developments” form executed by the City Manager of Riviera Beach affirms the “W. 17th Ct.” address. The “Local Government Verification that Development is Consistent with Zoning and Land Use Regulations” form executed by the City Manager of Riviera Beach affirms the “W. 17th Ct.” address. The “Verification of Availability of Infrastructure- Electricity” form executed by an Associate Engineer from Florida Power and Light affirms the “W. 17th Ct.” address. The “Verification of Availability of Infrastructure” form for water and sewer services executed by a Utilities Engineer from City of Riviera Beach affirms the “W. 17th Ct.” address. The “Verification of Availability of Infrastructure- Roads” form executed by a City Engineer from the City of Riviera Beach affirms the “W. 17th Ct.” address. The “Local Government Verification of Contribution- Grant” form executed by the Interim City Manager of Riviera Beach affirms the “W. 17th Ct.” address. The acting director of the City of Riviera Beach, Department of Community Development confirms by letter that the property at the “2003 W. 17th Court (adjacent to North Congress Avenue)” address is located with a “Qualified Census Tract for 2017 and 2018” and attaches a diagram of that tract. Documentation from the Palm Beach County Property Appraiser’s website lists the address location as “2003 W. 17th Ct.” Given that the purpose of providing an address was fulfilled and there was no ambiguity as to the actual location of the HTG Heron’s development site, Channel Side and Ocean Breeze failed to prove that Florida Housing erred in accepting HTG Heron’s address for the purposes of eligibility. At the hearing, HTG Heron also submitted a certified copy of a 2017 map from the Palm Beach County Property Appraiser’s Office for range 43, township 42, which includes the area of the proposed development in HTG Heron’s application, and indicates there is a “W. 17th Ct.” that intersects with “N. Congress Avenue.” There was a preponderance of evidence establishing HTG Heron’s designation in its application of “W 17th Ct., W 17th Ct. and North Congress Ave., Riviera Beach” was not an error, and that HTG Heron’s application is eligible for funding. CHANNEL SIDE APPLICATION7/ To satisfy the Site Control requirements Channel Side submitted a Purchase and Sale Agreement that lists among the sellers an entity named “MWCP, Inc., f/k/a Blueprint Properties, Inc., a Delaware corporation whose post office address is 248 Columbia Turnpike Florham Park, NJ (‘Blueprint’)” in the initial paragraph. MWCP, Inc. (MWCP) did not exist in Florida when the Purchase and Sale Agreement was executed. The parties stipulated that the reference in the Channel Side site control documents to MWCP was erroneous and that the owner of the property for the Channel Side’s proposed development as of the application deadline was a Delaware corporation known as Blueprint Properties, Inc., which has never operated as, or been corporately related to, MWCP. Rachel Grice, Florida Housing Multifamily Programs Manager, scored the Site control portion of this RFA based on the information in the Application. Mrs. Grice found that Channel Side met the RFA requirements for Site control. The RFA does not require the listing of related names of any corporations other than the applicant or developer. Thus, the error in the Purchase and Sale Agreement does not seem to affect Channel Side’s satisfaction of any requirement of the RFA. The error is insignificant and immaterial. There was no evidence presented at the hearing that Channel Side received a competitive advantage by identifying “MWCP, Inc. f/k/a Blueprint Properties, Inc.” instead of simply “Blueprint Properties” as the seller. The slight error conferred no competitive advantage on Channel Side; its application received no more points than it was entitled to by reason of the mistake. Ms. Button reasonably testified that had Florida Housing known about the mistaken listing of MWCP as the seller, it would have waived the error as a minor irregularity. The applicant-parties failed to prove that Channel Side’s application reflecting the “wrong corporate entity” as the seller was an error affecting eligibility of Channel Side’s application, or that Florida Housing erred in accepting the Purchase and Sale Agreement as proof of site control. The mistake was, at worst, a minor, inconsequential error that was waivable. Based on the preponderance of the evidence, Channel Side’s application is eligible for funding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Florida Housing Finance Corporation, enter a final order consistent with its initial decisions: (1) finding the applications of Ocean Breeze, HTG Heron, and Channel Side eligible for funding; (2) awarding the RFA Palm Beach County funding for the Ocean Breeze proposed development; and (3) dismissing the formal written protests of HTG Heron and Channel Side. DONE AND ENTERED this 29th day of June, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 29th day of June, 2018.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the facts stipulated to in the Prehearing Stipulations, the following relevant facts are found: Babcock, a Weyerhauser Company, is the agent for Centennial Homes, Inc., another Weyerhauser Company, and is the current owner and/or seller of real property located on Rocky Point Island, an island Situated along the eastern shore of Tampa Bay. The Island is bisected by the Courtney Campbell Causeway (State Road 60), a major regional roadway which runs across Tampa Bay and links Pinellas and Hillsborough Counties. (Prehearing Statements of Fact) The City of Tampa (City) is a municipal corporation and is the local government having jurisdiction to render development orders for DRIs located within its municipal boundaries. The TBRPC is the regional planning council within whose jurisdiction the Rocky Point Office and Commercial Park is located. The Department of Community Affairs (DCA) is the state land planning agency having jurisdiction over the proposed Babcock project. (Prehearing Statements of Fact) The New York Yankees is a New York limited Partnership which owns and operates the Bay Harbour Inn, located on the south portion of Rocky Point Island directly across the Courtney Campbell Causeway from the proposed Rocky Point Office and Commercial Park. The Bay Harbour Inn is a 260-room motel, with a banquet room, meeting rooms, a restaurant and a cocktail lounge, and is Situated on the only true beachfront property in Tampa. (Prehearing Statements of Fact; testimony of Frederick Matthews, Tr. 1524-1547) Shriners Hospitals is a Colorado charitable corporation authorized to do business in Florida. Its international headquarters is located on the south portion of Rocky Point Island directly across the Courtney Campbell Causeway from the proposed Rocky Point Office and Commercial Park. Purchased in 1980, the six and a half acre site was selected by the Shriners for its high visibility and its convenient access. The Shriners headquarters average approximately fifty (50) visitors per day. The Shriners operate 22 hospitals which treat crippled and burned children without charge to the patients. It depends upon its members and visitors to assist in funding efforts. If the visibility and/or accessibility of its headquarters were impaired, its ability to raise funds to operate its childrens' hospitals would be adversely affected. (Prehearing Statements of Fact; testimony of Louis Molnar, Tr. 2424-2429) In 1973-74, Centennial purchased approximately 62 acres of land located on the north side of Rocky Point Island. Between 1977 and 1980, Centennial constructed road, water, sewer and drainage improvements and platted a subdivision of the property known as the Rocky Point Office and Commercial Park. Between December 1981 and November 1983, Babcock sold, at a substantial profit, four parcels within the Rocky Point Office and Commercial Park to separate individual developers. (Prehearing Statements of Fact; testimony of William Lopez, Tr. 101-104) In the spring of 1984, a dispute arose between Babcock and the Department of Community Affairs as to whether the Rocky Point Office and Commercial Park was required to undergo Development of Regional Impact (DRI) review pursuant to Section 380.06, Florida Statutes. In order to resolve this dispute, Babcock and the DCA entered into a Preliminary Development Agreement (PDA) pursuant to Section 380.032(3), Florida Statutes. Under that Agreement, the entire Rocky Point Office and Commercial Park was required to undergo DRI review. However, the four previously sold parcels were permitted to be developed and occupied prior to receipt of a final Development Order with, respectively, a 70,000 square foot office building, a 183,393 square foot office building with an associated 5,000 square foot restaurant, a 202 suite hotel and a 176 room hotel. The Agreement also required Babcock to pay to the DCA $50,000 to fund a study of growth management issues on Rocky Point Island. (Prehearing Statements of Fact; Babcock's Exhibit 8) Pursuant to the Preliminary Development Agreement, a DRI pre- application conference was held on April 7, 1984, and Babcock's Application for Development Approval (ADA) was filed on October 19, 1984. In its ADA, Babcock proposed a total of 1,375,393 square feet of office uses, 378 rooms of hotel or motel use and 17,000 square feet of restaurant development in two phases. Phase I consisted of the 253,393 square feet of office uses, the 378-rooms of hotel use and 5,000 square feet of restaurant use permitted by the ADA to proceed prior to receipt of a final Development Order for the overall DRI. Phase II consisted of the balance of the proposed DRI: 1,122,000 square feet of office space and 12,000 square feet of restaurant uses. (Prehearing Statements of Fact; Babcock's Exhibits 1-3) Babcock furnished additional information to the TBRPC in November and December of 1984. From December 1984 to March 1985, the TBRPC, in conjunction with the DCA and the City, proceeded with plans to conduct a short-term traffic study of the immediate Rocky Point Drive/Courtney Campbell Causeway Intersection. Also, the Preliminary Development Agreement with the DCA was amended to require payment of the $50,000 to TBRPC instead of the DCA. These funds were subsequently paid to TBRPC by Babcock. (Prehearing Statement of Facts; Babcock's Exhibit 9) On or about March 12, 1985, the TBRPC determined the ADA was sufficient and so notified the City of Tampa. The City Council set a public hearing for May 23, 1985 to consider Babcock's ADA. In April, 1985, the short-term study was completed. The purpose of that study was to (1) determine the maximum at-grade roadway improvements which could be made to the Intersection and (2) determine the level of development which could be accommodated thereby. The conclusion of the short-term study was that, with the maximum amount of at-grade improvements (three through lanes in each direction), the intersection would operate at Level of Service (LOS) "E" in the morning peak hour in the year 1990 with existing and approved development. The afternoon peak hour would operate at LOS "D". Therefore, it was concluded that there was no capacity for any additional development on Rocky Point Island north or south of Courtney Campbell Causeway using the Rocky Point Drive intersection. (Prehearing Statements of Fact; Babcock's Exhibit 37) On May 13, 1985, the TBRPC submitted its regional report and recommendation. The TBRPC recommended denial, but set forth conditions which, if satisfied, would result in a recommendation of approval. The Council's prime concern was the adverse impact of the proposed project upon the transportation network and regional facilities in the area, and mitigation of those impacts. The Council determined that "The addition of a project of this magnitude to an already overburdened infrastructure raises serious questions regarding land use and public facility decisions for this area of the region." The TBRPC concluded that the Babcock DRI would have a substantial negative impact upon several regionally significant highway facilities. While the council did identify some positive impacts from the proposed project (such as increased employment opportunities and increased ad valorem tax yields), the positive impacts were not site-specific to Rocky Point Island. (Babcock's Exhibit 13, TBRPC's Exhibit 52B, page 8) The TBRPC also proceeded with a longer term traffic study of the Courtney Campbell Causeway corridor area. The long-term study's stated purpose was to determine whether the traffic to be generated by the overall proposed development on Rocky Point Island, including Babcock's DRI, could be accommodated on the Causeway corridor given reasonable levels of road improvements. (Prehearing Statements of Fact) Except as to conditions relating to transportation, levels of development, and development phasing, Babcock and City Staff were in substantial agreement by May 23, 1985, on the terms and conditions of a recommended development order approving with conditions Babcock's ADA. At the public hearing on May 23, 1985, the City Council voted to defer consideration of the ADA in order to allow additional time to address and resolve various traffic related issues and to formulate conditions relating to mitigation of the project's transportation impacts. From that point forward, proceedings before the City were protracted, and public hearings were continued on numerous occasions. (Prehearing Statements of Fact) The long-term study was completed in December of 1985, and was formally released on February 20, 1986. The study concluded that a reduced amount of development on Rocky Point Island could be accommodated with a reasonable level of improvements, including an overpass at the intersection of Rocky Point Drive and Courtney Campbell Causeway. The study further concluded that an alternative development scenario would allow over twice the existing and approved development. (Prehearing Statements of Fact) Review and comment regarding the long-term study as well as negotiations regarding Development Order conditions resulted in further continuances of the public hearing on the Babcock ADA. On September 25, 1986, City Council approved on first reading a proposed ordinance issuing a Development Order approving Babcock's ADA. (Babcock's Exhibit 6) The City Council also directed that a further traffic study be conducted regarding Rocky Point Island. On October 23, 1986, the City Council heard objections to the issuance of the Development Order from surrounding property owners, including the New York Yankees and the Shriners. The matter was then continued until December 18, 1986, over Babcock's objections to further continuances. On December 18, 1986, the City Council again continued the matter to April 9, 1987, despite Babcock's objection to further continuances. (Prehearing Statements of Fact) On December 31, 1986, Babcock filed a Complaint for Mandamus seeking to compel the City of Tampa to render a Development Order. The Circuit Court issued a Final Peremptory Writ of Mandamus on February 16, 1987, commanding the City Council to adopt an ordinance issuing a Development Order. (Prehearing Statements of Fact) On February 26, 1987, the City Council adopted emergency Ordinance No. 9544-A constituting a DRI Development Order which approved with conditions Phase I, and denied with conditions Phase II of the Rocky Point Office and Commercial Park DRI. The approval of Phase I (consisting of the development previously approved by the Preliminary Development Agreement) was conditioned upon payment to the City of $582,566.09, based on the City's transportation impact fee then in effect. Denial of Phase II was based upon the City's finding that the development would cause the intersection of Rocky Point Drive and Courtney Campbell Causeway to operate below a level of service (LOS) "D" peak, and that the feasibility of traffic improvements and Babcock's fair share of the costs thereof' to mitigate traffic impacts and maintain LOS "D" peak hour had not been fully determined. Before Phase II could be approved, the Development Order required Babcock to institute worker flex time conditions and to show the feasibility of, and funding commitments for, the roadway improvements necessary to maintain LOS "D" peak hour on the Causeway for project build-out. Further, Babcock would be required to pay, in advance of further building permits, a proportionate share contribution calculated under Rule 9J-2.0255, Florida Administrative Code, or City of Tampa Transportation Impact Fees, whichever was greater. Needed improvements caused by both the approved Phase I development and the denied Phase II development were listed. (Babcock's Exhibit 7) Babcock's proposed development is consistent with the zoning which existed on the property prior to Centennial's acquisition of the property and at the time the ADA was filed. It is also consistent with existing development on the Island. However, on December 17, 1987, during the pendency of these proceedings, the City Council rezoned the undeveloped portions of Babcock's property from C-1 and C-2 (general commercial) to RM-24 and RS-60 (residential, multi- and single-family). (TBRPC's Exhibit 51 and 51-A) The new zoning would not allow the development proposed by Babcock. Courtney Campbell Causeway is a regionally significant roadway because it serves as one of only four links between Pinellas and Hillsborough Counties and is the only direct link between the Cities of Tampa and Clearwater. There is no reason to believe that the Causeway will not remain a significant regional roadway in the future. (Tipton, Tr. 2475) The traffic impacts of the proposed Babcock DRI take place in a unique setting. The entire development will be served by a single intersection located at Rocky Point Drive, which runs north and south, and Courtney Campbell Causeway, which runs east and west. There is no alternative route for people who would work on or visit the Island, other than the Causeway. Thus, Rocky Point Island is unique from a traffic planning perspective because of its location on a major regional link and its single point limited access onto said link. (Chapman, Tr. 2090 and 2185; Tipton, Tr. 2473) DRI review is site-specific and location is a critical factor. In reviewing the traffic impacts of a proposed DRI, the applicant identifies the regionally significant roadways which it projects will operate below Level of Service (LOS) "D" peak hour upon buildout of its project and upon which its project contributes a certain percentage or more of the LOS "D" peak hour capacity. The DCA requires an applicant to identify those regional roadways on which its traffic contributes ten percent (10%) or more of the LOS "D" peak hour capacity, while the TBRPC's requirement is five percent (5%). The applicant then identifies the roadway improvements needed to return the roadway to LOS "D" peak hour. (Beck, Tr. 1495; Benz, Tr. 2356) Developers need not identify roadways `which will operate at LOS "D" or better at the time of buildout, nor are they required to mitigate for the capacity which they are absorbing at locations which will be functioning at acceptable levels. (Benz, Tr. 2375) In other words, no commitment for roadway improvements is required so long as the LOS would not deteriorate below "D" during the peak hour. The DCA has three options for mitigation of traffic impacts which, if included in a Development Order, will preclude DCA appeal. The DCA's Transportation Rule, Rule 9J-2.0255, Florida Administrative Code, contains the three mitigation options. The first option is staging, the second is pipelining and the third is a creative option which provides for flexibility in situations such as an areawide DRI with mass transit. (Beck, Tr. 1498) These options are considered minimum criteria, and the local government and regional planning council may require more stringent measures than those found in the DCA's Rule in order to address traffic impacts. According to the DCA's interpretation of Chapter 380, Florida Statutes, payment of a local impact fee by a DRI developer would not necessarily make adequate provision for the transportation impacts of a DRI. (Beck, Tr. 1406-07) It is the position of the DCA that the Legislature intended to hold DRI developers to more stringent standards than non-DRI developers. (Beck, Tr. 1432) The TBRPC would offer three options, plus a creative option, to local government for mitigation of traffic impacts. The first option requires funding commitments from either the developer, the Department of Transportation, or any other source, for all roadway improvements identified. Such commitments must be in place prior to each phase of the development's approval. The second option is a phasing or staging approach whereby the developer proceeds on a piecemeal basis, obtaining funding commitments for smaller segments of the project. The funding commitments must be viable at the time of approval. The third option is known as the "pipelining" option which does not require that funding commitments for all roadway improvements be in place prior to development. Under this option, the developer is permitted to construct or fund the construction of one or more of the necessary improvements needed to maintain LOS "D." The developer's fair share contribution of the cost of all improvements is calculated, and that contribution is directed to one or more of the necessary improvements. The pipelining option is a tradeoff approach whereby the developer contributes his proportionate share and actually constructs or funds one or more regionally significant projects, and his impacts at other locations identified during the regional review are forgiven in exchange for construction of the pipeline improvement. The pipelining policy is to encourage early construction of immediate major improvement to a regional roadway in exchange for forgiveness of impacts at other locations. The pipelining option was not available at the time the TBRPC issued its report on the Babcock ADA, but was available at the time the City of Tampa issued its Development Order. (Benz, Tr. 2355- 2375; TBRPC's Exhibits 23 and 24) The Florida Department of Transportation has jurisdiction over improvements to be constructed on the Courtney Campbell Causeway. The City of Tampa has an urban area Metropolitan Planning Organization (MPO) long-range transportation plan which analyses the transportation demand estimates for the horizon year 2010. It is the policy of the TBRPC to encourage local governments to approve the pipelining option for roadway improvements which are consistent with the MPO and the Department of Transportation's long-range plans. (TBRPC's Exhibit 24, Policy 19.8.14) A grade separated interchange at Rocky Point Drive and Courtney Campbell Causeway does not appear on the MPO long-range plan or the work plan of the Florida Department of Transportation. (Adair, Tr. 2274) The notion of concurrency is a common ingredient in each of the options for mitigation of transportation or traffic impacts. Concurrency means that the developer cannot build until the public improvements are either physically in place or there is a funding commitment from some source (not necessarily the developer) to put them in place. (Benz, Tr. 2388) A DRI developer does not have to pay money for its impacts. It may phase its development so that it is accommodated by the infrastructure in place, those improvements which are programmed to be put in place over time, or until the improvements are committed to by some other development. It is only when the DRI's impacts exceed existing capacity that the developer must identify and provide for the improvement. (Benz, Tr. 2355-57; Beck, Tr. 1492) One of the purposes of the Land Use Element of the Tampa Comprehensive Plan 2000 is to coordinate the orderly provision of public facilities (which include transportation facilities) with public and private development activities in a manner that is compatible with the City's fiscal resources. (City's Exhibit 17, page 3, paragraph 3.3) New development or increased intensity is to be permitted only in areas where adequate public facilities exist or can be adequately provided. (City's Exhibit 17, page 18, paragraph 1.2.3) Likewise, commercial and office development is to be permitted at an intensity and a location which complements existing and planned land use and existing and programmed public facilities. (City's Exhibit 17, page 24, paragraph 1.4.1.2; Mikalik, Tr. 1976, 1981, 1982) Prior to September 12, 1986, the City of Tampa had no transportation impact fee. The City's first impact fee was adopted on September 12, 1986, and it imposed upon all developers a non-site specific flat fee per square foot or per hotel/motel room. The fees imposed were conservative and were not sufficient to pay for the costs of transportation improvements necessary to accommodate new development paying the fee. (Tindale, Tr. 660-667) The impact fee ordinance was amended in 1988. The City was divided into transportation districts, and a different level of fees for each district was established. The transportation impact fees for the Westshore District, which encompassess Babcock's property, were increased. (Babcock's Exhibit 129) Transportation impact fees generally attempt to measure the value of the entire system consumed by a particular development. An impact fee calculation does not deal with existing conditions. In contrast, the requirement that a DRI developer make "adequate provision" has a different focus. This requirement focuses on the geographic location of the DRI, and measures the effect of the DRI on the public facilities at that location, both present and projected into the future. If certain regulatory levels are exceeded, the developer has several mitigation options to make "adequate provision" concurrently with the impact. Thus, while impact fees look at development in terms of the average value or capacity available to be consumed, the DRI regulatory process views impacts in terms of a performance standard not to be exceeded at a specific geographic location. (Tindale, Tr. 2233-43, 2253- 62) According to transportation experts, the transportation impacts of a proposed new development can be estimated through the use of the Highway Capacity Manual and the Institute of Traffic Engineers (ITE) Manual, the latter of which predicts the number of "trips" that a certain amount and type of development will generate. Through further calculations, these trips form the basis for conclusions as to the Level of Service (LOS) at which a roadway will operate. The LOS range from "A" (the best) through "F" (the worst). As noted above, the TBRPC considers LOS "D" peak hour the lowest acceptable level of service. (Chapman, Tr. 322-41; Wright, Tr. 457-74; Tipton, Tr. 2456-60) Several studies have shown that trip generation rates in the City of Tampa and throughout Florida are typically higher than the national average rates projected by the ITE Manuals. (Tindale, Tr. 646, 704, 820; Adair, Tr. 2275-76; Chapman, Tr. 2120). This may be due to factors such as climate, suburban characteristics and lack of mass transit. (Adair, Tr. 2275-79) Thus, trip rate projections for new developments within Tampa based upon the ITE Manuals would be on the conservative side. At the time Babcock filed its Application for Development Approval in 1984, the intersection of Rocky Point Drive and Courtney Campbell Causeway was operating at LOS "B" in both the a.m. and p.m. peak hours. (Babcock's Exhibit 3, page 31-16) The short-term study completed in April of 1985 concluded that, assuming maximum at-grade improvements, the intersection at Rocky Point Drive and the Causeway would operate at LOS "E" in the morning peak hours in the year 1990 with existing and approved development. Therefore, the study concluded there was no further capacity for additional development on Rocky Point Island north or south of the Causeway. (Babcock's Exhibit 37) Without additional development above the Preliminary Development Approval (or Phase I), the 1985 Highway Capacity Manual projects that with the current Department of Transportation improvements, the at-grade intersection will operate at LOS "D" or better in both the a.m. and p.m. peak hours in 1992. With full buildout of the Babcock proposal and current Department of Transportation improvements, the 1992 LOS at the intersection would be at or below LOS "E" in both the a.m. and p.m. peak hours. (Wright, Tr. 1729-30) As noted above, the long-term study issued in February of 1986 concluded that over twice the amount of existing and approved development could be accommodated by an overpass at the intersection of Rocky Point Drive and the Causeway. The congested conditions which currently exist on the Courtney Campbell Causeway in the vicinity of the Rocky Point Drive intersection occur primarily one-way in the peak hours. In the morning peak hours, the Causeway is congested in the direction moving from the west to the east -- from Pinellas to Hillsborough County. Conversely, in the afternoon peak hours, the heaviest traffic flows from east to west. Thus, there is some excess capacity in the a.m. and p.m. peak hour direction opposite the prevailing flow of traffic and little or no excess capacity in the direction of the prevailing flow of traffic. (Wright, Tr. 522-23; Patterson, Tr. 1383) While the greatest negative impact on the intersection in the a.m. peak hours is westbound traffic from Tampa turning left to reach South Rocky Point Island, it is the conflicting through traffic movement which creates the total congested condition. In other words, there is no one critical movement. It takes two directional movements in conflict to create the negative impact. (Padmanabahn, Tr. 849-50; Hall, Tr. 864, 909) With additional development on the Babcock parcel, the intersection at Rocky Point Drive and Courtney Campbell Causeway will degrade to a LOS below "D" in the a.m. peak hours sometime between the years 1990 and 1992. In order to accommodate the traffic impacts of its proposed additional development, Babcock proposes a grade separated interchange which would separate the conflicting turning movements from through traffic and improve the movement of traffic on the Causeway. Babcock's experts testified that with full buildout of the proposed development, the overall operating condition of such an interchange would be LOS "C" during the a.m. and p.m. peak hours in 1992. (Wright, Tr. 528) While it is technically feasible from an engineering standpoint to design an interchange for the Rocky Point Drive intersection, Babcock failed to demonstrate that the preliminary conceptual design it proposes is feasible. Babcock's witness on the subject was unfamiliar with certain aspects of the design and drawing of the proposed interchange. (Chinery, Tr. 934-40, 945-48) The vehicle mix was not considered in designing the overpass. It is important to know the mix of heavy vehicles because it affects the length of the ramps. (Chinery, Tr. 1011-14) While Babcock's engineers utilized a "weave analysis" in designing the overpass, there was credible evidence presented that the proper analysis for this particular design is a "ramp analysis." If a ramp analysis is performed, the ramp would operate at a LOS "E," as would the Causeway itself. (Chapman, Tr 2156, 2676-79) Although the Department of Transportation requires a 20-year design life for an interchange, Babcock's proposed interchange was not designed for any particular design life. (Chinery, Tr. 1042-43) Also, it was not established whether the proposed interchange would fit within the Department of Transportation's right-of-way on Rocky Point Drive. (Chinery, Tr. 1010-11) Babcock estimated the cost of the proposed interchange to be $9.5 million, plus or minus 25%. However, Babcock's cost witness did not prepare the estimate himself, did not verify the quantities of materials to be utilized in construction and did not include many costs that would be associated with the proposed interchange. For example, the estimated costs do not include right-of- way costs, design or engineering costs, costs associated with the environmental effects of additional dredging, filling and bulkheading activities, or possible business damages for any existing property owners in the Rocky Point area who might lose access to the Causeway. (Tocknell, Tr. 1832-67) It also appears that the cost estimate of $9.5 million was based upon a conceptual drawing different than the drawing submitted at the hearing. (Tocknell, Tr. 1859) Babcock's Exhibit 128, prepared in May of 1986, indicates that the recommended standard value for interchanges is $7 million. The Ulmerton-U.S. 19 urban interchange located in Pinellas County, which is similar to the proposed interchange, cost $19 million-plus in construction costs, which figure did not include right-of-way costs. (Tocknell, Tr. 1912-13) Babcock has not offered to fund or construct the proposed interchange at Rocky Point Drive. There was no evidence offered to determine whether a proportionate share contribution by Babcock would fund the proposed grade separated interchange. There was no competent evidence presented that a grade separation is currently scheduled for construction. It was generally agreed that the existence of a properly designed overpass or interchange at the Rocky Point Drive/Courtney Campbell Causeway intersection would accommodate additional development on Rocky Point Island. However, the extent or amount of such additional development was not established. Babcock's expert presented evidence that the overall operating condition of the intersection with its proposed interchange would be LOS "C" during the a.m. and p.m. peak hours in 1992 with full buildout of its proposed DRI, plus an additional 300,000 square feet of office development. (Wright, Tr. 528) LOS "C" is characterized as the absence of congestion. However, the analysis performed and assumptions made in reaching this conclusion were faulty in many respects. Babcock utilized the ITE Manual, 4th Edition, for its trip generation projections. The 4th Edition projects less traffic per square foot of commercial office development than had been projected under the 3rd Edition that was in use until December of 1987. As indicated above, in Florida, and specifically in Tampa, actual trip generation figures from established developments demonstrate that even the 3rd Edition ITE Manual under-projects traffic impacts. (Tindale, Tr. 646; Adair, Tr. 2275-77; Chapman, Tr. 2120) Babcock's use of a zero percent background growth rate is incorrect based upon the historic growth rate for Courtney Campbell Causeway (Wright, Tr. 461), other studies of the Causeway and Rocky Point Island, and the likelihood that, with further development on the Island, cars will travel back and forth between North and South Rocky Point Islands. (Patterson, Tr. 270; Chapman, Tr. 2116; Wright, Tr. 1707) A fifteen and twenty percent flex time reduction of trips for all office uses is erroneous because the ITE trip generation rates already account for any flex time which may be occurring (Tipton, Tr. 2465-66) and the ITE Manual does not authorize reduction of trips for flex time. (Wright, Tr. 1743) The internal capture rates and directional traffic split utilized by Babcock were not supported by competent substantial evidence. Babcock's failure to take into account heavy vehicles on Rocky Point Drive is inappropriate since the Island is served by public transportation, and City bus stops are located on the Island. (City's Exhibit 2A; Hale, Tr. 1597) Babcock's analysis which concluded that with current Department of Transportation improvements, the at-grade intersection could accommodate an additional 300,000 square feet of office use (Wright, Tr. 1808) utilized many of the same faulty assumptions as discussed above. Accordingly, it too, is not supported by competent substantial evidence. If Babcock were to buildout with the at-grade intersection, the automobile carbon monoxide emissions would exceed the Department of Environmental Regulation's (DER) guidelines and standards for air quality. (Hale, Tr. 1625) Babcock presented evidence that if the proposed grade separation (the interchange) were in place, carbon monoxide concentrations would not exceed ambient air quality standards for this pollutant. This conclusion is suspect for several reasons. The air quality analysis conducted on Babcock's behalf deviated from the DER's guidelines in several respects. (Kenney, Tr. 1082-83; Hale, 1556) Although parking garages are located in the vicinity, they were not considered in the analysis. (Kenney, Tr. 1136; Hale, Tr. 1593-94, 1630) Use of the intersection by heavy duty vehicles, which emit far more particulate matter than most motor vehicles, was not considered. (Kenney, Tr. 1062-63, 1140) The assumption of traffic traveling unimpeded through the intersection at 35 miles per hour was not substantiated. (Kenney, Tr. 1118-27) Some receptors were not located in accordance with the DER guidelines. (Kenney, Tr. 1195-96; Hale, Tr. 1582, 1627- 29) All these factors affect Babcock's air quality analysis. Thus, while there is little doubt that a grade-separated interchange which permits the free flow of traffic would improve air quality at the subject intersection, it cannot be concluded that full buildout of the proposed DRI would comply with Florida's ambient air quality standards. Traffic congestion causes user delay costs to the motoring public. If Babcock were to buildout at-grade, the increased delay costs to motorists would be $1,525 per hour or $1,549,400 per year. (City's Exhibit 12; Garity, Tr. 2056-57; Chapman, Tr. 2083) If an interchange were substituted for the existing at-grade condition, and assuming the interchange functioned properly, there would be a savings to the motoring public of approximately one million dollars per year. (Wright, Tr. 2574) The grade-separated interchange proposed by Babcock will affect the property rights of nearby landowners. The interchange would allow entrance to the Bay Harbour Inn from the Causeway only from the west, and would allow no means for exiting the facility at all. A similar situation would exist for the Rocky Point Beach Resort Hotel. Since the Bay Harbour Inn has no access to Rocky Point Drive, the only means of providing that access would be through property owned by the Shriners. This would require condemnation of the Shriners' property and the construction of a driveway from Rocky Point Drive to the Bay Harbour Inn either over a large retention pond or through the existing Shriners parking lot. This, of course, would create a substantial hardship upon any further development of the Shriners' 6-acre parcel. Even if Bay Harbour Inn were permitted a driveway onto Courtney Campbell Causeway after construction of the overpass, it would not be a commercially viable access. (Tipton, Tr. 2468- 70; Chapman, Tr. 2110-13; Matthews, Tr. 1540-42; Molnar, Tr. 2427) Not only would the proposed interchange require use of the Shriners' property in order to provide access to the Bay Harbour Inn, the interchange would diminish the ability of the Shriners to continue performing its charitable activities at its international headquarters. Reduced visibility would adversely affect the Shriners' ability to raise funds to operate its children's hospitals. The overpass would require the construction of a retaining wall which, at its highest point, is about 25 feet high. (Chinery, Tr. 1033) This would virtually obliterate the visibility of the Shriners' property from Courtney Campbell Causeway. (Chinery, Tr. 1041; Molnar, Tr. 2424-27) As noted above, DRI review is site-specific and location is a critical factor in reviewing a DRI's potential impacts, both positive and negative. (Beck, Tr. 1414) For this reason, other Development Orders entered by the City of Tampa which may contain different conditions for approval do not establish that the City or the TBRPC has acted arbitrarily with regard to the Babcock DRI. For example, the Areawide Westshore DRI does not include Rocky Point Island. As an areawide DRI, it is regulated by Section 380.06(25), Florida Statutes, and the two developments are not comparable. (Babcock's Exhibits 85 and 95) Point Properties, Ltd. is a non-DRI development which is located on North Rocky Point Island on an out-parcel which has direct access to Courtney Campbell Causeway and Rocky Point Drive. (Hall, Tr. 2669) The City's action upon Point Properties' application for a zoning change (while perhaps relevant to the City's action in rezoning Babcock's undeveloped property) cannot be compared with the City's action concerning Babcock's DRI application. The City of Tampa denied the Lifsey DRI for North and South Rocky Point Islands with essentially the same conditions and language as contained in the Babcock Development Order. (Stipulation, Tr. 1523-24) While not included in the City's Development Order as a change which would make Babcock's proposal eligible to receive approval, evidence was presented at the hearing that City staff would recommend approval of a multi- family residential proposal for the Babcock property on Rocky Point Island. (Mihalik, Tr. 1994) Other developments in Tampa have mixed office uses with residential and retail uses. (Mihalik, Tr. 1992-93) The opinion was offered by City staff that multi-family use would reduce overall trip generation and change the direction and timing of peak hour trips. (Hall, Tr. 878, 896, 905-910; Mihalik, Tr. 1992-94) While it would seem logical that the p.m. peak hour traffic would be less with residential as opposed to office development, the opinion as to a.m. peak hour traffic was not substantiated by sufficient evidence. Indeed, there was evidence indicating that traffic exiting a multi- family development on North Rocky Point Island in the morning hours could aggravate the a.m. peak hour conditions due to conflicts with eastbound through traffic. (Hall, Tr. 877-82) In any event, Babcock did not request development approval for a residential development and sufficient analyses and studies were not presented to enable a conclusion that residential development on Babcock's property would comport with all applicable review standards and criteria.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission DENY Phase II of Babcock's application for development approval, and otherwise approve the Development Order entered by the City of Tampa. Respectfully submitted and entered this 2nd day of February, 1989, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1989. APPENDIX The proposed findings of fact submitted by the Parties have been accepted and/or incorporated in this Recommended Order except as noted below: Babcock 50. Rejected - contrary to the evidence. 59. Accepted as supported by some evidence, but not included as irrelevant to the issues in dispute. 64. Rejected as to grade-separated interchanges - not supported by competent substantial evidence. 66. Not totally accepted - unsupported by competent substantial evidence. 67 - 68. Accepted only if identical locations are assumed. 71. Second and third sentences rejected. See Finding of Fact 32. 75 - 76. Accepted as factually correct, but the materiality of other developments is - discussed in Conclusions of Law. 78 - 79. Partially rejected. It was determined that the issue of traffic impacts sufficiently embraces the issue of air pollution from carbon monoxide emissions. Last sentence rejected - not supported by competent substantial evidence. Rejected - irrelevant and immaterial to the issues in dispute. 85. First sentence rejected - not supported by competent substantial evidence and irrelevant. 89. Rejected - not supported by competent substantial evidence. 102. Rejected - not supported by competent substantial evidence. 104, 105 & 107. Rejected - not supported by competent substantial evidence. 108. Second and third sentences rejected - not supported by competent substantial evidence. 109 - 110. Rejected - contrary to the greater weight of the evidence and not supported by competent substantial evidence. 112. Rejected - improper factual finding, contrary to the burden of proof in this proceeding and not supported by competent substantial evidence. 113 & 115. Rejected - not supported by competent substantial evidence. 116. Third sentence rejected - not supported by competent substantial evidence. City of Tampa 26. All but first sentence rejected - irrelevant and immaterial to the issues in dispute. 29. Rejected as irrelevant and immaterial. 42. First part of first sentence rejected as overbroad. 53. The words "no weight" rejected and replaced with "deduced weight." 68. Degree of weight to be accorded rejected. 80. The words "any evidence" should be replaced with "competent substantial" evidence. 100. Last sentence rejected - speculative and not supported by competent substantial evidence. TBRPC 39. Rejected - irrelevant and immaterial. 80. Rejected - irrelevant and immaterial. 107 & 110. The words "intentionally" rejected as not supported by competent substantial evidence. New York Yankees 18. Last sentence rejected as unsupported by competent substantial evidence. Third from last and last sentence rejected - not supported by competent substantial evidence. Last sentence rejected - legal conclusions as opposed to factual finding. 25. Second sentence rejected as an overstatement. Shriners 19. Second sentence rejected as not supported by competent substantial evidence. COPIES FURNISHED: Eugene D. Sterns, Esquire David Smolker, Esquire Mark D. Solov, Esquire Sterns, Weaver, Miller, Weissler, Alhadeff & Sitterson, P.A. One Tampa City Center Suite 3300 Tampa, FL 33602 Douglas M. Wyckoff, Esquire de la Parte, Gilbert & Gramovot, P.A. 705 East Kennedy Blvd. Tampa, FL 33602 Linda M. Hallas, Esquire Law Offices of Roger S. Tucker 9455 Koger Blvd., Suite 209 St. Petersburg, FL 33702 Jeffrey N. Steinsnyder, Esq. Office of General Counsel State of Florida, Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 G. Steven Pfeiffer, Esquire Fowler, White, Gillen, Boggs, Villareal & Banker, P.A. 101 North Monroe Street Suite 1040 Tallahassee, FL 32301 Jann Johnson, Esquire Ausley, McMullen, McGehee, Carothers & Proctor 227 South Calhoun Street Post Office Box 391 Tallahassee, FL 32302 The Honorable Bob Martinez Governor, State of Florida The Capitol Tallahassee, Florida 32399 The Honorable Robert A. Butterworth Attorney General State of Florida The Capitol Tallahassee, Florida 32399-1050 The Honorable Doyle Conner Commissioner of Agriculture State of Florida The Capitol Tallahassee, Florida 32399-0810 The Honorable Betty Castor Commissioner of Education State of Florida The Capitol Tallahassee, Florida 32399-0250 The Honorable Jim Smith Secretary of State State of Florida The Capitol Tallahassee, Florida 32399-0250 The Honorable Tom Gallagher Treasurer and Insurance Commissioner State of Florida The Capitol Tallahassee, Florida 32399-0300 The Honorable Gerald A. Lewis Comptroller State of Florida The Capitol Tallahassee, Florida 32399-0250 Patty Woodworth, Director Florida Land and Water Adjudicatory Commission Executive Office of the Governor The Capitol - PL-05 Tallahassee, Florida 32399-0001
Findings Of Fact A sign advertising "Kapok Tree" in Daytona Business Park was permitted by the Department of Transportation (Department) at the intersection of Ventress Boulevard and U.S. Highway 92 (hereinafter referred to as the Kapok Tree sign). Lamar-East Florida Outdoor Advertising (Lamar) applied for an outdoor advertising permit for a sign to be located at Bill's Fruit Stand, 380 feet east from the Kapok Tree sign. The Department processed the Lamar application and issued a permit for said sign, although the Lamar sign was within the proscribed distance (500 feet) of the Kapok Tree sign. The Department conducted an on-site inspection, and the inspector failed to notice the Kapok Tree sign. The Department would not have issued the Lamar permit had the Kapok Tree sign been noted. The Kapok Tree sign had its permits displayed. Thereafter, Don Bell and Company (Bell) applied for an outdoor advertising permit for a sign located approximately 30 feet from the intersection of Bayless Avenue and U.S. Highway 92, 480 feet from the Lamar sign location, and 810 feet from the Kapok Tree sign. The Department denied Bell's application because that sign location was less than 500 feet from the Lamar sign location. Neither Lamar nor Bell have constructed signs at the subject locations for which they have applied for permits, although lease payments have been made by both Lamar and Bell. Both the Kapok Tree sign and Lamar have current permits, and Bell challenges the validity of the Lamar permit. But for its distance from the Lamar sign site, the Department would approve the Bell application. All parties stipulate that the Lamar notarized and certified application recites there is no sign within 500 feet of its site, when in fact the Kapok Tree sign was and is 380 feet from Lamar's site. Administration of outdoor advertising is dependent upon the representations made by an applicant in its application and the verification of said data by on-site inspection by the Department's inspector in issuing outdoor advertising permits. The Kapok Tree sign is not an on-premises sign.
Recommendation Having found that there are no valid grounds for denial, it is recommended that the Petitioner's application for an outdoor advertising permit be approved. DONE and RECOMMENDED this 22nd day of December, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 22nd day of December, 1982. COPIES FURNISHED: Ted Doran, Esquire 100 Seabreeze Boulevard, Suite 130 Post Office Box 2134 Daytona Beach, Florida 32015 Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301 Edward M. Keating, Manager Lamar-East Florida Outdoor Advertising 2801 South Ridgewood Avenue South Daytona, Florida 32019 Paul N. Pappas, Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32301
Conclusions This cause is before the Agency for Persons with Disabilities for entry of a final order following the dismissal by the Division of Administrative Hearings of Respondent's hearing request. A copy of the Order Closing File is attached to this Final Order. On May 26, 2010, Petitioner Agency sent Respondent a Notice of Licensure Application Denial. Respondent requested an administrative hearing and the matter was referred to the Division of Administrative Hearings for assignment of an administrative law judge. On July 22, 2010, Respondent filed a Notice of Voluntary Dismissal and on July 30, 2010, the Administrative Law Judge issued an Order Closing File. Therefore, based on the foregoing, the Agency’s Notice of Licensure Application Denial issued on May 26, 2010, is hereby ADOPTED as the Agency’s final action in this matter. Filed Oct 28, 2010 9:15 AM Division of Administrative Hearings DONE AND ORDERED in Tallahassee, Leon County, Florida, this X]_ day of oth 2 , 2010. ons Officer with Disabilities Mac McCoy, Oper Agency for Perso RIGHT TO APPEAL A party who is adversely affected by this final order is entitled to judicial review. To initiate judicial review, the party seeking it must file one copy of a “Notice of Appeal” with the Agency Clerk. The party seeking judicial review must also file another copy of the “Notice of Appeal,” accompanied by the filing fee required by law, with the First District Court of Appeal in Tallahassee, Florida, or with the District Court of Appeal in the district where the party resides. Review proceedings shall be conducted in accordance with Florida Rules of Appellate Procedure. The Notices must be filed within thirty (30) days of the rendition of this final order.’ ' The date of the “rendition” of this Final Order is the date that is stamped on its first page. The Notices of Appeal must be received on or before the thirtieth day after that date. Copies furnished to: Rex Ware, Esq. Fowler White Boggs Banker, P.A. 101 North Monroe Street, Suite 1090 Tallahassee, FL. 32301 Area 23 Administrator Edwin D. Selby, Esq. Department of Children and Families 9393 N. Florida Ave., Suite 900 Tampa, FL. 33612 Claudia Llado, Clerk of the Division Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy of this Final Order was provided to the above- named individuals at the listed addresses, by U.S. Mail or electronic mail, this AS day of ox J ohh ¥2010. Percy W. Mallison, Jr., Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950
Findings Of Fact 1. All findings of fact in the ALJ’s RO are adopted and incorporated herein by reference.
Conclusions THIS CAUSE is before me upon the attached Recommended Order (RO) that was issued by the Administrative Law Judge (ALJ) assigned to hear the case by the Division of Administrative Hearings. A Transcript of the hearing was not filed with the Agency Clerk. No exceptions to the Recommended Order were filed. The Recommended Order recommends that the department enter a Final Order denying the petitioner's application for a license to operate a group home for disabled adults.
Appeal For This Case A party who is adversely affected by this final order is entitled to judicial review. To initiate judicial review, the party seeking it must file one copy of a “Notice of Appeal” with the Agency Clerk. The party seeking judicial review must also file another copy of the “Notice of Appeal,” accompanied by the filing fee required by law, with the First District Court of Appeal in Tallahassee, Florida, or with the District Court of Appeal in the district where the party resides. The Notices must be filed within thirty (30) days of the rendition of this final order.’ The date of the “rendition” of this Final Order is the date that is stamped on its first page. The Notices of Appeal must be received on or before the thirtieth day after that date. CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true copy of the foregoing FINAL ORDER has been sent by U.S. Mail or hand delivery to each of the persons named above on this 77% day of , 2004. al PAUL FLOUNLACKER, Agency Clerk Department of Children and Family Services 1317 Winewood Blvd. Bldg. 2 Room 204 Tallahassee, FL 32399-0700
