The Issue As described in the parties' Prehearing Stipulation Petitioners are challenging the Respondent's (SJRWMD) solicitation process with regard to the "Invitation to submit an Offer to Purchase property known as the Zellwin Airstrip." Petitioners seek to set aside the award of purchase to Intervenors and to have the solicitation process re-advertised. The issue for resolution is whether Petitioners are entitled to that relief.
Findings Of Fact In 1996 the Florida Legislature mandated that the St. Johns River Water Management District (SJRWMD) attempt to purchase farms on the north shore of Lake Apopka as part of a long-term restoration and reclamation project. Petitioners, Rex Shepherd and Dale Harper, are pilots and owners of an aerial advertising business, American Outdoor Aerial Advertising. In early 1998 the business was operating out of Crakes field, a small airstrip owned by Kent Crakes as part of Crakes' North Lake Apopka farm. Petitioners' business owned airplanes and banners which it flew for its advertising clients such as Sears and GEICO. Sometime in early 1998 it became obvious that Petitioners would need to move their operation to another field. There were break-ins at the hanger, and the airstrip was beginning to flood as a result of the reclamation project. Kent Crakes referred Rex Shepherd to Leonard Freeman, the individual with SJRWMD who was involved with land acquisition in the area. Around March or early April 1998 Petitioners commenced discussions with Mr. Freeman regarding their use of the farm airstrip at Zellwin Farms, also part of the SJRWMD Lake Apopka farms acquisition program. Mr. Freeman was the SJRWMD point of contact for the Zellwin Farms acquisition. By early 1998, the property was already under contract and was scheduled to close some time around June 1998. Mr. Freeman and the Petitioners met at the Zellwin Farms airstrip in June 1998, and Petitioners determined the property would be suitable for their operation. Eager to accommodate Petitioners because of their predicament and also in anticipation of the SJRWMD's eventual sale of the Zellwin parcel, Mr. Freeman gave permission for Petitioners to store their equipment on the site and gave them a key. Because Zellwin Farms was beyond what SJRWMD considered to be the lake's historic shoreline, the SJRWMD knew that it would need to dispose of its 1400 acres as surplus, in whole or part. Mr. Freeman's desire was to find a way to dispose of the property as the best thing for the SJRWMD. Thus, because of the Petitioners' immediate interest in relocating their business, Mr. Freeman began negotiating with them for their purchase of the airstrip and related buildings. In September 1998, Mr. Freeman met again with Petitioners at the airstrip and discussed a specific proposal. Petitioners talked about offering $250,000 under a lease-purchase arrangement, and sent a letter dated September 10, 1998, to Mr. Freeman with that offer. Mr. Freeman later suggested that since the appraised value was $275,000, an offer in that amount would be easier to get approved. Mr. Freeman did not have the authority to obligate the SJRWMD to sell the property and Petitioners understood that. Still, Petitioners felt they were negotiating in good faith with staff who could make a strong recommendation to the board. Petitioners believed in early October that they had a hand-shake deal subject to further discussions regarding specific terms. They knew that a competitive solicitation might be an option for the SJRWMD but they also believed that they would be given an opportunity to meet another third party's offer. This belief was based not on some specific agreement for a "right of first refusal," but rather on Mr. Freeman's good-natured assurances that they would work it all out. Mr. Freeman requested that the SJRWMD special counsel develop a draft contract based on Petitioners' offer. The offer would then need to be signed by Petitioners and approved by Mr. Freeman's supervisor before going to the SJRWMD governing board. The counsel never finished the draft and it was never given to Mr. Freeman or the Petitioners. By the end of October 1998, Robert Christianson, Mr. Freeman's supervisor and director of the SJRWMD Department of Operations and Land Resources, learned that Petitioners were flying in and out of the Zellwin airstrip and using it for their business base of operations. This activity was beyond the storage permission that Mr. Freeman had granted. (Even that permission was beyond his individual authority.) Mr. Freeman and Mr. Christianson met with Petitioners on October 27, 1998, to work out a license agreement for their use of the airstrip. Such an agreement was necessary to protect the parties' respective interests and to cover the SJRWMD for any liability in the landlord/tenant relationship. The result of that meeting was a written license agreement for Petitioners to use, maintain, and provide protection for the property for a period from October 30, 1998, to April 30, 1999, subject to revocation with advance notice. Petitioners used the airstrip property under that agreement and made improvements, mostly cleaning up the facility so it could be used. At the October meeting it became obvious to Petitioners that the informal negotiations for their purchase were terminated and that the SJRWMD was going to solicit competitive offers for the purchase. This concerned the Petitioners and they felt let- down by Mr. Freeman. Still, they concentrated on getting the license agreement worked out. Rex Shepherd's account of the October meeting was that Mr. Christianson was very clear about the fact that the SJRWMD had to go for competitive bid, that they were bound by a board and rules and regulations even though both he and Mr. Freeman would like for Petitioners to have the airport, and that they should be able to work it out. At the end of the meeting, and as they were leaving the trailer, Mr. Shepherd commented to Mr. Freeman that he really did not want to lose the airport and wanted to be apprised of what was going on so that if there were a higher bid, he could have the opportunity to match it, or if it were too high, that they would have 30 or 60 days to vacate the property. According to Mr. Shepherd, Mr. Freeman simply responded, "We'll work all that out, don't worry about it." On November 11, 1998, the SJRWMD governing board voted to surplus the Zellwin Farms property with direction to the staff that the sale be widely advertised in the aviation community and not be a sole source deal. Consistent with the board's direction and pursuant to Section 373.089(3), Florida Statutes, the SJRWMD advertised a "Notice of Intention to Sell" the airstrip property in the Orlando Sentinel for three consecutive weeks, November 9, 16, and 23, 1998. The notice identifies the airstrip property as an "Approximately 47-acre agricultural airport facility, 2,200'? square feet asphalt runway, 5,250 ? square feet metal hanger, 2,048 ? storage square feet building, well and septic tank at a location of northwest Orange County, Florida, Sections 20 and 29, T-20-S, R-27-E, on Jones Avenue, 1 ? mile west of U.S. Highway 441, Zellwood." The Notice of Intention to Sell states that "[a]ll interested persons are invited to submit an offer to the District for purchase of said lands. Contact the District . . . and request an Airport Sales Package." Both the Airport Sales Package and the Notice of Intention to Sell state that the airport property will be sold for the highest price obtainable. The sales package states that full cash offers to be paid at closing will be given first consideration and that 10 percent of the purchase price must be paid when the offeror was notified that it was successful. The sales package also states that any person adversely affected by an offer solicitation shall file a Notice of Protest, in writing, prior to the date on which the offers are to be received, and shall file a formal written protest within ten (10) days after filing the Notice of protest pursuant to Florida Administrative Code Rule 40C-1.801. * * * Failure to timely file a notice of protest or failure to timely file a formal written protest shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. (SJRWMD Ex. 3). Both the Notice of Intention to Sell and the sales package require that sealed "offers for purchase" be submitted to the SJRWMD prior to 2:00 p.m. on December 4, 1998, the advertised time for opening of the offers. Nothing in the Notice or sales package reserves a right of first refusal for any person. Instead, both plainly state "no offer will be accepted after the date and hour specified for submittal of offers." (SJRWMD Exhibits 1 and 3) Although Petitioners did not see the newspaper notice, they had knowledge that the SJRWMD advertised the sale of the airstrip property through a competitive solicitation process in the newspaper. They had been clearly informed of need for the competitive process by Mr. Christianson at the October meeting and they were present when a pre-solicitation meeting/inspection took place at the airstrip in November prior to the offers being accepted by the SJRWMD. Intervenors requested a sales package from the SJRWMD on November 30, 1998, and December 2, 1998. Petitioners requested and received a sales package prior to the opening of the offers to purchase. The sales packages were not available to the public until December 2, 1998, the same day Petitioners received their package. Mr. Freeman told Petitioners they needed to submit their bid. Although the sales package stated that facsimile offers would not be accepted by the SJRWMD, Leonard Freeman informed Petitioners that they could fax their Offer to Purchase. The SJRWMD did accept a facsimile offer to purchase from Petitioners on December 4, 1998, at 1:07 p.m. Offers to purchase were opened by the SJRWMD at 2:10 p.m. on December 4, 1998. Petitioners submitted an offer to purchase the airstrip property for $275,000, where Petitioners would pay $1,500.00 per month for 60 months ($90,000 with $72,000 applied toward principal) with a balance of $203,000 cash to be paid at the end of the 60-month term. Intervenors submitted an offer to purchase the airstrip property for $310,000, where Intervenors would put 10 percent down ($31,000 earnest money deposit) at award of Agreement of Purchase and Sale and the balance of $279,000 cash would be paid at closing on or before May 1, 1999. Petitioners' offer to purchase was not the highest offer; it did not provide for cash at closing; and it did not meet the requirement of 10 percent to be paid upon notification. Staff recommended to the SJRWMD board that it award the purchase of the airstrip property to the highest offeror, Intervenors. The governing board approved staff's recommendation at its regularly scheduled meeting on December 9, 1998. On December 9, 1998, Petitioners filed a Notice of Protest. On December 18, 1998, Petitioners filed a copy of their Formal Bid Protest with the SJRWMD. Petitioners never grasped the implications of the competitive solicitation process until after the offers were opened and the award was made to Intervenors. Even if Petitioners had seen the newspaper notice and had received the sales package sooner, they still would not have protested because they understood that their "agreement" was outside of the process. That is, they mistakenly perceived that after the offers were in they could negotiate further to exceed the high offer. Chagrined, and genuinely regretful of the misunderstanding, Mr. Freeman had to tell Petitioners that further negotiations were foreclosed after the offers were opened. Mr. Freeman's earlier assurances to Petitioners were the result of an excess of bonhomie rather than any deception. He wanted them to have the airport and he wanted to work out the sale of surplus property. Petitioners were aware that he did not have the authority to bind his agency to an agreement. Mr. Freeman never specifically told Petitioners they had a right of first refusal; they wanted that advantage and surmised agreement from Mr. Freeman's and Mr. Christianson's vague counsel to not worry and that it would all be worked out. The SJRWMD devised a competitive process for disposition of the Zellwin airstrip that was consistent with its statute and with the direction of its governing board. Intervenors responded with an offer that met all the published requirements. Petitioners did not, and any culpability of SJRWMD's staff for Petitioners' misunderstanding is not so egregious as to require that the process begin again. Petitioners occupied the property, used it, and made improvements to enhance their use. This, however, was in reliance on their license to use the property and not on some certainty that they would ultimately be able to own the property. As Petitioners testified at hearing, they were disappointed that the SJRWMD decided to solicit competitive proposals; they knew that it was possible someone would offer more than they could match. (Harper, Transcript pages 117-120).
Recommendation Based on the foregoing, it is RECOMMENDED: that the SJRWMD enter its final order denying Petitioners' request to reject all bids and re-advertise the sale. DONE AND ENTERED this 24th day of June, 1999, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1999. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post office Box 1429 Palatka, Florida 32178-1429 John W. Williams, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Clayton D. Simmons, Esquire Stenstrom, McIntosh, Colbert, Whigham And Simmons, P.A. Post Office Box 4848 Sanford, Florida 32772-4848 Stanley Dollen 1230 Kelso Boulevard Windermere, Florida 34786 Herbert Clark 5416 Trimble Park Road Mt. Dora, Florida 32757
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Errol H. Powell, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner's Withdrawal of Notice of Establishment and Motion to Dismiss Protest, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Mazda Motor of America, Inc. d/b/a Mazda North American Operations and BCSS, Ltd. d/b/a Bachrodt Mazda Pompano Beach to sell automobiles manufactured by Mazda (MAZD) at 1801 West Atlantic Boulevard, Pompano Beach (Broward County), Florida 33069. Filed September 21, 2009 2:40 PM Division of Administrative Hearings. DONE AND ORDERED this /7iy of September, 2009, in Tallahassee, Leon County, Florida. Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this {i{j.h day of September, 2009. 1¼in'·ap·k, uDealer AdmlnilllalDf NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF:vlg Copies furnished: Louis C. Bachrodt, III BCSS, Ltd. d/b/a Bachrodt Mazda Pompano Beach 1801 West Atlantic Boulevard Pompano Beach, Florida 33069 John J. Shahady, Esquire Adorno & Yoss, LLP 350 East Las Olas Boulevard, Suite 1700 Fort Lauderdale, Florida 33301-4217 2 Dean Bunch, Esquire Nelson Mullins Riley & Scarborough LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32309 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 Errol H. Powell Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 3
The Issue The ultimate issue to be resolved in this proceeding is whether the Development Order issued by the City of Miami for development approval for the Watson Island theme park should affirmed, affirmed with conditions, or reversed. In the Prehearing Stipulation, the Appellant stated its case as follows: The DRI Application for Development Approval (ADA) filed by the City of Miami is insufficient. The Council, after reviewing the ADA, notified the City of its insufficiency, the City refused to submit the supplemental information requested and decided to proceed with DRI review upon this insufficient ADA. In order to fulfill its statutory duty to assess the impacts of a DRI, a regional planning agency must be provided with adequate, competent, and credible information. In this case, the SFRPC has insufficient information concerning the developer's plans, methods and technology for it to evaluate the proposed development and any resulting adverse impacts and to adequately recommend mitigative measures. Further, an ADA is a binding document which serves as the basis for determining whether the develop- ment is constructed as approved and the ADA is therefore required to be incorporated in the Development Order. The Development Order should be set aside and the City should be directed to prepare a sufficient ADA. The Council further contends that the adverse regional impacts of the proposed development identified by the SFRPC in its Staff Assessment are not adequately considered and mitigated in the Development Order. The Development Order is insufficient because of the inadequate consideration of regional impacts, the failure to incorporate the Watson Island ADA, the City's reliance upon an insufficient ADA, and the City's perfunctory dismissal of the Council's recommended changes that would make the project eligible for approval. Further, the Resolution fails to comply with the legal requirements of Fla. Admin. Code Rule 22F-1.23 and Section 380.06, as amended by Chapter 380, Florida Statutes, in the following regards: It does not incorporate the Development Order. It does not authorize the City Clerk to send certified copies of the Development Order to the state land planning agency and to the COUNCIL. It does not specify monitoring procedures and the local official responsible for assuring the develop- ment's compliance with the Development Order. It does not establish an expiration date for the Development Order, including a deadline for commencing physical development, for compliance with conditions of approval, and for the termination of the Order. It does not specify the requirements for the Annual Report designated under subsection (16) of Section 380.06, Florida Statutes. It does not specify the types of change in the development which require a submission for a substantial deviation determination under subsection (17)(a) of Section 380.06, Florida Statutes. For the aforementioned reasons the Council requests that the Development Order of the City of Miami Commission be set aside and the City's ADA be returned to the Council with directions to the City to provide adequate, consistent, reliable information and proposals to mitigate the identified adverse regional impacts of the Watson Island Development. The Respondent stated its case in the Prehearing Stipulation as follows: That Section 380.07, Florida Statutes is invalid for vagueness and that this hearing pursuant to said statute is, therefore, invalid for the following reasons: That Section 380.07, Florida Statutes, is invalid for vagueness and that this hearing pursuant to said statute is, therefore, invalid for the following reasons: The statute has no standards, guidelines or criteria upon which the Florida Land & Water Adjudicatory Commission may properly render a decision on whether the Development Order is meritorious in a quasi- judicial proceeding. The standards set forth in Section 380.06(11)(2), F.S. (1980) are so general, broad and vague as to be meaningless. In terms of the constitutional validity of Section 380.06(2) and 380.10, F.S., it appears that the Legislature has sought to make a final determination of the law by concurrent resolution rather than by statute, despite the language of Article III of the Florida Constitution. c The statute nowhere indicates which party shall be the Plaintiff and which party shall be the Defendant, or which party shall carry the burden of proof in a de novo proceeding. That the city filed a detailed and comprehensive application with the South Florida Regional Planning Council seeking the Council's approval of the Watson Island Project pursuant to Section 380.06, F.S. That the City of Miami, by a Public Hearing, adopted a resolution approving and issuing a developmental order pertaining to the Watson Island Project and incorporating numerous modifications suggested by the South Florida Regional Planning Council. The procedure was in compliance with Section 360-06, F.S. and FLA. ADMIN. RULE 22 F-123. That the Watson Island Project, as approved in the developmental order with modifications, was and is in the public interest on environmental, physical and other grounds. That the Watson Island Project has no substantial regional impact as defined in Section 380.06(1), and The Land and Water Adjudicatory Commission is estopped from rendering a decision since a Court in a bond validation proceeding has already determined that the Watson Island Project served a valid public purpose.
Findings Of Fact Watson Island is a parcel of land lying in Biscayne Bay in the City of Miami, Dade County, Florida. It is approximately eighty-six acres in size. Watson Island has an unnatural genesis. It was formed as a spoil island, receiving deposits of dredged material as a result of construction and maintenance of various channels in Biscayne Bay. The island forms a portion of the "General Douglas MacArthur Causeway" which is a highway connecting the mainland with the City of Miami Beach. The causeway is also designated as U.S. Highway 41 and State Road A-1-A. Watson Island presently serves as a recreational facility. It is commonly used as a picnic area, and as a launching site for recreational boats into Biscayne Bay. The Miami Yacht Club and the Miami Outboard Club utilize the island as a center for their activities. There is a Japanese garden maintained on the island, and Chalk's Seaplane Service and a heliport are operated as commercial enterprises. Watson Island is owned by the City of Miami. [This finding is determined from Hearing Officer's Exhibit A; Exhibits 5, 10, and 15; and testimony from members of the general public.] The City of Miami is proposing to construct an amusement theme park on Watson Island. The seaplane service and heliport presently in operation would be moved to other locations on the island. The Japanese garden would be maintained. The park as proposed would be designed to combine specialty shops, rides, restaurants, shows and handicraft exhibits. The primary themes would be a "Caribbean international village," a "turn-of-the-century promenade," and "Old Florida" amusement and entertainment areas. There would be a variety of amusement-park type rides. The project includes plans for construction of two new marinas, a 1,500 foot cultural hall for musical and theater presentations, a film theater and various other entertainment facilities. On-site parking would be provided for more than 3,000 cars an buses. The project has been designed to provide entertainment for people of all ages, and of varying interests. The City is seeking to provide an attraction to serve the recreational needs of local residents, and to attract additional tourists to the South Florida area. [This finding is determined from Hearing Officer's Exhibit A; and from Exhibits 5, 10, 15, and 25.] The City of Miami has been engaged in planning and designing the proposed Watson Island theme park for several years. Private consultants have been retained to assist the City, and the City's own staff as well as staff from other governmental entities have been consulted. The City apparently assumed from the outset that the project would be a development of regional impact as contemplated by Chapter 380, Florida Statutes, and approval of the project as specified in that Chapter has been sought. The provisions of Chapter 380 require that developments of regional impact be reviewed by the appropriate regional planning agency. The regional planning agency which reviews proposed developments of regional impact in Dade County is the South Florida Regional Planning Council (SFRPC hereafter). The City filed its initial request for review of the proposed Watson Island development with the SFRPC on October 24, 1979. The SFRPC returned the request and accompanying data to the city on November 9, 1979, and requested further data. The city filed its second request for review in February, 1980. The SFRPC again requested additional data. By letter dated March 25, 1980, the City declined to provide additional information, and the SFRPC proceeded to consider the proposed development. The SFRPC staff issued a report in May, 1980. The City responded, and the staff replied. The SFRPC conducted a public hearing on June 2, 1980, and on June 3 published its final assessment of the proposed development, recommending to the City of Miami that the development not be approved. In addition to being the applicant or developer in this case, the City of Miami is also the local government with authority to issue a Development Order. The City conducted public hearings on June 26 and July 10, 1980, and issued a Development Order approving the development as described in the application for development approval. The instant appeal proceeding initiated pursuant to Section 380.07, Florida Statutes, ensued. [This finding is determined from Hearing Officer's Exhibit A; and from Exhibits 5, 7, 10, 12, 13, 14, 15, 20, 27, 30, 32, 33, and 47.] The final report of the SFRPC identifies numerous adverse impacts and risks associated with the proposed Watson Island development. While the SFRPC has contended that the City has not adequately addressed these matters in its Development Order, there has been no evidence offered that several of the asserted impacts would have any consequence beyond the immediate area of Watson Island or the City of Miami. The impacts which the evidence does not establish have consequences beyond the City of Miami are: (a) that the project makes ineffective use of the extensive shoreline by constructing non-water dependent facilities along the waterfront; (b) that the project and its associated activities are expected to result in an increase in air pollution emissions; (c) that noise disturbance generated by the project would result in noise levels incompatible with nearby residential areas; (d) that the project locates a large public investment for non-water dependent activities in a flood problem area; that the proposed project would eliminate an opportunity for free public access to a waterfront area; (f) that the health and safety of theme park patrons would be at risk because the plan provides no means of access for emergency service vehicles; and (g) that handicapped patrons would be prevented from ready access to the park because of improper design of a pedestrian bridge. [This finding is determined from Hearing Officer's Exhibit A; and from Exhibits 5, 7, 10, 12, 15, 20, 25, 27, 30, and 32.] In addition to the matters set out in paragraph 4, the SFRPC has contended and sought to establish that the proposed development would have adverse impacts beyond the City of Miami relating to transportation facilities, water quality, and fiscal impact. [This finding is determined from Hearing Officer's Exhibit A.] The Development Order was issued by the City of Miami in the form of a Resolution with an accompanying document labeled "Development Order." The Resolution included the following language: A development order approving with modifications, the Watson Island development, a development of regional impact, proposed by the City of Miami, located on Watson Island and bay bottom in Biscayne Bay, be and the same is hereby granted and issued. While the Resolution does not explicitly incorporate the Development Order by reference, the Development Order is inextricably a part of the Resolution. The Development Order was attached to the Resolution, and was stamped with the same resolution number (80-525) as the Resolution. The Resolution and Development Order include the recitations required by statute and rule. There is no evidence in the record from which it could be concluded that the Development Order was not in existence at the time that the Resolution was adopted. [This finding is determined from Exhibit 32.] Watson Island lies on both sides of a highway which is designated as Federal Route 41, and State Road A-1-A. The roadway is a regional highway facility, connecting the City of Miami on the mainland with the City of Miami Beach. These are regionally significant activity centers. A substantially increased volume of traffic on the roadway would reduce accessibility between them. The roadway is not maintained by local government for local resident purposes, but rather is a state and federal highway of regional importance. Data provided by the City of Miami in support of its contention that the proposed development would have no significant traffic impact is deficient because it understates the traffic impact of the proposed development, overstates roadway capacities, and understates increased levels of roadway usage that are likely to result without regard to the Watson Island development. The City has estimated that ten thousand persons a day will visit Watson Island, and that thirty percent of these will arrive through some means of public transportation. The nature of this public transportation is not identified. No plans exist to connect Watson Island with any presently existing or proposed public transportation facilities. The thirty percent estimate was offered by one of the City's private consultants which does not appear to be a traffic consultant. The estimate is not supported by evidence of record, and could not be achieved without the existence of public transportation facilities to accomplish it. The City's estimate of average daily vehicle trips on the MacArthur Causeway that would be generated by the Watson Island development (5,408) is thus understated by as much as thirty percent. The City has based its estimate of the traffic carrying capacity of the MacArthur Causeway upon an assumption that traffic lanes to the east of Watson Island will be widened. There are no existing plans to accomplish widening of the roadway, and no money for that purpose has been budgeted. The City has contended that traffic growth on the MacArthur Causeway between 1980 and 1985 can be estimated at 2.27 percent. This estimate is based upon growth reflected during the years 1975 to 1979 at one location on the causeway. The Dade County Department of Traffic and Transportation and the Florida Department of Transportation consider that 3.5 percent is a more realistic growth figure. This latter figure is more credible, and is itself conservative when other large planned developments in close proximity to the MacArthur Causeway are considered. These include projects known as Fisher Island, Ball Point, Downtown Government Center, DuPont Plaza, Southeast Financial Center, and World Trade Center. Unless adequate provision is made to expand the load carrying capacity of the MacArthur Causeway and to provide viable alternate means of reaching Watson Island, the traffic impact of the proposed development would substantially and adversely affect traffic flow on the MacArthur Causeway. The MacArthur Causeway presently functions to adequately accommodate vehicle usage at most locations during most times of the day. At peak traffic periods, however, the causeway is over-utilized. Placing an additional heavy traffic burden upon the causeway would render its level of service poor during substantial parts of the day. The impact would extend to other regional roadways including U.S. Highway 1 and Interstate Highway 95. [This finding is determined from Exhibits 5, 7, 10, 12, 15, 20, 27, 30, 32, 39, and 46.] Watson Island is located across a channel known as "Government Cut" from the Port of Miami. The Port of Miami is presently engaged in expansion which is being financed through public expenditures. The port utilizes a turning basin which is directly adjacent to the west side of Watson Island. The turning basin measures approximately 1,600 feet across and is barely adequate to accommodate ships which utilize the port. A larger generation of ships, including a passenger ship known as the S/S Norway, have made plans to utilize the Port of Miami. Such use will necessitate an expansion of the turning basin to at least 2,000 feet. The proposed Watson Island development includes a marina on the west side of the island. The marina would accommodate approximately 165 boats. The marina would interfere with the present turning basin, and would prevent expansion. The increased boat traffic that would result from operation of the marina would further restrict the turning basin and inhibit planned and projected growth for the Port of Miami. The Port of Miami is a regional transportation facility. Unless the marina proposed on the west side of Watson Island is eliminated or relocated, operation and projected growth of the Port of Miami will be impeded. The result would be a diversion of shipping traffic from the port. The Development Order issued by the City of Miami requires that the City work with the Port Authority and the local pilots' association to assure that the Watson Island development does not interfere with port operations. The Development Order, however, allows implementation of a project which will interfere with operations and expansion of the port. [This finding is determined from Exhibits 5, 7, 10, 15, 20, 24, 27, 30, and 32.] The SFRPC has contended that the proposed Watson Island development would have an adverse impact upon water quality in Biscayne Bay, and that this impact is of significance beyond the City of Miami. This contention is not supported by the evidence. The water quality impacts asserted by the SFRPC are short-term impacts that would result from construction activities, and long-term impacts that would result from dredging, increased drainage runoff, and loss of wetlands. As to the short-term impacts, the City proposes to utilize turbidity screens and construction techniques that would minimize and confine turbidity that would result from construction. The only dredging activities that are proposed are in connection with the laying of sewer lines from the island to a regional sewage treatment facility, and in connection with laying pilings for the proposed marinas. The short-term consequences of these dredging activities can be minimized or eliminated through proper construction techniques which the City of Miami proposes to utilize. The long-term effects of dredging activities have not been shown to be significant. No new channels nor subsurface conditions are anticipated. The SFRPC has expressed concern that water depths in the areas of the proposed marinas are shown in the application for development approval to be deeper than at present. Obviously, dredging, with potentially permanent negative environmental impact, would be required to accomplish an increase in water depth. In other portions of the application for development approval, the City has indicated that it intends to do no such dredging. To alleviate any possibility for misconstruction of the application for development approval, any development order that is approved should include a prohibition against dredging beyond that necessary to accomplish the laying of sewer lines and the installation of pilings. The SFRPC contends that there will be increased runoff entering directly into Biscayne Bay as a result of the development because the presently permeable surfaces of Watson Island would be replaced with primarily impermeable surfaces. The City has, however, proposed a system of swales which will result in most runoff being caught and sent through permeable surfaces into Biscayne Bay rather than directly. The water quality impact of runoff, given the present condition of Watson Island, would therefore be minimal, except during periods of heavy storms when the swale system would be inadequate to trap all of the runoff. The evidence does not establish that the environmental impact of runoff after a heavy storm would be significant in terms of water quality in Biscayne Bay. Construction of a proposed marina on the north side of Watson Island would eliminate approximately 470 square feet of red, black, and white mangroves. The evidence does not establish what environmental impact the elimination of such a small quantity of mangroves would have on water quality in Biscayne Bay. Whatever the consequence, the City has proposed to replace the mangroves on a nearby island at a ratio of four mangroves planted for each destroyed. The record in this case does not establish the positive environmental aspects of mangrove populations. Even assuming, as has been established in other cases [see e.g. Graham v. Estuary Properties, Inc., So.2d (Supreme Court of Florida Case No. 58,485, April 16, 1981)], that destruction of large mangrove populations would have severe environmental impact, it cannot be concluded that the Watson Island mangroves are environmentally significant. Only a very small community, estimated at less than 100 plants, is involved, and the City proposes to create an expanded mangrove population in another location to compensate. [This finding is determined from Exhibits 5, 7, 10, 15, 18, 19, 20, 27, 30, 32, and 36.] The SFRPC asserts that if operation of the proposed amusement theme part were unsuccessful, the economic consequence to the city of Miami could be so severe as to have direct fiscal consequence in adjoining areas, rendering it difficult for other local governments to finance public projects. The contention is not supported by evidence of record. The City would undoubtedly be taking a significant economic risk by developing and operating the proposed Watson Island amusement park. The project is being financed through issuances of municipal revenue bonds, and through grants from the Federal Government which have not yet been secured. The City intends to sell $55 million in municipal revenue bonds. Of this amount there will be an issuance of "Series A" revenue bonds in the amount of $35 million which would be secured by revenues from the amusement park project solely. The remaining $20 million would be designated "Series B" tax supported bonds, and would be secured first by project revenues, and secondly by City of Miami non-ad valorem taxes, revenues, and fees. Thus, if the amusement park did not yield revenues sufficient to service the bond debt, the City could be responsible for up to $20 million plus interest payable from city funds. In addition, the City would be obliged to pay for various services that would be rendered to the park, including fire protection services, potable water facilities, wastewater treatment facilities, and miscellaneous other facilities. The City would also be obliged to pay, under its contract with a private management firm, Diplomat World Enterprises, $12 million as a management fee for operation of the project during the first five years of its operation. All of these amounts would be financed through revenues of the amusement park if the park generated sufficient revenues. If it did not, the City would be obliged to use its general revenues. The City projects that the project will pay for itself, and perhaps show a net profit as early as the third year of operation. This projection is based upon information provided by the City's consultant, Economic Research Associates, a consulting firm that has provided services to numerous major amusement theme parks. In some respects, the economic projection for the proposed development seems overly optimistic. For example, it is estimated that the park would draw three million visitors during the third year of its operation. This is a larger projected attendance than is realized by several already existing theme parks which are larger than that proposed on Watson Island, including Busch Gardens in Tampa, Florida, and Six Flags Over Georgia in Atlanta, Georgia. While the projections are optimistic, they may be realizable due to the fact that the Watson Island park would be open every day, and in the evenings. Furthermore, the park is located in a large metropolitan area with that clientele as well as a significant tourist clientele to draw upon. The estimates are supported by the experts best able to make them, and are not refuted by competent evidence of record. This is not to say that the evidence would support a finding that the proposed Watson Island development would be a successful operation in fiscal terms. The evidence does, however, establish that there is a favorable prospect that the project can be operated without a negative fiscal impact upon the City of Miami. There is no evidence in the record from which it could be concluded that the fiscal impact upon the City of Miami would be so adverse as to have impact beyond the City even if the project were a total failure. No evidence was offered to show the fiscal position of the City of Miami, nor its ability to adequately handle the debt that it would be undertaking by developing the proposed amusement park. The proposed Watson Island theme park would have several favorable economic impacts. Construction jobs would be made available during that phase of project, and approximately one thousand full or part-time employees would be required to operate the park. The park would serve as an attraction to increase the tourist trade within the region. The project would thus have the effect of stimulating commerce in the region and producing additional jobs, including jobs for low income and minority persons. [This finding is determined from Exhibits 5, 7, 10, 12, 15, 20, 25, 27, 30, 32, 41, 42, 43, and 45; and from the public testimony.]
Conclusions This matter came before the Department for entry of a Final Order upon submission of a Recommended Order of Dismissal by Lawrence P. Stevenson, Administrative Law Judge of the Division of Administrative Hearings. The Department hereby adopts the Recommended Order of Dismissal as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and a license may be issued to Wild Hogs Scooters and Motorsports, LLC to sell motorcycles manufactured by Kaitong Motorcycle Manufacture Co. Ltd. (KAIT) at 3311 West Lake Mary Boulevard, Lake Mary (Seminole County), Florida 32746, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed September 30, 2009 3:29 PM Division of Administrative Hearings. DONE AND ORDERED this of September, 2009, in Tallahassee, Leon County, Florida. Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles ""-.r.• u this 9Pfh day of September, 2009. Naiini .Dulllr71cenie Admlnlltrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: Leo Su Galaxy Powersports, LLC d/b/a JCL International, LLC 2667 Northhaven Road Dallas, Texas 75229 2 Jason Rupp Wild Hogs Scooters and Motorsports, LLC 8181 Via Bonita Street Sanford, Florida 32771 David Cattafi David Cattafi d/b/a Direct Capital Motors 4107 South Orlando Drive, Suite C Sanford, Florida 32773 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 Lawrence P. Stevenson Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 3
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Florida Real Estate Commission, enter a Final Order and therein: Dismiss Counts III-XIX of the Administrative Complaint. Suspend the license of Keith Allen Miller for 90 days and impose a fine of $2,000 based upon Counts I and XX of the Administrative Complaint. Suspend the license of Keith Miller Realty Company for 90 days and impose a fine of $2,000 based upon Counts II and XXI of the Administrative Complaint. DONE and ENTERED this 18th day of December, 1986, in Tallahassee, Florida. DIANE K. KIESLING 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 18th day of December, 1986. COPIES FURNISHED: Howard Hadley, Esquire 827 Deltona Boulevard Deltona, Florida 32725 James H. Gillis, Esquire Department of Professional Regulation, Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Harold Huff, Executive Director Department of Professional Regulation Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32802 Fred Roche, Esquire 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
Findings Of Fact Petitioner, Grove Isle, Ltd. is the developer of a 510 unit three-tower condominium project on an island now known as Grove Isle in Biscayne Bay. As part of the project Grove Isle plans to construct a ninety slip pleasure boat marina on the west side of the island. Since its inception, the project has been in litigation between the parties to this Proceeding. See Bayshore Homeowners Association, Inc., et al v. DER, DOAH Case No. 79-2186, 79-2324 and 79-2354; State ex rel. Gardner v. Sailboat Key, Inc., 295 So.2d 658 (Fla. 3rd D.C.A. 1974); Doheny vs. Sailboat Key, Inc., 306 So.2d 616 (Fla. 3rd D.C.A. 1974); Bayshore Homeowners Association, Inc. v. Ferre, Case No. 80-101-AP (Circuit Court, Appellate Division, Dade County, September 16, 1980). Petitioners Doheny and Filer have their residences near the site of the proposed marina. In the past they have used the waters in and around this site for fishing, boating and swimming. If the marina is constructed their use of the waters in the immediate area of the marina could be limited somewhat. While Petitioner Jaffer does not live in the immediate area of the marina, he also uses the waters of Biscayne Bay around Grove Isle for recreation. The project could have some minimal impact on his use of those waters. The protesting organizations: Bayshore Homeowners Association, Inc., Coconut Grove Civil Club, Tigertail Association, and the Tropical Audubon Society, Inc. all have members who use the waters of Biscayne Bay in the area of the project for nature study or recreation. The use of these waters by their members could be diminished in some degree if the marina is constructed. That portion of Grove Isle from which the marina will project is owned by Grove Isle Club, Inc., an entity created to operate the recreational facilities appurtenant to the Grove Isle Condominium. The Club is an integral part of the Grove Isle condominium project. Membership in the Club is mandatory for unit owners. It is the plan of Grove Isle, Ltd. that after the marina is constructed the individual wet-slips will be sold to only condominium owners. Grove Isle, Ltd. expects to realize a onetime profit from the sale of each slip. The slips would therefore not produce a periodic or reoccurring income to the developer. In the recent past, DNR has interpreted its rules relating to submerged land leases not to require a lease for the construction of a marina over submerged state lands if the marina will not generate a regular income. Evidence of this practice dates back to June 8, 1978. On March 29, 1979, Grove Isle applied to DNR for a state lease of the submerged lands over which the proposed marina would be constructed. By a letter of April 4, 1979, from Daniel S. Meisen, Administrator, Operations Section, Bureau of State Lands, the Department informed Grove Isle that a lease would not be required. The full text of the letter follows: April 4, 1979 Ms. Pat Bourguin Post, Buckley, Schub and Jernigan, Inc. 7500 Northwest 52nd Street Miami, Florida 33166 Dear Ms. Bourguin: Martin Margulies A review of the above referenced application has aided us in determining that a lease will not be required although the submerged bottom lands are state-owned. Submerged land leases are not re- quired for private docks or non-income producing facilities. Your $150.00 refund is being processed and will be forwarded to you within the next two months. If we can be of further assistance in this matter, please contact Laura Lewallen of this office. Sincerely, Daniel S. Meisen Administrator Operations Section Bureau of State Lands DSM/11m cc: DER West Palm Beach Health Department The State of Florida owns the submerged lands to the west of Grove Isle over which the marina would be constructed. Beginning in the fall of 1979 and continuing through the spring of 1980, there was a string of correspondence between DNR, Mr. Doheny and Grove Isle. This was its basic pattern. Mr. Doheny would write to DNR with some information indicating in his opinion that the proposed marina would not be private in nature, that is, persons other than condominium owners might be able to use the wet-slips. In response to Mr. Doheny's letter DNR would then query Grove Isle requesting assurances that the marina would be private. At least three of these inquiries, April 26, 1979; October 26, 1979; and February 12, 1980, appear in the record. Grove Isle then responded with letters indicating in various ways that the marina would not be income producing. It is apparent from some of the correspondence that there were also oral communications among the parties. The contents of these communications do not appear in the record. Finally on March 13, 1980, Mr. Doheny wrote to DNR on behalf of the Homeowner Petitioners to express his disagreement with the Department's position previously expressed in correspondence dating back to April 4, 1979, that if the proposed marina is limited to only condominium owners and does not produce direct income then it does not require a lease. Mr. Dean on behalf of Dr. Gissendaner replied to Mr. Doheny on March 24, 1980, by reiterating the Department's consistent position on this project. The text of the letter fellow's: March 24, 1980 David A. Doheny, Esquire 1111 South Bayshore Drive Miami, Florida 33131 Re: Grove Isle Marina Dear David: Dr. Gissendanner asked that I respond to your letter dated March 13, 1980 regarding Grove Isle Marina. Attached his a copy of the affidavit executed by Grove Isle, Ltd. and the subsequent letter to Grove Isle, Ltd. from the Department of Natural Resources. It is the position of the Department of Natural Resources that where a condominium marina will derive no income from the rental or lease of boat slips and furthermore, where all slips will be used exclusively by the condominium unit purchasers that the marina is not a commercial/industrial docking facility requiring a lease from the Trustees pursuant to Rule 16C-12.14, F.A.C. and Chapter 253.03, F.S. (1979). This position is based on the proposition that riparian rights attached to a single condominium unit purchaser as do riparian rights for a single family lot owner who likewise is exempt from a submerged land lease. Sincerely, Henry Dean Assistant Department Attorney Division of State Lands HD/le Enclosures cc: Elton J. Gissendanner Richard P. Ludington On May 3, 1979, the Board of Trustees of the Internal Improvement Trust Fund passed a resolution which states in pertinent part that: Where the Trustees have title, by either deed of conveyance or sovereignty pursuant to 1 and/or 2 above, and where any person has requested an environmental or other permit and where the Trustees neither by statute nor rule must give permission for the use involved in the permit, the Execu- tive Director is authorized to indicate, by letter or otherwise, said circumstances and that no action by the Trustees is necessary for the said use; . . . Subsequently Mr. Jaffer, the Homeowners and Mr. Filer filed their petitions for administrative hearings on April 2, 1980, 4/ April 9, 1980, and April 21, 1980, respectively. DNR's position concerning a lease requirement was well known to all of the Petitioners by at least January 2 and 3, 1980, the date of the final hearing on the related DER cases for the instant project. 5/
Recommendation For the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Natural Resources issue a final order dismissing the petitions in Case Nos. 80-670, 80-768, and 80-815. DONE and RECOMMENDED this 11th day of December, 1980, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1980.
The Issue The issue presented is whether Petitioner's application for site approval and licensure of a private seaplane base near Manatee Springs on the Suwannee River should be approved.
Findings Of Fact By application dated July 18, 1990, Petitioner applied to the Department of Transportation for site approval and licensure for a private seaplane base to be known as Manatee Springs Seabase on the Suwannee River in Dixie County, Florida, seven miles south of Old Town. On the application, Petitioner agreed that the private seaplane base would be for his personal use, that it would not be used for commercial operations, that flight activities from the proposed site would be conducted only during the day, and that operations would only occur in VFR weather conditions. Petitioner owns 362 acres of land with approximately 2,400 feet of that land being riverfront property. Petitioner's property is on the west shore of the Suwannee River. Approximately across from the southern boundary of Petitioner's property is the Spring Run in Manatee Springs State Park. The Park extends a considerable distance to both the north and the south, far beyond the boundaries of Petitioner's property. Approximately 100 feet south of the entrance to Spring Run is the dock of Manatee Springs State Park. Numerous manatee have been sighted around the Park's dock, at the entrance to the Spring Run, in the Spring Run, and in the middle of the River across from the dock. The Suwannee River between Petitioner's property on the west bank and the Park's property on the east bank is between 600 and 700 feet wide. In that area, the Suwannee River is open to all kinds of boat traffic, some of which travels as fast or faster than a seaplane taking off and landing. That area of the River is used by fishing boats, ski boats, airboats, jet skis, houseboats, and canoes. There is a tour boat which travels through the area in question, and canoes can be rented at the Park from a concessionaire. Personnel at the commercial canoe rental business advise renters to stay within 50 to 100 feet from the east shore line, along the Park. However, some renters ignore the instructions and cross the River. Due to the heavier manatee and boat activity at the Spring Run and Park docking area across from the southern portion of Petitioner's property, Petitioner proposes that his landing and take-off area be located just to the north of the northern boundary of his property, away from the entrance to Manatee Springs State Park, in the middle of the River, and in a section of the River which is straighter, which would increase his visibility of boat traffic in the area. Petitioner will place no structures of any kind in the River. Under Petitioner's proposal, he will store his seaplane in an area in the northern portion of his property. No structures will be constructed in this storage area. Petitioner would taxi out from the seaplane's storage area to his take-off and landing area which starts approximately 300 feet north of his storage site. The take-off and landing area would extend approximately 2,600 feet up the River and would be 100 feet wide. Petitioner proposes to use either a two-passenger or four-passenger seaplane. Such seaplanes utilize 100 h.p. and 150 h.p. engines, respectively. Such seaplanes taxi at 3-5 knots per hour, which speed would create the same wake as a canoe. When a seaplane is idling, it creates no wake. When a seaplane takes off, it rotates onto the pontoon step within 15 to 20 seconds and completes take-off within an additional 10 to 15 seconds. The total take-off time is approximately 30-35 seconds, and the seaplane during take-off will achieve a speed of 40-45 m.p.h., less the head wind. The total take-off distance is approximately 1,000 feet. Accordingly, Petitioner would be on the River for approximately 5 minutes of taxiing and 30 seconds of take-off, at which point the seaplane is off the River. The amount of wake created during take-off is 2-3 inches. The distance betwen the entrance to the Spring Run into Manatee Springs State Park and the southern end of Petitioner's proposed landing and take-off area is 3,000 feet. Thus, Petitioner's proposed landing and take-off area is located a safe distance from where boaters and manatee congregate around the Springs. Further, although some of Petitioner's neighbors on the west shore of the Suwannee River tie their boats to trees along the shore, there are no docks extending into the River in or near the area proposed for the landing and take- off strip. There are a public boat ramp at Clay Landing approximately 2 miles above the proposed seaplane landing area, a public boat ramp somewhere south of the Park, and a third public boat ramp somewhere in the Park. The boat ramps are not close enough to Petitioner's proposed landing and take-off strip to pose any threat to their users from Petitioner's proposed use of his seaplane. Petitioner is a licensed pilot, who possesses all appropriate ratings and has passed the required physical examinations. He learned to fly in 1940 and operated a seaplane base in Fort Walton during the 1940s and 1950s. He was then employed as a pilot for Eastern Airlines for 33 years. He has 18,000 hours of flying time, which includes 1,000 hours of flying seaplanes. He will carry liability insurance on his seaplane of at least $100,000. Petitioner understands that when his seaplane is on the water, it is subject to the rules and regulations governing boats and other watercraft. Accordingly, when "no wake" restrictions are in effect on the Suwannee River when the River is high, Petitioner cannot use his seaplane base. The Department's aviation specialist assigned to process Petitioner's application for site approval visited Petitioner's property on five separate occasions, observing boat traffic on the River during his visits. On one occasion, he spent the day counting the boat traffic and estimating intervals of traffic relative to landing and take-off times. Although the River was high on that occasion, it was during a weekend when boat traffic would be heavier than during the week. He determined that the proposed location of Petitioner's seaplane base was a safe location and that Petitioner's activity would not constitute a hazard to boating traffic. The Department issued its Notice of Intent to approve Petitioner's seaplane base, subject to several conditions: All operations are conducted during daylight hours and during VFR weather conditions only. Operations are prohibited on long holiday weekends that generate a high volume of river traffic (Memorial Day, 4th of July, Labor Day). A non standard traffic pattern be used, all traffic patterns will be to the west of the extended runway center line to prevent over flight of Manatee Springs State Park. Pursuant to the Department's regulations, Petitioner was required to provide notice of his application to all property owners within 1,000 feet from any boundary of the airport operational area, and the Department's Notice of Intent was published notifying interested persons that a public meeting would be conducted, if requested, on Petitioner's application. A number of persons attended the public meeting, some of whom supported Petitioner's application, but the majority of whom opposed Petitioner's application. After the public meeting, the Department issued a letter denying Petitioner's application, citing the concerns voiced at the public meeting. Additionally, the denial letter advised Petitioner that the Trustees of the Internal Improvement Fund have state sovereignty jurisdiction of the River area where the proposed seaplane base would be located and that Petitioner would, therefore, need appropriate authorization from the Trustees through the Department of Natural Resources to use the sovereign submerged land. That letter further advised Petitioner that the Trustees' jurisdiction is subject to the navigation servitude of the federal government and that Petitioner, therefore, would need a permit from the Army Corps of Engineers to use the proposed site on the Suwannee River as a seaplane base. Although the statutes and rules regulating the Department's site approval and licensure of airports and seaplane bases do not contain a requirement for authorization from the Trustees or the requirement of a permit from the Army Corps of Engineers, Petitioner contacted those agencies. By letter dated June 28, 1991, the Florida Department of Natural Resources advised Petitioner as follows: Please be advised that you do not need authorization for the use of state-owned submerged lands if you are not storing your sea plane waterward of the Ordinary High Water Line of the Suwannee River, constructing structures waterward of the Ordinary High Water Line, or impacting state-owned submerged lands and resources when removing your seaplane from the Suwannee River. Petitioner's proposal does not contain any of those characteristics. By letter dated September 6, 1991, the Department of the Army, Jacksonville District Corps of Engineers, advised Petitioner that no authorization or permit was required for his proposed seaplane base. Petitioner can safely take-off and land in his proposed strip without presenting a danger to boaters and swimmers any greater than the risk presented by other fast moving vessels currently permitted to utilize the Suwannee River in the area under question. The height of a seaplane propeller poses no danger to swimmers or manatee. One must be fully licensed and trained to operate a seaplane, while one needs no training or licensure to operate a speed boat. The height of a seaplane presents a better view of obstacles in the River than the view of someone in a boat or in the River. A seaplane offers the ability to stop quickly or "pull up" in a split second to avoid something coming quickly into the path of the seaplane. Although the Florida Department of Natural Resources advised Petitioner that he did not need authorization to use the state-owned submerged lands of the Suwannee River, employees of the Division of Recreation and Parks of the Department of Natural Resources testified at the final hearing in opposition to Petitioner's application. Those employees believe that Petitioner's proposed landing and take-off area is within the jurisdiction of the Division of Recreation and Parks pursuant to a Management Agreement entered into between the Division and the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida. That Management Agreement entered into on November 24, 1986, and amended on January 19, 1988, does grant management responsibilities to the Division over: All those sovereign submerged lands lying within 400 feet of the Mean High Water or Ordinary High Water Line, or in the case where the shoreline is vegetated with. . .wetland vegetation, within 400 feet of the emergent edge of the vegetation, and within the riparian area of any state park. . .administered by the Division of Recreation and Parks . . . . Petitioner's proposed landing and take-off strip is within 400 feet of the emergent edge of the vegetation of Manatee Springs State Park. That Management Agreement, however, also provides that the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida retained the right to also engage in management activities over those sovereign submerged lands and further provides that the Management Agreement is not to be construed in any way to interfere with the traditional riparian rights of private landowners. Lastly, that Management Agreement required the Division of Recreation and Parks to submit to the Board for its approval a management plan for those submerged lands and prohibited the Division from engaging in activities not provided for in the required plan without the advance written approval of the Board. There was no evidence indicating that the Division had adopted any management plan for the area under consideration in this cause. Further, no explanation was offered as to how the Division of Recreation and Parks could impose requirements not imposed by the Department of Natural Resources.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Petitioner's airport site approval and license application, with the conditions set forth in paragraph numbered 13 of this Recommended Order. DONE and ENTERED this 26th day of November, 1991, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 91-4391 Respondent's proposed findings of fact numbered 1-4 have been adopted in substance in this Recommended Order. Respondent's proposed finding of fact numbered 5 has been rejected as not constituting a finding of fact. Respondent's proposed finding of fact numbered 6 has been rejected as being subordinate to the issues involved herein. Copies furnished: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building Attn: Eleanor F. Turner 605 Suwannee Street Tallahassee, Florida 32399-0458 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458 Henry C. Fucik, 8290 S.W. 58th Street Miami, Florida 33143
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: Respondent is and was at all times material hereto a registered real estate salesman in the State of Florida having been issued license no. 0390547. In March of 1985, the Respondent's real estate salesman's license was placed with Raymond Joseph Deangelis Investments (RDI) in Naples, Florida. Since March of 1985, Respondent has had a couple of transactions that have actually closed with Mr. Deangelis. Prior to being placed with RDI, the Respondent's registration certificate was placed with EVI Properties, Inc., in Naples, Florida. EVI was a registered corporation. On March 31, 1984, the corporate registration of EVI Properties, Inc was canceled due to non-renewal. Some confusion exists in the Florida Real Estate Commission's records as to when the licenses of the associates of EVI were cancelled. By letter dated January 4, 1985, to EVI Properties, Inc., the Records Section stated: "In reviewing the Division's Records, I find that registration held by your corporation/ partnership expired on 3/31/84 and no renewal has been processed as of the above date. For your convenience, I am enclosing proper form 400.3 on which to request renewal of your corporation/partnership. I suggest that same be filed within 20 days from the date of this letter, otherwise we have no alternative than to cancel the licenses of all associates with your corporation/ partnership. . ." (Emphasis Added) Further, the Respondent was issued a salesman's license effective November 17, 1984, expiration date 3/31/86, registered with EVI Properties, Inc. Although that license was apparently issued in error, the Respondent received no further communication regarding it from the Record's Section. Nevertheless, the Respondent was aware that he did not possess a valid current registration certificate as a salesman during the times material to this complaint. The Respondent enrolled in and completed a 12 hour Bert Rodgers Schools of Real Estate course and re-applied for a current registration certificate. The new registration certificate was issued effective March 18, 1985. During the time that Respondent's registration certificate with EVI Properties was cancelled, he was also employed as vice-president of American Home Funding, a large New York based mortgage firm. As vice-president with American Home Funding, the Respondent was in charge of their Florida organization as a mortgage broker. The Respondent has been licensed as a mortgage broker in Florida since 1981. While the Respondent was associated with EVI Properties no transactions transpired and he inadvertently failed to maintain a valid and current registration certificate as a real estate salesman. From April 1, 1984 through March 17, 1985, Respondent did not possess a valid and current registration as a real estate salesman. In June 1984, the Respondent met Mr. James D. Peterson. Mr. Peterson is the owner of several nursing home facilities located in Rhinelander, Wisconsin, Florida, and Illinois. The Respondent attempted to arrange permanent financing for Mr. Peterson for Some property known as Buena Vida, in Naples. However, the transaction was never consummated. The Respondent, in reviewing Mr. Peterson's financial statements while attempting to arrange financing for him, became aware of a nursing home facility owned by Peterson in Rhinelander, Wisconsin. At the time, the Rhinelander nursing facility was not for sale. In October 1984, the Respondent met Deborah M. Maclean, a real estate sales person at a cocktail party. The party was attended by the Respondent, Mr. Corcelli an attorney and CPA, Mr. Corcelli's partner, Joseph Moore, an, attorney and the owner of Naples Title Company and Ms. Debra Maclean. The Respondent had arranged a S1.8 million dollar construction loan for Mr. Corcelli and Mr. Moore to build a facility on Vanderbilt Beach. As a result of obtaining that mortgage loan commitment, and following the closing, the Respondent invited Mr. Corcelli and Mr. Moore and his wife to his home for cocktails. As his guest, Mr. Corcelli brought Deborah Maclean. During the course of the evening at the dinner party, Respondent and Mr. Corcelli were discussing the real estate industry and Respondent mentioned Mr. Peterson. The following day, Ms. Maclean called Respondent and informed him that she was aware of a company which had a strong interest in purchasing nursing home facilities anywhere in the United States. The firm was called Canadian International Health Services' Inc. Ms. Maclean related to the Respondent that she had all cash buyers". Ms. Maclean contacted the Respondent several times requesting that she be introduced to Mr. Peterson, but Respondent refused. Apparently, Respondent was concerned that he might lose an anticipated mortgage brokerage commission because Ms. Maclean had "all cash" buyers. At some point, Ms. Maclean went to the Rhinelander facility and told one of Mr. Peterson's key employees that she had a buyer for any, end all of their facilities, and in particular the Rhinelander facility. Mr. Peterson decided to sell the Rhinelander nursing home facility, but preferred to deal with Respondent rather than Ms. Maclean. Mr. Peterson, therefore, employed Respondent to serve as a shield between he, Mr. Peterson, and Ms. Maclean during negotiations for the sale of the nursing home facility. If a sale had resulted, Respondent expected to be compensated by the sellers at the rate of 4% of the selling price of $13,000,000 less the value of the inventory. The Respondent agreed to share his commission 50/50 with Deborah Maclean. In December of 1984 and May of 1985, a meeting was held between Ms. Maclean, her attorney George P. Langford, and Respondent to further discuss the sale of the facility and any fee arrangements. Respondent informed Mr. Langford that he did not have a current license, but Respondent stated that he felt that the transaction primarily involved a business and not real property. Respondent did not state to any of the persons involved that he had the "listing" for the Rhinelander property. However, Mr. Peterson informed Ms. Maclean that there was a detailed listing for the property. Respondent's employing broker, Raymond J. Deangelis, did not discover that Respondent was attempting to obtain a purchaser for the Wisconsin property through sales negotiations with Deborah Maclean until May, 1985. None of the negotiations or documents involved in the attempted sale of the Rhinelander property were routed through Respondent's broker.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that The Florida Real Estate Commission suspend the real estate salesman's license of Respondent Ronald Gilbert Rice for a period of 6 months and that an administrative fine of $500 be assessed. DONE and ORDERED this 8th day of January, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1986. COPIES FURNISHED: James H. Gillis Esquire Department of Professional Regulation Division of Real Estate/Legal 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 J. Stephen Crawford, Esquire 12751 Cleveland Avenue Suite 207 Ft. Myers, Florida 33907 Fred Roche Secretary 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff Executive Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32802
The Issue The issue is whether Respondent engaged in a discriminatory housing practice, within the meaning of and in violation of the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2005), by requiring Petitioners to submit a second application for the approval of a condominium purchase.
Findings Of Fact It is undisputed that Petitioner, Allan Kangas, has no handicap and is not a disabled person. At the conclusion of Petitioners' case-in-chief, Mr. Kangas testified that he has no handicap. The undersigned, sua sponte, entered an ore tenus order on the record dismissing the case brought by Mr. Kangas. Petitioner, Anna Kangas, is an elderly female and the mother of Mr. Allan Kangas and Mr. Sheldon Kangas, the latter being the representative in this proceeding for the named Petitioners. It is undisputed that Mr. Sheldon Kangas is not handicapped, but that Mrs. Kangas is handicapped, within the meaning of Section 760.22(7), Florida Statutes (2005), because of Alzheimer's disease. Respondent is a condominium association lawfully incorporated as a Florida corporation (Association). Respondent must operate in accordance with the Articles of Incorporation, By-Laws, and Declaration of Condominium (condominium documents). The condominium documents require the Association to approve each purchase of a condominium. On December 8, 2005, Mr. Sheldon Kangas and Mrs. Anna Kangas contracted with Ms. Mary Cox to purchase condominium unit 15, located at 23 Hatchett Creek Road. Ms. Cox is a real estate agent and a co-owner of unit 15. Ms. Cox notified Ms. Pat Williamson, Association Secretary, of the prospective purchase. For the reasons stated herein, Respondent did not discriminate against the prospective purchasers, but approved the purchase of condominium unit 18 in a timely manner after the purchasers changed their purchase contract from unit 15 to unit 18. The prospective purchasers completed an application for approval of the purchase of unit 15 sometime between December 8 and 10, 2005. The Association conducted a meeting to approve the proposed purchase on December 10, 2005. During the meeting on December 10, 2005, the purchasers informed the Association that they wished to purchase unit 18, located at 29 Hatchett Creek Road, rather than unit 15. Unit 18 was owned by Mr. Brian Isaac. Ms. Cox did not object to releasing the purchasers from the contract for the purchase of unit 15. The Association informed the purchasers that a new application for unit 18 would be required. The purchasers completed a new application under protest. At a meeting conducted on January 3, 2006, the Association approved the application for the purchase of unit 18. The purchase of unit 18 closed on January 25, 2006. The purchasers seek reimbursement of living expenses incurred for hotel rooms and meals during the delay caused by the requirement for a second application. The purchasers are not entitled to reimbursement. The purchase of unit 18 was the first time the Association had required a second application. However, it was also the first time a purchaser had changed his or her choice of units after submitting an application. The Association did not discriminate against Mrs. Kangas because of her handicap. The record evidence contains no justifiable issue of law or fact to support the alleged discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 2nd day of January 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January 2007. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 David G. Muller, Esquire Becker & Poliakoff, P.A. 630 South Orange Avenue, Third Floor Sarasota, Florida 34236 Shelden Kangas Allan Kangas 4578 Manor Drive Sarasota, Florida 34233