Findings Of Fact Petitioner, a nonprofit corporation, was established in January of 1971 for the express purpose of rendering home health services within the State of Florida. It was approved by the Florida Department of Health and Rehabilitative Services and the then U.S. Department of Health, Education and Welfare (hereinafter "HEW") as a Medicare provider in the spring of 1971. In 1974, Petitioner created a subunit located in Bradenton to provide services in Manatee and Sarasota Counties. In 1975, a subunit was created in Warm Mineral Springs to serve lower Sarasota and Charlotte Counties. Both subunits were duly certified as home health providers by the Department and HEW. Petitioner's Medicare application was accepted as retroactive to October 1, 1975, reflecting the service area of the Warm Mineral Springs subunit to be lower Sarasota and Charlotte Counties. Petitioner has continuously provided home health services to Charlotte County on an ever-increasing basis since 1975, which predates both state licensing authority over home health services and the applicability of the Certificate of Need law to home health agencies. Since the Department has obtained licensure authority over home health services, Petitioner's Warm Mineral Springs subunit is and has been licensed to serve both Sarasota and Charlotte Counties. On September 26, 1979, Petitioner advised the Department that it intended to open an office in Charlotte County out of which it would serve its Charlotte County patients, setting forth the reasons therefor, and requesting the Department's approval far the opening of an office in Punta Gorda, which would be coordinated with Petitioner's subunit in Fort Myers. Subsequent correspondence between the petitioner and the Department revealed that Petitioner's operational costs would most likely be reduced by the opening of the office in Charlotte County and that no change in services provided would occur. Petitioner further indicated that the only change being sought was an organizational change within the geographic areas being served and also indicated that the proposed office in Charlotte County would not be a branch office of any of Petitioner's subunits, but rather would be a full, separate subunit. On December 26, 1979, the Department advised Petitioner that although Petitioner would remain licensed to provide services to both Sarasota and Charlotte Counties from its Warm Mineral Springs subunit, the establishment of a subunit in Charlotte County would not only require a separate license in Charlotte County, but would also require Certificate of Need review. In that same letter, the Department further advised Petitioner that its determination constituted final agency action. To preserve its rights, Petitioner requested a hearing pursuant to Section 120.57, Florida Statutes. Thereafter, Petitioner submitted a letter of intent to the South Central Florida Health Systems Council, the health systems agency geographically responsible for processing Certificate of Need applications. Petitioner requested that agency's assistance in completing a Certificate of Need application, but was advised that that agency would be unable to assist in processing Petitioner's Certificate of Need application, since Petitioner was already providing services in the area for which the need would necessarily be determined. Petitioner accordingly contacted the Department to advise it that the health systems agency was unable to review the need for services when the services were being provided, and the Department advised Petitioner to go back to the health systems agency for a determination of need. Between the time that the Certificate of Need law first became applicable to home health agencies and the time that Petitioner communicated to the Department its intent to open an office in Charlotte County, the Department has approved the applications of several home health agencies to establish a subunit without obtaining a Certificate of Need, since the Department considered those agencies to be "grandfathered." The Department authorized Sun Coast Home Health Care to open a subunit in Venice in 1978 without requiring a Certificate of Need, as it permitted Central Florida Home Health Services to open subunits in Putnam County and in Lake County in 1978 without the necessity for obtaining a Certificate of Need prior to licensure. Further, the Department authorized Gulf Coast Home Health Services to open a subunit in Hernando County in 1978 without the necessity of obtaining a Certificate of Need for the reason that services were being provided by that agency to patients in Hernando County prior to May 1, 1976, although that subunit was not opened until 1979. The "grandfather" concept was again applied in a similar situation in the Department's Final Order in Global Home Health Services, Inc. v. Department of Health and Rehabilitative Services, DOAH Case No. 78-1013. No evidence was presented by the Department herein in support of its argument that these agencies had all expressed an intent to open a subunit prior to the effective date of the Certificate of Need law applicable to home health agencies.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: A Final Order be entered authorizing petitioner to open a subunit office for home health services in Charlotte County, Florida, and issuing to Petitioner a separate license for that office if one be required. RECOMMENDED this day of October, 1980, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Charles T. Collette, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard, Suite 486 Tallahassee, Florida 32301 Richard I. Manas, Esquire Manas and Marcus 804 Greater Miami Federal Building 200 Southeast First Street Miami, Florida 33131 Herbert E. Straughn, Esquire Office of Community Medical Facilities Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building Two, Room 220 Tallahassee, Florida 32301 Ed Houck, Ph.D. Executive Director South Central Florida Health Systems Agency, Inc. 3801 Bee Ridge Road Sarasota, Florida 33582 Mr. Alvin J. Taylor, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32381 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES FLORIDA HOME HEALTH SERVICES, INC., and FLORIDA HOME HEALTH SERVICES-WEST, Petitioners, DOAH CASE NO. 80-206 DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, /
The Issue Whether the Petitioner proved the elements necessary to demonstrate that she was subject to an unlawful employment practice as a result of Respondent, Bradford County Farm Bureau, maintaining a sexually-hostile work environment.
Findings Of Fact At all times material to this proceeding, Petitioner was employed by Respondent, Bradford County Farm Bureau (BCFB or Respondent). She worked for the BCFB from December 15, 2006 until January 1, 2012. The BCFB is an organization created to work for and provide support to farmers in Bradford County. The BCFB has its office in Starke, Florida. At all times relevant to this proceeding, James Gaskins was the President of the BCFB Board of Directors. He served in that capacity as an unpaid volunteer. The alleged actions of Mr. Gaskins towards the Petitioner form the basis for her claim of employment discrimination. Section 760.10(1), provides that: It is an unlawful employment practice for an employer: To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual?s race, color, religion, sex, national origin, age, handicap, or marital status. To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual?s status as an employee, because of such individual?s race, color, religion, sex, national origin, age, handicap, or marital status. Section 760.02(7) defines "employer" as follows: „Employer? means any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person. The threshold issue in this proceeding is whether the BCFB had the requisite number of employees to bring it under the jurisdiction of the Florida Civil Rights Act of 1992 as Petitioner?s “employer.” If Petitioner fails in her proof of that issue, any discussion of acts that may have constituted sexual harassment or resulted in the creation of a sexually- hostile work environment become superfluous and unnecessary. Facts Regarding the BCFB as an “Employer” At all times relevant to this proceeding, the BCFB had two paid employees. Ms. Griffith was the office manager and bookkeeper. Ms. Linzy was a part-time secretary and receptionist, although she worked full-time when Ms. Griffith was out. Ms. Linzy retired in October, 2012. In addition to the foregoing employees, the BCFB has a five-member board of directors. Although Mr. Gaskins, who was a member of the Board, served as an unpaid volunteer, there was no evidence as to whether the remaining members were paid for their services. For purposes of this Recommended Order, it will be presumed that they were. Based solely on the number of its employees, BCFB is not an “employer” as defined by section 760.10. Therefore, in order to prove the threshold element of her claim for relief, Petitioner must establish that employees of other entities should be imputed to the BCFB due to integrated activities or common control of BCFB?s operations or employees. Petitioner presented evidence of the relationship between the BCFB, the Florida Farm Bureau, and the Florida Farm Bureau Insurance Company (FFBIC) to establish the requisite integration or common control necessary to impute their employees to the BCFB. Florida Farm Bureau The Florida Farm Bureau has more than 15 employees. The Florida Farm Bureau has a mission similar to that of the BCFB of providing goods, services, and other assistance to farmers, though on a state-wide basis. Each county in Florida has an independent county farm bureau. The Florida Farm Bureau has no common corporate identity with the BCFB. The BCFB is incorporated as a legal entity unto itself. The Florida Farm Bureau and the BCFB have no common officers, directors, or employees. The Florida Farm Bureau does not share or comingle bank accounts with the BCFB. The BCFB maintains its own finances, and has a bank account with the Capital City Bank Group. The Florida Farm Bureau has no operational control over the BCFB. The BCFB Board of Directors makes all employment decisions for the BCFB, has exclusive authority to hire and fire employees of the BCFB, and has exclusive control over the pay and the terms and conditions of BCFB employees. Employees of the BCFB are paid by the BCFB, and not by the Florida Farm Bureau. The Florida Farm Bureau has the telephone numbers of all of the county farm bureaus, and can transfer calls received by the Florida Farm Bureau to any of the county farm bureaus. Other than that, as stated by Ms. Linzy, the county farm bureaus “are all on their own.” Florida Farm Bureau Insurance Company The Florida Farm Bureau Insurance Company is affiliated with the Florida Farm Bureau. The nature and extent of the relationship between those entities was not established. The relationship between those two entities does not affect their relationship, or lack thereof, with the BCFB. Petitioner introduced no evidence as to the FFBIC?s total number of employees. The FFBIC has no common officers or directors with the BCFB, nor do they share or comingle bank accounts. Brent Huber and Travis McAllister are insurance agents authorized to transact business on behalf of the FFBIC. They are self-employed independent contractors. Mr. Huber does business as “Brent Huber, Inc.” Neither Mr. Huber nor Mr. McAllister is an employee of the FFBIC. Mr. Huber is not employed by the BCFB, and does not perform duties on behalf of the BCFB. The evidence suggests that Mr. McAllister?s status, vis-à-vis the BCFB, is the same as that of Mr. Huber. Local FFBIC agents are selected by the FFBIC. Given the close relationship with local farmers/customers, the FFBIC selection of a local agent must be ratified by the county farm bureau in the county in which the agent is to transact business. Once ratified, an FFBIC agent cannot be terminated by the county farm bureaus. Mr. Huber and Mr. McAllister, having been appointed to transact business in Bradford County as agents of the FFBIC, maintain an office at the BCFB office in Starke. There being only four persons in the office, the relationship among them was friendly and informal. Mr. Huber described the group as “tight-knit” and “like a family.” Mr. Huber had no supervisory control over Petitioner or her work schedule. Due to the small size of the BCFB office, and limited number of persons to staff the office, Ms. Griffith?s absences would cause problems for the office as a whole. However, Mr. Huber never evaluated Ms. Griffith?s performance and never disciplined Ms. Griffith. The FFBIC provided sexual harassment, employment discrimination, workers? compensation, and minimum wage informational signs that were placed in the BCFB office break room. Those signs were “shared” between the Florida Farm Bureau Insurance Company and the BCFB. Thus, the BCFB did not maintain a separate set of signs. The BCFB office has a single telephone number, and calls are routed internally. If Mr. Huber was out of the office, Petitioner or Ms. Linzy would take messages for him. If Mr. Huber was alone in the office, he would answer the telephone. Petitioner or Ms. Linzy would occasionally make appointments for Mr. Huber, and assist him when clients visited the office. Mr. Huber did not pay Petitioner or Ms. Linzy for those services. At some point, Mr. Huber and Ms. Griffith determined that it would be mutually advantageous if Ms. Griffith were allowed to speak with FFBIC customers about insurance when Mr. Huber was out of the office. To facilitate that arrangement, Ms. Griffith, at Mr. Huber?s suggestion, obtained a license as a customer service representative, which allowed her to sell policies under Mr. Huber?s insurance agent license. The customer service representative license was not a requirement of Ms. Griffith?s position with the BCFB. Ms. Griffith would sell insurance policies only when Mr. Huber was out of the office. Mr. Huber compensated Ms. Griffith for writing insurance policies through “Brent Huber, Inc.” Ms. Griffith continued to be paid as a full-time employee of the BCFB because she thought the BCFB “would be OK with it.”
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations that, based upon Petitioner's failure to meet her burden of proof to establish that Respondent, Bradford County Farm Bureau, is an “employer” as defined in section 760.02(7), the Employment Complaint of Discrimination be dismissed. DONE AND ENTERED this 6th day of May, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Robert E. Larkin, III, Esquire Allen, Norton and Blue, P.A. Suite 100 906 North Monroe Street Tallahassee, Florida 32303 Jamison Jessup 557 Noremac Avenue Deltona, Florida 32738 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Respondent, Unity Groves Corporation (Unity Groves), owes Petitioner, Maria Rodriguez, $1,321.00 for peppers purchased from Petitioner in March 2013.
Findings Of Fact The Parties Petitioner owns property in the Miami, Florida, area on which she grows a variety of peppers which she sells to agricultural retailers. Unity Groves is a family-owned and operated agricultural dealer which purchases produce from growers and growing facilities and resells to vendors across the country. During March and May 2013, Petitioner sold peppers on 14 separate dates to Unity Groves. Unity Groves then resold the peppers to retail vendors. During the brief course of dealings between parties, Petitioner would either contact Unity Groves and indicate the type and quantity of peppers she had available to determine whether Unity Groves needed to fill an order for a vendor or she would be contacted by an employee of Unity Groves to determine whether Petitioner had peppers available. The price for Petitioner's peppers would be negotiated prior to, or at the time of, delivery of the peppers to Unity Groves. Petitioner primarily negotiated with the receiver for Unity Groves, Emilio (last name unknown), or another employee, Pete (last name unknown). On ten occasions, Petitioner received a receipt prepared by Unity Groves at the time of delivery indicating the quantity of half or full bushels of the particular types of peppers and the agreed upon rate per half or full bushel that she would be paid. As demonstrated by the receipts and "Grower Payout" sheets submitted into evidence by both parties, the course of dealings between the parties supports Petitioner's testimony that in all but two instances, she in fact received payment in the amount indicated as the purchase price on the delivery receipts received from Unity Groves. Unity Groves' contention that the price indicated on the receipts was merely a desired "target price" is rejected because it is contrary to the greater weight of the evidence. On the four occasions for which Petitioner received a receipt with no indication of price, Petitioner was paid in accordance with her agreement with a Unity Groves' employee, Pete, which was reached in a telephone conversation prior to her delivery of the peppers to Unity Groves. Petitioner did not submit formal invoices to Unity Groves because the receipts provided by Unity Groves at the time of delivery accurately reflected the quantities of peppers sold by type and price, and she received the indicated price for all transactions except for the two instances which are the subject of this dispute. Petitioner was never informed that her products supplied to Unity Groves were deteriorating or that the quantity delivered was rejected because it was more than requested or needed. The Grower Payout sheets reflect that Petitioner received one duplicate payment in the amount of $130.00 for peppers delivered to Unity Groves on March 13, 2013. The Dispute Giving Rise to This Proceeding In March 2013, Petitioner received a telephone call from a Unity Groves' employee, Dennis (last name unknown), who requested a pallet of Hungarian Wax peppers and a pallet of Anaheim peppers. A pallet for Unity Groves is approximately 120 half bushel boxes of peppers. Petitioner advised Dennis that she did not think she could fill such a large order and that her workers could not yet pick those peppers. Petitioner told Dennis she would call him back and let him know how much she had available after picking. After the peppers were picked, Petitioner contacted Emilio and advised that she could deliver 78 half bushels of Hungarian Wax peppers and 84 half bushels of Anaheim peppers. Emilio confirmed with Dennis that, although Petitioner could not supply a pallet of each, Unity Groves still wanted those peppers. Petitioner delivered them to Unity Groves on March 22, 2013. Petitioner received receipt 4055 indicating delivery of the peppers and an agreed upon price of $10.00 per half bushel for the Hungarian Wax peppers and $12.00 per half bushel for the Anaheim peppers for a total price of $1,788.00. On March 25, 2013, Petitioner delivered the following to Unity Groves: 13 half bushels of Finger Hot peppers at $8.00 per half bushel; 20 bushels of Long Hot at $14.00 per bushel; 5 half bushels of Banana peppers at $12.00 per half bushel; 10 half bushels of Anahie peppers at $12 per half bushel. Petitioner received receipt 4067 from Unity Groves, and the total price based upon the prices indicated on the receipt for this delivery was $564.00. When Petitioner went to Unity Groves on April 14, 2013, to pick up her check in payment for the March 22 and 25 deliveries, she was given check 11439 in the amount of $1,031.00. She was also provided a "Grower Payout" sheet number 3807 indicating the breakdown by pepper, quantity, and price paid by Unity Groves for receipt numbers 4055 and 4067. Respondent immediately noticed that the prices paid for the large delivery of Hungarian Wax and Anaheim peppers was significantly lower than the agreed upon price as reflected on receipt 4055. Unity Groves also paid less for four out of five types of peppers on receipt 4067 for the March 25 delivery. The total difference between the total based upon the agreed upon receipt prices and the amount actually paid by Unity Groves was $1,321.00. When Petitioner realized the magnitude of the discrepancy, she and her daughter, Susana Rodriguez, went to discuss the issue with Carricarte. She inquired why she was paid $3.00 per unit versus $10.00 for the Hungarian Wax peppers and $4.00 per unit versus $12.00 for the Anaheim peppers (the prices reflected on receipt 4055). Carricarte told Petitioner that she was paid the price he received from his customer. He did not believe that Dennis purchased such a large quantity of peppers and wanted to verify this with him. Emilio confirmed in the presence of Petitioner and her daughter that Unity Groves, through Dennis, had requested two pallets of peppers from Petitioner. Dennis was out of the country and Carricarte told Petitioner he would call her after speaking with Dennis upon his return. Dennis was terminated by Unity Groves upon his return. Petitioner met with Carricarte two additional times. Each time she had one of her daughters present and, at the third meeting, she brought a representative from the Department. During these meetings, Carricarte disputed that Unity Groves would order such an unusually large quantity of peppers and that the price reflected on the receipt was not an agreed upon price but rather the "target price" Unity Groves hoped to be able to secure for the grower. Unity Groves never notified Petitioner that any of the peppers received on March 22 and 25, 2013, were defective or non- conforming, nor did it seek to revoke acceptance of the peppers or return the peppers to Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order (1) finding that Unity Groves is indebted to Petitioner in the amount of $1,191.00 for the balance due for the peppers it purchased from Petitioner on March 22 and 25, 2013 ($1,321.00, minus $130.00 for the duplicate payment for the March 13 delivery); (2) directing Unity Groves to make payment to Petitioner in the amount of $1,241.00 ($1,191.00, plus $50.00 for reimbursement of the filing fee Petitioner paid) within 15 days following the issuance of the order; and (3) announcing that, if Unity Groves fails to make timely payment in full, the Department will seek recovery from FCCI, Unity Groves' surety. DONE AND ENTERED this 10th day of October, 2013, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 10th day of October, 2013.
The Issue The issue in this case is whether the Brooks of Bonita Springs II Petition to Establish a Uniform Community Development District [By Rule] (the Petition) should be granted.
Conclusions Under Section 190.003(6), Florida Statutes (1997), a "community development district" (CDD) is "a local unit of special-purpose government which is created pursuant to this act and limited to the performance of those specialized functions authorized by this act; the boundaries of which are contained wholly within a single county; the governing head of which is a body created, organized, and constituted and authorized to function specifically as prescribed in this act for the delivery of urban community development services; and the formation, powers, governing body, operation, duration, accountability, requirements for disclosure, and termination of which are as required by general law." Sections 190.006 through 190.046, Florida Statutes (1997) and (Supp. 1998), as amended by Section 35 of Chapter 99- 378, Laws of Florida (1999), constitute the uniform general law charter of all CDDs, which can be amended only by the Florida Legislature. Section 190.011, Florida Statutes (1997), enumerates the general powers of CDDs. These powers include the power of eminent domain inside the district and, with the approval of the governing body of the applicable county or municipality, outside the district for purposes related solely to water, sewer, district roads, and water management. Section 190.012, Florida Statutes (Supp. 1998), as amended by Section 35 of Chapter 99-378, Laws of Florida (1999), lists special powers of CDDs. Subject to the regulatory power of all applicable government agencies, CDDs may plan, finance, acquire, construct, enlarge, operate, and maintain systems and facilities for water management; water supply, sewer, and wastewater management; CDD roads meeting minimum county specifications; and certain projects within or without the CDD pursuant to development orders from local governments. After obtaining the consent of the applicable local government, a CDD may have the same powers with respect to the following "additional" systems and facilities: parks and recreation; fire prevention; school buildings; security; mosquito control; and waste collection and disposal. Section 190.005(1)(a), Florida Statutes (Supp. 1998), requires that the petition to establish a CDD be filed with FLAWAC and submitted to the County. The petition must describe by metes and bounds the proposed area to be serviced by the CDD with a specific description of real property to be excluded from the district. The petition must set forth that the petitioner has the written consent of the owners of all of the proposed real property in the CDD, or has control by "deed, trust agreement, contract or option" of all of the proposed real property. The petition must designate the five initial members of the Board of Supervisors of the CDD and the district’s name. The petition must contain a map showing current major trunk water mains and sewer interceptors and outfalls, if any. The Petition in this case meets all of those requirements. Section 190.005(1)(a) also requires that the petition propose a timetable for construction and an estimate of construction costs. The petition must designate future general distribution, location, and extent of public and private uses of land in the future land-use element of the appropriate local government. The petition must also contain a Statement of Estimated Regulatory Cost. The Petition in this case meets all of those requirements. Section 190.005(1)(a) also requires the petitioner to provide a copy of the local government’s growth management plan (the local government comprehensive plan). The Petitioner in this case has done so. Section 190.005(1)(b), Florida Statutes (Supp. 1998), requires that the petitioner pay a filing fee of $15,000 to the county and to each municipality whose boundaries are within or contiguous to the CDD. The petitioner must serve a copy of the petition on those local governments as well. The Petitioner in this case has met those requirements. Section 190.005(1)(c), Florida Statutes (Supp. 1998), permits the county and each municipality described in the preceding paragraph to conduct an optional public hearing on the petition. Such local governments may then present resolutions to FLAWAC as to the proposed property for the CDD. Lee County has exercised this option and has adopted a resolution in support of establishment of The Brooks II CDD. Section 190.005(1)(d), Florida Statutes (Supp. 1998), requires a DOAH ALJ to conduct a local public hearing pursuant to Chapter 120, Florida Statutes. The hearing "shall include oral and written comments on the petition pertinent to the factors specified in paragraph (e)." Section 190.005(1)(d) specifies that the petitioner must publish notice of the local public hearing once a week for the four successive weeks immediately prior to the hearing. The Petitioner has met those requirements. Under Section 190.005(1)(e), Florida Statutes (Supp. 1998), as amended by Section 35 of Chapter 99-378, Laws of Florida (1999), FLAWAC must consider the following factors in determining whether to grant or deny a petition for the establishment of a CDD: Whether all statements contained within the petition have been found to be true and correct. Whether the establishment of the district is inconsistent with any applicable element or portion of the state comprehensive plan or of the effective local government comprehensive plan. Whether the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Whether the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district. Whether the community development services and facilities will be incompatible with the capacity and uses of existing local and regional community development services and facilities. Whether the area that will be served by the district is amenable to separate special-district government. Factor 1 In this case, all statements contained within the Petition have been found to be true and correct. Factor 2 In this case, it was found that the establishment of The Brooks II CDD is not inconsistent with any applicable element or portion of the state comprehensive plan or of the effective local government comprehensive plan. Factor 3 In this case, it was found that the area of land within the proposed CDD is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Factor 4 In this case, it was found that The Brooks II CDD is the best alternative available for delivering community development services and facilities to the area that will be served by the CDD. Factor 5 In this case, it was found that the proposed community development services and facilities will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. Factor 6 In this case, it was found that the area to be served by The Brooks II CDD is amenable to separate special-district government. REPORT AND CONCLUSIONS SUBMITTED this 2nd day of September, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 2nd day of September, 1999. COPIES FURNISHED: Ken van Assenderp, Esquire Young, van Assenderp & Varnadoe 225 South Adams Street, Suite 200 Tallahassee, Florida 32301 Donna Arduin, Secretary Florida Land & Water Adjudicatory Commission Executive Office of the Governor 1601 The Capitol Tallahassee, Florida 32399 Carol Licko, Esquire Office of the Governor The Capitol, Room 209 Tallahassee, Florida 32399-0001 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shummard Oak Boulevard, Suite 315 Tallahassee, Florida 32399 Alfred Bragg, Assistant General Counsel Department of Community Affairs 2555 Shummard Oak Boulevard, Suite 315 Tallahassee, Florida 32399 Donna Marie Collins, Esquire Patrick White, Esquire Lee County Attorney's Office 2115 Second Street, Room 620 Fort Myers, Florida 33901
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearings the following facts are found: At all times pertinent to this proceeding, Petitioner was a producer of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1983). However, since the pallets were not an agricultural product produced by Petitioner and were not considered in the price of the bahia sod but were exchanged back and forth between Petitioner and his customer, including Respondent American, they are not considered to be an agricultural product in this case and are excluded from any consideration for payment under Section 604.15-604.30, Florida Statutes. The amount charged Respondent American for these pallets was $1,188.00. At all times pertinent to this proceeding, Respondent American was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 3774 by the Department, and bonded by Respondent Peerless Insurance Company (Peerless) in the sum of $15,000 - Bond No. SK-2 87 38. At all times pertinent to this proceeding, Respondent Peerless was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983). During the month of January, 1985 Respondent American purchased numerous pallets of bahia grass sod from Petitioner paying $16.00 per pallet but has refused to pay for 240 pallets at $16.00 per flat for a total amount of $3,840.00 picked up by Respondent American's employees and billed by Petitioner between January 16, 1985 and January 26, 1985. Respondent American did not contest having received 204 pallets of bahia grass sod represented by invoice number. 6774- for 18 pallets on 1/16/85; 6783, 6785, and 6788 for 18 pallets each on 1/17/85; 6791, 6793, 6794, 6795, and 6800 for 16 pallets each on 1/18/85 and 6799 for 18 pallets on 1/18/85, 6831 for 18 pallets on 1/28/85; and 6834 for 16 pallets on 1/30/85 but contested invoice numbers 6835 and 6836 for 18 pallets each on 1/26/85. Gary L. Curtis stipulated at the hearing that Respondent American had received the 36 pallets of bahia grass sod represented by invoice numbers 6835 and 6836 which left only the matter of Respondent American's contention that it was owed credit for 20 pallets of bahia sod received in December, 1984 that was of poor quality and fell apart and had to be replaced because it could not be used. The evidence was insufficient to prove that any of the sod purchased by Respondent American from Petitioner fell apart or was of poor quality and as a result could not he utilized by Respondent American.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein it is RECOMMENDED that Respondent American be ordered to pay to the Petitioner the sum of $3,840.00. It is further RECOMMENDED that if Respondent American fails to timely pay the Petitioner as ordered then Respondent Peerless be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1983). Respectfully submitted and entered this 10th day of March, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 10th day of March, 1986. COPIES FURNISHED: Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301 Robert Chastain, General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 Ron Weaver, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Joe W. Kight, Chief License and Bond Mayo Building Tallahassee, Florida 32301 Gary L. Curtis, President American Sod Company, Inc. Post Office Box 1370 Longwood, Florida 32750 Mid Florida Sod Company 4141 Canoe Creek Road St. Cloud, Florida 32769 Peerless Insurance Company 611 Aymore Road/Suite 202 Winter Park, Florida 32789 Raymond E. Cramer Esquire Post Office Box 607 St. Cloud, Florida 32769
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearings the following facts are found: At all times pertinent to this proceedings Petitioner was a producer of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1985) At all times pertinent to this proceeding, Respondent Pent was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1985), issued license no. 3531 by the Department, and bonded by Respondent Transamerica Insurance Company (Transamerica) in the sum of $4,750.00 - Bond No. 51825769. At all times pertinent to this proceeding, Respondent Transamerica was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1985). On June 12, 1985 Respondent sold and delivered to Respondent Pent but invoiced through J & W Nursery- fifty (50) Texas sage plants at $2.00 per plant, twenty five (25) Pittosporum plants $4.75 per plant and four (4) red maple trees at $15.00 per plant for a total amount of $278.75 which Respondent Pent has refused to pay. At all times pertinent to these proceedings, J. & W. Nursery was owned by Respondent Pent, d/b/a Pent Landscaping Company. Respondent Pent has not denied receiving the nursery stock nor did she complain about their quality or condition upon delivery.
Recommendation Based on the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent Pent be ordered to pay to the Petitioner the sum of $278.75. It is further RECOMMENDED that if Respondent Pent fails to timely pay the Petitioner as ordered, then Respondent Transamerica be ordered to pay the Department as required by Section 604.21, Florida Statutes (1985) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1985). Respectfully submitted and entered this 23rd day of May, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 23rd day of May, 1986. COPIES FURNISHED: Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301 Robert Chastain, General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 Ron Weaver, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Mr. Joe W. Kight, Chief Bureau of License and Bond Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Transamerica Insurance Company 1150 S. Olive Street Los Angeles, CA 90015 Mrs. Dean Pent Pent Landscape Company 1660 Emerson Street Jacksonville, Florida 32207 William D. Reese Greenbriar Nurseries, Inc. 2025 N.E. 70th Street Ocala Florida 32670
The Issue The issues in this case are: (1) Whether Respondent, Florida Housing Finance Corporation (Florida Housing), erred in its determination that Petitioner, Madison Reserve, Ltd.'s (Madison Reserve), application seeking an allocation of Housing Credits from the 2009 Universal Cycle failed to meet threshold and should not receive an Ability to Proceed Tie-Breaker Point with regard to zoning; and (2) Whether Florida Housing erred in its characterization of Madison Reserve's application as a Priority II application.
Findings Of Fact Madison Reserve is a Florida limited partnership made up of a general partner, Madison Reserve Apartments, LLC, and an "initial limited partner," Todd L. Borck. The members of the general partner are Todd L. Borck and Patrick E. Law. Borck and Law are experienced developers of real estate properties, especially those which qualify for Low Income Housing Tax Credits ("Housing Credits") from Florida Housing. Borck and Law are affiliated with two other entities which filed applications for Housing Credits in the 2009 Universal Cycle. Those two entities, Madison Heights and Madison Terrace, are also Florida limited partnerships in which Borck and Law are members of the general partners. As part of its application, Madison Reserve submitted a "Declaration of Priority I Related Applications" form, which identified the other two entities as part of the Pool of Related Applications for the Madison Reserve application. Florida Housing is a public corporation organized pursuant to Section 420.504, Florida Statutes (2009), to provide and promote the public welfare by administering the governmental function of financing and refinancing affordable housing and related facilities in Florida. The 2009 Universal Cycle was the first time that applicants were required to designate themselves as Priority I or Priority II applicants. Preference for funding was to be given to Priority I applicants. With certain exceptions, all Priority I applications for a given Set-Aside were to be funded before any Priority II applications were funded. In essence, the rules in effect for the 2009 Universal Cycle require that applications submitted by related applicants be considered a "Pool of Related Applications." While there is no limit to the number of related applications within a Pool of Related Applications that may be submitted, there can be no more than three related applications in order to file under Priority I. There is an exception to that rule if applicants have entered into joint ventures with a not-for-profit entity or a public housing authority. In those cases, applicants are permitted to up to three additional Priority I applications. The Priority I/Priority II designations were upheld as valid rules in Atlantic Housing Partners, LLP v Florida Housing Finance Corporation, Case No. 09-2276RP (DOAH July 14, 2009). On August 20, 2009, Madison Reserve submitted an application seeking an allocation of Housing Credits from the 2009 Universal Cycle. Madison Reserve's submission was assigned Application No. 2009-197C. Two-thousand and nine (2009) designates the year the application was filed; 197 indicates that Madison Reserve application was the 197th application processed in that cycle; and C indicates the application was seeking Housing Credits. The application was basically a "shell" application as is the general practice among entities seeking an allocation of Housing Credits. A shell application contains only minimal information about the applicant and the proposed project. The remaining portions of the application are filed during the "cure" period and, thereafter, pursuant to specific requests by Florida Housing. The shell application provides only the essential information needed by Florida Housing to make a preliminary assessment of the applicant's ability to proceed through the process. Application 2009-197C designated ARD MR, LLC, as the developer for the proposed project for which Madison Reserve was seeking Housing Credits. Exhibit 9 to the application designates the developer and sets forth the ownership of the applicant entity. In both cases, Borck and Law are the only natural persons listed with any interest in the project. Borck is experienced with the 2009 Universal Cycle and the application process. He has filed over 100 applications for various entities and acts as a consultant for other entities with which he has no ownership interest. One such entity is Madison Springs, LLC (Madison Springs). Borck assisted that entity with filing an application in the 2009 Universal Cycle. Madison Springs' application was assigned number 2009-195C. Related Application Issue For the 2009 Universal Cycle, Florida Housing, for the first time, limited applicants to only three related entity applications. That is to say, applicants, such as Borck and Law, could not be affiliated with more than three entities who had filed for Housing Credits in the 2009 Universal Cycle. In fact, Borck and Law were affiliated with Madison Reserve, Madison Heights and Madison Terrace. However, in Exhibit 9 of the application filed by Madison Springs, Borck and Law were listed as owners of TLB Madison Springs, LLC, and PEL Madison Springs, LLC, respectively. Those two entities are the members of Madison Springs Apartments, LLC, the managing member of Madison Springs, Borck and Law are also listed as owners of the two limited liability companies that comprise the members of ARD MT, LLC, the developer identified in Exhibit 9 of the Madison Springs application. However, Exhibits 11 and 53 of the Madison Springs application list CAS Orlando Development, Inc. (CAS Orlando), as the developer for the project. There are obvious errors in the Madison Springs application. Borck and Law had previously held ownership of the entities as set forth in the Madison Springs' Exhibit 9 to its application. However, Borck and Law's ownership interests had been rescinded prior to the filing of the Madison Springs application. The Exhibit 9, filed by Madison Springs, was in error as to Borck and Law's involvement with the project. The Exhibit 9 was also in error as to the developer. The correct developer for Madison Springs is CAS Orlando. In order to correct its error, Madison Springs filed a corrected Exhibit 9 during the cure period. That Exhibit 9 clarified that neither Borck, nor Law, had any ownership interest in or affiliation with Madison Springs or its developer. The cure document was filed with Florida Housing on November 3, 2009. Included within the cure documents were Articles of Amendment to Articles of Organization of Madison Springs. The Articles of Amendment were filed with the Secretary of State on April 13, 2009, some four months prior to filing of applications in the 2009 Universal Cycle. The Articles of Amendment clearly indicate the deletion of Borck and Law from the ownership of Madison Springs. Florida Housing did not accept the cure submitted by Madison Springs concerning Borck and Law's non-affiliation with Madison Springs. The reason stated by Florida Housing's executive director was that when Madison Springs initially filed its cure documents, it did so under the wrong application number. The documents came in under Application No. 2009-194C, instead of 2009-195C. That mistake was a typographical or clerical error. In fact, Application No. 2009-194C had already been withdrawn prior to the time Madison Springs submitted its cure documents intended for Application No. 2009-195C. Thus, there would have been no reason for cure documents to have been filed for Application No. 2009-194C. The cure documents submitted by Madison Springs included a revised Exhibit 9, as discussed above. Florida Housing at some point realized that the cure documents, including Exhibit 9, actually belonged to the Madison Springs Application (2009-195C), rather than the withdrawn application. However, the cure was still not accepted because it had been filed under the incorrect application number initially. Florida Housing's executive director opined that there was, in effect, no way to cure the error once it had been made. No credible rationale for that position was espoused. Nevertheless, the evidence is clear that the owners of Madison Reserve are not affiliated with Madison Springs and were not affiliated with Madison Springs at the time the applications were filed in the 2009 Universal Cycle. The fact that Madison Springs submitted an Exhibit 9 in its application that was in error, stating that Borck and Law were owners of Madison Springs, does not independently create a legal ownership interest. Clearly, Madison Springs did not intend to sabotage the application of Madison Reserve. The principals of those entities are friends and have done business together. But the action taken begs the question of whether Florida Housing would allow representations in competing applications to void or undermine another applicant's submission. Florida Housing's executive director spoke frankly at the final hearing and said that sabotage scenarios would have to be looked at, but he did not believe that the instant case was such a scenario. Project Designation Issue The Madison Reserve application designated its intended project as "Garden Apartments" at page 7 of the application. The site plan form (Exhibit 26 to the application) submitted along with the application refers to the project as a "Garden" development type. In the local government verification form (Exhibit 32) accompanying the application, the development type is listed as "Planned Development Project Multi-Family" (PDP MF). The parties stipulate that "[a]lthough undefined in the Rules, 'Garden Apartments' means multi-family developments, and is considered a term of art within the development and real estate community."1 The project type is an essential part of an application because it puts other applicants on notice as to what their competitors are planning. Further, the project type dictates the kind of zoning that must be available in order to pursue the project. Part and parcel of the designation of project type is the verification by local zoning authority that the proposed site of the project is properly zoned. Applicants must show that the proposed development is appropriately zoned and is consistent with local land use regulations regarding density and intended use or that the proposed development is legally non-conforming. Neither "Garden Apartments," nor "Garden," is a term defined by the rules of Florida Housing, nor is the term used in the Hernando County Zoning Code. When the Hernando County zoning authority submitted its verification of zoning-- Exhibit 32--Garden Apartments was not listed as the development type, because there was no zoning designation in the county for that phrase. Rather, the zoning authority used the term, PDP MF, because it encompasses all permitted uses in the R-3 zoning district for which Madison Reserve's project was to be located. Hernando County recognized Madison Reserve's Garden Apartments as an intended PDP MF, but could not verify it under the name Garden Apartments. Madison Reserve's proposed development is appropriately zoned and is consistent with local land-use regulations regarding density and intended use as required.2 Gary Fisher, Hernando County Zoning Authority, provided verification on Madison Reserve's zoning form that the proposed development was properly zoned and that for zoning purposes in Hernando County, the proper development type for Madison Reserve's proposed Garden Apartments would be "Planned Development Project, Multi-Family." In Hernando County, PDP MF would allow for the construction of multi-family developments, such as the Garden Apartments proposed by Madison Reserve. Florida Housing maintains that despite its stipulation to the facts stated above, the Madison Reserve application fails because the application was not properly completed. Specifically, the use of varying terms, such as Garden, Garden Apartments, and PDP-MF, although meant to be the same project by Madison Reserve, were not the exact same wording. There is no dispute as to what the project is meant to be, so the discrepancy is basically form over substance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Florida Housing Finance Corporation, deeming Petitioner, Madison Reserve, Ltd.,'s, application to have met the zoning threshold; that the application be granted Priority I status; and that the application meets or exceeds all statutory and rule criteria. DONE AND ENTERED this 9th day of November, 2010, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 9th day of November, 2010.
Findings Of Fact Respondents are developers of land registered with Petitioner pursuant to Chapter 498, Florida Statutes, and were so registered at all times here relevant. In 1979 Respondent Suncoast Highland Corporation, (Suncoast) developer of Shadow Run Subdivision, received numerous complaints from the Shadow Run Homeowners Association (Homeowners) regarding lack of recreation facilities promised by the developer. This led to the execution of an AGREEMENT between Suncoast and Homeowners in which the developer agreed to install certain recreational facilities. This AGREEMENT was not carried out by Suncoast and, after intervention by the Division of Florida Land Sales (Division) a CONSENT ORDER was entered on 22 April 1981. In this CONSENT ORDER Suncoast irrevocably committed itself to complete the promised recreation facilities; agreed to file monthly progress reports with the Division; and, in the event of default by Suncoast, authorized the Division to impose a civil penalty in the amount of $10,000. Suncoast did not complete the recreational facilities as promised. On 12 March 1982 an MENDED CONSENT ORDER was entered into between the Division on the one hand and Suncoast, Timber Oaks, Inc. and Kingsland, Inc. on the other, in which it was determined Suncoast had failed to construct the prescribed recreational facilities and Kingsland, Inc. had failed to provide recorded warranty deeds and title insurance policies to purchasers in their registered subdivisions. In this Amended Consent Order Suncoast reaffirmed its commitment to complete the recreational facilities promised to Homeowners no later than June 15, 1982; Timber Oaks, Inc. guaranteed the completion of recreational facilities by Suncoast; and all Respondents agreed to establish and fund on or before March 31, 1982, an Escrow Account under the supervision of the Division in the amount of $95,000 to pay for the completion of the recreational facilities, to pay the costs associated with recording deeds and title insurance, and to pay delinquent real estate taxes. The Amended Consent Order further provided that in the event of default by the developers the Division will immediately be entitled to impose a civil penalty in the amount of $10,000. Respondents have failed to fund the Escrow Account or otherwise comply with the provisions of the Amended Consent Order.
