Findings Of Fact During the audit period in question, i.e., December 1, 1975, through March 31, 1979, Petitioner Ormond Hotel Corporation operated the Ormond Hotel, Ormond Beach, Florida. It was licensed during the audit period by the Division of Hotels and Restaurants, Department of Business Regulation, and classified as a retirement establishment. (Interrogatories) The Ormond Hotel is an old wooden structure containing 350 rooms with 258 rooms available for rental. The remaining rooms are not in proper condition for rental. Most of the hotel guests are over 65 years of age and reside there either permanently or on a seasonal basis, usually from December through March of each year. A few married couples have accommodations at the hotel, but most of the residents are single individuals occupying one room. Prior to 1978, Petitioner advertised the hotel in a national magazine called "Retirement Living" and conducted advertising on billboards, brochures, and in the classified section of the local telephone book under the heading "Retirement Homes". The latter advertisement states that the facility is "a residential hotel," but also includes the works "DAY-WK-MO-YR." Similarly, the hotel's brochure recites that accommodations are available by day, month, or year. All units are available for rental to permanent tenants, but short-term occupancy is accepted if there are available rooms. The hotel does not have a swimming pool, but does have restaurant facilities and recreation areas. The hotel does not primarily cater to transient guests. (Testimony of Salveson, interrogatories) Respondent's auditor conducted an audit of Petitioner's business operations for the period December 1, 1975, through March 31, 1979. In arriving at whether or not the Ormond Hotel was subject to tax imposed by Section 212.03, Florida Statutes, on its rentals, he examined the Petitioner's books to ascertain the number of total available rental units and the status of tenants at the hotel during the months of April, May, and June of each year. If he found that 50 percent or more of the total units had been rented to persons residing there continuously for the specific three-months period, those tenants were considered to be permanent rather than transient tenants and the hotel was deemed exempt from tax pursuant to Rule 12A-1.61(1), F.A.A. In arriving at this determination of exempt status, the auditor did not deduct unoccupied rooms from the total number of units in arriving at his "fifty percent" determination. Although the auditor analyzed the advertising brochures of Petitioner, and was aware that the hotel was listed in the telephone directory under retirement homes, and concluded that such advertising was directed primarily to the acquisition of permanent guests, he predicated his audit findings solely on the "fifty percent" test concerning occupancy of total units. In this manner, he determined that Petitioner was exempt from taxation in 1975 based on the fact that for the April through June period for that year, 135 of the 264 total units had been occupied continuously by "permanent" tenants. In a similar manner he found that the hotel did not qualify for exemption during the succeeding years of the audit period. In this respect, he found that for 1976, there were only 119 such guests during the three-months period out of the 263 total units, which was less than 50 percent. In 1977, there were 102 such tenants out of 261 total units which was less than 50 percent. In 1978 there were 98 such tenants and 259 total units, which was less than 50 percent. The auditor's worksheet reflects that there were 124 vacant rooms during the three-months period in 1975, 140 in 1976, 153 in 1977, and 153 in 1978. He concedes that if he had applied the "fifty percent" rule by comparing the number of three-month or "permanent" tenants with the number of occupied by "permanent" guests would have been over fifty percent for each year of the audit period. (Testimony of Boerner, Exhibits 1-2, 4) Based on the audit, Respondent issued two separate "Second Revised Notices of Proposed Assessment" on January 15, 1980. The first assessment covered the period December 1, 1975, through November 30, 1978. It asserted tax due on room rentals in the amount of $21,362.91 plus a delinquent penalty, and interest through January 15, 1980, for a total sum of $28,062.45. The assessment also asserted tax, penalty and interest for purchases unrelated to room rentals in the amount of $984.92, for a total assessment of $29,047.37. The assessment reflected that a partial payment had been made on October 2, 1979, in the amount of $2,590.62, leaving a balance due of $26,456.75. The other assessment showed tax on room rentals in the amount of $6,001.75, plus delinquent penalty of $300.10, and interest through January 15, 1980, in the amount of $611.76 for a total of $6,913.61. It also asserted tax, penalty, and interest on purchases in the amount of $23.39 for a total assessment of $6,937.00. This assessment also showed partial payment on October 2, 1979, in the amount of $132.08, leaving a balance due of $6,804.92. In a letter transmitting the assessments, dated January 16, 1980, Respondent advised Petitioner that the hotel did not qualify as an exempt facility under Rule 12A- 1.61(1)(a), F.A.C., during the audit period, because less than fifty percent of the facility's units were occupied by guests who had resided there three or more months as of July 1 each year. The letter further stated that "an analysis" of the rental of units submitted by Petitioner as to its exempt status did not conform to the requirements of the rule because the facility advertised to guests on a daily, weekly and monthly basis in addition to long-term leasing, the analysis used an annual rather than a three-month period prior to July as a basis, and the number of tenants at the facility rather than total units. (Exhibit 2) Petitioner's accountant prepared an analysis of the room status at the Ormond Hotel during the period July 1, 1977, to June 30, 1978. It reflects that 165 rooms, or 64.5 percent of the total of 256 units rented during the year, were occupied by tenants for a continuous period of over three months. On March 31 of that year, 157 rooms, or 61 percent of the total of 258 rooms available for occupancy, were occupied by guests for more than three months. Sixty-nine of the rooms were occupied by transient tenants or those with less than three- months occupancy (27 percent), and 32 rooms were unoccupied (12 percent). As of June 30, 1978, the hotel had 110 guests who had resided there for more than three months, and 18 guests with residency of less than three months. (Testimony of Salveson, Exhibit 3)
Findings Of Fact The Petitioner is an agency of the State of Florida charged in pertinent part, with insuring that businesses which sell and dispense food stuffs comply with the various sanitation and non-contamination requirements embodied in chapter 500, Florida Statutes, and Section 5E-6, Florida Administrative Code. The Respondent is a Florida corporation operating the store at issue, Number 9559, in Orlando, Florida, concerning which the charges involving unsanitary and contaminated food are alleged. The Respondent is regulated by the Petitioner agency in the area of retail food sales and food sanitation standards. On November 20, 1985, John H. Miller, Sr., the food inspector for the Petitioner, visited the Respondent's convenience store located at 600 West Lancaster Road in Orlando, Orange County, Florida. On that date he inspected that store and noted that the restroom was in need of cleaning, there were no hand towels in the restroom, the floors in the entire store were in need of cleaning and the ice holding freezer was in need of defrosting. The supervision of sanitation in the store needed much improvement. He informed the store's manager that he would reinspect in a few days. Mr. Miller reinspected on November 27, 1985. He found much the same problem existed at the store as existed on his first visit. The floors were still greatly in need of a cleaning throughout the entire store. The ice holding refrigerator box was still in need of defrosting and sanitation supervision was still substandard. He counseled the manager once again concerning these problems and told him that he would again reinspect to see if the problems had been corrected. They had not been corrected as of the second visit. Upon his third visit on December 4, 1985, Mr. Miller found the same problems not corrected and additionally found that food products were stored in a restroom on the floor. He found the restroom floor was in need of a good cleaning and that one of them was in need of a key because it was not lockable. There were no soap or towels for sanitary purposes in the restrooms. The floors in the entire store still were in need of cleaning and stripping, especially the floor in the vicinity of the cooler and dry storage areas. Additionally he found the drains stopped up on the ice freezer, with generally poor supervision for sanitary practices throughout the store. Mr. Miller left the third inspection report with these problems noted thereon with the manager and counseled with the manager about the problems and their need for correction once again. He has served as a food inspector for approximately 23 years and in his experience it is very unusual for a regulated business to have more than two (2) reinspections without problems noted earlier being corrected. The Respondent, after three (3) inspection visits, failed to correct the problems noted by the inspector which had been explained to the Respondent's representative on the scene. There was an ample number of days between each inspection such that the Respondent, with the exercise of due diligence, could have corrected the sanitation and cleanliness discrepancies. The Respondent apparently utterly ignored the presence of the violations.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Respondent, Cumberland Farms Number 9559, be found GUILTY of violating the above statutory provisions in the particulars alleged and found herein and that an administrative fine of $500 be assessed the Respondent. DONE and ORDERED this 1st day of October, 1986 in Tallahassee, Florida. P. MICHAEL RUFF 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 1st day of October, 1986. COPIES FURNISHED: Frank A. Graham, Jr., Esquire Senior Attorney Department of Agriculture and Consumer Services Room 512, Mayo Building Tallahassee, Florida 32301 Raymond D. Hoffman Area Supervisor Cumberland Farms 600 West Lancaster Road Orlando, Florida 32809 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Robert Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32301
The Issue The issues are as follows: (a) whether Respondent is guilty of culpable negligence or breach of trust in any business transaction in violation of Section 475.25(1)(b), Florida Statutes; (b) whether Respondent is guilty of failure to maintain trust funds in any business transaction in violation of Section 475.25(1)(k), Florida Statutes; and (c) what penalty, if any, should be imposed on Respondent.
Findings Of Fact Petitioner is charged with regulating and enforcing the statutory provisions pertaining to persons holding real estate broker and salesperson licenses in Florida. Respondent is and was, at all times material to this case, a licensed real estate broker, having been issued license No. 0372849. Respondent's license is currently voluntarily inactive because she did not renew it. At all times material here, Petitioner was an agent and the broker of record for Park Avenue Properties, Inc. In December 1995, Respondent, as agent for Park Avenue Properties, Inc., entered into an agreement with Elizabeth Field (Miss Field) to rent and manage rental property located at 1709 Hall Drive, Tallahassee, Florida (the property). Mrs. Paula Field owned the property but authorized her daughter, Miss Field, to enter into the management agreement with Respondent. The management agreement states as follows in pertinent part: Owner Agrees: to give the Agent the following authority and agrees to assume all expenses connected with: to advertise the property, display a sign on it, and rent it; to investigate the references of prospective tenants; to sign leases for terms of no less than 12 months; to renew or cancel existing leases and negotiate new leases. * * * to terminate tenancies and sign and serve notices Agent deems necessary and Owner approves; to sue for and recover rent; to instigate eviction procedures. Owner will pay expenses of litigation including attorney's fees, and may select the attorney to handle such litigation. * * * to allow Agent to collect minimum rent of $600 and deposit it to owners account. . . . * * * to allow Agent to collect a security deposit of $600 and first month's rent in advance and deposit them in Agents escrow accounts. Escrow funds accrue no interest for Owner nor Agent and are not accounted for in Owner's monthly statements. * * * 7) to allow the Agent to withhold a commission of 10 percent of all rent due on leases during the management agreement period as compensation for the management services. Pursuant to the management agreement, Respondent facilitated Donnda T. Williams' application to rent the property. The application states that, upon its acceptance, it would become a lease agreement beginning on August 22, 1997, and continuing until July 31, 1998. According to the application, rent was payable in advance on the first day of each month in installments of $595 per month. Respondent checked Ms. Williams' references but did not otherwise investigate her credit. Respondent did not perform a public records search to determine whether Ms. Williams was the subject of prior eviction proceedings or whether she had civil judgments against her. Respondent subsequently accepted the application, which became a lease agreement. Ms. Williams was late in paying the rent in September through December 1997. Respondent had to "really chase" Ms. Williams to get the rent in November 1997 because the rent check bounced when Respondent deposited it the first time. Respondent's efforts to collect the November 1997 rent included contacting Ms. Williams' mother. At that time, Respondent learned about Ms. Williams' prior eviction in Leon County and prior civil judgments as described below. Respondent's father became seriously ill in January 1998. Respondent flew to the State of Washington to nurse her father and was out of the State of Florida for most of January, February, and March of 1998. During her father's illness, Respondent made several short trips back to her home in Tallahassee, Florida. After the death of Respondent's father, she returned to Tallahassee, Florida, in April 1998. Ms. Williams did not pay her January 1998 rent until late February 1998. Respondent did not receive any additional rent payments from Ms. Williams. On March 9, 1998, Respondent sent Ms. Williams a three-day notice demanding the payment of rent. The notice stated that Ms. Williams owed $1,190 in rent for February and March 1998. There is no evidence that Respondent sent Ms. Williams any other such notices. Sometime after March 9, 1998, Harper Field, Esquire, informed Respondent that he was going to try to collect the rent for his wife, Mrs. Field. Because he was unable to collect the April 1998 rent, Mr. Field sent Ms. Williams a second three-day notice demanding payment of rent. Mr. Field insisted that Respondent begin eviction proceedings against Ms. Williams in May 1998. In fact, Mr. Field "begged" Respondent to initiate these proceedings on his wife's behalf. Any evidence that Ms. Field requested Respondent to begin eviction proceedings in January or February 1998 is hearsay and in direct conflict with Respondent's testimony, which is credited in this regard. Respondent initiated an eviction proceeding against Ms. Williams on May 4, 1998. In a letter dated June 2, 1998, from Respondent to the circuit judge, Respondent stated as follows: (a) Ms. Williams had not paid any rent since paying the January 1998 rent in February 1998; (b) Ms. Williams was five months behind in paying her rent; (c) Ms. Williams was still living at the property; and (d) Ms. Williams has a prior eviction in Leon County, Florida, and had a judgment against her for not paying for her furniture. Respondent sent a copy of the letter to Mr. Field, informing him for the first time about Ms. Williams' prior eviction and about the civil judgments against her. The record indicates that First Union Bank secured a Final Judgment and Execution against Ms. Williams in May 1995. W.S. Badcock Corporation secured a Writ of Replevin and Possession against Ms. Williams in October 1996. In a third case, Charles Culp secured a Final Judgment for Eviction and a Writ of Possession against Ms. Williams in April 1997. There is persuasive evidence that Respondent became aware of these cases against Ms. William when Respondent contacted Ms. Williams' mother in November 1998. Ms. Williams vacated the property owing six months of rent for the months of February through July 1998 before Respondent's eviction proceeding against Ms. Williams was concluded. Ms. Williams "trashed" the property before she vacated it causing Mrs. Fields to incur out-of-pocket expenses for damages not covered by insurance. The record is not clear how Respondent's eviction case against Ms. Williams was finally resolved. However, the Administrative Complaint does not allege that Respondent was negligent in prosecuting the case. Mr. Fields subsequently filed a complaint with Petitioner alleging that Respondent had mismanaged the property. During the investigation of the complaint, Respondent furnished Petitioner with requested documentation regarding the entire Williams/Field transaction for the months of February through April 1998. The documentation included monthly statement reconciliations for Respondent's rental escrow account and her operating account, bank statements for these accounts, and copies of supporting checks, deposits slips, and transfers. Respondent's monthly statement reconciliations for her rental escrow account from February through April 1998 revealed negative balances. The monthly statement reconciliations are a more accurate reflection of the transactions that occurred in the account than a corresponding bank statement. Respondent transferred $1,000 from her rental escrow account to her operating account on February 10, 1998. Respondent's February and April bank statements for her rental escrow account and her operating account did not reflect negative balances. Respondent's March 1998 bank statement for the rental escrow account had two overdrafts, one on March 19 and another one on March 20. She transferred $1,000 on March 2, 1998, and $8,000 on March 16, 1998, from her rental escrow account to her operating account. The $8,000 transfer resulted in a negative balance on Respondent's monthly statement reconciliation for her rental escrow account. Respondent made the transfers referenced above because she was in the State of Washington nursing her father when she was required to make disbursements from the rental escrow account. She claims that she went to see her father after receiving an emergency call that her father was gravely ill and that she grabbed her operating account checkbook to take with her. She did not have the rental escrow account checkbook with her so she transferred the money to her operating account and wrote the necessary disbursement checks from her operating account. Respondent flew home to Florida from the State of Washington for a few days in January 1998, and at the end of February and March 1998, before making her final trip home to Florida in April 1998. She did not explain why she did not pick up her rental escrow account checkbook on one of these trips so that she would not have to continue to disburse money from her operating account that should have been disbursed from her rental escrow account. More importantly, Respondent did not explain why her monthly statement reconciliations had negative balances. Respondent did not inform her clients that she was paying them from her operating account. The clients never noticed that Respondent paid them from the wrong account. All of the clients received the correct disbursements. Even so, Respondent knew she was not allowed to commingle funds in the two accounts and that she was required to keep all rental escrow funds in a separate account until disbursement was properly authorized. The instant case is not the only time that Respondent has been the subject of a disciplinary proceeding. She admitted during the hearing that Petitioner previously had cited her and "smacked her on the wrist" for not disbursing funds in a timely fashion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Department of Business and Professional Regulation, Division of Real Estate, enter a final order revoking Respondent's license. DONE AND ENTERED this 15th day of November, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2002. COPIES FURNISHED: Kenneth D. Cooper, Esquire 400 Southeast Eighth Street Fort Lauderdale, Florida 33316 Stacy N. Robinson Pierce, Esquire Department of Business and Professional Regulation 400 West Robinson Street Suite N308 Orlando, Florida 32801-1772 Buddy Johnson, Director Nancy P. Campiglia, Chief Attorney Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issues are whether Respondent, Sarasota Housing Authority (the Housing Authority), discriminated against Petitioner, Estella Smith (Ms. Smith), based on her disability in violation of the Florida Fair Housing Act (the Florida FHA), and, if so, the relief to which Petitioner is entitled.
Findings Of Fact Ms. Smith, a 52-year-old female, testified she participated in the Section 8 program for over ten years and never had any problems until she moved to Sarasota. Ms. Smith moved into the Sarasota rental unit in October 2009. The Housing Authority is a public housing authority that administers the Section 8 program, within Sarasota County, Florida, pursuant to 42 U.S.C. section 1437f. Under the Section 8 program, the Housing Authority uses funds, supplied by HUD, to pay a percentage of the monthly rent on a leased "unit" directly to the landlord. The Section 8 program tenant pays the balance of the monthly rent to the landlord. Ms. Smith executed a residential lease for a HUD- approved unit on September 5, 2009, to begin a one-year rental. Ms. Smith agreed to abide by all the terms and conditions of the residential lease, including the timely payment of rent and the number of occupants (one adult and one child) in the rental unit without the written consent of the landlord. On or about October 1, 2009, Ms. Smith moved from Tampa, Florida, to Sarasota, Florida, and resided at the rental unit, 3047 East Tamiami Circle, Apartment A, Sarasota, Florida. On September 8, 2009, Ms. Smith executed the Housing Authority's personal declaration/tenant information form. Under part three of this form labeled: "Family Members (including Head of Household) currently residing in unit," there were blank lines to be completed by Ms. Smith. The following information was requested: name; date of birth; social security number; disabled; Hispanic; race; and relationship. Ms. Smith (or someone at her direction) completed the form including information about herself and her sole dependant. Under the disabled heading on the line for Ms. Smith, the word "Pending" is written. Additionally, in part five of this form labeled: "Expenses," was a question, "Are you or your spouse age 62 or older and/or disabled?" Ms. Smith (or someone on her behalf) checked the box before "no" after this specific question. Ms. Smith testified she suffered a stroke sometime in 2009 and was physically affected by it. However, she was unable to reference the specific time frame except for prior to her "porting" back to Sarasota. Ms. Smith claimed to use both a walker and a wheelchair at various times since suffering the effects of the stroke. Further, she later testified that, when she was in her rental unit, the doorways were narrow but she could maneuver in it. During her initial interview with the Housing Authority in September 2009, Ms. Smith stated she was using a walker that day and never told anyone at the Housing Authority that she was disabled. Ms. Smith admitted she withheld the rent from the landlord. However, she claimed her refusal to pay the rent was based on the lack of heat in the rental unit and the suspension of her laundry room privileges. Ms. Smith further testified Bertha L. Pete (Ms. Pete) provided Ms. Smith with assistance in her daily living activities and started living in Ms. Smith's rental unit after Christmas or in late December 2009. A copy of Ms. Pete's Florida driver's license, which reflects Ms. Smith's rental unit address as Ms. Pete's residence as of January 27, 2010, was admitted into evidence. On February 10, 2010, Ms. Smith executed a request for a live-in aide with the Housing Authority. Ms. Smith named Ms. Pete to be her proposed live-in aide. The date stamp for the Housing Authority reflects that the request was received by the Housing Authority on February 17, 2010. Any proposed live- in aide has to meet the requirements imposed by the Housing Authority and HUD. Ms. Pete did not meet the requirements. Additionally, on February 17, 2010, Ms. Smith executed a verification of live-in aide form to be completed by her physician and returned to the Housing Authority. That completed form was never returned to the Housing Authority. Both parties produced an executed medical doctor's prescription with Ms. Smith's name as the patient. The hand-written notation on the prescription is "patient needs in home aid." This verbiage is not sufficient nor equivalent to the requirements listed on the verification form for a "live-in aide." The Housing Authority did not know that Ms. Smith needed a live-in aide when she completed her application in September 2009. Although Ms. Smith utilized a walker at the time of her initial interview with the Housing Authority, the Housing Authority did not know she was disabled at that time. It is not the Housing Authority's practice to inquire of someone's physical status, as that could be perceived as a discriminatory question. Sharla Frantz (Ms. Frantz), director of human resources for the Housing Authority, is the hearing officer for the Section 8 program. Ms. Frantz testified as to the process utilized in the Housing Authority's Section 8 program. Ms. Frantz testified that Ms. Smith made a request for assistance on January 27, 2010, regarding the lack of heat in her rental unit. The Housing Authority caused an inspection to be made that same day, and a deficiency was noted. The repair was completed, and the rental unit passed a follow-up inspection on February 28, 2010. However, at the time of her complaint, Ms. Smith did not discuss any other conditions or circumstances regarding the rental unit, nor was any request for a live-in aide made. On or about February 11, 2010, the Housing Authority was made aware of a possible unauthorized person living at Ms. Smith's rental unit, as well as her failure to timely pay rent. Several days later, the Housing Authority issued a letter to Ms. Smith detailing the reasons for her termination from the Section 8 program: an unauthorized person living in the rental unit and her failure to pay rent. Ms. Smith requested a hearing from the Housing Authority, which was held on March 2, 2010. As a result of the hearing, the Housing Authority issued a letter detailing the basis for Ms. Smith's termination from the Section 8 program: an unauthorized person living in the rental unit and her failure to pay rent. Ms. Smith was afforded time to prove that the rental amount was paid in full and that Ms. Pete did not live with her. Ms. Frantz testified that at the Housing Authority hearing, Ms. Smith wrote a check for the past due rental amount. However, Ms. Frantz never received proof that the payment was actually made to the landlord. Ms. Smith testified the landlord wanted the payment in cash; however, Ms. Smith did not feel comfortable paying the rent in cash, as it did not provide her with a receipt. The rent was never paid. After waiting several days, the Housing Authority issued another letter to Ms. Smith stating that Ms. Smith was terminated from the Section 8 program for two program violations. It further described that a lease agreement, brought in to the Housing Authority, did not substantiate her claim that an unauthorized person (Ms. Pete) was not living in Ms. Smith's rental unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Estella Smith in its entirety. DONE AND ENTERED this 17th day of August, 2011, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 17th day of August, 2011.
The Issue The issue is whether Islamorada Ordinance 01-05, which amended Policy 1-2.4.7 of Islamorada's comprehensive plan, is in compliance, as provided by Chapter 163, Part II, Florida Statutes.
Findings Of Fact Respondent Islamorada, Village of Islands (Islamorada), was incorporated on December 31, 1997. At the time of its incorporation, the Monroe County comprehensive plan applied to requests for development orders in the jurisdiction of Islamorada. After conducting a number of public hearings and workshops, Islamorada adopted its initial comprehensive plan by Ordinance 00-09 on January 24, 2001 (Plan). On March 15, 2001, Respondent Department of Community Affairs (DCA) published its Notice of Intent to Find the Islamorada Comprehensive Plan not in compliance with Chapter 163, Part II, Florida Statutes, which is the Local Government Comprehensive Planning Act (Act). DCA commenced Department of Community Affairs v. Islamorada, Village of Islands, DOAH Case No. 01-1216GM, to challenge the Plan. As the only parties to DOAH Case No. 01-1216GM, DCA and Islamorada entered into a Stipulated Settlement Agreement, under which Islamorada agreed to adopt certain remedial amendments. Consequently, on April 26, 2001, Islamorada adopted Ordinance 01-05, which contained the remedial amendments. On May 24, 2001, DCA published its Notice of Intent to Find the Comprehensive Plans and Remedial Comprehensive Plan Amendments in compliance with the Act. Consequently, on June 6, 2001, the Administrative Law Judge issued an Order Closing File in DOAH Case No. 01-1216GM. On the same day, Petitioner filed his Petition, which alleges that Policies 1-2.4.7 and 1-2.1.0 are not supported by data and analysis. Ordinance 01-05 did not change Policy 1-2.1.0. For the reasons noted in the Conclusions of Law, Petitioner therefore is unable to challenge Policy 1-2.1.0. With deletions stricken through and additions underlined, Ordinance 01-05 revised Policy 1-2.4.7 as follows: Policy 1-2.4.7: Limit Transient Rental Use of Residential Properties. Islamorada, Village of Islands shall continue to prohibit the transient rental use of 28 days or less, of residential properties within the Village, including properties located within the Residential Conservation (RC), Residential Low (RL), Residential Medium (RM), and Mixed Use (MU) Future Land Use categories, except in tourist commercial Zoning Districts as provided for under Policy 1-2.10 of this Plan. Transient rental use may be allowed continue in multi- family developments with 24-hour on-site security, excluding mobile home parks, in the Residential High (RH) FLUM categories based on an existing use as of May 1, 1999, upon a majority approval of all property owners within a mandatory owner association organized under Florida law, pursuant to the association requirements, and compliance with all applicable State regulations and Village codes. Property owners located in the RL, RM, RC and MU future land use categories with valid transient rental licenses as of May 1, 1999 will have until May 1, 2003 to cease rentals of 28 days or less. Owners of such properties shall register with the Village and shall demonstrate to the Village that: The transient use of 28 days or less of the property in question was existing as of May 1, 1999, and continues to exist; All State and local licenses necessary for the conduct of transient rental use of the property have been secured; and All impact fees have been paid. Property owners permitted transient rental use pursuant to this Policy shall lose their privileges and retire their licenses prior to May 2, 2003 upon: Transfer of ownership of the property at which the transient rental activity takes place; or A combination of two of the any of the following being recorded: Code Violations as determined by the Hearing Officer and/9or Sheriffs Field Contacts and/or substantiated written letters of complaint from neighbors submitted and on record with the Village. the property being determined by nonappealable Final Order on more than two (2) occasions to have violated the Village Code. After Islamorada adopted Ordinance 01-05, Petitioner filed his petition challenging Policy 1-2.4.7. After Petitioner filed his petition, Islamorada adopted Ordinance 01-11, which repealed the amendments contained in Ordinance 01-05 and restored Policy 1-2.4.7 to its original form. However, Islamorada adopted Ordinance 01-11 on July 24, 2001--three weeks prior to the start of the hearing in this case. DCA had not yet issued a notice of intent, and the amended plan language was therefore largely irrelevant in this case. For the same reasons, as explained in the Conclusions of Law, that Petitioner may not challenge Policy 1-2.1.10, he may not challenge Policy 1-2.4.7; Petitioner's challenge is limited to the revisions contained in Ordinance 01-05. The revisions contained in Ordinance 01-05 relax the restrictions governing transient rentals, as contained in the original Plan. In its original form, Policy 1-2.4.7 required the cessation of transient rentals not in compliance with the policy by the earliest of: a) May 1, 2003, b) the conveyance of the rental property, or c) a combination of two Code violations or verified neighborhood complaints. The revisions eliminate the conveyance as an event terminating the right to enter into transient rentals, so, after the adoption of Ordinance 01-05, affected property owners could convey residences without depriving their grantees of the right to make transient rentals prior to May 1, 2003. The revisions also eliminate verified neighborhood complaints as a basis for the loss, prior to May 1, 2003, of the right of affected property owners to make transient rentals prior to May 1, 2003. The ruling that Petitioner may not challenge Policy 1-2.4.7 in its original form moots Petitioner's case. It is evident that Petitioner does not oppose the relaxation of restrictions on transient rentals, as achieved by Ordinance 01-05. In any event, data and analysis amply support the decision of Islamorada to relax the restrictions that it had imposed upon transient rentals. Neighborhood complaints supply a nebulous standard, and substantiation of such complaints, without defining the extent of verification, provides little more guidance. Legal counsel supported the elimination of the restriction on conveyances. Given the close proximity of the ultimate compliance deadline, the restriction on conveyances probably did not substantially affect the market value of affected properties, so Islamorada could find data and analysis supporting the inclusion or exclusion of this condition shortening the timeframe for compliance upon the sale of an affected residence. Even if Petitioner had timely challenged Policy 1-2.4.7, in its original form, data and analysis support the planning decision of Islamorada to restrict transient rentals. Transient rentals in residential neighborhoods facilitate a constant churning of home occupants. To the extent that this process displaces longer-term occupancy, transient rentals impede the process by which neighborhoods and communities form and residents in these neighborhoods and communities connect with each other. The commodification of neighborhoods in the service of tourism provides positive economic development to those property owners seeking to make transient rentals. However, to some extent, these economic gains are offset by those residents who wish to sustain less economically intense lifestyles. The desires of such residents may be ill-served by local merchants who price their goods to the more economically intense lifestyle of the tourist or by the replacement of more prosaic retailers, such as hardware stores, with the more ephemeral retailers, such as t-shirt stores. To find support in data and analysis, the community envisioned by Islamorada in its Plan is not required to achieve the highest and best use for the greatest number of owners of property or the owners of the greatest area of property within the village's planning jurisdiction. On this record, data and analysis clearly support the planning decision initially made by Islamorada in adopting Policy 1-2.4.7, as well as the planning decision later made by Islamorada in relaxing the restrictions contained in this policy.
Recommendation It is RECOMMENDED that the Department of Community Affairs enter a final order dismissing Petitioner's challenge to Ordinance 01-05 and finding the amendments contained in the ordinance to be in compliance with Chapter 163, Part II, Florida Statutes. DONE AND ENTERED this 16th day of November, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 16th day of November, 2001. COPIES FURNISHED: Steven M. Seibert Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100 Charles Rossignol 253 Tollgate Boulevard Islamorada, Florida 33036 Nancy Stroud Weiss Serota Helfman Pastoriza & Guedes, P.A. 3107 Stirling Road, Suite 300 Fort Lauderdale, Florida 33312 David L. Jordan Deputy General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 John R. Herin, Jr. Weiss, Serota, Helfman, Pastoriza & Guedes 2665 South Bayshore Drive Suite 420 Miami, Florida 33133
