Findings Of Fact On or about March 13, 1986, Petitioner applied to Respondent for a conditional use permit to allow the package sale of alcoholic beverages in a convenience store at 410 through 422 North Belcher Road, Clearwater, Florida. The property is located in a general commercial district. On or about April 15, 1986, the Planning and Zoning Board of the City of Clearwater denied Petitioner's application and on April 28, 1986, Petitioner timely appealed that decision. Petitioner's property is immediately adjacent to Faith Bible Church which operates Suncoast Christian School with approximately 120 students through the sixth grade, and the property is across the street from Trinity Baptist Church which operates a school with approximately 200 preschool through first grade students. The subject property is within 500 feet of the property of both of these churches, and there are two additional churches in the neighborhood. Richard Tobias, property appraiser, testified that convenience stores such as the one Petitioner proposes do not enhance the properties in their immediate vicinity, although they are generally an asset to the neighborhood as a whole due to the convenience of local shopping. Public witnesses expressed concern about the proximity of the proposed convenience store to churches and schools because of litter problems which they feel could develops as well as public drinking in the store parking lot. The use and enjoyment of such church and school properties will be adversely affected if the conditional use is approved, accordingly to the testimony and evidence presented by public witnesses. Petitioner, as property owner, plans to lease the subject property to Carlos Yepes, President of Clay Oil Enterprises, for the operation of the convenience store. Yepes operates seven other stores which sell beer and wine, and according to Denise Williams, leasing agent, there have been no neighborhood or police complaints concerning Yepes' operations.
The Issue The issue is whether Respondent, Agency for Persons with Disabilities (Agency), had a reasonable basis in law and fact to initially deny Petitioner's application for a license to operate a group home, or whether other circumstances were present that would make an award of attorney's fees and costs unjust within the meaning of section 57.111(1)(e), Florida Statutes (2015).
Findings Of Fact Respondent is the state agency that licenses group homes pursuant to section 393.067. On June 13, 2014, Petitioner's corporate agent, Lavonda Hargrove, filed with the Agency an application for licensure to operate a group home facility in Wesley Chapel, Florida. Relevant to this dispute is a requirement by the Agency that if the applicant does not own the property on which the facility will be located, it must submit a copy of a fully-executed landlord/tenant lease agreement with the application packet. Petitioner did not own the property on which the facility would be operated and was required to comply with this requirement. The initial application packet filed with the Agency was missing a number of required items and some questions on the application were left blank. However, as found by Judge Crapps, a copy of an undated and partially signed residential lease agreement was submitted with the application. As noted below, its whereabouts are unknown. On July 29, 2014, or more than 30 days after the application was filed,1/ Myra Leitold, a Residential Program Supervisor in Tampa who reviewed the application, emailed Hargrove and informed her that the application had "to be completed in its entirety" and described areas of the application that required additional information. Leitold also attached to the email a generic checklist of 36 required documents for an initial license application, one of which was a "Landlord Agreement/Lease." While she identified some, but not all, of the items on the checklist that were missing, she did not specifically mention that a landlord agreement/lease had not been filed. In response to the email, on September 12, 2014, Hargrove submitted a second application with the supplemental information requested in Leitold's email. Because a lease agreement had already been submitted with the first application, and no mention of one was made in Leitold's email, it is reasonable to assume that this was the reason why Hargrove did not submit another copy with her second application. To make sure that her application was complete, on September 17, 2014, Hargrove emailed Leitold and stated the following: This is a follow up email to confirm your receipt of requested items for licensure of the Wesley Chapel home at 31733 Baymont Loop. Please advise if additional information is needed. Also, do you have any idea when you will be available to inspect the home? In response to Hargrove's email, Leitold promptly sent an email stating as follows: I did receive the documents forwarded last week however, have not had an opportunity to review them. I should be able to get to them in the next week or two. After her review of the second application was completed, Leitold believed it was still incomplete because there was no lease agreement in the packet. At the underlying hearing, Leitold acknowledged that it was possible the lease agreement had been filed with the initial application on June 13, 2014, but thought it unlikely the Agency had lost the document. As found by Judge Crapps, however, an agreement was filed but its whereabouts are unknown. In any event, Leitold did not advise Hargrove that her application was still incomplete. Instead, she forwarded the second application, without a lease agreement, to the Central Office in Tallahassee for final disposition. Applications are sent to Tallahassee only if they are incomplete or involve pending violations by the applicant; otherwise, action on the application is made at the local level. Incomplete applications are always denied, and Leitold knew that when the application was forwarded to Tallahassee, this would be the final disposition of the matter. After the application packet was reviewed by the Central Office in Tallahassee, with no executed lease agreement, on October 6, 2014, the Agency issued its Notice of License Application Denial for Group Home (Notice) based upon the ground that it did not include a lease agreement. (Presumably, the application satisfied all other licensing requirements.) Two Agency employees in Tallahassee who reviewed the application, Kim Walsh and Tom Rice, testified without dispute that a lease agreement is an essential part of an application, and without the document, they had no choice under the law except to deny the application. Neither Walsh nor Rice had knowledge that a partially executed and unsigned lease agreement had been submitted with the first application but was apparently lost or misplaced, or that Lietold had failed to notify Hargrove that this specific item was missing before the packet was sent to Tallahassee. On October 23, 2014, Hargrove requested a hearing to contest the decision. Although she was knew why the application was denied, in her request for a hearing, Hargrove did not indicate any specific material facts in the Notice that were in dispute. Moreover, she never indicated that a lease agreement had been filed with her initial application. According to Mr. Rice, the Agency's Program Administrator, had Hargrove disclosed this fact in her request for a hearing or brought it to the attention of Agency personnel in a timely manner, the matter could have been resolved without a hearing. A formal hearing was conducted by Judge Crapps on February 24, 2015. Just prior to the hearing, a lease agreement was provided to the Agency in the form of a proposed exhibit. Because it was not fully executed, the case was not settled, and an evidentiary hearing was conducted. At the hearing, Hargrove testified that the fully executed lease agreement was at her home. In his Recommended Order, Judge Crapps accepted Hargrove's testimony that a lease agreement had been filed with the initial application but made no finding as to what happened to the document. Even if the agreement was lost by the Tampa office, or was not fully executed, he observed that the Agency did not notify Hargrove within 30 days after the application was filed of any apparent errors or omissions, as required by section 120.60(1). For this reason, he deemed the application complete by operation of law. He also criticized the Agency for failing to specifically identify the missing lease agreement in its email sent on July 29, 2014. He recommended that the Agency reconsider the application and make a decision to approve or deny. The Agency's Final Order adopted the Recommended Order without change and approved the application.
The Issue Appellant raises three issues on appeal: (1) whether the Commission departed from the essential requirements of the law by determining that VOF's proposed swimming pool is not part of a "resort hotel"; (2) whether the Commission departed from the essential requirements of the law by determining that VOF's proposed swimming pool is an inappropriate use in the Destination Resort (DR) zoning district; and (3) whether the Commission denied VOF due process by allowing Intervenors to present evidence at the Commission hearing on July 13, 2011. For the reasons expressed below, the Commission did not depart from the essential requirements of the law when it rendered Resolution No. P29-11, and it did not deny VOF due process during its hearing.
The Issue Whether the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Respondent or Division), should deny West Flagler Associate, Ltd.’s (Petitioner or West Flagler) June 30, 2015, and July 1, 2015, applications for new summer jai alai permits under section 550.0745, Florida Statutes.
Findings Of Fact The Division is the state agency charged with regulating pari-mutuel wagering activities in Florida pursuant to chapter 550. West Flagler is the owner of pari-mutuel permits and is authorized to conduct pari-mutuel pools on exhibition sports in Miami-Dade County pursuant to chapter 550. There are seven pari-mutuel permits for pari-mutuel pools on exhibition sports in Miami-Dade County. The permitholders are South Florida Racing Association, LLC (Hialeah Park)(“SFRA”); Fronton Holdings, LLC (Miami Jai Alai); Summer Jai Alai Partnership; West Flagler Associates, Ltd. (Flagler Dog Track); Calder Race Course, Inc.; Tropical Park, LLC; and West Flagler Associates, Ltd. (Magic City Jai Alai). Summer Jai Alai Partnership is the holder of a summer jai alai permit. West Flagler currently possesses a summer jai alai permit in Miami-Dade County. On June 30, 2015, West Flagler filed the June Application, pursuant to section 550.0745, for a “new permit” to conduct summer jai alai in Miami-Dade County. West Flagler’s June Application was based on its conclusion that a new summer jai alai permit was available because SFRA had the smallest total pool or handle in Miami-Dade County for two consecutive fiscal years, i.e., state fiscal years 2012/2013 and 2013/2014, and that SFRA declined to convert its pari-mutuel permit to a permit to conduct summer jai alai. On July 1, 2015, West Flagler filed the July Application, pursuant to section 550.0745, for a “new permit” to conduct summer jai alai in Miami-Dade County. West Flagler’s July Application was based on its conclusion that a new summer jai alai permit was available because SFRA again had the smallest total pool or handle in Miami-Dade County for two consecutive fiscal years, i.e., state fiscal years 2013/2014 and 2014/2015, and that SFRA again declined to convert its pari- mutuel permit to a permit to conduct summer jai alai. On July 14, 2015, the Division denied the June Application on the grounds that there was not a summer jai alai permit available for fiscal years 2012/2013 and 2013/2014 because SFRA did not have the smallest play or total pool in Miami-Dade County for those two consecutive years. The Division maintains that West Flagler (Magic City Jai Alai) had the smallest total pool in 2012/2013 and Summer Jai Alai Partnership had the smallest total pool in 2013/2014. That basis for the denial remains the position of the Division in this proceeding. On December 7, 2015, the Division issued an amended notice of denial that modified the denial of the July Application from one based on there being no lowest handling pari-mutuel permitholder for consecutive fiscal years 2013/2014 and 2014/2015, to one based on the grounds that 1) “West Flagler is incapable of converting its summer jai alai permit to a summer jai alai permit because there would not be an actual conversion as contemplated by statute”; and 2) “West Flagler has not shown that the issuance of a summer jai alai permit to West Flagler, which already holds a summer jai alai permit, would generate an increase in total state revenue over the revenue West Flagler generates under its current, identical permit.” West Flagler’s June Application does not seek to convert its existing summer jai alai permit to a summer jai alai permit. Rather, the application is predicated upon the creation of a new summer jai alai permit when SFRA declined to convert its pari-mutuel permit to a permit to conduct a summer jai alai fronton. West Flagler’s July Application does not seek to convert its existing summer jai alai permit to a summer jai alai permit. Rather, the application is predicated upon the creation of a new summer jai alai permit when SFRA declined to convert its pari-mutuel permit to a permit to conduct a summer jai alai fronton. The disagreement between the parties regarding the June Application revolves around whether “simulcast export” wagers should be included in calculating a permitholder’s “play or total pool within the county” for purposes of section 550.0745(1). The Division argues that a permitholder’s total pool includes live wagers, intertrack wagers, and simulcast export wagers. West Flagler argues that a permitholder’s total pool includes only live wagers and intertrack wagers.1/ A live wager is a wager accepted at a permitted Florida facility on a race or game performed live at that facility. Permitholders derive income, in the form of a commission, on live wagers placed at their facilities. Permitholders pay taxes on live wagers. An intertrack wager is a wager accepted at a permitted Florida facility on a race or game transmitted from and performed live at, or simulcast rebroadcast from, another permitted Florida facility. Permitholders derive income, in the form of a commission, on wagers placed at other Florida facilities on races or games transmitted from the permitholder’s facilities. Permitholders pay taxes on intertrack wagers. A simulcast wager is a wager placed at a Florida facility on an out-of-state race transmitted to the Florida facility. Permitholders pay taxes on simulcast wagers. An intertrack simulcast wager is a wager placed at a Florida guest track on an out-of-state race transmitted by the out-of-state track to a Florida host track, and then re- transmitted by the Florida host track to the Florida guest track. Permitholders pay taxes on intertrack simulcast wagers. A simulcast export wager is a wager accepted at an out-of-state facility on a race or game performed live at a permitted Florida facility. Permitholders derive income, in the form of a commission, on simulcast export wagers accepted by out-of-state facilities on races or games transmitted from the permitholder’s facilities. The Division does not know the commission structure between the permitholders and out-of-state facilities. Permitholders do not pay taxes on simulcast export wagers, and the state receives no revenue from simulcast export wagers. In sum, live wagers, intertrack wagers, simulcast wagers, and intertrack simulcast wagers are those placed at Florida pari-mutuel facilities, and subject to Florida taxation. Simulcast export wagers are those placed on Florida events at out-of-state facilities, and not subject to Florida taxation. Licensed betting facilities across the country -- and generally across the world -- contract with a licensed totalisator (the “tote”)2/ by which all wagers are accounted for. Data on all wagers placed on a hosting permitholder’s event (with uncommon exceptions when an out-of-state facility receiving a hosting permitholder’s simulcast broadcast forms its own pool) are sent by the tote to the hosting permitholder to be included in its total price pool, and used to determine payouts on winning wagers. The totes also capture simulcast export wagers for use in calculating the commission paid by the guest tracks. A permitholder’s pool amounts are reported to the Division by the tote company on a daily basis. The daily tote report includes live, simulcast, intertrack, intertrack simulcast, and simulcast export wagers. The daily tote reports are reviewed by the Division’s auditing section to ensure that wagers are accounted for and paid. The Division maintains a central monitoring system by which it captures the daily amounts for all wagers from the daily tote reports, and compiles them up to produce a cumulative report. A permitholder’s pool amounts are also reported to the Division directly by the permitholder in monthly pari-mutuel reports, and annual financial statements. The monthly reports and annual financial statements are reviewed by the Division’s revenue section. Since simulcast export wagers are not taxed by Florida, the Division’s monthly report and annual financial statement forms do not include simulcast export wagers as part of the facility’s handle. Due to the combination of low overall handles, and tax credits available for net operating losses, jai alai facilities (as opposed to cardrooms operating therein) do not generate any tax revenues for the state. Thus, the only revenues derived by the state from jai alai facilities are the $40 per game daily license fees and 15-percent admission tax required by section 550.0951. The parties stipulated that the Third District Court of Appeal considered only live wagers and intertrack wagers in its analysis of whether the “smallest play or total pool within the county” included only wagers physically placed within Miami- Dade County, as reflected in the Court’s opinion in South Florida Racing Association v. Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, So. 3d , 2015 Fla. App. LEXIS 11334, 2015 WL 4546935 (Fla. 3d DCA July 29, 2015).3/ If simulcast export wagers are excluded from a pari- mutuel facility’s play or total pool within Miami-Dade County, SFRA had the smallest total handle in Miami-Dade County for the 2012/2013 state fiscal year. If simulcast export wagers are included in a pari- mutuel facility’s play or total pool within Miami-Dade County, West Flagler Associates, Ltd. (Magic City Jai Alai) had the smallest total handle in Miami-Dade County for the 2012/2013 state fiscal year. If simulcast export wagers are excluded from a pari- mutuel facility’s play or total pool within Miami-Dade County, SFRA had the smallest total handle in Miami-Dade County for the 2013/2014 state fiscal year. If simulcast export wagers are included in a pari- mutuel facility’s play or total pool within Miami-Dade County, Summer Jai Alai Partnership had the smallest total handle in Miami-Dade County for the 2013/2014 state fiscal year.4/ If simulcast export wagers are excluded from a pari- mutuel facility’s play or total pool within Miami-Dade County, SFRA had the smallest total handle in Miami-Dade County for the 2014/2015 state fiscal year. If simulcast export wagers are included in a pari- mutuel facility’s play or total pool within Miami-Dade County, Summer Jai Alai Partnership had the smallest total handle in Miami-Dade County for the 2014/2015 state fiscal year. Regardless of whether out-of-state simulcast export wagers are included in the calculation of facilities’ “play or total pool,” a single pari-mutuel facility (either SRFA or Summer Jai Alai Partnership) had the smallest play or total pool within Miami-Dade County for the consecutive 2013/2014 and 2014/2015 state fiscal years. The Division did not notify West Flagler of any apparent errors or omissions in its July Application. The Division did not request that West Flagler provide any additional information with its July Application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that West Flagler Associate, Ltd.’s, June 30, 2015, and July 1, 2015, applications for new summer jai alai permits be DENIED. DONE AND ENTERED this 20th day of June, 2016, 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 20th day of June, 2016.
The Issue The issue in this case was to have been whether the evidence sustains the decision of the City of Clearwater Planning and Zoning Board to deny the application of the Appellant for a conditional use permit to sell alcoholic beverages for consumption at the Gallery Restaurant on Sand Key if a outside deck is added to the facility. However, a threshold issue is whether an appointed hearing officer has jurisdiction to decide the case.
Findings Of Fact The Appellant's desire to expand its Gallery Restaurant by adding an outside deck necessitated the filing of an application for a conditional use permit. The application was filed in August, 1994. The matter was presented to the Planning and Zoning Board (the Board) for decision at its meetings on October 18, November 1, and December 13, 1994, but was continued each time. Finally, at its meeting on February 14, 1995, the Board considered and voted to deny the application. On February 23, 1995, a Notice of Appeal was filed with the City Clerk for the City of Clearwater.
Findings Of Fact Adopted in subsentence in Finding of Fact 6. Adopted in subsentence in Finding of Fact 3 and 8. Adopted in subsentence in Finding of Fact 8. Addressed in Conclusions of Law section. Addressed in Conclusions of Law section. Rejected as unnecessary and/or subordinate. Rejected as unnecessary and/or subordinate. Rejected as a recitation of testimony and/or unnecessary. Rejected as a recitation of testimony and/or unnecessary. COPIES FURNISHED: Ruby Seymour-Campbell, Esquire 5739 Pembroke Road Hollywood, Florida 33023 Michael Mathis, Esquire Office of Licensure and Certification Post Office Box 210 Jacksonville, Florida 32231 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 John Miller Acting General Counsel 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Petitioner's application for re-licensure as an Adult Congregate Living Facility (ACLF) be dismissed as moot. DONE and ORDERED this 1st day of May 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 1st day of May 1987. APPENDIX TO RECOMMENDED ORDER FOR DOAH CASE #86-3671 The following my specific rulings pursuant to Section 120.59(2), Florida Statutes on all of the Proposed Findings of Fact submitted by the parties to this case.
The Issue The issue in this case is whether Resolution No. P9-96 of the Monroe County Planning Commission should be affirmed, reversed, or modified.
Recommendation It is hereby RECOMMENDED that a consumptive use permit in accordance with Application No. 76-00370 be issued with the conditions as set forth in paragraph 3. ENTERED this 26th day of May, 1976, in Tallahassee, Florida. COPIES FURNISHED: Jay T. Ahern, Esquire Staff Attorney Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 Warren H. Hilger 137 South Highway 19 Crystal River, Florida 32629 Dee J. Roy, Jr. Post Office Box 352 Mt. Carmel, Illinois 62863 CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675
Findings Of Fact On or about September 23, 1986 Garth DuQuesnay, lessee, filed an application for conditional use approval with Respondent for on-premises consumption of alcoholic beverages (4-COP) at 735 South Bayway Boulevard, Clearwater Beach, Florida. (Bayside Shores, Block C, Lots 1-10). The property in question is zoned beach commercial, "CB", and this application was numbered CU-86-83. Donna and William Kebort are owners of the real property in question, and at the time of this application DuQuesnay was their lessee, as well as the owner and operator of a business known as Dock of the Bay located on the subject real property. DuQesnay sought the conditional use approval which is the subject of this appeal because he had not been able to maintain at least 51 percent food sales at Dock of the Bay. He was operating at the time with a 4-COP-SRX approval which requires at least 51 percent food sales. The 4-COP approval sought herein does not require at least 51 percent food sales. The property in question is separated from residential property on two sides by streets. This residential area includes condominiums and residential motels. On the two remaining sides, the subject property is separated by streets from hotels, a Pick-Kwick Store, and a small shopping area. Some of the hotels have lounges and bars. The subject property lies generally between these hotels and the residential area such that the subject property is closer to the residential area than the hotels which have lounges and bars. The subject property is within two hundred feet of the residential area. The Planning and Zoning Board denied Petitioners' application for conditional use approval on October 14, 1986 on the grounds of incompatibility with residential areas. The evidence establishes that at the time this application was considered by the Board, noise, unruly customer behavior, hours of operation and the proximity of Dock of the Bay to the residential area made this business incompatible with these residential uses. Shortly after the October 14, 1986 meeting of the Planning and Zoning Board when Petitioner's application for 4-COP approval was denied, DuQuesnay sold his interest in Dock of the Bay Restaurant to Adriano Battaglini, and DuQuesnay has no present interest in the subject property, fixtures, equipment or inventory thereon, except as a secured creditor. On October 26, 1986 Battaglini applied for conditional use approval to maintain a family restaurant on the subject property, with at least 51 percent food sales (4-COP-SRX), and the application was approved by the Planning and Zoning Board on November 18, 1986. Battaglini's application and conditional use approval was numbered CU-86-94. Donna Kebort was shown as property owner on Battaglini's application.
Recommendation It is hereby RECOMMENDED that the consumptive use permit as applied for be granted subject to the conditions set forth in paragraph 3. DONE and ORDERED this 14th day of July, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 Everett Kinlock City of Bartow 250 North Central Avenue Bartow, Florida 33830
