The Issue The issues are whether Petitioner William Howard Solomon and Intervenor Mandarin Community Club have standing to challenge Respondent Florida Communities Trust's decision to approve an amendment to the management plan for a historical park, owned and operated by the Intervenor City of Jacksonville, and if so, whether Respondent Florida Communities Trust properly exercised its discretion to approve that decision.
Findings Of Fact In 1993, the City applied to FCT for grant monies to acquire approximately 10 acres of land for the Park, which is located on the St. Johns River in a suburb of the City commonly known as "Mandarin." This project was assigned FCT Project No. 93-006-P3A. The original management plan for the Park stated that the City was acquiring the Park for the purposes of: (a) preserving and protecting natural vegetation; (b) providing environmental and historical education; and (c) providing passive resource-based outdoor recreation. On or about September 28, 1994, FCT approved the City's original management plan for the Park, which states as follows in part: Introduction This site is located on County Dock Road, accessible from Mandarin Road in the area of Jacksonville known as Mandarin. Submitted as County Dock Historical Park, the park will be officially known as Walter Jones Park. The main purpose for the acquisition of this site is to preserve the historic home. This home was built around 1875 and includes contributing structures on the site such as the cypress barn, dated 1876, and outbuildings. . . . The intent of the City is to provide a one- day tour in the Mandarin area which will include historic sites and structures along Mandarin Road. The focus of the tours will be on the interpretation of the park in relation to the history of the Mandarin area. * * * Currently located on the project site are three houses. The house which fronts Mandarin Road [hereafter referred to as the 1939 house] is appropriate housing for a security person. The second house is in disrepair and will need to be demolished. The third house is the historic Major William Webb home. The management of the project will center around the Webb home and historical aspects of the Mandarin area. * * * The City will request written approval from the Florida Communities Trust before undertaking any site alterations or physical improvements that are not addressed in the original approved management plan. * * * . . . The City is proposing a contractual agreement with the Museum of Science and History for the management of this site. . . . * * * . . . Security will be provided by an on- site manager located at the entrance of the project site. Security personnel generally consist of police officers which would provide on-site security and in turn, reside at the site [in the 1939 house]. The overall goal of the historic education is to teach the historical aspects of the site as well as the Mandarin area in general. The historic home was built circa 1875 and subsequently, a citrus operation and pier for loading crops on barges was in use. . . . It is anticipated that as an interpretive site, this project may be phased to include first an outdoor passive interpretation and, at a later date, active interpretation if deemed appropriate based on the first year assessments. These first year assessments will determine specific historic education programs based on the time period selected for interpretation. The long-term objective is to provide outdoor passive interpretation which would be coordinated with other historic sites in Mandarin. . . . . . . This project is the site of the historic Major William Webb home, along with several remaining outbuildings. . . . The significance of this site is not only in the home, but also in the presence of the contributing structures and the relationship to the Mandarin community of the 1880's. . . . . . . The Museum of Science and History is interested in a satellite facility to their downtown Jacksonville location. Management of the site would be coordinated with the Museum, acting as the managing entity for the physical maintenance and as coordinators of the education programs and volunteer staff. Several community groups are available and willing to assist in the project; Mandarin Community Club, Mandarin Women's Club, Mandarin Garden Club, and Mandarin Historical Society. In November 1994, the City's Planning and Development Department, together with the Honorable Dick Kravitz, Councilman, filed an application for designation of the Park as a landmark or landmark site with the Jacksonville Historic Preservation Commission (hereafter referred to as JHPC). This application indicates that the "period of significance" for the Park is 1875 through 1945. The application describes the 1939 house, also known as the Mandarin Road House, as follows in part: Located near the northwest corner of Mandarin Road and County Dock Road is a one and one half story wood frame house with horizontal wood siding. Facing Mandarin Road, this house features a small gable stoop porch, two gable dormers, and a porte cochere on the east side. . . . The actual construction date of this bungalow with Colonial Revival influences has not been determined. However, in 1933, eight lots were platted along Mandarin Road, and filed as the Edith Jones Subdivision. The house, based on its style, material and method of construction, was probably constructed in the 1930's. . . . Around 1995, the City contracted with the University of Florida, College of Architecture, to document and research the various buildings located at the Park. Hershel Shepard, an architect and professor at the University of Florida, participated in the study and assisted in the preparation of a report, detailing the historical research of the extant structures at the Park. The report did not reference the 1939 house as a structure needing preservation. Professor Shepard and his associates did not perform any formal study or cost benefit analysis regarding the possibility of the City building a museum behind the 1939 house. On or about August 27, 1998, FCT approved a revised management plan for the Park. Under the revised plan, the City identified the 1939 house as being appropriate for possible future use as a museum and visitor center operated by the Mandarin Museum and Historical Society (hereafter referred as MMHS). The revised plan stated the City's intention to obtain a satisfactory historic house to be moved to the project site to house security personnel. The City intended to locate the additional historic home facing County Dock Road, on or near the location of the demolished John Woolfe house, otherwise known as the "Butterfly House." The placement of the security residence on the site of the demolished John Woolfe house would provide closer protection for the historic Walter Jones farm structures located near the river and the county dock on the river. Moreover, placement of the security residence at the proposed site did not interfere with the final park design that restricts the location of park amenities relating to identified wetlands and a conservation easement resulting from mitigation of wetlands impacted by a proposed pedestrian trail and boardwalks. The City was unable to locate a suitable home that it could move to the proposed site to serve as a security residence. Additionally, low overhanging live oaks on Mandarin Road made a move to the proposed site by land impossible, and the water depth at the county dock would not allow access by barge. In the meantime MMHS found the 1939 house to be unsuitable for use as a museum and visitor center for the following reasons: (a) the rooms of the house are very small; the front door cannot be opened fully because of the placement of the stairs; (c) there is no handicapped accessibility; and (d) the structure basically would have to be gutted for use as a public building. Consequently, MMHS proposed that the 1939 house, which was already located on the site and being used as the residence of the security officer, be moved approximately 250 feet to the approved site for the security residence. MMHS also suggested that the City construct a new, site-specific structure for the museum and visitor center. The City's Department of Parks, Recreation and Entertainment (hereafter referred to as the Parks Department) sought the approval of JHPC in Certificate of Appropriateness (COA) No. 99-17 to relocate the 1939 house to the vacant site of the demolished John Woolfe house facing County Dock Road. The City's Planning and Development Department prepared a staff report dated January 27, 1999, recommending that JHPC approve COA-99-17. The report states as follows in part: Although constructed during the period of significance (1875-1945) identified in the Landmark and Landmark Site designation of the Major William W. Webb Farm, A/K/A, the Walter Jones Farm . . . the c. 1939 house was built on one of the eight lots along Mandarin Road subdivided by Edith Jones in 1933. Because of its age, style, and materials, the c. 1939 house is distinctive architecturally and historically from the pre-1900 farm buildings. Therefore it is the opinion of the Planning and Development Department that the c. 1939 house could be relocated to face County Dock Road without significantly impacting the remaining historic buildings located at the park. JHPC subsequently considered COA-99-17, decided not to approve relocation of the house, then rescinded its decision and tabled COA-99-17 as an agenda item. Early in February 1998, Jerry Spinks, as Chairman of JHPC, contacted Leslie Keys, Historical Resources Administrator in the St. Augustine Regional Office of the Department of State, Division of Historical Resources (hereafter referred to as DHR). Mr. Spinks asked Ms. Keys to review the JHPC's tabled agenda item, COA-99-17, including the Planning and Development Department's staff report. In a letter dated February 8, 1999, Ms. Keys stated as follows in part: . . . While this building has merit as an example of 1930s frame vernacular building construction, it is outside the period of significance for the farm. In other words, this building does not assist in the understanding and portraying [of] the 19th century farm complex--which is the unique and important aspect of the property. * * * The city is to be commended for preserving the building and reusing it. The relocation recognizes that a building of another historic period, the early 20th century, can contribute to the site in a secondary capacity. On or about May 12, 1999, the City's Parks Department filed new applications with JHPC for COAs, seeking the following: (a) in COA-99-159, to relocate the 1939 house to the vacant site of the demolished John Woolfe house facing County Dock Road within the boundaries of the Park; and (b) in COA-99- 160, to construct a museum/education center within the Park. The application for COA-99-159 included cost comparisons for the following: (a) in Option 1, renovation of the 1939 house for use as a museum and educational center and building a new house for a security residence; and (b) in Option 2, moving the 1939 house for continued use as a security residence and building a new use appropriate museum and education facility. The total cost for Option 1 was $291,126. The total cost for Option 2 was $266,000. A report from Historic Property Associates, Inc. was attached to the application for COA-99-159 as Exhibit A. This report supported the City's position that relocation of the 1939 house would not impact any properties listed or eligible for listing on the National Register of Historic Places. The City's Planning and Development Department issued a staff report dated May 26, 1999. This report recommended that the JHPC approve COA-99-159. On June 23, 1999, the JHPC conducted a public hearing on the Parks Department applications. During this quasi- judicial proceeding, numerous persons testified for and against the proposed relocation of the 1939 house. At the close of the hearing, the JHPC voted to approve the COAs. Mr. Solomon appealed the JHPC's decision to the City's Urban Affairs and Planning Committee (hereafter referred to as UAPC). On September 21, the UAPC conducted a public hearing to review the JHPC's approval of COA-99-159 and COA-99-160. During the quasi-judicial proceeding, the UAPC considered the record made before the JHPC and heard additional testimony for and against the relocation of the 1939 house from many witnesses. The testimony included the reading of portions of the February 8, 1999, letter written by Ms. Keys. At the conclusion of the hearing, the UAPC voted to affirm the JHPC's decision to relocate the 1939 house. The UAPC 's decision was thereafter appealed to the full Jacksonville City Council, which heard the matter on September 28, 1999. The City Council voted to affirm the decisions of the JHPC and UAPC. The City Council adopted Resolution 1999-880-A, which constituted final agency action approving COA-99-159 and COA-99-160. Ms. Karen Jones-Roumillat is the great-granddaughter of Walter Jones. By letter dated September 28, 1999, Janet Matthews, Chief of the Bureau of Historic Preservation, DHR, and State Historic Preservation Officer, replied as follows, in part, to an inquiry from Ms. Jones-Roumillat: Thank you for your letter regarding the relocation of the 1939 House within the Walter Jones Historical Park, which incorporates the Major William W. Webb Farm that dates from the 1870s. . . . The information available to this office indicates that the period of significance for the Major William W. Webb Farm identified in the local designation report is 1875 to 1945. Given the construction date with the period of significance and the apparent high degree of physical integrity of the 1939 House, it must be considered to contribute to the significance of the property. On that basis, the 1939 House is potentially eligible for the National Register as a contributing building in that historic complex. According to the National Register criteria for evaluation, historic significance is embodied in location and setting as well as in the individual buildings and structures that contribute to it. The National Park Service advised that relocation of an historic property may adversely affect its historic significance, often rendering it ineligible for listing on the National Register. Because the 1939 House is considered to be a significant element of the historic development of this site, its relocation must be considered to have an adverse effect on the overall significance of the property. For this reason, as well as best preservation practice advice, the 1939 House should be retained on its original site. It is acknowledged, however, that the focus of the "archaeological and historical resource" component of the approved County Dock Road Historical Park Management Plan (Now Walter Jones Historical Park) involves the preservation and interpretation of the nineteenth century Webb Farm site, including the 1870s house, barn and other associated structures. The plan further indicates that the 1939 House may be used as a security residence. Thus, in the context of the currently approved plan, the 1939 House is of subordinate significance to the buildings and structures related to the Webb period of development of the site. If, on this basis, the City of Jacksonville determines that relocation of the 1939 House is necessary to the development of the Walter Jones Historical Park, it is the opinion of this office that the following conditions should be met: . . . . On or about October 28, 1999, Mr. Solomon filed a Petition for Writ of Certiorari in the Circuit Court, Fourth Judicial Circuit, in and for Duval County, Florida, Case No. 99- 6403, to challenge the City Council's decision. By order dated November 3, 1999, the petition was dismissed without prejudice. On or about November 23, 1999, Mr. Solomon filed an Amended Petition for Writ of Certiorari in Case No. 99-6403. The Circuit Court Judge subsequently entered a Final Order Denying Amended Petition for Writ of Certiorari. However, Mr. Solomon filed a motion for reconsideration, resulting in an Order Vacating Final Order Denying Amended Petition for Writ of Certiorari dated April 27, 2000. On or about May 12, 2000, Mr. Solomon filed a Second Amended Petition for Writ of Certiorari. This petition raised due process issues. It also raised questions regarding the merits of the City's decision, including, but not limited to: whether the City relied on incorrect information concerning the Park's period of significance as set forth in the February 8, 1999, letter from Ms. Keys; and (b) whether the City erroneously relied on the Keys letter as evidence that DHR supported the relocation of the 1939 house. Mr. Solomon included the September 28, 1999, letter from Ms. Matthews in the appendix to the Second Amended Petitioner for Writ of Certiorari On July 7, 2000, the Circuit Court entered a Final Order Affirming Administrative Order in Circuit Court Case No. 99-6403. On October 26, 2000, the District Court of Appeal, First District, filed a per curiam opinion in Case No. 1D00- 3258, denying Mr. Solomon's Petition for Writ of Certiorari. In the meantime, the City had to obtain FCT's approval to modify the Park's management plan. By letter dated October 7, 1999, the City requested that FCT approve the relocation of the 1939 house for use as a security residence. FCT's staff reviews all proposed management plans and all proposed revisions to those plans. FCT's staff also solicits comments, advisory in nature, from outside agencies with expertise in technical matters such as historic resources. In this case, FCT's staff sought DHR's opinion regarding the relocation of the 1939 house. In a letter dated November 5, 1999, Ms. Matthews responded to FCT's request for comments. The letter states in part as follows: . . . [I]t is our opinion that the 1939 House is potentially eligible for listing in the National Register of Historic Places as a contributing structure to a historic district encompassing the entire 10.3 acres of the site. This opinion is based on the following factors: The building's age clearly falls within the established period of significance for the site: 1875-1945. The building reflects a continuum of site development, a later period of the historic development of the property by the Webb and Jones families. In this regard, subdivision of the property in 1933 and construction of the 1939 House are representative of a significant change in the development history of the Mandarin community from farming to residential related to the 1921 completion of the Acosta Bridge and the economic conditions of the time. The building has not been significantly altered since its construction in 1939. * * * It is our further opinion that relocation of the 1939 House would have an adverse affect on the historic integrity of the individual structure, as well as that of the 10.3-acre property. In addition, the proposed relocation would further erode the historic character of Mandarin Road, removing one of the few remaining historic structure from this scenic corridor. [sic] * * * . . . While the applicant has presented an argument for the need of relocating the 1939 House, it is the opinion of this office that at least one prudent and feasible alternative to relocation is possible. Our architectural staff believes it possible to successfully integrate the 1939 House into a new museum compound by: Rehabilitating the 1939 House . . . to provide: (1) a series of museum galleries to present the history of the site and its relationship to the development of the region, and (2) an administrative office for the Mandarin Historical Society; Constructing a classroom and environmental education building to the north of the 1939 House, providing an opportunity for broad vista of the wetlands to the west; Incorporating the necessary accessibility ramp into the design of the new structure; and Linking the historic building and the new classroom by an open covered connector at the elevation of their common finished floor elevation. Further, it is our opinion that a modest residence can be constructed for the on-site security officer off of County Dock Road (on, or near, the site of the demolished "Butterfly House") without adversely affecting the historic integrity of the property. . . . It is the opinion of this agency that the development approach described above offers a feasible alternative to the adverse effects associated with the proposed amended Management Plan. We strongly recommend that the proposed amendment be modified to retain the 1939 House on its original site. FCT's staff completed its review of the City's proposed amendment to the management plan. The staff prepared a memorandum for FCT's Governing Board, including a recommendation that FCT deny the proposed modification to the management plan. Approximately a week prior to the January 26, 2000, meeting of FCT's Governing Board, the members were given an agenda packet containing the staff's memorandum/recommendation, project summary and supporting materials. The supporting materials included twenty-seven letters received by FCT in support of the relocation of the 1939 house and two letters in opposition to the relocation of the 1939 house. The agenda packet included two letters written by Mr. Solomon. These letters summarized Mr. Solomon's historic preservation and Chapter 267, Florida Statues, arguments for the FCT Governing Board. Also included in the packet was a letter dated November 29, 1999, from John Delaney, the City's Mayor. This letter stated in part as follows: For several months, the City has been pursuing approval to relocate a newer house that is also located on the property closer to the farm for use as a security residence. This relocation is a key element in the development of the park. * * * Originally, a letter of support was obtained in February from Leslee Keys, Historical Resources Administrator for the St. Augustine Regional Preservation Office. This was followed by several letters in March and September from the Bureau of Historic Preservation in Tallahassee, which offered several opinions and suggestions. The March letter concluded that the relocation of the house was a local matter. We have always recognized the importance of DHR comments and incorporated the four recommendations found in the September 28th letter. This commitment was reflected in the October 7th letter to Ralph Cantral that accompanied our requested revisions to the Management Plan. We were surprised that following final local approval, including support from this office, a letter was sent to FCT in November from Janet Snyder Matthews, new Chief of the Bureau of Historic Preservation opposing the house move. One of the letters in the agenda packet was from Ms. Jones-Roumillat. The letter dated November 8, 1999, indicated her support for the relocation of the 1939 house. Mr. Solomon received notice of the FCT Governing Board meeting scheduled for January 26, 2000. However, he was unable to attend the meeting. At the meeting on January 26, 2000, several persons spoke for and against the request to relocate the 1939 house. The following persons spoke in favor of the relocation: Shorty Merrit (City Planner); Beth Meyer (MMHS); Jim Towart (MMHS); Susan Ford (MMHS); Karen Jones-Roumillat (MMHS and descendant of Walter Jones); and Karl Sanders (Assistant City Attorney). The following persons spoke against relocation of the house: Herschel Shepard (Architectural Consultant and former University of Florida Professor); Emily Lisska (Jacksonville Historical Society); William Jeter, Jr. (MCC); Ruth Daniels (MCC); Deanne Clark (MCC); David Ferro (DHR); Jan Matel (DHR); Barbara Mattick (DHR); and Frederick Gaske (DHR). At the January 26, 2000, meeting, FCT's Governing Board heard conflicting opinions regarding the relocation of the 1939 house. These opinions were very similar to the testimony considered by the City's JHPC and UAPC when they voted to approve relocation of the house. Moreover, the FCT Governing Board was fully apprised of DHR's opposition to the relocation of the house. The Governing Board was aware of DHR's position in the February 8, 1999, Keys letter, the September 28, 1999, DHR letter, and the November 5, 1999, DHR letter. All persons speaking before FCT's Governing Board were treated courteously. The Governing Board gave everyone an opportunity to make his or her presentation in full. Petitioners do not allege any procedural due process violations by FCT. After approximately one and one-half hours of public comment and deliberation, FCT's Governing Board voted 4-0 to approve the requested modification to the management plan. It is not unusual for FCT's Governing Board to disagree with its staff recommendation on any given matter. Mr. Solomon filed a timely administrative petition, challenging the Governing Board's action. MCC intervened thereafter. MCC was founded in 1923. Its first president was Walter Jones. MCC states its purpose as follows: The mission of the Mandarin Community Club is to promote and insure the preservation, beautification, and environmental well-being of Mandarin; to provide educational programs and meetings for the club's membership and the community; to enhance the cultural and recreational life of the citizens of Mandarin; and to maintain the historic structures and property owned by the club.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCT enter a final order dismissing the Petition for Administrative Proceedings. DONE AND ENTERED this 14th day of November, 2000, 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 14th day of November, 2000. COPIES FURNISHED: William Howard Solomon, Esquire 1625 Emerson Street Jacksonville, Florida 32207 Geoffrey T. Kirk, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Karl J. Sanders, Esquire City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner, John's Island Club, Inc. (petitioner or the club), is a not-for-profit corporation which owns and operates a private country club facility in the John's Island residential development in Indian River County, Florida. It provides a variety of recreational facilities to its members. Among the amenities are three golf courses, nineteen tennis courts, a tennis building, a beach club, a club house, a swimming pool, and dining facilities. Respondent, Department of Revenue (DOR), is a statutorily created agency charged with the administration of the state revenue laws, including Chapter 212, Florida Statutes, and rules promulgated thereunder. As a result of an amendment made in 1991 to Subsection 212.02(1), Florida Statutes, DOR is authorized by law to impose an admissions tax on "dues and fees" paid to private membership clubs providing recreational facilities. As a private membership club, petitioner is subject to this tax. Beginning on July 1, 1994, petitioner made an assessment on each member to raise capital for the purpose of repairing and replacing many of its physical facilities. During the six month period ending December 31, 1994, $10,441,897 was collected from the members and made available to the club. Rule 12A- 1.005(d)1.b., Florida Administrative Code, which was adopted by DOR in December 1991 to implement the admissions tax on dues and fees, imposes a tax on "(a)ny periodic assessment (additional paid-in capital) required to be paid by members of an equity or non-equity club for capital improvements." Under the authority of that rule, DOR required that petitioner pay the applicable sales tax on the assessment collected through December 31, 1994, or $730,932.79, and that it continue to pay the tax as other similar assessments are made in the future. Claiming that the rule exceeds DOR's grant of rulemaking authority, and it modifies, enlarges, and contravenes the law implemented, petitioner filed a petition for administrative determination of invalidity of existing rule. DOR denies all allegations and asks that the validity of its rule be upheld. The Club and the Assessment The composition of the club The club began operation in 1969 but was purchased by its members in 1986. It is an equity private membership club but issues no stock. The club has two types of memberships: golf and sports social. Currently, the cost of a golf equity membership is $85,000 while the cost of a sports social membership is $30,000. After payment of these fees, the member receives a membership certificate, which represents his or her equity ownership interest in the club. At the present time, there are 1125 golf memberships and 257 sports social memberships. Of the 1125 golf memberships, the original developer still owns 67. In addition to having to purchase a membership, members must also pay annual dues. A golf member pays $4,875 in annual dues while a sports social member pays $2,760 in annual dues. A sales tax is also collected on these dues. The dues are used to cover operating expenses such as insurance, administrative costs, staff salaries, and maintenance costs. In addition, members pay fees for additional services such as golf cart use, golf bag storage, locker room use, and golf and tennis lessons. When a member decides to resign or retire from the club, he or she may resell the membership to the club (but not a third party) and receive the greater of (a) the initial amount paid by the retiring member, or (b) 80 percent of the current membership cost (with the remaining 20 percent retained by the club in a separate capital improvement account). The assessment In 1992, the club began studying the feasibility of repairing and replacing many of its physical facilities. The total cost of the proposed work was set at $16,372,000. By majority vote taken in the spring of 1994, the members decided to raise capital for the work by imposing a capital assessment on each current member. It was agreed that the capital contribution would be $12,000 from each golf member and $11,150 from each sports social member. However, the payment of the capital contribution was not intended to, and did not result in any, decrease in the dues which members were required to pay for the use of the club's facilities. A failure to pay the assessment would result in suspension from the club. Three different options were made available to the members for the manner of payment of the capital contribution. The options included (a) a single payment, (b) payment over a three-year period, or (c) payment of interest only until such time as the member either sold the membership or left the club. After making payment in full, the member would be issued a certificate of capital contribution. It is noted that the developer was required to pay the capital contribution for his 67 golf memberships. Further, any person joining the club after the imposition of the assessment would likewise be required to pay the assessment. Beginning in July 1994, the club began collecting the capital contribution from its members. From July through December 1994, some $10,441,897 was collected. A total sales tax of $730,932.79 has been paid on those collections. Shortly thereafter, petitioner opted to file this rule challenge. The Rule and its Origin Rule 12A-1.005(5)(d)1.b. provides as follows: (d)1. Effective July 1, 1991, the following fees paid to private clubs or membership clubs as a condition precedent to, in conjunction with, or for the use of the club's recreational or physical fitness facilities are subject to tax. * * * b. Any periodic assessments (additional paid in capital) required to be paid by members of an equity or non equity club for capital improvements or other operating costs, unless the periodic assessment meets the criteria of a refundable deposit as provided in sub-subparagraph 2.e. below. * * * Under the terms of the rule, the capital contri- bution assessed by the club does not qualify as a refundable deposit. This is because any difference between the amount collected by the club upon the sale of a membership to a new member, and the amount which was paid to the retiring member, is retained by the club. Because Rule 12A-1.005, Florida Administrative Code, covers a wide array of items subject to taxation, the DOR cites Sections 212.17(6), 212.18(2), and 213.06(1), Florida Statutes, as the specific authority for adopting the rule, and Sections 212.02(1), 212.031, 212.04, 212.08(6) and (7), 240.533(4)(c), and 616.260, Florida Statutes, as the law implemented. There is no dispute between the parties, however, that in adopting sub-subparagraph 1.b., which contains the challenged language, the agency was relying principally on Subsection 212.02(1), Florida Statutes, as the law being implemented. That subsection defines the term "admissions" for sales tax purposes. Although the parties did not specifically say so, DOR relies on Section 212.17(6), Florida Statutes, as its source of authority for adopting the rule. That subsection authorizes DOR to "make, prescribe and publish reasonable rules and regulations not inconsistent with this chapter . . . for the enforcement of the provisions of this chapter and the collection of revenue hereunder." For the purpose of assisting DOR in administering the Florida Revenue Act of 1949, which imposes a sales and use tax on various transactions, Section 212.02, Florida Statutes, provides definitions of various terms used in the chapter, including the term "admissions." Prior to the 1991 legislative session, subsection 212.02(1) read in pertinent part as follows: The term "admissions" means and includes . . . all dues . . . paid to private clubs and membership clubs providing recreational or physical fitness facilities, including, but not limited to, golf, tennis, swimming, yachting, boating, athletic, exercise, and fitness facilities. During the 1991 legislative session, the definition of the term "admissions" was expanded by the addition of the following underscored language: The term "admissions" means and includes . . . all dues and fees . . . paid to private clubs and membership clubs providing recreational or physical fitness facilities, including, but not limited to, golf, tennis, swimming, yachting, boating, athletic, excercise, and fitness facilities. Thus, the legislature added the term "fees" to the term "dues" for those amounts "paid to any private clubs and membership clubs" which would be subject to the admissions tax. Prior to the above change in substantive law, rule 12A-1.005(5), as it then existed, provided that dues paid to athletic clubs which provided recreational facilities were taxable. However, subparagraph (5)(c) of the rule also provided that (c) Capital contributions or assessments to an organization by its members are not taxable as charges for admissions when they are in the nature of payments made by the member of his or her share of capital costs, not charges for admission to use the organization's recreational or physical fitness facilities or equipment, and when they are clearly shown as capital contributions on the organization's records. Contributions and assessments will be considered taxable when their payment results in a decrease in periodic dues or user fees required of the payor to use the organization's recreational or physical fitness facilities or equipment. Therefore, capital contributions were not taxable unless they resulted in decreased dues. That is to say, if a club levied an assessment on members and concurrently lowered its monthly dues, the assessment would be deemed to be taxable and in contravention of the rule. Thus, the effect of the rule was to prevent a club from renaming "dues" as "capital contributions" or "assessments" in order to avoid paying a tax on the dues. After the change in substantive law, the DOR staff began preparing numerous drafts of an amendment to its rule to comply with the new statutory language. At one stage of the drafting process, a DOR staffer recommended that, because the legislature had not provided a definition of the term "fee," the DOR should adopt a rule which provided that capital contributions be "not taxable if assessed under an equitable membership." Relying on what it says is the legislative intent, the DOR eventually proposed, and later adopted, the rule in its present form. In doing so, the DOR relied upon the terms "capitalization fees" and "capital facility fees" which are found in certain legislative history documents pertaining to the new legislation. Legislative History of the Law Implemented Although a number of bills related to the subject of a sales tax on admissions, the bill enacted into law was identified as Committee Substitute for House Bill 2523 (CS/HB 2523). The legislative history of the various bills relating to this subject has been received in evidence and considered by the undersigned. In early 1991, the House and Senate considered bills which addressed amendments to the sales tax on admissions. The first time the issue was addressed was at a meeting on February 21, 1991, of the Subcommittee on Sales Tax of the House Committee on Finance and Taxation. The discussion at the meeting indicated that the intent of the bill was to close a loophole that allowed physical fitness facilities to change their pricing structure to charge a higher initiation fee, which was not taxable, and thereby reduce their monthly dues, which were taxable, so as to reduce the revenue below that originally anticipated by this tax on admissions. This is corroborated by the bill analysis of the proposed committee bill that was offered, PCB FT 91-3A, which summarized the problem and solution as follows: Section 212.02(1), F. S. was amended during the 1990 Legislative Session to include in the definition of admissions those "dues" of "membership clubs" providing "physical fitness" facilities. Some clubs have attempted to avoid the tax (on dues) by shifting a substantial portion of the members' payments from "dues" to "initiation fees." Section 212.02(1), F. S., is amended to include "fees" as well as "dues" in the definition of admissions. All fees, including initiation fees and capitalization fees, paid to private clubs and membership clubs providing recreational or physical fitness facilities would be subject to the sales tax on admissions. It is unclear, but likely, that PCB FT 91-3A became House Bill 2417 (HB 2417). The bill analysis and economic impact statement on HB 2417, which was prepared by the House Committee on Appropriations, contained identical language to that in the bill analysis on PCB FT 91-3A. At the same time, the Senate was considering Senate Bill 1128, which later became Committee Substitute for Senate Bill 1128 (CS/SB 1128). On March 14, 1991, a staff analysis and economic impact statement on CS/SB 1128 was prepared by the Senate Committee on Finance, Taxation and Claims. It provided that: Section 212.02(1), Florida Statutes, defines "admissions" for sales and use tax purposes. Monthly fees of clubs with major facilities such as tennis courts, a swimming pool or a golf course have always been subject to the sales tax. During the 1990 Legislative Session this statute was amended to include dues on membership clubs providing physical fitness facilities, and not having these other major facilities. According to the DOR, such clubs have attempted to avoid payment of this tax by shifting a substantial portion of the members payments from dues to initiation fees which are not taxed. Accordingly, the purpose of the proposed statutory amendment was "to include initiation fees as well as dues in the definition of admissions." HB 2417 was passed by the House on April 17, 1991, and was sent to the Senate, where it was referred to the Committee on Finance, Taxation and Claims. HB 2417 died in that Committee. CS/SB 1128 was passed by the Senate on April 4, 1991, and was sent to the House, where it died in messages. A separate bill, Committee Substitute for House Bill 2523, which addressed similar issues to those addressed in HB 2417 and CS/SB 1128, was passed by the House on April 4, 1991, and was sent to the Senate where it was passed with amendments. The Bill was then returned to the House where further amendments were adopted. The Bill was again sent to the Senate with a request for the Senate to concur with the House amendments. The Senate refused to concur and the Bill was sent to a conference committee. The conference committee on finance and taxation met on April 19, 1991. The entirety of the discussion of the committee on this issue is as follows: Senator Jenne: The - - going down to number 21, admissions, initiation fees. The House includes capitalization fees. Representative Abrams: Which is this? Mr. Weiss: The Senate bill just states initiation fees are additionally included. The House bill, I believe, says that it's just all fees, which would include whether they called them initiation fees or capital facility fees or whatever. Representative Abrams: Because we are using something other than initiation - - Mr. Weiss: It's a fee that is going to be included. Representative Abrams: Yes, they were using - - they were breaking down categories of fees to avoid the tax, I think is what the deal was there. That gets us how much? Senator Jenne: Okay, well, it doesn't matter, because you can do it. Representative Abrams: Okay, good. Although the terms "capital facility fees" and "capitalization fees" were used during the discussion, contrary to DOR's assertion, it is far from clear that the intent of the amendment was to make taxable all capital contributions and assessments paid by members of private clubs providing recreational facilities. When placed in context with the prior debate before the committees and their staff analyses, it is much more likely that the intent was to close a loophole then used by physical fitness clubs who were renaming dues as fees in order to avoid taxes. The report of the conference committee was received by both houses on April 30, and CS/HB 2523 was passed by both houses the same day. The conference committee report for the bill contains only the following language describing the sales tax on admissions/initiation fees: Includes all recreational or physical fitness facility fees in the definition as admissions. The official conference committee report contains no reference to the terms "capitalization fees" or "capital facility fees." Neither does it make reference to the terms "assessment" or "paid in capital," which are the terms used by DOR in its rule. In the final bill analysis and economic impact statement prepared by the House Committee on Finance and Taxation for CS/HB 2523 on June 12, 1991, or 43 days after the bill was passed, the analysis states that subsection 212.02(1) was amended to include: "fees" as well as "dues" in the definition of admissions. All fees, including initiation fees and capitalization fees, paid to private clubs and membership clubs providing recreational or physical fitness facilities would be subject to the sales tax on admissions . . . This amendment should also limit further attempts to avoid taxation by renaming the fees collected from members. The staff analysis was obviously not available to members of the House or Senate when they voted on the bill on April 30, 1991. Although the final bill analysis used the term "capitalization fees," no where in any of the legislative history is there evidence of any legislative consideration of what was actually meant by that term. This is also true of the term "capital facility fees" which surfaced on one occasion prior to the passage of the bill. Capitalization Fees and Their Significance The sole basis for the DOR including the tax on assessments for capital improvements was the appearance in the legislative history of the terms "capitalization fees" and "capital facility fees." Neither term has any meaning to tax accountants. However, the accounting witnesses for both parties agreed that, from an accounting perspective, the phrase "capital facilities" would be understood to be assets having a life longer than one year. A capital contribution is typically a one time payment for the purchase of assets. It does not entitle the member to use the club. It is an equity transaction, not an income transaction, and it represents an intent to make an investment to improve the value of the membership assets separate and apart from the payment of annual expenses for the receipt of some service. "Dues" are a member's contribution to the operating costs of a club. They are assessed over an annual period and they are recurring. They also represent the payment that a member pays for admission to the organization. A capital contribution paid by a member of an equity membership club is not "dues." "Fees" as applied to a club are user charges. They are voluntary so that a member can decide whether or not to incur the charge based on whether the member uses the particular service to which it relates. A capital contribution is not a "fee."
The Issue Are Rules 3F-5.004(4)(b)1. and 2., Florida Administrative Code, an invalid exercise of delegated legislative authority?
Findings Of Fact The following are the stipulated facts: On or about September 15, 1995, Trinity Memorial Gardens of Lakeland, Inc., a Florida corporation, filed an application to organize a new cemetery company to be located at the Northwest corner of Mall Hill and Griffen Roads in Polk County, Florida. By publication in the Florida Administrative Weekly on March 29, 1996, the State of Florida, Department of Banking and Finance issued a Notice of Intent to Approve the Application for a New Cemetery Company submitted by Trinity Memorial Gardens of Lakeland, Inc. On April 18, 1996, Lakeland Memorial Gardens, Inc., a licensed Florida cemetery, located at 2126 South Bartow Highway, Lakeland, Polk County, Florida, filed a Petition for Formal Proceeding pursuant to Section 120.57, Florida Statutes, to contest the proposed action of the Department to approve the proposed new cemetery. On June 24, 1997, the Florida Cemetery Association, Inc., filed a Petition to Intervene which was granted July 8, 1997. In reviewing an application for a license for a new cemetery, the Department is required to determine whether there is a need for the new cemetery in accordance with requirements of Sections 497.005(28) and 497.201(3), Florida Statutes, and Rule 3F-5.004(4), Florida Administrative Code. Rule 3F-5.004(4), Florida Administrative Code, has been in existence since approximately 1975, and was last amended on October 23, 1991. Rule 3F-5.004(4), Florida Administrative Code, for purposes of this proceeding, is a rule proposed and adopted by the Department. In reviewing the application filed by Trinity the Department purported to apply Rule 3F-5.004(4)(b)2., Florida Administrative Code, in making a determination of need on the application filed by Trinity Memorial Gardens of Lakeland, Inc. In 1993, the Florida Legislature defined for the first time the term “community” in Section 497.005(28), Florida Statutes, by passing Chapter 93-339, Laws of Florida. Rule 3F-5.004(4), Florida Administrative Code, has not been amended since the passage of Chapter 93-339, Laws of Florida. The Department of Banking and Finance has not implemented the definition of “community” contained in Rule 3F-5.004(4)(b)1., Florida Administrative Code, in a determination of need under Section 497.201(3), Florida Statutes, since the effective date of Chapter 93-339, Laws of Florida. It is the Department’s position that the definition of “community” contained in Section 497.005(28), Florida Statutes, “superseded” or codified the definition of “community” contained in Rule 3F-5.004(4)(b)1., Florida Administrative Code. The Department interprets the requirements of Rule 3F-5.004(4)(b)2., Florida Administrative Code, to mean that only those cemeteries located within a twelve mile radius of a proposed new cemetery will be considered in determining need for a new cemetery. This interpretation by the Department has been utilized since October 18, 1990. In making a determination of need, the Department uses a fifteen-mile radius to determine the projected number of burial spaces needed in the “community” for a period of thirty years. In determining the “adequacy” of existing cemetery facilities under Section 497.201(3), Florida Statutes, the Department uses a twelve-mile radius to determine the number of spaces “available” for a period of thirty years and excludes from consideration all existing licensed or unlicensed cemeteries within a fifteen-mile radius but outside a twelve-mile radius of the proposed new cemetery. Use of twelve-mile radius, as opposed to a fifteen-mile radius, for the examination of the adequacy of existing facilities pursuant to Section 497.201(3), could, and has in the past, caused the exclusion of licensed cemeteries in the area outside of twelve miles but inside of fifteen miles. The Department noticed in the Florida Administrative Weekly the following: Notice of Proposed Rules 3D-30.0051, 3D-30.0052, 3D-30.0053, 3D-30.0054, Volume 22, Number 37, September 13, 1996. Notice of Proposed Rule 3D-30.0055, Volume 22, Number 40, 5665, October 4, 1996. Notice of Withdrawal of Proposed Rules No. 3D-30.0051, 3D-30.0052, 3D-30.0053, 3D-30.0054, Volume 23, Number 15, 1900, April 11, 1997. Notice of Change, Rule 3D-30.0055, Volume 23, Number 15, April 11, 1997.
The Issue By administrative compliant delivered to respondent on March 17, 1980, petitioner announced its intention to revoke certificate of need No. 921, which it issued on September 1, 1978, for the construction of a 120-bed nursing home in Mandarin, Florida, on grounds that the project was "not under construction" on February 27, 1980, the date of the certificate's expiration. The issues in this case are whether the certificate of need became null and void by operation of law on February 27, 1980, or whether the certificate remains viable either because construction was ongoing on February 27, 1980, or because petitioner is estopped to assert the certificate's invalidity.
Findings Of Fact On September 1, 1978, petitioner issued certificate of need No. 921 for the construction of a 120-bed skilled and intermediate long-term nursing facility in Mandarin, Florida. Petitioner's Exhibit No. 1. The certificate of need was issued in the name of John E. Carter and represented a partial grant of an application for a 180-bed facility. An amended certificate of need was mailed by petitioner on September 10, 1979, to Mr. Carter and Mandarin Manor, Inc., jointly, revising the project cost upward and reflecting extension of the termination date to February 27, 1980. Petitioner's Exhibit No. 2. The amended certificate of need bears the same September 1, 1978, issue date as the original. Petitioner first advised Mr. Carter that the six-months' extension has been granted by letter date August 1, 1979. Petitioner's Exhibit No. 3 Mr. Carter originally hoped to borrow the money to build the nursing home from the Department of Housing and Urban Development and such a loan was approved verbally in October of 1979. But the terms were highly unfavorable--20 "points" for a loan at 9.5 percent interest--and he decided against raising money for construction in this fashion. On November 16, 1979, Mr. Carter wrote petitioner advising of the apparent dearth of "funds available [on reasonable terms] on the money market" which was "prohibiting . . . starting construction" and asked for a further extension of the certificate's termination date. Petitioner's Exhibit No. 6. On November 26, 1979, Art Forehand, administrator of petitioner's office of community health facilities, wrote Mr. Carter on petitioner's behalf saying that "on February 27, 1980, . . . we . . . must obey the law and rule that this Certificate of Need is null and void unless you are under construction" and suggesting "the possibility of submitting a new application after you have been assured of permanent financing." Petitioner's Exhibit 6. By form letter dated January 24, 1980, Herbert Straughn, a project review consultant in respondent's office of community medical facilities, wrote Mr. Cater on behalf of petitioner, inquiring, "[I]f construction is involved, is the project under construction?" Petitioner's Exhibit No. 5. On his architects' advice, Mr. Carter approached Robert P. Few of Allen C. Ewing and Company, during the first week of February, 1980, in an effort to secure financing through industrial revenue bonds. After conversations with Mr. Carter, Mr. Few's firm retained bond counsel and engaged another firm, Coopers and Lybrand, to do a feasibility study of the proposed nursing home project, at a cost of $30,000. Bond counsel, Richard E. Eklein, helped draft Resolution 80- 255-53 which was adopted by the Jacksonville City Council on February 12, 1980, and approved by the mayor on February 19, 1980. Respondent's Exhibit No. 4. Mr. Klein also assisted in forming a non-profit corporation to hold the nursing home. This non-profit corporation has the same corporate name as the corporation named on the certified of need, viz., Mardarin Manor, Inc. These steps were taken in hopes that tax exempt industrial revenue bonds could be sold on advantageous terms and the proceeds be applied to the construction of a nursing home. Allen C. Ewing and Company became indebted to Mr. Klein's firm for legal fees of approximately $22,000 which Mr. Cater expects ultimately to be asked to pay. On February 18, 1980, Mr. Carter executed a written contract, Respondent's Exhibit No. 5, with Julian E. Johnson and Sons, Inc. (Johnson), for clearing, draining, grading, and paving for the nursing home and related development envisioned by Mr. Carter nearby. The total contract price was $207,211. On February 19, 1980, Johnson put a supervisor and two men to work, using a bulldozer and a front-end loader with rakes to clear a roadway down to the site of the proposed nursing home. These men had worked about a week when they left off on account of wet weather; their equipment bogged down in the mud. Some weeks later they began again, worked another week, and stopped again, again because of ground conditions. Johnson cleared and dug drainage ditches during its third and last week on the site, in May. According to Johnson's president it did no actual construction. Mr. Carter has paid Johnson $8,000 for the work it has done and owes Johnson another $8,000 for work already completed. On February 20 or 22, 1980, Mr. Carter secured a building permit for the proposed nursing home. Respondent's Exhibit No. 2. Some time later he caused a trailer belonging to Cajeco, Inc., a construction firm of which Mr. Cater is president, to be placed on the property. On February 1, 1980, Cajeco, Inc., which owns the proposed site, entered into a contract with Mandarin Manor, Inc., to construct the nursing home. Respondent's Exhibit No. 6. On February 21, 1980, after Jacksonville Resolution 80-255-53 had been adopted and approved, the identical contract was re-executed. Respondent's Exhibit No. 7. In February and March of 1980, on behalf of Cajeco, Inc., Mr. Carter obtained several bids from subcontractors, which were variously addressed to Jack Carter Const. Co., Jack Carter, Inc., Carter-Cowart, Inc., Jack Carter, Co., and in one instance, (the painting subcontractor) Mandarin Manor, Inc. On March 20, 1980, the Department of Environmental Regulation issued Permit No. CS16-28239 for construction of "a sewage collection/transmission system." Respondent's Exhibit No. 8 Also in March of 1980, a utility agreement between Mardarin Utilities, Inc., and Mardarin Manor, Inc., was examined by the Public Service Commission. Respondent's Exhibit No. 9. On March 4, 1980, Lloyd S. Hulme, assistant director of the Health Systems Agency of Northeast Florida Area 3, Inc. (HSA), visited the site proposed for the nursing home. Because the area was underwater, he did not leave the road bounding the property. He noticed that part of the site had been cleared but saw no equipment or supplies and so notified Mr. Straughn by letter dated March 14, 1980. Petitioner's Exhibit No. 16. Joseph G. Alcure, Jr., an architect employed by petitioner's Office of Licensure and Certification, visited the site on March 12, 1980, and reported his observations to Mr. Straughn by memorandum dated the following day. Petitioner's Exhibit No. 20. Mr. Alcure took site plans for the nursing home with him and walked the property, although he found it difficult going because of the mud; it was more than knee deep in places. He found an empty construction trailer and a sign and saw that part of the property had been cleared, but he observed "no construction going on at all . . . no foundation work started . . . [and] no building materials present." Petitioner's Exhibit No. 20. On March 17, 1980, petitioner caused the administrative complaint with which these proceedings began to be delivered to Mr. Carter's office. The next day Mr. Carter wrote Mr. Forehand, on Jack Carter, Inc., letterhead, asking "[i]f a hearing is . . . necessary, please inform us and arrange for the hearing to be held locally, if possible" and reporting that "[w]e were under construction prior to February 27 . . . [but] encountered continuous rains . . . mud and muck . . . [and] will begin digging footings immediately, weather permitting." Respondent's Exhibit No. 2. On behalf of petitioner, Mr. Forehand replied, on April 2, 1980: on the strength of this information, we are holding your request for an administrative hearing in abeyance. In order to comply with the law and regulations you will have to continue with the construction process, weather permitting. Please furnish us within 30 days a copy of your construction contract and assurance that sufficient financing is available to continue with the construction process . . . I will ask the Health Systems Agency to monitor the progress. Respondent's Exhibit No. 1. On April 16, 1980, the HSA's Mr. Hulme wrote Mr. Straughn that a visit to the site on April 5, 1980, revealed the presence of a trailer containing "some evidence of architectural plans" but that there was otherwise "no of any additional activities." Petitioner's Exhibit No. 17. On May 17, 1980, Mr. Hulme wrote Mr. Straughn that, on a site visit that day, "staff was unable to observe a change in the status on progress of construction." Petitioner's Exhibit No. 18. Mr. Hulme had made the inspection himself, getting out of his car and walking to the trailer. He did not walk the additional 100 yards to the site specifically proposed by the nursing home; however, and so failed to see the 33 square footings and four or five firewall footings that respondent had caused to be poured on April 25, 1980. On receipt of the report that no work had been done on the nursing home as of May 5, 1980, Mr. Forehand wrote Mr. Carter, on May 6, 1980. As of this date you have not furnished this Office a copy of your construction contract and assurance that sufficient financing is available to continue with the construction process. Please be advised that a request for a fair hearing in Jacksonville has been placed in the hands of HRS General Counsel pertaining to non-compliance with the requirement to be under physical and continuing construction at the end of eighteen months according to Chapter 10-5.13 Administrative Rules or in the extending time period granted by Mr. Art Forehand's letter of April 2, 1980. Petitioner's Exhibit No.9. On May 13, 1980, Mr. Carter wrote Mr. Forehand that "we are financing construction out of our operating funds until the full bond funding takes place on July 15 . . . [and] have made arrangements for the management contract with Mediplex. . . ." Petitioner's Exhibit No. 15. Enclosed was a letter of even date to Mr. Carter from Mr. Few stating: Assuming we obtain a positive feasibility study relative to the above referenced project from Coopers and Lybrand by June 15 and you have successfully negotiated a satfactory [sic] management contract with Mediplex, we should be able to close the bond issue on or around July 15. Petitioner's Exhibit No. 15. Later in May, Coopers and Lybrand reported unfavorably on the feasibility of the project as then proposed. They, Mr. Few's firm, Mr. Klein's firm, and a management firm decided that 8,000 to 10,000 square feet of common area would have to be eliminated from the nursing home in order for the project to succeed financially. This necessitated revisions of the architectural drawings and discussions with petitioner's Office of Licensure and Certification, which began in July of 1980 and were ongoing at the time of the hearing. These plan revisions lacked final approval from petitioner's plans and construction section as of the day of the final hearing. Petitioner's Exhibit No. 21. On May 9, June 2, August 22, and August 29, 1980, respondent caused additional footings to be poured. All the construction work on the site that had taken place as of the time of the hearing would have been accomplished in a week if a full crew had worked continuously, however. Bad weather caused some delay in the clearing of the site. The chief causes of delay of construction were a lack of financing and the necessity to revamp plans in an effort to secure financing. Under Mr. Few's direction, Allen C. Ewing and Company prepared a draft of a preliminary official statement dated September 1, 1980. Respondent's Exhibit No. 3. If respondent could obtain a certificate of need and final approval of the revised plans, he could have the proceeds of the bond sale within 30 to 60 days, unless interest rates climbed as much as 1.5 percent about what they were on the day of the hearing. In that event, the project would not be feasible, even as scaled down. ON May 19, 1980, notice of the final hearing was issued. At one or more times between May 19, 1980, and September 2, 1980, persons in petitioner's employ told Mr. Carte that in the event financing should be secured and construction should be in progress at the time set for the final hearing, petitioner would likely settle the matter by letting Mr. Carter proceed. Petitioner's proposed findings of fact have been considered in preparation of the foregoing and have been adopted in substance except to the extent that they are irrelevant or unsupported by the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED That petitioner revoke certificate of need No. 921. DONE AND ENTERED this 26th day of September, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 Telephone: (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1980
The Issue The issues to be addressed are whether the Petition to establish the District meets the factors set forth in Section 190.005, Florida Statutes, and whether the hearing process has been conducted in accordance with the requirements of Section 190.005, Florida Statutes, and Florida Administrative Code Chapter 42-1.
Findings Of Fact In the face of resistance to its standing, Petitioner presented no evidence. Accordingly, the record is devoid of any proof that a substantial number of its members are "substantially affected" by the challenged rule, that the subject matter of the rule is within the association's general scope of interest and activity, and that the relief requested is of a type appropriate for a trade association to receive on behalf of its members.
