The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations of misconduct set forth in a four-count Administrative Complaint. The Administrative Complaint charges the Respondent with violation of the following statutory provisions: Sections 489.129(1)(g), 489.129(1)(h)2, 489.129(1)(k), and 489.129(1)(n), Florida Statutes (1996 Supp.).
Findings Of Fact The Respondent, Allen Fader, is, and has been at all times material, a licensed Certified General Contractor, having been issued license number CG C007504 by the State of Florida. At all times material, the Respondent was licensed to contract as an individual. The Respondent, by virtue of his license, advertised construction services for Gold Coast Construction Services, Inc., during 1997. The Respondent presented a business card, with the name of Gold Coast Construction Services, Inc., to Ruby M. Shepherd, a customer, in April of 1997. On April 14, 1997, the Respondent, doing business as Gold Coast Construction Services, Inc., contracted with Ruby M. Shepherd to enclose a patio and to install hurricane shutters at Ms. Shepherd's residence located at 12325 Northwest 19th Avenue, Miami, Florida. The contract was conditioned on Ms. Shepherd being able to obtain financing to pay for the construction described in the contract. The exact amount Ms. Shepherd was required to pay under the original April 14, 1997, contract cannot be determined from the evidence in this case.4 The Respondent assisted Ms. Shepherd in obtaining a loan for the financing of the construction work described in the contract. It took several months to obtain a loan. Ultimately, through the efforts of the Respondent, and of a person engaged by the Respondent to help obtain a loan, Ms. Shepherd received a loan through Town and Country Title Guaranty and Escrow. The check from Town and Country Title Guaranty and Escrow was in the amount of twelve thousand nine hundred seventy-nine dollars and fifteen cents ($12,979.15). The check was made payable to Ms. Shepherd and to Gold Coast Construction Services, Inc. At the request of the man who helped obtain the loan, Ms. Shepherd endorsed the loan check and agreed for the check to be delivered to the Respondent. The Respondent, doing business as Gold Coast Construction Services, Inc., negotiated the loan check and received all of the proceeds in the amount of twelve thousand nine hundred seventy-nine dollars and fifteen cents ($12,979.15). The Respondent received the proceeds of the loan on or about September 12, 1997. The Respondent did not take any action on Ms. Shepherd's construction project until November 14, 1997. On that day, the Respondent placed an order for the material for the hurricane shutters on Ms. Shepherd's project. Nothing more was done on Ms. Shepherd's project for quite some time. Towards the end of February of 1998, the Respondent had some health problems, which caused him to be unable to work for several weeks. Eventually, the Respondent attempted to pick up the shutter materials he had ordered for Ms. Shepherd's project. As a result of the delay, those materials had been returned to stock and had been sold to someone else. The Respondent ordered the materials again. Eventually, in June of 1998, the Respondent had the shutter materials delivered to Ms. Shepherd's residence, and began the process of installing the hurricane shutters. In the meantime, from September of 1997 until January of 1998, the Respondent did not contact Ms. Shepherd. During this period of time, Ms. Shepherd called the Respondent's office numerous times and left numerous messages asking the Respondent to return her calls. From September of 1997 until January of 1998, the Respondent did not return any of Ms. Shepherd's calls. In January of 1998, Ms. Shepherd was finally able to speak with the Respondent. From January of 1998 until the installation work began in June of 1998, Ms. Shepherd spoke to the Respondent on numerous occasions in an effort to find out when the Respondent was going to begin work or return the money he had been paid. During this period of time, the Respondent repeatedly made false assurances to Ms. Shepherd that the work would be performed within two weeks. On or about June 12, 1998, the Respondent obtained a building permit for Ms. Shepherd's project from the Miami-Dade Department of Planning, Development, and Regulation. Installation of the hurricane shutters began that same week. The installation process was delayed because some of the materials did not fit and had to be returned to the manufacturer for modifications. Following the modifications, the installation process resumed. After a few more days, the Respondent told Ms. Shepherd the hurricane shutter work was finished and that he was not going to do the patio construction work, because the loan Ms. Shepherd had received was not enough money to pay for both projects. After the Respondent told Ms. Shepherd that the installation of the hurricane shutters was complete, the Respondent never did any further work on Ms. Shepherd's construction project. The hurricane shutters installed at Ms. Shepherd's property by the Respondent were not installed correctly. Several of the hurricane shutters will not open and close properly. Several of the hurricane shutters are insufficiently fastened. A necessary shutter over the storage room door was never installed. The problems with the subject hurricane shutters can be corrected. The cost of the corrections necessary to make the shutters operate properly and to fasten them securely is approximately one thousand dollars ($1,000). The Respondent never called for an inspection of the installation of the hurricane shutters at Ms. Shepherd's residence. In their present condition, those hurricane shutters will not pass inspection, because they were installed improperly. If corrections are made, those hurricane shutters will pass inspection. By reason of the facts stated in paragraphs 12 and 13 above, the Respondent failed to properly and fully complete the hurricane shutter portion of the contracted work. The Respondent never did any work on the patio portion of the contracted work. At some point in time between September of 1997 and June of 1998, Ms. Shepherd and the Respondent agreed to a modification of their original contract due to the fact that the proceeds of the loan obtained by Ms. Shepherd were insufficient to pay for both the hurricane shutters and the enclosure of the patio. The essence of their modified agreement (which was never reduced to writing) was that the Respondent would not do the patio enclosure portion of the contracted work; the Respondent would do the hurricane shutter portion of the contracted work; the Respondent would be paid for the hurricane shutter portion of the contracted work; and any remaining balance of the loan proceeds that had been paid to the Respondent would be paid back to Ms. Shepherd. Implicit, but apparently unstated, in this modified agreement, was the notion that the Respondent would charge a fair price for the hurricane shutter portion of the contracted work. A fair price for the hurricane shutter portion of the contracted work at Ms. Shepherd's residence, including all materials, labor, overhead, and profit, would be approximately four thousand dollars ($4,000).5 The price of four thousand dollars presupposes properly installed hurricane shutters that will pass inspection. As previously mentioned, it will cost approximately one thousand dollars ($1,000) to make the corrections to the subject hurricane shutters which are necessary for the shutters to function properly and pass inspection. Accordingly, the fair value of the work performed by the Respondent at Ms. Shepherd's residence is three thousand dollars ($3,000). Ms. Shepherd has paid $12,979.15 to the Respondent, doing business as Gold Coast Construction Services, Inc. The fair value of the work performed by the Respondent at Ms. Shepherd's residence is $3,000. Therefore, the Respondent has been paid $9,979.15 more than he is entitled to keep. As of the date of the final hearing, the Respondent has not paid back any money to Ms. Shepherd.
Recommendation On the basis of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be issued in this case concluding that the Respondent is guilty of the violations charged in each of the four counts of the Administrative Complaint, and imposing the following penalties: For the violation of Section 489.129(1)(g), Florida Statutes (1996 Supp.), an administrative fine in the amount of $100.00. For the violation of Section 489.129(1)(k), Florida Statutes (1996 Supp.), an administrative fine in the amount of $2,000.00. For the violation of Section 489.129(1)(n), Florida Statutes (1996 Supp.), an administrative fine in the amount of $1,000.00. For the violation of Section 489.129(1)(h), Florida Statutes (1996 Supp.), an administrative fine in the amount of $1,500.00, and placement of the Respondent on probation for a period of one year. It is further RECOMMENDED that the final order require the Respondent to pay restitution to Ms. Shepherd in the amount of $9,979.15, and to pay costs of investigation and prosecution in the amount of $266.55. DONE AND ENTERED this 9th day of September, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 9th day of September, 1999.
The Issue Whether Petitioner should be granted a license to engage in business as an insurance adjuster in the State of Florida.
Findings Of Fact Respondent Agency is charged by law with licensure of non-resident "all (insurance) lines" public adjusters. On or about July 21, 2005, Respondent denied Petitioner's application for such licensure as follows: You have never been licensed in this state to engage in business as an insurance adjuster. However, on or about October 1, 2004, you identified yourself as a licensed public adjuster to William H. Baker, of 329 Live Oak Road, Vero Beach, Florida, and solicited Mr. Baker to hire you to adjust a claim for hurricane damage with his insurer, Safeco Insurance Company. On or about November 4, 2005, Safeco received a Notice of Representation from you indicating that you were Mr. Baker's adjuster on his claim. On or about November 11, 2004, you met with a Safeco representative and attempted to settle Mr. Baker's claim. Legal Basis for Denial The denial is based upon the following Florida Statutes: Section 626.112(3), Florida Statutes states: (3) No person shall act as an adjuster as to any class of business for which he or she is not then licensed or appointed. Petitioner timely requested a disputed-fact hearing, and the cause was referred to the Division of Administrative Hearings on or about December 2, 2005. The case was scheduled for final hearing on February 21, 2006, in Tallahassee, Florida, by a Notice mailed December 27, 2006. An Order of Pre-hearing Instructions was entered the same date. Petitioner requested a continuance by a letter filed February 15, 2006. On February 21, 2006, an Order was entered granting a continuance until April 20, 2006. On April 17, 2006, Petitioner filed a letter requesting another continuance. On April 24, 2006, an Order was entered granting a continuance and requiring that the parties submit mutually agreeable dates for hearing by May 10, 2006. On May 10, 2006, a Consented Response was filed. On May 15, 2006, a Notice of Hearing for June 19, 2006, was entered and mailed. On June 19, 2006, when the final hearing was convened, Petitioner was not in attendance. Respondent's counsel and Respondent's agency representative were in attendance. Respondent's counsel represented that she had been unable to get any telephonic response from Petitioner for several weeks. The undersigned inquired if any Pre-hearing Stipulation, as required by the Order of Pre-hearing Instructions had been entered, and Respondent's counsel answered in the negative. The undersigned inquired if, due to the nature of the license denial, any agreement to shift the duty to go forward had been reached, and Respondent's counsel answered in the negative. The Division's file reflects no stipulations. The undersigned waited a half-hour for Petitioner to appear. He did not appear by the end of that half-hour. Inquiry within the Division revealed that Petitioner had neither come to the building housing the hearing room, nor had he telephoned the secretary to the undersigned with any excuse for his absence.
Recommendation Upon the foregoing Findings of Fact and Conclusion of Law, it is recommended that the Department of Financial Services enter a final order denying Petitioner's license application. DONE AND ENTERED this 29th day of June, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 29th day of June, 2006. COPIES FURNISHED: Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Mu?niz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Roxanne Rehm, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Christopher C. Karpells 857 Brownswitch Road Unit 154 Slidell, Louisiana 70458 Christopher C. Karpells 585 Old Jail Lane Barnstable, Maryland 02630
The Issue The issue to be determined in this case is whether the City of St. Petersburg’s amendment to its Comprehensive Plan, adopted by Ordinance No. 2009-689-L (Plan Amendment) is “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes (2009).1/
Findings Of Fact The Parties The City is a Florida municipality and has adopted a comprehensive plan that it amends from time to time pursuant to Chapter 163, Part II, Florida Statutes. Petitioner Mauro is a resident of the City. Petitioners Kiefer and Mauro operate businesses in the City. These individuals provided timely comments to the City on the Plan Amendment. Petitioner Tierra Verde Community Association (TVCA) holds easements on the subject properties for access and maintenance of landscaping and lighting. On this basis, TVCA asserts that it owns property within the City. The subject properties are within the boundaries of TVCA and subject to covenants and restrictions adopted by TVCA. The owners of the subject properties are obligated to pay assessments imposed by TVCA for the services and functions provided by TVCA. On this basis, TVCA claims to operate a business within the City. TVCA made timely comments on the Plan Amendment. The Plan Amendment and Subject Properties The City followed the alternative state review process established in Section 163.32465, Florida Statutes. In accordance with Section 163.32465(4)(a), the City transmitted the Plan Amendment and appropriate supporting data and analysis to the Department, the County, Tampa Bay Regional Planning Council, and other appropriate agencies. The Plan Amendment amends the FLUM to apply future land use designations to 18.25 acres on a barrier island in Boca Ciega Bay known as Tierra Verde. Tierra Verde consists predominantly of single-family and multi-family residential developments. Most of the multi-family developments, comprising condominiums and townhomes, are located along the North-South Pinellas Bayway, which is State Road 679. The subject properties include 13 parcels with multiple owners. Madonna Boulevard bisects the subject properties. Existing development on the subject properties include the Tierra Verde Marina, the Tierra Verde Marina High and Dry (an upland boat storage facility), a yacht broker, a beauty parlor, a post office, a bait shop, a hardware store, a convenience store with gas dispensers, a dental office, a dry cleaner, a real estate office, a medical office, and a resort/timeshare building (no longer in use). To the north of the subject properties are single- family residences and Boca Ciega Bay; to the south are multi- family residences; to the east are the Pinellas Bayway and multi-family residences; and to the west are single-family residences. The subject properties were located in unincorporated Pinellas County until the City annexed the properties in November 2008. The properties remain subject to the Pinellas County Comprehensive Plan until the City amends its own Comprehensive Plan to include the properties. See § 171.062(2), Fla. Stat. Currently, there are two Pinellas County land use designations on the subject properties: 17.28 acres are designated Commercial General (CG) and five vacant lots on 0.97 acres are designated as Residential Low (RL). The Plan Amendment would assign the same labels to the subject properties: CG for the 17.28 acres and RL for the five vacant lots. The City's RL designation is essentially the same as the County’s RL designation, but the City’s CG designation differs from the County’s CG designation. The City’s CG designation allows a potential maximum of 414,000 square feet of commercial uses on the 17.28 acres designated CG. The City's CG designation allows for 24 residential units per acre. The Plan Amendment would allow 415 new dwelling units on the CG lands. The City estimated that the 415 dwelling units would be occupied by 639 persons. The City has a workforce housing ordinance that allows residential density to be increased another six units per acre for qualifying developments. If the potential maximum number of workforce housing units were added, 518 residential units could be developed on the lands designated CG. The City CG designation allows for up to 40 rooms per acre of transient (hotel) units, for a total of 691 hotel units. The Pinellas County Comprehensive Plan establishes special overlay policies and criteria for Tierra Verde. The Tierra Verde overlay requires development to be compatible with existing structural bulk and height, requires commercial uses to serve the island’s residents, and restricts single-family development to 35 feet in height and multi-family development to five stories. The City does not propose to adopt an overlay or comparable policies and criteria as part of the Plan Amendment. The Tierra Verde Community Overlay policies and criteria would no longer apply to the subject properties. Hurricane Evacuation and Shelter Capacity Section 163.3178(2)(h), Florida Statutes, and Florida Administrative Code Rule 9J-5.012(2)(e) require each coastal management element to designate the coastal high-hazard area (CHHA). Section 163.3178(2)(h) defines the CHHA as "the area below the elevation of the category 1 storm surge line as established by a Sea, Lake and Overland Surges from Hurricanes (SLOSH) computerized storm surge model." The subject properties are not located in the CHHA. Pinellas County uses a broader planning concept than the CHHA, called the Coastal Storm Area (CSA). The CSA encompasses all lands on barrier islands, all areas isolated by the CHHA, and all properties in a FEMA Velocity Zone. The subject properties are currently within the County’s CSA. However, the Plan Amendment would terminate the applicability of the CSA to the subject properties. Petitioners characterize the CSA as the “best available data regarding coastal storm protection.” Presumably, that characterization is intended to invoke the requirement of Florida Administrative Code Rule 9J-5.005(2)(c) that plan amendments must be based on the best available data. However, the CSA, to the extent that it is data, is only the best available data regarding the geographic area affected by coastal storms based on a methodology used by the Tampa Bay Regional Planning Council. In the same way, the CHHA is the best available data on the geographic area affected by coastal storms utilizing the SLOSH model. As stated in the Conclusions of Law, the choice between the two zones remains a matter of legislative policy. The subject properties are located in a hurricane Evacuation Zone A. Therefore, the properties are also located in the “hurricane vulnerability zone,” which is defined in Florida Administrative Code Rule 9J-5.003(57), as all lands that must be evacuated in the event of a 100-year storm or Category 3 hurricane (Evacuation Zones A, B, and C). The only evacuation route for the residents of Tierra Verde is via a causeway and two-lane drawbridge to Isla del Sol. Residents evacuating Tierra Verde would have to cross two more bridges before reaching the mainland. Their out-of-county evacuation route includes four areas that are within the CHHA and could be flooded in a Category 1 hurricane. Low-lying barrier islands are difficult places to evacuate in the event of a coastal storm. The City did not evaluate, in conjunction with the Plan Amendment, the effect that re-development of the 17.28 acres of CG lands for the maximum allowable residences or hotel units would have on hurricane evacuation and shelter capacity. The City asserts that, because the subject properties were not in the CHHA, such an evaluation was unnecessary. Policy CM13.11 establishes a 16-hour out-of-county hurricane evacuation clearance time for a Category 5 storm event. Clearance time is the time required to clear the roadway of all vehicles evacuating in response to a hurricane. Clearance times for Pinellas County do not meet the 16- hour out-of-county evacuation standard. The Tampa Bay Region Hurricane Evacuation Study 2006 estimates that current clearance times in Pinellas County for a Category 5 storm are 23 to 28 hours for in-county to shelter evacuation and 46 to 55 hours for out-of-county evacuation. The clearance times for the Tampa Bay area are the highest for any area of Florida and the coastal United States. If the subject properties were developed with the maximum residential units or maximum hotel units allowed by the Plan Amendment, it is likely that the evacuation clearance times would be increased (worsened). The County reports that it currently has sufficient shelter capacity for evacuation levels A though C. However, this determination of sufficiency is based on an allowance of only 10 square feet per person in the shelters. Most local governments and emergency planners use the American Red Cross standard for shelter space of 20 square feet per person. Even using 10 square feet per person, Pinellas County has a deficit of shelter space for Category 4 and 5 hurricanes. Using 20 square feet per person, Pinellas County has a deficit of shelter space for Category 2 and larger hurricanes. The City points out that, because the subject properties are in Evacuation Zone A, residents and hotel residents on the subject properties would be the first ordered to evacuate during a hurricane. This fact does not change the likely adverse effect of the Plan Amendment on evacuation times and shelter capacity for City and County residents. Although some recent post-hurricane studies found that fewer people use the emergency shelters than was predicted, emergency planners in the region believe that there is inadequate shelter capacity for large hurricanes. Residential and Commercial Need The City did not perform a population-based “needs analysis” for the Plan Amendment. The City stated that it does not use population projections to determine the need for residential density increases because the City is essentially “built out.” The City did not perform a commercial needs analysis for the 17.28 acres of CG created by the Plan Amendment, because the property is already designated and developed for commercial uses. Roadway Capacity A 2008 level of service (LOS) report for the Pinellas Bayway indicates that the LOS was “C” from Madonna Boulevard on Tierra Verde to the drawbridge and Isla del Sol. The adopted standard for this road segment is LOS “D.” To degrade the LOS below the adopted standard would require the addition of 892 vehicle trips. The maximum potential vehicle trips that would be generated from the subject properties would be from its development exclusively for commercial uses; 1,220 peak hour trips, or 1,397 trips if a commercial bonus is applied.3/ However, the City determined that development of the property was not likely to generate the maximum potential vehicle trips, but would, instead, generate approximately 800 trips. The City used the 100th highest hour (k-100) of yearly traffic in estimating the impact of the potential traffic from the subject properties. Use of the k-100 peak hour analysis is part of the usual method for analyzing roadway level of service. Petitioners contend that the City should have used the “design level” peak hour factor, which is the 30th highest hour (k-30). The k-30 peak hour was used by the Florida Department of Transportation (FDOT) in its recent study associated with the drawbridge. Using k-30, FDOT assigned an LOS of “F” for the intersection of Madonna Boulevard and the Pinellas Bayway and for the drawbridge. Petitioners failed to prove that k-30 is the appropriate measure to evaluate the potential roadway impacts of the Plan Amendment, or that it is the “best available existing data” for analyzing the Plan Amendment.4/ The concurrency management system for roadways requires land development to be “concurrent” with roadway capacity, and prohibits the issuance of building permits that would cause the adopted LOS standards on affected roadway segments to be violated. See § 163.3180(1)(c), Fla. Stat. Comprehensive plan amendments do not have to be “concurrent” with roadway capacity. Internal Consistency Petitioners claim that the Plan Amendment would make the FLUM inconsistent with a number of provisions of the City’s Comprehensive Plan, identified below. Policy LU2.4 Policy LU2.4 of the Future Land Use Element (FLUE) states that the City may permit higher intensity uses outside of “activity centers” only where available infrastructure exists and surrounding uses are compatible. The City’s Comprehensive Plan designates four “activity Centers” in the City. The subject properties are not within an activity center. What “higher intensity uses” means in this context was not explained by the parties, but there did not appear to be a dispute that the Plan Amendment would create “higher intensity uses.” The preponderance of the record evidence shows that City utilities and other public services are adequate to serve the subject properties. Petitioners’ arguments regarding the current absence of public transit service to Tierra Verde does not represent a deficiency, because there are currently no City residents on Tierra Verde. The term “compatibility” is defined in the General Introduction to the City’s Comprehensive Plan to have the following meaning: Not having significant adverse impact. With limited variation from adjacent uses in net density, in type of use of structures (unless highly complimentary) and with limited variation in visual impact on adjacent land uses. In the instance of certain adjacent or proximate uses, compatibility may be achieved through the use of mitigative measures. The term “compatibility” is also defined in Florida Administrative Code Rule 9J-5.003(23): “Compatibility” means a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition. Petitioners contend that the “surrounding uses” on Tierra Verde are not compatible with the uses allowed under the Plan Amendment. The City responds that compatibility cannot be determined until a future development proposal is submitted for the subject properties. A compatibility analysis is required for this “in compliance” determination for the Plan Amendment. Although a compatibility analysis for a comprehensive plan amendment is a more “macro” or general evaluation than at the time of a specific development application, the issue is not one that can be put off until the City reviews a development proposal for the subject properties. Using the City’s own definition of compatibility as “limited variation” from adjacent uses in net density and type use, it is found that, if the subject properties were developed to attain the maximum residential units or maximum hotel units, it would not be a “limited variation” from adjacent densities and use types. Therefore, these scenarios allowed by the Plan Amendment are not compatible with adjacent land uses. To find otherwise would render the term “limited variation” in the City’s definition of compatibility meaningless. A mix of general commercial uses has existed for years on the subject properties and Petitioners failed to prove that the commercial uses allowed by the Plan Amendment are incompatible with surrounding uses. Policy LU3.8 Policy LU3.8 requires that the City to protect existing and future residential uses from incompatible uses, noise, traffic and other intrusions that detract from the long term desirability of an area “through appropriate land development regulations.” Petitioners presented no evidence to show that the City has failed to adopt land development regulations to address potential incompatible uses, noise, traffic and other intrusions. Policy LU3.11 FLUE Policy LU3.11 requires that residential uses greater than 7.5 units per acre be located along designated major transportation corridors and in close proximity to activity centers where compatible. The City’s Comprehensive Plan does not define “major transportation corridors,” but it defines “Major Street” to include minor arterials. The Pinellas Bayway (SR 679) is designated a minor arterial. The City contends that the Pinellas Bayway on Tierra Verde qualifies as a major transportation corridor. However, it was not disputed that the subject properties are not “in close proximity” to one of the four activity centers in the City. The City did not explain how the Plan Amendment is consistent with Policy LU3.11, except to state that the City could possibly designate the subject properties as a new activity center in the future. Policy LU3.17 Policy LU3.17 states that the City has an adequate supply of commercial land to meet existing and future needs and provides that future expansion of commercial uses shall be restricted to infilling into existing commercial areas and activity centers except where a need can be clearly identified. Petitioners point out that the Plan Amendment would represent an increase in the allowable commercial intensity, compared to the Pinellas County Comprehensive Plan, but that fact is not relevant to whether the Plan Amendment is consistent with other provisions of the City’s Comprehensive Plan. Petitioners’ arguments that the City did not demonstrate the need for commercial uses on the 17.28 acres designated CG by the Plan Amendment fail, because the properties are already designated and developed for commercial uses, and any expansion of the existing commercial square footage on the subject properties would qualify as infilling an existing commercial area. Objective LU4 FLUE Objective LU4 is to provide the land to accommodate the various development types necessary to support future growth. Objective LU4 includes statements that no additional “residential acreages” are needed to accommodate forecasted future populations and no additional commercial acreage is required to serve the City’s future needs. The Plan Amendments would add 17.28 acres of potential residential development. Objective LU4 states that there is no need for this additional residential acreage. The City asserts that it has no other future land use categories that would be more appropriate for the 17.28 acres than CG. The City asserts, in essence, that it has no choice but to allow for the potential addition of hundreds of new residents or over a thousand new hotel units. It is not unreasonable for the City to assign a commercial designation to annexed lands which are already developed for general commercial uses. When Objective LU4 is read together with Policy LU3.17, which allows for commercial infill, an inconsistency with the Plan Amendment with regard to commercial uses is not apparent. FLUE Objective LU4 also states that mixed-use developments are encouraged in appropriate locations to foster a land use pattern that results in “fewer and shorter automobile trips and vibrant walkable communities.” The CG designation would allow for a wide mix of uses. Petitioners did not show that the subject properties could not be developed in a manner that fosters fewer and shorter automobile trips and a walkable community. Objective LU12 Objective LU12 states that the City shall “strive to maintain and enhance the vitality of neighborhoods through programs and projects developed and implemented in partnership with CONA, FICO and neighborhood associations.” No evidence was presented by Petitioners to show that there are existing programs or projects developed by the City and TVCA with which the Plan Amendment is inconsistent, or that the Plan Amendment would prevent future programs and projects. Objective CM13 Objective CM13 requires the City to cooperate with state, regional and county agencies to maintain or reduce hurricane evacuation times. The effect of the Plan Amendment on hurricane evacuation times was not evaluated before the adoption of the Plan Amendment. The City did not engage in meaningful cooperation with state, regional and county agencies to maintain or reduce hurricane evacuation times. If the subject properties were developed at the maximum potential residential density or maximum potential hotel density allowed by the Plan Amendment, hurricane evacuation times would likely increase. The Tampa Bay Regional Planning Council commented that public shelter capacity and evacuation clearance times should have been addressed in conjunction with the Plan Amendment.2/ Pinellas County objected to the Plan Amendment, based on its belief that the Plan Amendment would increase hurricane evacuation times and that there is insufficient shelter capacity. FDOT commented on the Plan Amendment, stating that the addition of permanent residents was “ill-advised” based on the vulnerability of the subject properties to storm surge. The City states that it will consider hurricane evacuation times during the review of development site plans. While consideration of hurricane evacuation issues is appropriate at the site plan review stage, the City must also consider hurricane evacuation issues when it adopts a plan amendment that affects land within the hurricane vulnerability zone. Policy CM13.11 Policy CM13.11 establishes a 16-hour out-of-county hurricane evacuation clearance time for a Category 5 storm event. The City does not meet its 16-hour standard, but contends that, because the subject properties are not in the CHHA, the 16-hour evacuation time does not apply. Clearance times are not defined by, or solely affected by, the number of persons that reside in the CHHA. Clearance times are based on the number of persons evacuating and certainly include the first people to be evacuated -- the people in Evacuation Zone A. The subject properties are within Evacuation Zone A. Similarly, emergency shelter capacity is not based solely on the number of persons evacuating from the CHHA. Objective T12 Objective T12 of the Transportation Element states that the City shall provide equitable transportation service to all residents and accommodate special transportation needs. Petitioners claim that the Plan Amendment is inconsistent with this objective because there is no existing transportation service to the subject properties. As stated above, the lack of existing service is not a deficiency because there are no City residents on Tierra Verde.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the City of St. Petersburg plan amendment adopted by Ordinance No. 2009-689-L is not “in compliance." DONE AND ENTERED this 30th day of June, 2010, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER 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 30th day of July, 2010.
The Issue The issue in this case is whether Respondent used its "best efforts" to obtain and maintain adequate insurance to protect its property in accordance with Subsection 719.104(3), Florida Statutes (2008),1 as alleged in the Notice to Show Cause; and, if so, what penalty, if any, should be imposed.
Findings Of Fact Respondent, Waterfront Park Corporation, is a non-profit Delaware corporation, organized in 1956, registered as a foreign for-profit corporation, and doing business in the State of Florida. The Association is subject to the regulatory jurisdiction of Petitioner, Department of Business of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes. The Association is responsible for operating the common elements of the Waterfront Park Corporation Co-operative Apartment ("Cooperative"). The Cooperative is located in St. Petersburg, Florida, about one block from Tampa Bay and consists of three buildings with a total of 35 residential units. The Cooperative's governing documents include the Waterfront Park Corporation Co-operative Apartment Perpetual Use and Equity Contract ("Equity Contract"), the Association's By-Laws, and its Articles of Incorporation. Section 6(3) of the Equity Contract provides that "[t]he Cooperative agrees that, to the limit of its resources, it will . . . adequately insure all of the property of the Cooperative against fire, storm, tornado and public liability." Article 8 of the Association's Articles of Incorporation provides that "[t]he management of the affairs of the corporation shall be conducted by its Board of Directors ["Board"] in accordance with the requirements of its By-Laws." Paragraph 51 of the Association's By-Laws provides, in part, the following: "The Board of Directors shall, from time to time, fix and determine the sum or sums necessary and adequate for the continued ownership and operation of the project. They shall determine the amounts required for capital items . . ., and for operating items such as taxes, insurance, repairs, betterments and operating expenses." Prior to April 15, 2006, the Association maintained casualty insurance through Allstate Insurance Company ("Allstate") over its property, including windstorm, general liability, and fire coverage for the three buildings. Sometime prior to January 17, 2006, the Association was notified that Allstate was canceling the Association's casualty policy, effective April 15, 2006. At the Association's meeting on January 17, 2006, members were advised that Allstate, who handled the "building insurance," had canceled its policy. Following this announcement, there was a discussion regarding: (1) the impact on members if the Association did not or could not secure insurance; (2) the possibility of the Association's being self-insured; and (3) cost and possibility of the Association's obtaining insurance. During the January 17, 2006, meeting, the president and treasurer of the Board, Robert Kendrick, advised Association members that, at the present time, the only company that might insure the Association was Citizens Insurance Company ("Citizens"), the State's insurer of last resort. Mr. Kendrick further advised the members that if insurance were obtained through Citizens, the premiums would be at least two to three times what the Association paid in 2005. Sometime prior to the January 17, 2006, meeting, Mr. Kendrick received information about the cost of obtaining insurance through Citizens. This information was provided to him by telephone from the agency that had provided the Association's Allstate coverage. Although Mr. Kendrick received the Citizen's quote by telephone and wrote it down, he did not include it in the Association's proposed 2006 budget. Mr. Kendrick's reason for not including the premium cost for coverage by Citizens was that he had not received a written quote. The budget presented at the January 17, 2006, annual meeting had been prepared before the Association was notified that its Allstate policy was being canceled. Therefore, the amount of insurance premium budgeted for 2006 was similar to the Allstate insurance premium. At the January 17, 2006, annual meeting, the vote to approve the budget, with an insurance premium budgeted similar to the Allstate premium, was unanimous. On or about March 30, 2006, an insurance agent or broker with Insurance Technologies Corporation provided the Association with a written quote for coverage through Citizens. The quote offered the following coverage through Citizens: property damage, including windstorm, at the limit of $3.5 million for the three buildings with a $2,500 general deductible and a five percent windstorm deductible for an annual premium of $17,773. The cost of the annual premium cost for property damage insurance, including windstorm, was significantly higher than the amount budgeted for the year. Therefore, no insurance was purchased for the period after April 15, 2006, when Allstate's coverage expired. Mr. Kendrick did not include the Citizen's premium quote in the proposed 2007 Association budget or any property coverage other than $2,500 for general liability and directors' and officers' coverage. Mr. Kendrick determined to not include other insurance coverage because of the cost of additional coverage.5 Since Allstate canceled its policy, the Association has not purchased any alternative coverage. The coverage limit for the Association's property under the Allstate policy that was canceled, effective April 15, 2006, was for an amount less than $3.5 million. However, the price quotes for the alternative coverage for the Association's property was based on $3.5 million. In or about December 2007, about one year and nine months after Allstate canceled the Association's casualty policy, the Association's Board solicited casualty policy quotes from brokers, Tampa Bay Insurance and its successor, MSM Insurance. The broker provided the Association with a quote from Century Surety and another one from Lloyd's of London. Mr. Kendrick's understanding was that the broker he contacted would go out into the market and get the best quote available. In fact, the cover letters from the broker on both the Century Surety quote and the Lloyd of London's quote stated, "I assure you that I have tried every angle to get you the best possible pricing available." In accordance with the foregoing, Mr. Kendrick reasonably relied on the broker to provide the Board with the lowest price for casualty insurance, including windstorm coverage. The Century Surety December 12, 2007, "property" quote, which excluded coverage for wind/hail and theft, was $11,964.61. The Lloyd's of London January 21, 2008,6 quote was $37,441.39 for "Commercial [Property] Wind" coverage. The amount quoted by Lloyd's of London was more than six times the amount of the Allstate premium for similar coverage and approximately double the Citizens premium quote from the prior year. When Mr. Kendrick received the quotes from Century Surety ($11,964.61) and Lloyd's of London ($37,441.39), he believed that the two policy amounts were to be added together for a combined premium of almost $50,000. However, at hearing, Mr. Kendrick admitted that his belief may have been incorrect and that the quote from Lloyd's of London may have been a revised premium for all coverage. At the Association's 2008 annual meeting, four proposed budgets were presented to the members to vote on. Proposed Budget 1 for 2008 reflected $2,000 as being the total premium for all forms of insurance for 2008. The source of this estimate is unknown. The total cost of Proposed Budget 1 for 2008 was $61,400.00. Proposed Budget 2 reflected a cost of $22,000 for "insurance" and, also listed as a separate line item, $42,000 for "security." Although Proposed Budget 2 did not specify, the $42,000 included not only the cost of a security guard, but also other significant line item increases, including the estimated $22,000 for insurance coverage. The total cost of Proposed Budget 2 for 2008 was $119,400. According to Mr. Kendrick, the proposed 2008 budgets were prepared in late 2007 and before he received the above- referenced quotes from Tampa Bay Insurance and MSM. Therefore, the $22,000 for insurance coverage, including windstorm coverage, was merely an estimated cost. The source from which that estimate was obtained is unclear. Proposed Budget 1 was approved by the members on an 11 to three vote, with five abstentions. In October 2009, Mr. Kendrick, acting on behalf of the Board, obtained another quote for casualty insurance, including windstorm coverage, from MSM. The quote provided by MSM and dated October 28, 2008, was for $59,972.39 and was from the carrier, Lloyd's of London. The quote was itemized as follows: annual premium of $56,000; (2) taxes and fees of $3,722.39; and (3) the agency fee of $250. At the Association's 2009 annual general meeting, two proposed budgets were presented on which the shareholders could vote. Of the numerous line items, there are only three differences between Proposed Budget 1 and Proposed Budget 2. Proposed Budget 1 reflected $2,000 for insurance, $4,000 for security, and $3,600 for administrative purposes, while Proposed Budget 2 included a significant increase in each of those line items. Proposed Budget 2 reflected $60,000 for insurance, $40,000 for security, and $6,000 for administrative purposes. Based on the foregoing, Proposed Budget 2, which totaled $157,500, exceeded Proposed Budget 1, which totaled $61,100, by $96,400. The two proposed budgets for 2009 appeared on the same sheet and included a "note" regarding the impact of each of the two budgets on the members' ownership fees. According to the "note," Proposed Budget 1 would result in no change in the members' maintenance fees, and Proposed Budget 2 would result in a 260 percent increase in members' maintenance fees. On January 20, 2009, during the Association's annual meeting, the members approved Proposed Budget 1, described in paragraph 31 and which totaled $61,100. That budget, which included no casualty insurance, was approved by a 12-to-one vote of the members. The votes of two shareholders were not counted, because no proper proxies from them had been received as of the meeting date. Except as noted above, no other efforts to obtain windstorm coverage were undertaken by Mr. Kendrick on behalf of the Board. At all times relevant to this proceeding, the Association did not have sufficient funds to purchase casualty insurance. Moreover, the majority of the owners of the units were unwilling and/or unable to pay additional assessment. On April 14, 2009, about two months after the action in this case was filed, the Board purchased a broad form casualty policy which covered damage to the Association's property, excluding windstorm. The policy was purchased from Chubb Insurance Company for an annual premium of $6,222.88. Prior to filing its Notice to Show Cause, the Division provided the Association with an opportunity to provide proof of its intent to comply with Subsection 719.104(3), Florida Statutes. The Division also gave the Association several reasonable extensions of time in which to provide proof of its intent to comply with the above-referenced provision.7
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, enter a final order: (1) finding that Respondent, Waterfront Park Corporation, did not violate Subsection 793.104(3), Florida Statutes; and (2) rescinding the Notice to Show Cause. DONE AND ENTERED this 30th day of October, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 30th day of October, 2009.
Findings Of Fact Liberty National Fire Insurance Company (hereinafter referred to as "Liberty National") is a licensed foreign insurer in the State of Florida and subject to the jurisdiction and regulation of the Florida Department of Insurance (hereinafter referred to as "Department"), pursuant to Chapter 624, Florida Statutes. Liberty National is headquartered in Birmingham, Alabama, and writes business in 45 states, in direct personal lines business, direct commercial lines business, and almost an equal amount of assumed reinsurance. Prior to Hurricane Andrew, as of August 1, 1992, Liberty National had approximately 40,000 personal line policies in the State of Florida. This figure includes all personal lines; the homeowners, preferred homeowners, special homeowners, industrial fire, business resale, and mobile homes. In 1987 Liberty National started writing mobile home programs with the Raymond Patterson Agency as their managing general agent. On May 19, 1993, the Department of Insurance promulgated emergency Rule 4 ER93-18. Subsection (3) imposed a 90 day moratorium on cancellations and nonrenewals of personal lines residential property insurance on the basis of hurricane claims. Subsection (4) provided: "This rule shall not apply if the insurer can affirmatively demonstrate to the Department that the proposed cancellation or nonrenewal is necessary for the insurer to avoid an unreasonable risk of insolvency." In direct response to the devastation in the wake of Hurricane Andrew and the resulting nonrenewals and cancellations of homeowner coverage by insurers, at Special Session B (1993) of the Florida Legislature, Section 1 of Chapter 93-401, Laws of Florida (HB 89-B) was passed which provided for a "moratorium on cancellation and nonrenewal of residential property coverage." This "moratorium law" was signed by the Governor on June 8, 1993, and by its terms was effective from May 19, 1993, until November 14, 1993. Subsection (1) of the moratorium law sets forth the "Findings and Purpose" of the Legislature in passing the bill: FINDINGS AND PURPOSE. -- The Legislature finds that property insurers, as a condition of doing business in this state, have a responsibility to contribute to an orderly market for property insurance and that there is a compelling state interest in maintaining an orderly market for property insurance. . . . The Legislature further finds that the massive cancellations and nonrenewals announced, proposed, or contemplated by certain insurers constitute a significant danger to the public health, safety, and welfare, especially in the context of a new hurricane season, and destabilize the insurance market. In furtherance of the overwhelming public necessity for an orderly market for property insurance, it is the intent of the Legislature to impose, for a limited time, a moratorium on cancellation or nonrenewal of personal lines residential property insurance policies. Subsection (3) describes the nature of the moratorium imposed by the Legislature: (3) MORATORIUM IMPOSED. -- Effective May 19, 1993, no insurer authorized to transact insurance in this state shall, until the expiration of this section pursuant to subsection (6), cancel or nonrenew any personal lines property insurance policy in this state, or issue any notice of cancellation or nonrenewal, on the basis of risk of hurricane claims. All cancellations or nonrenewals must be substantiated by underwriting rules filed with and accepted for use by the Department of Insurance, unless inconsistent with the provisions of this section. The Department of Insurance is hereby granted all necessary power to carry out the provisions of this section. On June 4, 1993, Respondent, Department of Insurance (DOI) filed 4ER93- 20 (published in the Florida Administrative Weekly, Vol. 19, No. 24, pp. 3398- 3400), indicating that the laws implemented included the moratorium law, Subsections 626.9541(1)(a)(d)(x) and Section 627.4133 of the Florida Insurance Code. The Emergency rule 4ER93-20 is entitled "Procedures For Applying for Moratorium Exemption and Required Insurer Corrective Action on Previous Notices of Cancellation or Nonrenewal" and indicates as follows: The purpose of this rule is to enumerate the procedures required for an insurer to be granted an exemption to that rule [the Department moratorium Rule 4ER93-18]; and to specify corrective action required of any insurer which has sent out a notice of cancellation or nonrenewal which is prohibited under the moratorium. On June 15, 1993, Liberty National submitted a request for an exemption from the Moratorium. In the request for partial exemption, Liberty National requested the nonrenewal of approximately 6,000 of 17,000 mobile home policies on one program only, which were written through Raymond Patterson Agency of Fort Lauderdale. The basis for Liberty National's request for exemption, was that subsequent to Hurricane Andrew they incurred problems with their ceded reinsurance program. Liberty National alleges that the problem with the reinsurance was that Liberty National was only able to secure foreign reinsurance and no domestic reinsurance. Liberty National is continuously trying to obtain domestic reinsurance. Effective July 1993 Liberty National's reinsurance provides caps for each county based on a Tier System dividing the counties in Florida into Tier 1, Tier 2, and Tier 3 counties. The cap for Tier 1 counties is $7,500,000; Tier 2 is $15,000,000; and Tier 3 is $25,000,000. A chart was submitted to the department as part of Liberty National's exemption application with the total exposure that Liberty National has in each county. Liberty National had also contracted with a firm, Applied Insurance Research, which does windstorm analysis for various companies, to develop loss scenarios, and this information was submitted to the Department as part of the application. On August 12, 1993, Liberty National submitted additional information to the Department, pursuant to their exemption request. In the material Liberty National reported surplus as of December 31, 1992, in the amount of $66,798,297, and a contribution by Tourchmark of $50,000,000 additional capital on July 16, 1993. On August 19, 1993, the Department held a public hearing on Liberty National's request for partial exemption at which Liberty National introduced two exhibits that contained supplemental information regarding Liberty National's application for partial exemption. On September 2, 1993, the Department issued a letter denying Liberty National's request for exemption.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance issue a Final Order in this case denying the exemption sought by the Petitioner. DONE AND ENTERED this 14th day of February 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February 1994. COPIES FURNISHED: Mark A. Cohen, Esquire Mark A. Cohen & Associates, P.A. 1221 Brickell Avenue, Suite 1780 Miami, Florida 33131 Nancy Aliff, Esquire Department of Insurance Division of Legal Services 612 Larson Building Tallahassee, Florida 32399 Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
Findings Of Fact Based upon the record evidence and the stipulations of the parties, the following Findings of Fact are made: City of Miami Beach The City of Miami Beach is an incorporated municipality located within the jurisdictional boundaries of Dade County, Florida. It is governed by a seven member City Commission. The City consists of a main island and a number of smaller natural and man-made islands Approximately 100,000 permanent residents live on the City's seven square miles of land area. In addition, the City has a sizable seasonal population. The City is separated from the Dade County mainland, which lies to its west, by Biscayne Bay. There are four east-west causeways connecting the City with the mainland: MacArthur Causeway; Venetian Causeway; the Julia Tuttle Causeway; and 79th Street (North Bay) Causeway. All four of these causeways serve as hurricane evacuation routes for the City's population. Venetian Causeway The Venetian Causeway, which was completed in 1926, is the oldest of these causeways. It is approximately two and one half miles in length and consists of twelve lowrise bridges. These bridges feature low guardrails of a pierced geometric design which allow a virtually unobstructed view of the bay from anywhere on the roadway. Among its twelve bridges are two drawbridges, which are in relatively poor operating condition and are unable to bear exceptionally heavy loads. Inasmuch as the causeway is classified as a county minor arterial roadway, Dade County is responsible for its maintenance and repair. The causeway has one westbound lane of traffic and one eastbound lane of traffic. Its two lanes of traffic are not divided. As a two-lane, two-way undivided arterial, the causeway has a peak hour capacity of 1570 vehicles. Based upon 1987 statistics compiled by the Dade County Department of Public Works, the causeway's actual peak hour volume is 641 vehicles. Its volume to capacity ratio is therefore .41 and, as a result, its peak hour level of service (LOS) is "A," which is characterized by free flowing, optimum traffic conditions. There are five other service levels used by traffic planners to describe a roadway's traffic operations: LOS "B" (stable); LOS "C" (uncongested); LOS "D" (congested); LOS "E" (very congested); and LOS "F" (extremely congested). While traffic is free flowing most of the time on the causeway, there are occasions when there is congestion. Motorists may encounter such congestion when there is an accident, when there is flooding due to a heavy rain event, 1/ when traffic must stop to allow a truck with a heavy load to cross one of the causeway's drawbridges and when one of the drawbridges is stuck in the up position. Furthermore, when the drawbridge on the MacArthur Causeway is stuck in the up position, which happens not infrequently, a number of motorists who ordinarily travel on the MacArthur will use the Venetian as an alternative route, resulting in heavier than usual traffic on the Venetian. Motorists using the Venetian Causeway must stop at a toll booth located at the western terminus of the causeway to either pay a 50_ toll or show the attendant a plate reflecting that the toll has been prepaid. Rumble strips have been placed on the pavement to warn motorists to slow down before they reach the toll booth. As it traverses the bay from the mainland to the City's main island, the causeway crosses six islands, collectively known as the Venetian Islands, that are marked by residential development. From west to east, these islands are: Biscayne Island; San Marco Island; San Marino Island; Di Lido Island; Rivo Alto Island; and Belle Isle. Biscayne and San Marco Islands are within the jurisdictional boundaries of the City of Miami. San Marino, Di Lido, and Rivo Alto Islands and Belle Isle are within the jurisdictional boundaries of the City of Miami Beach. The Venetian Causeway is the only roadway linking the six Venetian Islands to the mainland. In addition to an eastbound lane and a westbound lane, the causeway has a turn lane on each of the Venetian Islands. At its July 19, 1988, meeting, the Dade County Commission passed the following resolution concerning the Venetian Causeway: WHEREAS, the Venetian Causeway, completed in 1926, was an integral part of the master plan for the residential Venetian Islands in Dade County; and WHEREAS, the Venetian Causeway is the oldest causeway remaining in its original form, linking the mainland of Miami to the island of Miami Beach; and WHEREAS, it is believed that preservation of the unique and historic Venetian Causeway as a historic site will be highly beneficial to the residents of the Venetian Islands, the citizens of Miami, Miami Beach, Dade County and the United States of America; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF DADE COUNTY, FLORIDA, that the County Manager is directed to work with appropriate Local, State and Federal officials to secure funding for its replacement and the Causeway's designation as a State Scenic Highway and its listing as a historic place in the National Register while preserving its character and appearance. On July 27, 1988, the Miami Beach City Commission passed a similar resolution, which provided as follows: WHEREAS, the Venetian Causeway has historic significance in the development of the City of Miami Beach; and, WHEREAS, the Venetian Causeway has unique character by virtue of its scale, bridge profiles, and railing design; and, WHEREAS, the existing Venetian Causeway positively contributes to the appearance and character of the Venetian Islands and the City of Miami Beach. NOW, THEREFORE, BE IT DULY RESOLVED THAT THE CITY COMMISSION OF THE CITY OF MIAMI BEACH FLORIDA, supports the nomination of the Venetian Causeway to the National Register of Historic Places and the designation of the Venetian Causeway as a State of Florida Scenic Highway. On April 5, 1989, the Miami Beach City Commission adopted Ordinance No. 89-2637, which designated "[t]he public right-of-way of that portion of the Venetian Causeway within the corporate limits of the City of Miami Beach" as a historic preservation site, effective April 15, 1989. The Venetian Causeway was officially placed on the National Register of Historic Places effective July 13, 1989. Widening the causeway and adding lanes will change its unique character and appearance and adversely impact its value as a historic resource. Belle Isle Belle Isle is the Venetian Island closest to the City's main island and furthest from the mainland. Both of the Venetian Causeway's drawbridges lie to its west. To the south of the causeway on Belle Isle is a three acre City park and a crescent shaped, fifteen-acre area that is developed with highrise condominium apartment buildings. There are six such buildings. They range in height from ten to twenty- two stories and contain a total of approximately 1050 units. There is also a large vacant lot on the south end of the island. There are 9.17 acres of land to the north of the causeway on Belle Isle. The land is divided into six parcels. From west to east, these parcels are: the Cellazet parcel; Century Lane parcel; Lido Spa parcel; Farrey Lane parcel; Edelstein parcel; and Stortford parcel. The largest of these parcels is the Stortford parcel, which is 3.50 acres. The smallest of these parcels is the Edelstein parcel, which is .60 of an acre. The remaining parcels range in size from .69 of an acre (Century Lane) to 2.21 acres (Lido Spa). Of these six parcels on the north end of Belle Isle, only one, the Cellazet parcel, is vacant. Lowrise, older buildings, none exceeding five stories in height, are found on the other parcels. These buildings contain approximately 270 residential units. There has not been any recent development on the north end of Belle Isle. The units that are furthest south on Belle Isle are only 300 feet from the southernmost point of the 9.17 acres of land that lie to the north of the causeway on the island. Stortford Parcel Intervenor Stortford N.V. purchased the Stortford parcel in 1980 for approximately five million dollars with the intention of replacing the 120 lowrise rental apartment units on the site with highrise condominium apartment units. Shortly after it purchased the property, the market for highrise condominium apartment units in the area weakened and, as a result, Stortford N.V. delayed its plans to redevelop the property. By 1981, market conditions had improved. The improvement rekindled Stortford N.V.'s interest in pursuing its original redevelopment plans. It consulted an architect and investigated the economic feasibility of such a project. It determined after such an investigation that it would be imprudent to go forward with the project under the circumstances as they then existed. Accordingly, it again put its redevelopment plans on hold, but not before it had spent $50,000.00 on the project. Stortford N.V. next took action in furtherance of the project in the late 1980's. It had a building designed for the site and hired a general contractor, L. Milton Construction Company (Milton), to oversee the building's construction. The building was to be 27 stories tall and contain almost 300 apartment units ranging in area from 900 square feet (one-bedroom unit) to 1400 square feet (three-bedroom unit). Four of the building's 27 stories were to used as a multi-tiered parking garage with 494 spaces. On February 22, 1989, Milton applied to the City's Building Department for a building permit to construct the building. The permit for the Stortford project was approved on January 31, 1990, subject to the following conditions: This permit is issued subject to Biscayne Bay Shore Line Development Review Committee Approval. If Biscayne Bay Shore Line Development Review Committee approval is not granted, this permit is null and void and all fees will be refunded (except up front fee). [The applicant] shall incur no costs and construction shall not begin until Biscayne Bay Shore Line Development Review Committee Approval is granted. The permit had an expiration date of July 30, 1990. No other building permit has been issued in recent years for construction anywhere on the north end of Belle Isle. In fact, only one other such permit - for construction on the Callazet parcel - has been sought. On May 17, 1990, the Biscayne Bay Shore Line Development Review Committee (Committee) met to consider the Stortford project. The Committee rejected the project because it was not set back a sufficient distance from the shoreline. The building permit issued for the Stortford project on January 31, 1990, is now void. No actual construction work has yet been done in connection with the project. Stortford N.V. has spent approximately $365,000.00 on the project since the project's revival in the late 1980's. Prior Zoning/Land Use Designations of Belle Isle Property From 1930 until 1951, the south end of Belle Isle was zoned for single family estates (RC) 2/ and the north end of Belle Isle was zoned for multifamily apartments and hotel units (RE). In 1951, the zoning classification of the south end of Belle Isle was changed to RE. No change was made to the zoning classification of the north end of Belle Isle. In 1961, height restrictions were placed on the buildings on both the south and north ends of Belle Isle. Under these restrictions no building could exceed 14 stories or 160 feet. Both the south and north ends of Belle Isle retained their RE zoning classifications until 1971, when the City passed a new zoning ordinance, Ordinance No. 1891, which contained different classifications. Under the new ordinance, both the south and north ends of Belle Isle were classified RM-100, a classification which permitted a maximum of 100 dwellings units per acre and carried no height restrictions. The south and north ends of the island remained so classified until October 1, 1989, when the City's Year 2000 Comprehensive Plan became effective. Petitioners Petitioners Benson, Durchslag, Kreitman, Shiff, Cushing and Kohn are now, and have been at all times material hereto, residents of the City of Miami Beach. Petitioners Durchslag, Kreitman, Shiff and Kohn live in highrise condominium apartment buildings on the south end of Belle Isle. They each own the apartments in which they live. Petitioner Benson resides in a single-family house that she owns on Di Lido Island. Petitioner Cushing lives in a single-family dwelling that he owns on Rivo Alto Island. The Venetian Islands Improvement Association, Inc. is an organization of owners of single-family residences located on the Venetian Islands. It was founded in 1938 and now has approximately 435 members. Its primary purpose is to advance and protect the collective interests of its homeowner members. Adoption of the City's Comprehensive Plan The City Commission considered the matter of the adoption of the City's Year 2000 Comprehensive Plan at public hearings held on September 7, 1989, and September 21, 1989. All notices of these adoption proceedings were published in the "Beaches Neighbors" section of the Miami Herald. 3/ The "Beaches Neighbors" section of the Miami Herald is circulated twice a week along with the main portion of the Herald in the following towns and municipalities in Dade County: Miami Beach; Bal Harbour; Surfside; Bay Harbor Islands; Golden Beach; North Bay Village; Sunny Isles; and Indian Creek Village. The "Beaches Neighbors" section of the Miami Herald is: (a) published at least on a weekly basis; (b) printed in the language most commonly spoken in the area within which it circulates; (c) not a newspaper intended primarily for members of a particular professional or occupational group; (d) not a newspaper whose primary function is to carry legal notices; and (e) not given away primarily to distribute advertising. At the close of the public hearing held on September 21, 1989, the City Commission, over the objections of Petitioners, unanimously passed Ordinance No. 89-2664 adopting the City's Year 2000 Comprehensive Plan. The objections submitted by Petitioners during the adoption proceedings were directed to the land use designation of the north end of Belle Isle. Although they had the opportunity to do so, they did not contend at any time during the adoption proceedings that the City had given inadequate notice to the public of these proceedings. While Petitioners may not have known at the time of the adoption proceedings that notice of these proceedings had been published only in the "Beaches Neighbors" section of the Miami Herald, they could have obtained such information in advance of the proceedings by reviewing the files maintained by the City Clerk. They did not conduct such a review, however. Contents of the Plan and Supporting Data and Analysis The City's Year 2000 Comprehensive Plan contains a future land use element. An integral part of this element is the future land use map (FLUM). It shows the proposed distribution, extent and location of land uses for the entire land area of the City. The FLUM was based upon surveys, studies and data regarding the City as a whole, including, among other things: the City's projected population; the land needed to accommodate the projected population; the character of the remaining vacant land in the City; 4/ the availability of public facilities and services; and the need for redevelopment, including the renewal of blighted areas and the elimination of inconsistent and incompatible land uses. Neighborhood studies were also used to develop the FLUM. Census data and existing land uses were examined on a neighborhood-by-neighborhood basis to obtain a detailed inventory of existing conditions in the City. Belle Isle is part of the West Avenue Neighborhood Study Area. 5/ The plan's supporting documents contain the following narrative statement concerning this area: West Avenue is predominantly developed as a high density/high intensity bayfront multifamily residential area. (It includes Belle Isle). Several large vacant parcels and a few existing enclaves of single family homes and older, lower density apartment buildings offer future development opportunities for townhouse construction. Both the south and north ends of Belle Isle are designated RM-2 on the FLUM. RM-2 is a medium intensity, multifamily residential land use designation. The plan regulates the intensity of residential uses by utilizing the concept of floor area ratio (FAR). Floor area ratio is the floor area of a building or buildings on a lot divided by the area of a lot. Under the plan, land designated RM-2 is assigned a maximum FAR range of 1.25 to 3.0. 6/ Where within this range a particular development falls depends upon the features of the development. The more desirable features and amenities a development has, the higher its maximum FAR will be pursuant to the performance bonus provisions of the plan. The RM-2 designation is similar, but not identical, to the RM-100 classification that had existed under Ordinance No. 1891 inasmuch as it does not necessarily bar residential development in excess of 100 dwelling units as did the RM-100 classification. Initially, the City's Planning and Zoning Department staff members had recommended that the north end of Belle Isle be designated on the FLUM for townhouse use. They subsequently changed their recommendation to RM-2. The change was prompted by concerns that a townhouse designation might unlawfully deprive north end property owners, who had invested in their property in reliance upon prior land use regulations that permitted more intensive use of their land, a fair return on their investment. An alternative designation was therefore sought. RM-2 was selected because of its similarity to the RM-100 classification that had been in effect on the north end of Belle Isle since 1971 and because of its compatibility with the existing development on the south end of the island. 7/ Reliance upon these factors in selecting a land use designation was in accordance with sound land use planning techniques. While the north end of Belle Isle, in terms of its character, is suitable for townhouse development, it is also suitable for highrise residential development of the type permitted by its RM-2 designation. The comprehensive plan adopted by the City contains other maps, in addition to the FLUM, that depict future conditions. Among these other maps are those that relate to traffic circulation in the City. These maps reflect that the Venetian Causeway is anticipated to remain a two-lane roadway classified as a County minor arterial. In the City's adopted comprehensive plan, all minor arterials in the City, including the Venetian Causeway, are assigned a peak hour level of service standard of "D." This is the same peak hour level of service standard that the causeway is assigned in Dade County's and the City of Miami's respective comprehensive plans. The City of Miami Beach's Year 2000 Comprehensive Plan provides that no development order or permit may be issued which would "result in a reduction of the level of services for the affected public facilities below the level of service standards adopted in this Comprehensive Plan." Accordingly, any development or redevelopment on the north end of Belle Isle that will lower the Venetian Causeway's peak hour level of service below "D" is prohibited by the plan. The additional traffic that would be generated by the development and redevelopment of the various properties on the north end of Belle Isle at the maximum intensity of use permitted by their RM-2 designation, however, is not expected, in and of itself, to cause the Venetian Causeway's peak hour level of service to deteriorate to such a point that the standard set for it in the City's plan would not be met. 8/ Among the other elements of the City's Year 2000 Comprehensive Plan is a historic preservation element. It contains the following goal: Secure for future generations the opportunity to share in the unique heritage of Miami Beach and promote sound economic development through the purposeful retention, protection, and continued use of buildings, structures, and districts which are associated with important events in the City's history or exhibit significant architectural qualities. As Policy 2.1 of this element makes clear, the City intends to take "a realistic and balanced approach to economic development and historic preservation." The City's plan also has a conservation/coastal zone management element. It contains the following objectives and policies dealing with hurricane evacuation and hazard mitigation: OBJECTIVE 4 The existing time period required to complete the evacuation of people from Miami Beach prior to the arrival of sustained gale force winds shall be maintained or lowered by 1995. 9/ Policy 4.1 All future improvements to evacuation routes shall include remedies for flooding problems and the anticipated increase in the level of the water of Biscayne Bay. Policy 4.2 The Miami Beach Hurricane Handbook will be distributed to the general public with detailed emergency operation instructions and hurricane evacuation pick-up sites. Policy 4.3 The City will work with the Metro-Dade Public Works Department to rate all local bridges for structural and operational sufficiency. Local bridges with unsatisfactory sufficiency ratings shall be programmed for improvements or replacement. Policy 4.4 All trees susceptible to damage by gale force winds shall be removed from the right-of-way evacuation routes and replaced with suitable species. Policy 4.5 The City will coordinate 10/ with Metro-Dade Transportation Administration to ensure adequate buses are available to safely evacuate neighborhoods with large concentrations of households within Miami Beach without private transportation. Policy 4.6 The City of Miami Beach Fire Department shall maintain and annually update the list of people who may need assistance due to physical or medical limitations in the event of an evacuation to ensure their safe mobilization. Policy 4.7 The City of Miami Beach Fire Department shall maintain and annually update the Miami Beach Hurricane Evacuation Plan 11/ and maintain and enhance the resources and capabilities of the plan to provide effective implementation of evacuation procedures to ensure that evacuation times are maintained or reduced. Policy 4.8 Procedures for boat owners during hurricane operations shall be added to the Miami Beach Hurricane Handbook with instructions for safe harbor operations. Policy 4.9 Between 1989 and 1993, coastal area population densities shall be coordinated with the Metropolitan Dade County Hurricane Procedure, which is the local hurricane evacuation plan for Miami Beach, and the lower Southeast Florida Hurricane Evacuation Plan, the regional hurricane evacuation plan. Policy 4.10 Coastal area population densities in Dade County, including the City of Miami Beach, shall be updated in the lower Southeast Florida Hurricane Evacuation Study currently being revised by the US Army Corps of Engineers and the National Hurricane Center. Policy 4.11 By 1993, changes in coastal area population densities identified in the amended lower Southeast Florida Hurricane Evacuation Study shall be used by the Metropolitan Dade County Office of Emergency Management, the overall coordinating authority for local hurricane planning, to update the Dade County Hurricane Procedure. OBJECTIVE 5 Reduce the exposure of life and property in Miami Beach to hurricanes through the implementation of hazard mitigation measures, by adopting the following policies: Policy 5.1 Public expenditures that subsidize additional development in the Coastal High Hazard Zone, (the Federal Flood Insurance Rate Map 'V' Zone), shall be prohibited. Public facilities shall not be built except for public beach or shoreline access and resource restoration. (See Coastal Zone Management.) Policy 5.2 The City will coordinate with Metro-Dade County and the South Florida Planning Council to develop a comprehensive marine hurricane contingency plan. Policy 5.3 New private use facilities along the Coastal High Hazard Zone shall conform to strict setback, open space and accessory use requirements. Policy 5.4 Structures which suffer repeated damage to pilings, foundations or load bearing walls and/or incur damage exceeding 50% of their assessed value shall rebuild to the requirements of all current development regulations, and shall not be located east of the coastal construction control line. No redevelopment shall be permitted in areas of repeated damage unless it is determined by the City of Miami Beach Officials to be in the public interest. Policy 5.5. During post-disaster redevelopment the Building Department will distinguish between those actions needed to protect public health and safety with immediate repair/cleanup and long term repair activities and redevelopment areas. Removal or relocation of damaged infrastructure and unsafe structures shall be by the Miami Beach Public Services Department in accordance with local procedures and those agencies and practices specified in the Metro-Dade County Hurricane Procedure. Policy 5.6 During post-disaster recovery periods, after damaged areas and infrastructure requiring rehabilitation or redevelopment have been identified, appropriate City departments will coordinate to: prepare a redevelopment plan which reduces or eliminates the future exposure of life and property to hurricanes; incorporate recommendations of intragency hazard mitigation reports; analyze and recommend to the City Commission hazard mitigation options for damaged public facilities; and recommend amendments, if required, to the City's Comprehensive Plan. Policy 5.7 Unsafe conditions and inappropriate uses identified in the post-disaster recovery phase will be eliminated as opportunities arise. Even if the City's population increases as projected 12/ and the Venetian Causeway remains a two-lane roadway as contemplated by the plan, it will be possible for the City to accomplish the end, identified in Objective 4 of the conservation/coastal zone management element, of reducing or maintaining the time it takes to complete an evacuation of the City prior to the arrival of sustained gale force winds. The City will be able to do so through the implementation of the strategies described in Policies 4.1 through 4.11 of this element. Likewise, an increase in the City's population will not necessarily prevent the City from attaining the end specified in Objective 5 of the conservation/coastal zone management element. The City will be able to realize this end, notwithstanding such growth, by taking those measures described in Policies 5.1 through 5.7 of this element. Accordingly, to the extent that the RM-2 designation of the north end of Belle Isle will have the effect of increasing the population of the City, it is not in irreconcilable conflict with Objective 4 and Objective 5 of the conservation/coastal zone management element inasmuch as these objectives can be met despite any population increase attributable to such a designation. 13/ Furthermore, because they can be met, despite such an increase in population, without the necessity of widening the Venetian Causeway 14/ and thereby threatening its value as a historic resource, neither is there any irreconcilable conflict with the above-described goal statement found in the historic preservation element of the City's plan. As noted above, the future traffic circulation maps adopted as part of the City's Year 2000 Comprehensive Plan reflect that the Venetian Causeway will remain a two-lane, minor county arterial. No other part or provision of the plan, including the FLUM's RM-2 designation of the north end of Belle Isle, suggests or requires otherwise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Community Affairs issue a final order in the instant case declining to find the City of Miami Beach's Year 2000 Comprehensive Plan not "in compliance" on the grounds urged by Petitioners. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of September, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1990.
