The Issue Whether Petitioner, IMH Healthcare, LLC, was required to submit an application for acquisition of Westport Holdings Tampa, L.P., d/b/a University Village, a specialty insurer licensed to operate a facility that undertakes to provide continuing care, pursuant to section 628.4615, Florida Statutes, and, if so, whether Petitioner has proven its entitlement to approval of the acquisition application.
Findings Of Fact The Department of Financial Services (Department) is the agency of the State of Florida having authority, among its other duties and responsibilities, to enforce the provisions of the Florida Insurance Code. The Financial Services Commission is a separate and independent budget entity within the Department composed of the Governor, the Attorney General, the Chief Financial Officer, and the Commissioner of Agriculture. § 20.121(3), Fla. Stat. The OIR is the agency within the Financial Services Commission responsible for all activities concerning insurers and other risk-bearing entities as provided under the Florida Insurance Code. § 20.121(3)(a)1., Fla. Stat. Westport Holdings Tampa, L.P. (Westport), is a limited partnership formed and existing under the laws of the State of Delaware. Westport operates the University Village continuing care retirement community (CCRC) in Hillsborough County, Florida. IMH Healthcare, LLC, is a limited liability corporation formed on March 24, 2014, and is in good standing under the laws of the State of Delaware. CCRCs offer a continuum of services that generally consist of independent living units, assisted living units, and skilled nursing care on a single campus. Persons choosing to live in a CCRC will typically start out in an independent living unit. As their needs change, they may move to an assisted living unit in which they may receive assistance and supervision for their activities of daily living. As residents of the CCRC transition to needing more care due to age, injury, or infirmity, they are entitled to care in the skilled nursing facility. In order to become a resident of a CCRC, a person enters into an individual continuing care contract with the CCRC. That contract, which includes an up-front entrance fee, part of which may be refundable, and monthly payments, is treated as the equivalent of a policy of insurance. Therefore, the owners and operators are regulated as “specialty insurers” and are required to obtain certificates of authority from OIR. Westport currently holds a certificate of authority to operate the University Village CCRC pursuant to chapter 651, Florida Statutes. University Village accommodates the spectrum of care at a single campus. Independent living facilities consist of 446 apartments in two multi-story apartment buildings known as the Towers, and 46 patio homes known as the Villas. The assisted living facility and skilled nursing facility, which includes a memory care facility, are housed in a three-story facility, generally known as the “health center,” located across the street from the independent living facilities. The skilled nursing facility, containing 120 beds, is located on the first floor, with the remaining 110 assisted living units located on the second and third floors. University Village currently has more than 400 residents. A person seeking to acquire a “triggering” ownership interest in a CCRC with an existing certificate of authority must file an application for acquisition under section 628.4615. The application is subject to review under statutory criteria designed to ensure the protection of the residents and the public. Westport has two partnership percentage interests; a 99-percent limited partnership interest, and a one-percent general partnership interest. Westport is governed by the Westport Holdings Tampa Limited Partnership Limited Partnership Agreement, dated October 23, 2000, as subsequently amended. Prior to March 2014, Westport Holdings University Village, LLC, held the one-percent general partnership interest and Westport Senior Living Investment Fund, L.P. (WSLIF) held the 99-percent limited partnership interest. Larry Landry was the president and sole manager of both entities. During the period leading up to the filing of the acquisition application by Petitioner, management of University Village was performed by AgeWell Senior Living, LLC. The executive director was Tim Parker, who had served in that role for a lengthy period. In 2006, Westport entered into two notes payable totaling $32,250,000, both of which related to and were secured by University Village. The original maturity date of both loans was January 2010. The maturity date was extended to January 2012 by the original lender, Capmark Bank, conditioned, in part, on a $10 million principal reduction payment. In August 2012, Horizon LP UV Lender, LLC (Horizon), purchased the debt, the obligations of which Westport was not keeping current. The maturity date was extended by agreement multiple times, with the last extension expiring December 15, 2013. By 2013, OIR had become concerned with the lack of funds to catch up on deferred maintenance to the University Village buildings, which included extraordinary maintenance to roofs and chillers, HVAC equipment, and the like, and with the amount maintained in reserve for the deferred maintenance and refunds. By February 28, 2014, the amount of refunds payable was estimated at $1.7 million. In early to mid-2013, BVM Management, Inc. (BVM Management) became interested in acquiring the 99-percent limited partnership interest in Westport. BVM Management is a 501(c)(3) charitable purpose corporation. It holds assets in affordable housing and senior housing, and offers consulting services to approximately 40 skilled nursing facilities and continuing care retirement communities. BVM Management’s president is John W. Bartle, whose scope of work includes identifying special assets that are in some event of foreclosure or distress, usually with banks or bankruptcy courts, receiverships, and conservatorships. In mid-2013, Mr. Landry and Mr. Bartle, among others, met with representatives of OIR to discuss the proposed acquisition of Westport’s 99-percent limited partnership ownership interest by BVM Management. By that time, OIR was very engaged in the status of University Village, monitoring its operations on almost a monthly basis. It was discussed that the acquisition would allow for the infusion of capital into Westport and University Village to address OIR’s concerns. During that meeting, a decision as to whether the acquisition of Westport’s 99-percent limited partnership interest would trigger a requirement for the purchaser to file an acquisition application was deferred. BVM Management undertook to arrange for the issuance of tax-exempt bonds to raise the capital to acquire Westport’s 99-percent limited partnership interest and provide funding to meet OIR’s concerns. On August 11, 2013, BVM Management/Westport Holdings, L.P., entered into a Limited Partnership Purchasing Agreement to purchase WSLIF’s 99-percent limited partnership interest in Westport. On December 6, 2013, OIR advised Mr. Landry “that if BVM buys the [99-percent] limited partnership interest of Westport Holdings Tampa, LP, that it would not be required to file an acquisition application.” However, OIR requested the submission of a Corrective Action Plan to address BVM’s “financial stability, debt structure, the management company, marketing efforts, etc.” The parties to the Limited Partnership Purchasing Agreement attempted to close before the December 15, 2013, loan maturity date expiration. However, due to the inability of the bond underwriter to deliver tax exempt bonds at the expected price, the closing did not occur. As a result of the failure to close the sale of the 99-percent ownership interest, Horizon began to pursue foreclosure. Before that occurred, Horizon issued a forbearance through March 31, 2014. After consultation with the accounting firm that was performing the feasibility study and market study, Mr. Bartle contacted lenders that might be interested in financing the University Village property. He approached USAmeriBank and Columbia Pacific Investment Fund (CPIF) Lending, LLC, with a structure for financing that would require additional limited partners as purchasers instead of BVM Management. Thereafter, BVM Management located investors interested in purchasing Westport’s 99-percent limited partnership interest. On March 29, 2014, a Promissory Note was entered which provided that its $1 million principal sum and interest would be paid to “Westport Senior Investment Fund, Limited Partnership, . . . attention Larry L. Landry,”1/ either upon delivery by BVM University Village, LLC, of “the Second 2014 Amendments to the Limited Partnership Agreements of Westport Holdings Tampa Limited Partnership . . . and Westport Tampa II, Limited Partnership,” by which the general partnership interest would be transferred, or upon the Note’s July 1, 2014, maturity date. At the time, pursuant to a conditional Partnership Interest Transfer Agreement, it was anticipated that the Westport one- percent general partnership interest would be transferred from Westport Holdings University Village, LLC, to BHMSILFGP, LLC. On March 31, 2014, WSLIF sold its 99-percent limited partnership interest in Westport to a group of limited partners. Westport Holdings University Village, LLC, retained its one-percent interest in Westport as the general partner. The one-percent general partnership interest was not transferred to BHMSILFGP, LLC. The sale of the limited partnership interest was memorialized in the First 2014 Amendment of Limited Partnership Agreement (Tampa), by which the limited partnership interest was sold and conveyed by WSLIF to BVM University Village, LLC. Immediately thereafter, and as part of the same transaction, the 99-percent limited partnership shares were allocated to the limited partners as follows: BVM University Village, LLC -- 39.6% BHMSILF, LLC -- 26.4% IMH Healthcare, LLC -- 19.8% JF Consultants, LLC -- 13.2% Pursuant to the First 2014 Amendment of Limited Partnership Agreement (Tampa), a majority interest of the four limited partners are entitled to remove Westport’s general partner, approve or disapprove the appointment of a successor general partner, dissolve the partnership, and amend the limited partnership agreement. Also on March 31, 2014, the limited partners authorized Westport to enter into two loan agreements, the proceeds from which were used to retire existing debt, to fund repairs and renovations of independent living units, and for other purposes related to the CCRC. As part of the loan transactions, Westport Nursing, LLC, was “spun off” of Westport as an accommodation of the loan agreement with USAmeriBank described below. It is not known if that transaction was reported to OIR, and it was not explained whether the transaction affected Westport’s certificate of authority to operate the University Village CCRC. One loan, in the amount of $9.5 million, was taken out by Westport Holdings Tampa, L.P., and Westport Holdings Tampa II, L.P. The lender was CPIF Lending, LLC. The loan was secured by a mortgage on the independent living facilities. Loan proceeds of $5.6 million were used to pay existing mortgage debt, and loan proceeds of $1.75 million were disbursed to a “capital expenditure reserve” for facility improvements in the form of “replacements and alterations.” The remaining proceeds went to various expenses, including $1 million to the seller of the partnership interest. The other loan, in the amount of $15 million, was taken out by Westport Nursing, LLC. The lender was USAmeriBank. Proceeds were to be used for the benefit of the assisted living and nursing care facility. The loan was also used to fund $3 million of “minimum liquid reserve” (MLR) for University Village, which was then pledged as cash collateral to secure the loan. The cash collateral was not contributed by BVM or the new limited partners. The owner or operator of a CCRC is required to maintain the MLR in an escrowed account to cover expenses of the CCRC in the event of financial difficulties. The MLR consists of an amount equal to principal and interest payments due during the next 12 months on any mortgage loan or other long-term financing of the facility, including property taxes; an operating reserve equal to 15 percent of the total annual operating expenses; and a renewal and replacement reserve equal to 15 percent of the facility’s average operating expenses for the past three fiscal years. An owner or operator of a CCRC may satisfy the MLR requirements by acquiring a clean, unconditional, irrevocable letter of credit equal to the sum of the three parts. The letter of credit must be issued by a financial institution participating in the State of Florida Treasury Certificate of Deposit Program, must name OIR as beneficiary, and must be approved by OIR before issuance. BVM Management, because of its more established financial footings, was required to guarantee both loans due to uncertainty on the part of the lenders as to whether University Village could “turn-around” in a two or three-year period. Neither of the loans involved any contribution or investment of cash or assets by the new Westport limited partners or BVM Management. Rather, the loans were obtained, and costs paid, by pledging the equity in the independent living facilities and the assisted living and skilled nursing health center and collateralizing cash from the existing MLR. By April 2, 2014, OIR was made aware of the acquisition of the 99-percent partnership interest in Westport by the group of limited partners, and was provided with a copy of the First 2014 Amendment of Limited Partnership Agreement (Tampa). Although far greater than 10 percent of the ownership interest in Westport was transferred as a result of the transaction, OIR did not require that the entities acquiring the 99-percent partnership interest, either individually or as a group, submit an acquisition application. On April 18, 2014, OIR sent a request to Westport for a “Corrective Action Plan” to address BVM’s purchase of the Westport limited partnership interest, the uncertainty regarding ownership of the facility, a steady increase of overdue refunds, and delayed capital improvements to the University Village campus. BVM Management was retained by Westport to extricate the existing operator of the health center by canceling the lease and moving the personnel away from the property. By the fall of 2014, OIR determined the Westport MLR was underfunded by $300,000 to $400,000. Between April and December 2014, BVM Management commissioned a physical needs assessment (PNA) of the University Village physical plant. The PNA identified approximately $2.5 million in needed improvements over a five-year period. Projected needs included repair and replacement of roofs, HVAC units, guttering, and similar structural improvements. After the acquisition of the 99-percent partnership interest in Westport by the group of limited partners, $1.6 million was spent to remodel 106 residential units, with the improvements in the nature of new appliances and cabinetry, elevator repairs, and wireless internet. The improvements, though needed, were not those identified in the PNA. From April through December 2014, Westport Holdings University Village, LLC, remained as Westport’s general partner. During that period, Mr. Landry was an infrequent visitor to the University Village campus. OIR began to receive communications from residents of University Village that Mr. Bartle was acting as a spokesperson for University Village, and had taken a visible role in facility operations and capital improvements. Improvements at the facilities and changes in University Village policies and procedures were conveyed by BVM Management to Westport’s existing managing agent, AgeWell Senior Living, LLC, which then communicated instructions to Westport’s employees. BVM Management provided many services in the independent living portion of University Village, including oversight of construction and renovation, preparation of compliance reports due to lenders, oversight of the capital expenditure budget, approval of contracts, oversight of renovations, and assisting with marketing and public relations. On December 22, 2014, BVM University Village, LLC; Westport Senior Investment Fund, L.P.; AgeWell Senior Living, LLC; Westport Holdings Tampa, L.P.; and Westport Holdings Tampa II, L.P., entered into an Amendment to Promissory Note by which the due date for payment of sums under the note was extended, and by which the parties acknowledged that the management agreement with AgeWell Senior Living, LLC, would not be renewed upon its January 31, 2015, expiration. On December 29, 2014, Westport Holdings University Village, LLC, resigned as Westport’s general partner. A copy of the resignation was provided to OIR on that same day. On December 29, 2014, after learning of the resignation of Westport Holdings University Village, LLC, as Westport’s general partner, OIR sent an email to Mr. Bartle advising him that the “person or affiliated person” assuming the role of Westport’s general partner would be required to complete and file an acquisition application pursuant to section 628.4615(2). On January 2, 2015, OIR received a letter of notification regarding the proposed appointment of BHMSILFGP, LLC, as Westport’s new general partner. The submission requested a waiver of the requirement to file an acquisition application. OIR denied the request. The March 29, 2014, Second 2014 Amendment to the Westport Holdings Tampa Limited Partnership Limited Partnership Agreement was never executed, and BHMSILFGP, LLC, did not become the Westport general partner. On January 26, 2015, Westport’s limited partners elected Compliance Concepts, LLC, as Westport’s general partner. Compliance Concepts, LLC, was the managing member of BVM University Village, LLC, a 39.6-percent limited partner of Westport. On or about February 9, 2015, Compliance Concepts, LLC, filed an acquisition application with OIR. OIR determined the acquisition application to be incomplete. On February 11, 2015, OIR commenced an examination of the Westport CCRC. An OIR field staff examiner was assigned to University Village, and provided with office space in a University Village building. Upon arrival at University Village, the OIR examiner requested the books and records of the Westport CCRC. The records were not immediately produced. The evidence suggests that the reason for the delay in production was a desire on the part of Westport to have its attorney review the documents and approve their being turned over to the OIR examiner. On February 13, 2015, OIR issued an Initial Order of Suspension to Westport. The basis for the suspension order included the failure to immediately turn over financial records, as well as the operation and management of University Village by unapproved persons. Westport challenged the suspension order, thus staying its effect. On February 20, 2015, OIR sent a notice requesting additional information regarding the Compliance Concepts, LLC, acquisition application. The response was due on February 27, 2015. The notice did not request “background information issues,” which request was to be made under separate cover. On February 26, 2015, OIR made a request to DFS for the appointment of a receiver to manage the operation and finance of the Westport CCRC. At that point, with the request being in the nature of pending litigation, OIR required that all communications or meetings between Westport and OIR be arranged through counsel. On or about March 2, 2015, Compliance Concepts, LLC, resigned as Westport’s general partner, and Petitioner was elected by Westport’s limited partners as its general partner. As such, Petitioner was assigned Westport’s one-percent general partnership interest. The assignment was not accompanied by any monetary consideration. By letter dated March 2, 2015, OIR was informed that Petitioner, a 19.8-percent limited partner, had been elected as Westport’s new general partner. The March 2, 2015, letter also advised OIR that the Compliance Concepts, LLC, acquisition application would be updated and supplemented to reflect the change of ownership of Westport and its general partner. Along with its March 2, 2015, letter, Westport provided a response to the February 20, 2015, request for additional information regarding the Compliance Concepts, LLC, acquisition application. On March 6, 2015, Petitioner filed a “Statement of Acquisition Merger or Consolidation of a Specialty Insurer Pursuant to Florida Statutes 628.4615.” Petitioner was identified as the “Acquiring Company” and Westport was identified as the “Specialty Insurer Affected.” The application was submitted as an amendment to the application for acquisition filed by Compliance Concepts, LLC. In addition to information regarding Petitioner and its managing member, Eliyahu Freiden, the application relied in large part on information submitted in the Compliance Concepts, LLC, acquisition application. Mr. Freiden is Petitioner’s sole and managing member. Petitioner has no employees. As such, Petitioner’s competence, experience, and integrity are largely and fairly attributable to Mr. Freiden. Over the course of several months, OIR received a series of organizational charts offering different descriptions of Westport’s ownership and managerial structure. The revised acquisition application contained no financial information regarding Mr. Freiden or Petitioner. Mr. Freiden signed a Waiver of Public Hearing and Request for Approval and “respectfully request[ed] that the Director of the Office of Insurance Regulation approve the acquisition immediately.” OIR did not request additional information regarding Petitioner’s acquisition application. On March 27, 2015, the OIR director issued a notice of denial of the acquisition application. The notice provided that the denial was based on Petitioner’s failure to meet the requirements for approval set forth in section 628.4615(8)(a), (8)(b), and (8)(d)-(i). Mr. Freiden’s Educational and Employment History Mr. Freiden studied Talmudic law at Neveh Zion Talmudic University in Israel. He also studied biology and business management at Touro College in Brooklyn, New York. Mr. Freiden did not obtain a degree from Touro College, or elsewhere, choosing to terminate his studies to pursue employment. Since entering the work force, Mr. Freiden has held a number of positions with various companies. From January 2000 until June 2003, Mr. Freiden was involved in marketing and sales for the Carnival cruise line. From June 2003 until May 2007, Mr. Freiden was the principal and officer of Rental Quest, LLC, a property management company. During that period, the company managed hundreds of units of real estate in Connecticut. From May 2007 to August 2008, Mr. Freiden was employed as a senior account manager for HYC Logistics, a customs clearinghouse and shipping brokerage firm. His duties included sales and office management. From August 2008 to June 2012, Mr. Freiden was a senior account manager and supervisor for Primesource National, a company engaged in managing skilled nursing facilities. His duties included financial oversight of 30 skilled nursing facilities in the Midwest, specifically regarding their budgets, expenses, purchasing, and regulatory surveys. Mr. Freiden’s duties included on-site visits to the facilities. From June 2012 to November 2013, Mr. Freiden was an analyst and office director for Greystone Financial Group, a bank in Manhattan. His duties included property loan underwriting, and management of a team of loan originators. From September 2012 to the present, Mr. Freiden has been the principal and officer of Human Assurance, LLC, a credit reporting company engaged in providing background screening for healthcare facilities, daycare facilities, employment, and multi-family rental facilities. Mr. Freiden has no criminal history or record, has never been reprimanded by an employer, and has no negative professional disciplinary history. Mr. Freiden is heavily engaged in his community at his local synagogue, with the local YMCA, and with the creation of a girls’ Jewish high school. No evidence was presented that Mr. Freiden is not of reputable and responsible character. Mr. Freiden has no specific education, expertise, or formal training in insurance, or in CCRCs. He has never applied for an insurance license or a license in the healthcare field. He is not a healthcare professional. Mr. Freiden had no experience with operating a CCRC prior to his involvement at University Village beginning in March 2015. The focus on an applicant’s education and experience is for the purpose of determining the applicant’s background in the subject. The education and experience required of an applicant must be related to the applicant’s ability to operate and manage a CCRC facility, and not merely the applicant’s ability to hire others with the necessary education and experience to perform those duties. Mr. Freiden’s Background Information Section 628.4615(8)(e) provides that “natural persons for whom background information is required [must] have such backgrounds as to indicate that it is in the best interests of the insureds of the specialty insurer and in the public interest to permit such persons to exercise control over the specialty insurer.” Petitioner submitted a biographical affidavit and a fingerprint card for Mr. Freiden. The acquisition application form provides that “[b]ackground reports must be submitted by the selected background investigator vendor directly to OIR prior to or contemporaneously with the submission of the application filing.” The background investigation must be performed by an external company that has been approved by the National Association of Insurance Commissioners. The person submitting the application must pay for the background check and contact the approved vendor who is responsible for submitting the report to OIR. The report provides, among other items, background information from court records and other sources, and is crucial as verification of the information submitted by the applicant by an approved third party. The record of this proceeding contains a report generated by Accurint, a LexisNexis company, which includes information allegedly obtained from the Florida Department of Financial Services, as well as information from an undetermined source. The record is not clear as to whether the background information was provided by Petitioner or was accessed by OIR. In either event, the information does not comply with the established standards for background information. Petitioner’s Financial Capabilities The only assets of IMH identified in the record are its limited (19.8 percent) and general (one-percent) partnership interests in University Village. IMH was formed on March 24, 2014, one week before it acquired its limited partnership interest in Westport. Since the funding of the purchase of the limited partnership interest was accomplished through loans secured by Westport’s existing facilities, and guaranteed by BVM Management, and since there was no evidence of any cash contribution by the limited partners, IMH has no apparent financial investment in Westport. As part of the revised acquisition application, IMH submitted a letter from Ark Real Estate Group, LLC, which indicated that Ark Real Estate Group, LLC, “has the capacity to provide up to $5,000,000.00 (Five Million Dollars) in capital or subordinated debt to ensure that [IMH] has sufficient liquidity to support its role as limited partner. If you would like a formal term sheet for this commitment, please advise.” The financial stability and ability of Ark Real Estate Group, LLC, to provide such funds is unknown. The letter itself is vague, and does not establish Petitioner’s ability to access cash or credit. The information provided in the acquisition application was insufficient to establish the financial condition of IMH. Other Financial Issues The 2014 audited financial statement for Westport was due May 1, 2015. Westport did not timely file an audited financial statement and had not done so as of the final hearing in this matter. Although a draft report was provided, it did not include auditor’s notes necessary to evaluate the “going concern” portion of the audit. University Village is the only CCRC in Florida that did not timely file a 2014 audited financial statement. The statutory MLR for University Village is underfunded by approximately $400,000, and has been since fall 2014. On January 21, 2015, the CFO for University Village advised OIR that the MLR “is under funded by $370,324” and that there would be “a plan in place to have this shortfall funded within 30 days.” Petitioner has not addressed the MLR deficiency since becoming Westport’s general partner, despite the statement in the March 2, 2015, Response to Clarification Letter that the deficiency would be replenished within five business days of a calculation confirming a deficiency. Westport is currently subject to a targeted financial examination by OIR. The preponderance of the evidence indicates that Petitioner has not responded to OIR inquiries and has not provided access to requested information during the financial examination. Payments to vendors supplying goods and services to University Village are approximately $1 million in arrears, with some vendor invoices being more than 60 days past due. However, no services have been denied to residents. The March 31, 2014, loans secured by the University Village facilities, which loans total $24.5 million, come due in March 2016. BVM Management BVM Management, and its president, Mr. Bartle, have been extensively engaged in the operations of Westport, starting with BVM Management’s mid-2013 interest in acquiring Westport, to its guarantee of loans to buy Westport’s 99-percent limited partnership interest, and extending to Mr. Bartle’s participation as a representative of the acquiring entities in meetings with OIR. Beginning in April 2014 and extending through October 2014, BVM Management engaged in merger discussions between Westport’s designated facility manager, AgeWell Senior Living, LLC, and BVM Management beginning in April 2014 and extending through October 29, 2014. During that period, a lot of the work being done on the campus was coordinated between AgeWell Senior Living, LLC, and BVM Management. Although AgeWell Senior Living, LLC, had the management contract and was the OIR- identified overall management agent, BVM Management was participating in the plan of finance and the rehabilitation of the facility, and was involved in “extricating” the operator of the Westport health center. During that period, AgeWell Senior Living, LLC, personnel and BVM Management personnel were working in tandem on several projects. There were up to six BVM Management employees on the campus at any one time. Although Mr. Bartle was not the most frequent BVM Management employee on the campus, he tended to go to the board meetings or the finance committee meetings, and would make presentations for the health center and its financial condition. BVM Management’s presence on the facility grounds has remained active, particularly since the termination of AgeWell Senior Living, LLC, as the CCRC manager upon the expiration of its management contract, and the termination of the long-term executive director, Tim Parker. Because of Mr. Bartle’s ongoing involvement with the operations of University Village, and BVM Management’s substantial financial ties as guarantor for the two loans, OIR sought background information on Mr. Bartle as a person indirectly involved with the management of an acquiring entity. Petitioner’s acquisition application was absent any information regarding BVM Management or Mr. Bartle. In response to its inquiries for background and biographical information, OIR received only a handwritten note with the phrase “To be sent”. No further information was provided. As a result, OIR has little information regarding Mr. Bartle’s past employment, personal information, or financial background. Management and Consulting Services - NOVUM, LLC On May 15, 2015, after Petitioner became Westport’s general partner, Westport contracted with NOVUM, LLC, for “consulting management” services for the independent living facilities (Retirement Center) of University Village. NOVUM, LLC, has a background in nursing homes. NOVUM, LLC, has management contracts “with a couple of buildings” in Florida. The context of the testimony suggests that the services are performed at assisted living facilities, but the exact nature of the facilities was not described. Services provided include day-to-day operations, installing budgets, hiring and firing staff, training and development, and ensuring regulatory compliance. NOVUM, LLC, employs persons with education in science and healthcare management, and with experience in independent living facilities, assisted living facilities, and skilled nursing facilities. NOVUM, LLC, has provided services on behalf of Westport, including accounting, financial record keeping and reporting, marketing, sales, and attendance and participation in resident board meetings. NOVUM, LLC, has been engaged in hiring recommendations, including those for the executive director, director of sales, administrator of the assisted living facility, directors of nursing, and other staff positions. NOVUM, LLC, has Westport bank account signature authority, which it exercises in paying vendors, including NOVUM, LLC, itself.2/ Mr. Freiden regularly meets with NOVUM, LLC, employees who are on the University Village campus on a daily basis. After the termination of former executive director, Tim Parker, efforts to find a replacement have proven difficult. During the vacancy, Mr. Freiden testified, in response to a question as to whether the duties of the CCRC manager’s executive director were “going unmet,” that “I feel like we've got five executive directors. Besides Marc Flores, [NOVUM, LLC’s] chief operational officer, who's there every day and myself who act in that position, everybody knows they can grab someone from NOVUM or myself at any given time and we fill those shoes very well.” The preponderance of the evidence indicates that NOVUM, LLC, is performing managerial duties for University Village as described in Florida Administrative Code Rule 69O- 193.002(13). Rule 69O-193.007 requires that “[e]ach manager or management company must demonstrate that it meets the requirements of Section 651.022, F.S., and that the management agreement conforms with the cancellation requirements of Section 651.1151, F.S.” There is no evidence that Petitioner, Westport, or NOVUM, LLC, has made the requisite demonstration that NOVUM, LLC, meets the requirements of section 651.022.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Department of Financial Services, Office of Insurance Regulation, enter a final order determining that IMH Healthcare, LLC’s, acquisition of the one-percent general partner ownership interest in Westport Holdings Tampa, L.P., was insufficient to meet the threshold requirement for an acquisition application pursuant to section 628.4615(2), Florida Statutes, and that the March 27, 2015, notice of denial of acquisition application be DISMISSED. It is, furthermore, RECOMMENDED that, if it is determined that an acquisition application is required when a one-percent general partner ownership interest in a CCRC is acquired, the Department of Financial Services, Office of Insurance Regulation, enter a final order determining that IMH Healthcare, LLC, failed to meet its burden of proving entitlement to the approval of the acquisition application, and that the application should therefore be DENIED. DONE AND ORDERED this 26th day of January, 2016, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2016.
The Issue Whether Amendment 15-1ACSC to the Monroe County Comprehensive Plan, adopted by Ordinances 003-2016 and 004-2016 on February 10, 2016, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2015).1/
Findings Of Fact The Parties The County is a political subdivision of the State of Florida with the duty and responsibility to adopt and maintain a comprehensive growth management plan pursuant to section 163.3167, Florida Statutes. Petitioners reside in, and own property within, the County. Petitioners submitted oral or written comments concerning the Plan Amendment to the County during the period of time beginning with the transmittal hearing for the Plan Amendment and ending with the adoption of the Plan Amendment. Rockland owns the property subject to the Plan Amendment and is the applicant for the Plan Amendment.4/ The Navy owns the Station in the County and submitted oral or written comments concerning the Plan Amendment to the County during the period of time beginning with the transmittal hearing for the Plan Amendment and ending with the adoption of the Plan Amendment. The Subject Property The Plan Amendment affects five different parcels of property in the Lower Keys. The parcels are owned by Rockland and are all either current or former mining sites with developed ancillary uses. Most of the property is vacant scarified land and the remainder supports warehousing and distribution facilities and related uses. Four of the parcels are located on Rockland Key (the Rockland parcels): two along U.S. Highway 1 and two on the north side of the Key along the Gulf of Mexico. Together, the four parcels total 29.59 acres. The existing FLUM designation of the parcels is Industrial, the primary purpose of which is to “provide for the development of industrial, manufacturing, and warehouse and distribution uses.” FLUE Policy 101.4.7. (2015).5/ The non-residential development potential of the property is between 322,235 and 773,364 square feet. The Industrial category also allows residential development at a density of one dwelling unit per acre (1du/acre) and a maximum of 2du/buildable acre.6/ Under the existing FLUM category, the Rockland parcels could be developed for a maximum of 47.3 residential units.7/ The parcel on Big Coppitt Key (the Big Coppitt parcel) is a narrow L-shaped 14.8-acre property bordering a former mining pit. The parcel runs north along the western boundary of Petitioners’ residential subdivision, then west along the Gulf of Mexico. Petitioners’ homes are located directly adjacent to the Big Coppitt parcel. The majority of the parcel (12.33 acres) is designated Industrial and the remainder (2.5 acres) as Mixed Use/Commercial Fishing (MCF). The non-residential development potential of the Big Coppitt parcel is between 161,498 and 365,816 square feet. Under the existing FLUM categories, the Big Coppitt parcel could be developed for a maximum of 43.7 dwelling units. Together, the subject property could be developed for a maximum of 91 dwelling units or 1.1 million square feet of non- residential uses, or some proportional mix thereof. The Plan Amendment The Plan Amendment changes the FLUM designation of the Rockland parcels from Industrial to Commercial. The Commercial FLUM category does not allow residential development, thus limiting future development of the property to between 193,341 and 644,470 square feet of non-residential uses. The Plan Amendment changes the FLUM designation on the Big Coppitt parcel to Mixed Use/Commercial (M/C), which allows residential development at a maximum density of 2-8du/acre. Under the M/C designation, the Big Coppitt parcel could be developed for a maximum of 213.6 dwelling units. Under the M/C designation, the Big Coppitt parcel has a non-residential development potential of between 64,599 and 290,697 square feet. However, the Plan Amendment also creates FLUE Policy 107.1.6, a sub-area policy applicable to the Big Coppitt parcel. The policy restricts development to deed- restricted affordable housing units (minimum mix of 10 percent median-income and at least 20 percent combination of low- and very low-income categories) and employee housing. The policy prohibits all non-residential development of the property, including dredging, and prohibits development of market-rate and transient-dwelling units. As adopted, the Plan Amendment authorizes development of up to 213 affordable housing units, no market rate units, no transient units, approximately 644,000 square feet of non- residential uses, and no dredging of the existing mining pit on the Big Coppitt parcel. Compared to the existing FLUM designations of the subject property, that is a potential increase of 114 units and a decrease of approximately 456,000 square feet of non-residential development. Naval Air Station Key West Rockland Key is located directly across U.S. Highway 1 from the Station. The Big Coppitt parcel is in close proximity to the Station. The Station’s Boca Chica airfield has been in operation since 1943. The primary mission at Boca Chica is to train pilots for air-to-air combat and to meet aircraft carrier qualifications. Fighter pilots from all over the country are trained for air-to-air combat primarily at the Station. The Station is uniquely situated to accomplish its training mission because there is little commercial air traffic and a large unencumbered airspace in close proximity to the airfield. Pilots who take off from Boca Chica quickly arrive in vast airspaces west and south of the Station for air-to-air combat training. This allows for very efficient use of fuel for training. Pilots train for aircraft carrier qualifications through field carrier landing practice at Boca Chica. Field carrier landing practice requires flying the same touch-and-go pattern at the field that the pilot would fly at an aircraft carrier. Each pilot in a squadron must fly the pattern accurately to a certain “readiness level” before the squadron can be certified to deploy. The readiness level is based on the number of sorties completed. One sortie includes at least one takeoff and one landing. Boca Chica typically operates Monday through Saturday from 8:00 a.m. to 10:00 p.m. However, the airfield operates outside of those hours, and on Sundays, when training missions dictate. The airfield averages 36,000 sorties per year. The Station is extremely valuable to the Department of Defense due to the size of the airspace, weather, lack of commercial traffic interference, and capacity for training missions. As the commanding officer of the Station, one of Captain Steven P. McAlearney’s primary duties is to protect the military value of the Station by protecting the airspace and existing operation capacity. As such, Captain McAlearney is concerned with encroachment by development incompatible with Station operations. Navy AICUZ The Navy has established a Military Installation Area of Impact (MIAI) surrounding the Station. In its most recent Environmental Impact Statement (EIS), the Navy has designated Air Installation Compatible Use Zones, or AICUZ, within the MIAI. The AICUZ are mapped as noise contours extending outward from the Station. Each contour indicates a range of day- night average noise levels (DNL) which are expected to impact properties within the specific contour. The AICUZ map is accompanied by a Land Use Compatibility Table (the table) containing recommendations for compatibility of various land uses within the specific noise contours. According to the table, residential land uses are “generally incompatible” in both the 65-69 and 70-74 DNL zones, also referred to as “noise zones.” The Navy discourages residential use in DNL 65-69 zones, and strongly discourages residential use in DNL 70-74 zones. The table deems residential use in the 75-79 DNL zone as “not compatible” and recommends local government prohibit residential use in those zones, also referred to as “incompatibility zones.” FLUE Policy 108.2.5 On May 22, 2012, the County adopted FLUE Policy 108.2.5, which took effect on July 25, 2012. The Policy, which is lengthy and is not set forth in full herein, generally prohibits applications to change FLUM designations within the MIAI after the Policy’s effective date. However, the Policy sets forth a procedure by which FLUM amendment applications “received after the effective date of this [p]olicy,” which increase density or intensity within the MIAI, may be approved. The procedure requires the County to transmit the application to the Navy for a determination of whether the property subject to the application is within a noise zone or an incompatibility zone, and whether the proposed density or intensity is incompatible with Station operations. If the Navy determines an application is within an incompatibility zone, the Policy requires the County to determine whether appropriate data and analysis supports that determination, and, if so, maintain the existing designation. Additionally, the Policy states that “Monroe County shall encourage the Navy to acquire these lands . . . for the protection of the public health, safety, and welfare of the citizens of the Florida Keys.” If the Navy determines an application is within a noise zone, the Policy requires the applicant to submit a supplemental noise study, based on “professionally acceptable methodology,” to establish whether the property is within a 65 DNL or higher zone. The Navy has nine months from receipt of the supplemental noise study to provide comments to the County concerning whether the noise study is based on professionally accepted methodology. After receipt of the Navy’s comments, the County may allow the application to proceed through the public hearing process, but must also adopt a resolution determining whether the property subject to the application is subject to the density and intensity restrictions within the MIAI. Affordable Housing The parties stipulated that the County has a demonstrated community need for affordable housing. A 2014 study projected a deficit of 6,500 affordable units in the City of Key West alone. In 2013, 51 percent of all County households were “cost-burdened,” meaning they paid more than 30 percent of their income for housing. That figure compares to 43 percent of cost-burdened households statewide. In the County, more than half of renters are cost- burdened and about 45 percent of home owners are cost-burdened. The lack of affordable housing in the County is exacerbated by four factors: high land values; geographic and environmental limitations on development; artificially- controlled growth of housing supply8/; and a tourist-based economy which drives lower paying service-sector jobs. The lack of affordable housing impacts not only the tourism industry, but also public-sector agencies, including the school system, emergency management, and even the County’s Planning and Environmental Resources Department. Lack of affordable housing makes it harder to recruit and retain school teachers, police, and firefighters, among other public-sector employees. High turnover rates in these areas present budget and personnel challenges for the County. The County has 460 existing affordable housing units for the very-low, low-, and median-income households, and 354 units for moderate-income households (a combination of rental and owner-occupied units). The greatest percentage of existing affordable housing units is deed-restricted for the moderate-income range. The yearly income limit for a three-person household (a couple with a child) in the very-low income category is $52,400; the low-income category is $83,800; and the median- income limit is $104,800. The moderate-income level maximum is $125,760 for rental, and $167,680 for owner-occupied. The County has approximately 700 affordable housing units to be allocated through the year 2023. The Plan Amendment Application On May 18, 2012, Rockland applied for a FLUM amendment which included the Rockland parcels, but did not include the Big Coppitt parcel. The application affected 141 acres (approximately 77 upland acres). As proposed, the application would have allowed development of a maximum of 385 dwelling units, 1,155 transient rooms (or spaces), and 500,940 square feet of non-residential uses, or some proportional mix thereof. The application was reviewed by the County’s development review committee (DRC) on November 27, 2012, which recommended denial due to the density and intensity impacts. Largely in response to the DRC’s concerns, and after lengthy discussions with County staff, Rockland submitted revisions to its application on April 1, 2014. The revisions greatly reduced the overall size, as well as the density and intensity impacts of, the proposed amendment. The revised application included the Big Coppitt parcel for the first time. Rockland revised the application again on June 17, 2014, to reflect the same proposed acreages and designations as the approved Plan Amendment. The application, as amended on June 17, 2014, was approved by both the DRC and the County Planning Commission. On December 10, 2014, the Board of County Commissioners voted to transmit the application to the state land planning agency, the Department of Economic Opportunity (DEO), pursuant to section 163.3184(4).9/ On March 20, 2015, DEO issued its Objections, Recommendations, and Comments (ORC) report objecting to the Plan Amendment, particularly the increased residential development potential on the Big Coppitt parcel. The ORC report included the following relevant objections: The Plan Amendment is inconsistent with policy 108.2.6, which adopts the MIAI Land Use Table, designating residential uses as “generally incompatible” in the 65-69 DNL zone. The Big Coppitt parcel lies within the 65-69 DNL zone where residential use is discouraged. The Land Use Table notes that “[a]lthough local conditions regarding the need for affordable housing may require residential uses in these [z]ones . . . . The absence of viable alternative development options should be determined and an evaluation should be conducted locally prior to local approvals indicating that a demonstrated community need for the residential use would not be met if development were prohibited in these [z]ones.” While the applicant supports the application by arguing that it will support a multi- family affordable housing development, nothing in the amendment provides assurance that any future residential development on this property will be for affordable housing. While there is a shortage of affordable housing in the County, especially in the lower keys, there is no shortage of vacant lots with density for housing. The County failed to establish that, “in the absence of viable alternative development . . . a demonstrated community need for the residential use would not be met if development were prohibited” on the parcel. The [Big Coppitt] parcel is entirely within the Coastal High Hazard Area (CHHA) and therefore, inconsistent with Monroe County comprehensive plan policy 101.14.1, which states, “Monroe County shall discourage developments proposed within the [CHHA].” The [Big Coppitt] parcel is very narrow and development of the area adjacent to the mine pools could have negative water quality impacts on the tidally influenced mining pool and is inconsistent with the Principles for Guiding Development in the Florida Keys. After consideration of the ORC report, Rockland submitted a text amendment application creating FLUE Policy 107.1.6 to restrict development on the Big Coppitt parcel to affordable housing. In addition, the sub-area policy requires noise attenuation of all habitable buildings in the 65-69 DNL to an indoor noise level reduction of at least 25 decibels (25dB). Similarly, the Policy requires noise attenuation of habitable buildings within the 70-74 DNL zone to achieve an indoor noise level reduction of at least 30dB. The amendment to the FLUM remained the same. The County adopted both the FLUM amendment, and the text amendment creating Policy 107.1.6, on February 16, 2016, and forwarded the Plan Amendment to DEO for review, pursuant to 163.3184(4)(e)2. On April 25, 2016, DEO issued a notice of intent to find the Plan Amendment “in compliance.” The instant Plan Amendment challenge followed. Petitioners’ Challenge Petitioners allege two bases on which the Plan Amendment should be found not “in compliance.” First, Petitioners allege the Plan Amendment is internally inconsistent with Plan Policies 108.2.5 and 101.14.1, in violation of section 163.3177(2), which states that “[c]oordination of the several elements of the [Plan] shall be a major objective of the planning process. The several elements of the comprehensive plan shall be consistent.” Second, Petitioners allege the Plan Amendment is inconsistent with the Principles, in violation of section 163.3184(1)(b). That statute requires all plan amendments in the Keys Area of Critical State Concern (ACSC) be consistent with the applicable principles. Policy 108.2.5 Petitioners allege that Policy 108.2.5 applies to the Plan Amendment because the application was filed after Policy 108.2.5 took effect on July 25, 2012. If proven, Policy 108.2.5 would require the applicant to follow the procedure for approval of residential density in the noise zones, including submission of a supplemental noise study and a legislative finding as to whether the Plan Amendment is subject to the density and intensity restrictions in the MIAI. Rockland’s original application for the Plan Amendment was made on May 18, 2012, prior to the effective date of Policy 108.2.5. Petitioners argue that the revised application on April 1, 2014, should be considered a new application subject to Policy 108.2.5 because it was made two years after adoption of the Policy and contained significant substantive changes to the original application. In essence, Petitioners argue that the 2014 revised application (and subsequent changes thereto) constitute a new and different application than the May 2012 application. Petitioners introduced no evidence that any administrative provision of the Plan, or any other County ordinance or regulation, provides for expiration of an application for plan amendment after a specified time period. The April 2014 changes were filed with the County in strike-through/underline (legislative format) as “revisions to its FLUM amendment application.” The June 17, 2014, changes were likewise filed in legislative format as “additional revisions to its FLUM amendment application.” One of the main reasons for delay between the May 2012 application and the April 2014 revisions was County staff’s recommendation that the Rockland parcels be rezoned to the Commercial-2 (C-2) zoning category, a category which was being created and would be consistent with the Commercial FLUM category. Staff recommended the category because it would prohibit residential uses but allow Rockland to proceed with plans for commercial and retail development of the formerly industrial property. The C-2 zoning category was not finalized and adopted by the County until early 2014. The application, as revised in June 2014, was not reviewed again by the DRC, but was set for hearing by the Planning Commission on August 27, 2014, and considered by the County Commission on December 10, 2014, which approved the application for transmittal. Rockland was not required to pay a second application fee for the revised application in 2014; however, the County charged Rockland an additional fee to cover a second hearing before both the Planning Commission and the County Commission. The County’s director of planning and environmental resources, Mayte Santamaria, testified that it is not unusual for delays to occur between initial applications for, and final adoption of, plan amendments. Some applicants request an application be put on hold while they address issues with surrounding property owners. Other times, significant changes are made in the interim, especially in response to concerns raised by the state land planning agency, which take time to draft and refine. In neither case does the County consider the passage of time to require a new application. Likewise, the revisions do not require a new application, even revisions which remove property from, or add property to, a FLUM amendment application. Clearly, Petitioners believe it was unfair to allow the application, which was “on hold” for almost two years and revised in 2014 to exclude some of the original property, and include additional property adjacent to their subdivision, to proceed without applying newly-adopted plan policies. Despite their belief, Petitioners did not prove that the application, as revised in April and June 2014, was a new application subject to Policy 108.2.5. Policy 101.14.1 Next, Petitioners allege the Plan Amendment is internally inconsistent with Policy 101.14.1, which provides that the “County shall discourage developments within the Coastal High Hazard Area (CHHA).” The subject property is located entirely within the CHHA. In fact, Ms. Santamaria testified that “almost the entire Keys is in the [CHHA],” with exception of some areas just along U.S. Highway 1 in the Upper Keys. The Plan Amendment reduces total potential non- residential intensity on the subject property, while increasing potential residential density. The Plan Amendment also eliminates future transient (hotel and motel) density, as well as future dredging and other industrial uses. “Development” is defined broadly in section 380.04 as “the carrying out of any building activity or mining operation, the making of any material change in the use or appearance of any structure or land, or the dividing of land into three or more parcels.” § 380.04(1), Fla. Stat. The definition specifically includes “a change in the intensity of use of land, such as an increase in the number of dwelling units . . . on land or a material increase in the number of businesses, manufacturing establishments, offices, or dwelling units . . . on land.” § 380.04(2)(b), Fla. Stat. Notably, the definition also includes “mining or excavation on a parcel” and “deposit . . . of fill on a parcel of land.” § 380.04(2)(c) and (d), Fla. Stat. Two expert witnesses testified regarding whether the Plan Amendment violates the County’s policy to discourage development within the CHHA. In Ms. Santamaria’s opinion, the Plan Amendment, on balance, is consistent with the policy to discourage development because it prohibits residential development of the Rockland parcels, and prohibits all but affordable housing units on the Big Coppitt parcel. In addition, the amendment prohibits future uses which are within the statutory definition of “development,” such as industrial, marinas, market-rate housing, and residential subdivisions. Max Forgey, expert witness for Petitioners, opined that the increase in density from 91 to 213 units is “as far from discouraging as I could imagine.” Overall, the Plan Amendment reduces non-residential intensity while increasing residential density. Given the totality of the evidence, it is reasonable to find that the Plan Amendment complies with Policy 101.14.1 by discouraging many types of development allowed on the property under the existing FLUM designations. Principles for Guiding Development Petitioners’ final argument is that the Plan Amendment is inconsistent with the Principles in the Keys ACSC. The property subject to the Plan Amendment is located in the Keys ACSC, thus, subject to the Principles in section 380.0552(7), which reads as follows: (7) PRINCIPLES FOR GUIDING DEVELOPMENT.— State, regional, and local agencies and units of government in the Florida Keys Area shall coordinate their plans and conduct their programs and regulatory activities consistent with the principles for guiding development as specified in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, which is adopted and incorporated herein by reference. For the purposes of reviewing the consistency of the adopted plan, or any amendments to that plan, with the principles for guiding development, and any amendments to the principles, the principles shall be construed as a whole and specific provisions may not be construed or applied in isolation from the other provisions. However, the principles for guiding development are repealed 18 months from July 1, 1986. After repeal, any plan amendments must be consistent with the following principles: Strengthening local government capabilities for managing land use and development so that local government is able to achieve these objectives without continuing the area of critical state concern designation. Protecting shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. Protecting upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. Ensuring the maximum well-being of the Florida Keys and its citizens through sound economic development. Limiting the adverse impacts of development on the quality of water throughout the Florida Keys. Enhancing natural scenic resources, promoting the aesthetic benefits of the natural environment, and ensuring that development is compatible with the unique historic character of the Florida Keys. Protecting the historical heritage of the Florida Keys. Protecting the value, efficiency, cost- effectiveness, and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities; Sewage collection, treatment, and disposal facilities; Solid waste treatment, collection, and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks, wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Electric Co-op; and Other utilities, as appropriate. Protecting and improving water quality by providing for the construction, operation, maintenance, and replacement of stormwater management facilities; central sewage collection; treatment and disposal facilities; the installation and proper operation and maintenance of onsite sewage treatment and disposal systems; and other water quality and water supply projects, including direct and indirect potable reuse. Ensuring the improvement of nearshore water quality by requiring the construction and operation of wastewater management facilities that meet the requirements of ss. 381.0065(4)(l) and 403.086(10), as applicable, and by directing growth to areas served by central wastewater treatment facilities through permit allocation systems. Limiting the adverse impacts of public investments on the environmental resources of the Florida Keys. Making available adequate affordable housing for all sectors of the population of the Florida Keys. Providing adequate alternatives for the protection of public safety and welfare in the event of a natural or manmade disaster and for a postdisaster reconstruction plan. Protecting the public health, safety, and welfare of the citizens of the Florida Keys and maintaining the Florida Keys as a unique Florida resource. (emphasis added). Petitioners’ challenge, as set forth in the Amended Petition, focuses on subsections (7)(a), (b), (e), and (h)4. Petitioners introduced no evidence to support a finding that the Plan Amendment is inconsistent with either subsection (7)(a), (b), or (e) regarding the local government’s capability to manage land use and development, protect shoreline and marine resources, and protect water quality, respectively. 1. section 380.0552(7)(h)4. Petitioners argue that the Plan Amendment will adversely impact the “value, efficiency, cost-effectiveness, and amortized life” of the Station, in violation of subsection (7)(h)4. A portion of the Rockland parcels lie within the 75-79 DNL zone, in which the Navy deems residential development incompatible and recommends that the local government prohibit it. The Plan Amendment changes the FLUM designation of the Rockland parcels from Industrial, which allows residential development at 47.3du/acre, to Commercial, which does not allow any residential development. Thus, the Plan Amendment prohibits future residential development in the 75-79 DNL zone as recommended by the Navy. A portion of the Rockland parcels and the southern end of the Big Coppitt parcel lie within the 70-74 DNL zone. The remainder of the Big Coppitt parcel lies within the 65-69 DNL zone. The Navy deems residential development in the 70-74 and 65-69 DNL zones as “generally incompatible,” but not prohibited. The AICUZ table strongly discourages residential use in the 70-74 DNL zone, and discourages residential use in the 65-69 DNL zone. With respect to the 65-69 and 70-74 DNL zones, the AICUZ contains the following recommendations: The absence of viable alternative development options should be determined and an evaluation should be conducted locally prior to local approvals indicating that a demonstrated community need would not be met if development were prohibited in these zones. * * * Where the community determines that these uses must be allowed, measures to achieve an outdoor to indoor [noise level ratio or] NLR of at least 25 decibels (dB) in DNL 65 to 69 and NLR of 30 dB in DNL 70 to 74 should be incorporated into building codes and be in individual approvals . . . . Normal permanent construction can be expected to provide a NLR of 20 dB, thus the reduction requirements are often stated as 5, 10, or 15 dB over standard construction . . . . The Plan Amendment, through the sub-area policy, prohibits residential dwellings on that portion of the Big Coppitt parcel within the 70-74 DNL zone. As such, the Plan Amendment prohibits residential use where the Navy strongly discourages said use. The majority of the Big Coppitt parcel lies within the 65-69 DNL zone. The Plan Amendment increases allowable residential density from 91 units to 213 units. Through the sub-area policy, the Plan Amendment requires sound attenuation of at least 25 dB for residences in the 65-69 DNL zone. Further, the Plan Amendment requires sound attenuation of at least 30 dB for any habitable buildings within the 70-74 DNL zone.10/ One purpose of recommending sound attenuation for dwelling units within noise zones of 65 DNL and higher, is to limit the number of community noise complaints to the Station. Community complaints regarding noise from Station exercises are directed to the Station’s Air Operations Department. The Station receives an average of 10 complaints per month, but that number fluctuates with the number of squadrons in town for training at the Station. Sometime in the past, the Station altered a training flight arrival pattern known as the Dolphin One Arrival. The arrival pattern is now called the King One, and it avoids directly flying over Stock Island. The evidence did not clearly establish whether the pattern was changed due to community noise complaints or due to the fact that Stock Island was in residential use. Captain McAlearney testified that because of the population on Stock Island, we set up a little to the south of what would be optimum for practicing, or most safe, frankly, for practicing a carrier landing or bringing a formation of airplanes into the field. On cross-examination, Captain McAlearney admitted that the change occurred well before his time as station commander and that he had no direct knowledge of the reason the change was made. Petitioners argue that the County must do more than just establish a community need in order to approve new housing in the 65-69 DNL zone consistent with the Navy recommendations. They argue that, pursuant to the AICUZ table, the County must establish that no viable alternative development options exist and that the demonstrated community need would not be met if development were prohibited in that zone. The County conceded that other parcels are available for construction of affordable housing within the Keys, however, there are very limited locations of Tier III,11/ scarified properties, outside of the 65-69 DNL zone in the Lower Keys with potential for affordable housing development. The parcels are scattered and none would support a large-scale affordable housing development such as is proposed pursuant to the Plan Amendment. While the County’s demonstrated need for affordable housing may be met, eventually, by incremental development of smaller scattered parcels and occupancy in renovated mobile home parks, the Plan Amendment addresses a significant amount of the affordable housing deficit in the immediate future. Based on the totality of the evidence, Petitioners did not demonstrate that the Plan Amendment is inconsistent with section 380.0552(7)(h)4. In reviewing and recommending adoption of the Plan Amendment, County staff carefully considered the recommendations of the Navy AICUZ table and revised the amendment to prohibit residential use in the 75-79 DNL zone, where the Navy deems those uses incompatible and recommends prohibition of said uses; and to prohibit residential use in the 70-74 DNL zone, where the Navy deems those uses generally incompatible and strongly discourages them. The Plan Amendment was crafted to limit residential use to those areas within the 65-69 DNL zone, where Navy discourages, but does not recommend prohibition of, residential uses. Further, County staff determined a local community need for affordable housing, determined that the need could not be addressed through viable alternatives, and required sound attenuation as recommended by the Navy. While the Navy introduced some evidence regarding potential impacts to the Station from increased residential density on Big Coppitt Key, the evidence was speculative. Captain McAlearney’s testimony did not establish that additional noise complaints (assuming the new development would generate new noise complaints) would negatively impact the “value, efficiency, cost-effectiveness, and amortized life” of the Station. 2. section 380.0552(7)(g) Although not included in their Amended Petition, Petitioners argued at hearing that the Plan Amendment was inconsistent with section 380.0552(7)(g), the Principle to “protect[] the historical heritage of the Florida Keys.” Petitioners’ expert based his opinion of inconsistency with this principle on the long-standing presence of the Station in the Keys and its important role in naval air training. No evidence was introduced to establish that the Station itself has a historic resource designation or contains any historic structures or archeological resources. The site is not designated as an historic resource by either the County or the State. Petitioners did not prove the Plan Amendment is inconsistent with this Principle. Other Principles A. section 380.0552(7)(l) Section 380.0552(7)(l) sets forth the Principle to “[make] available adequate affordable housing for all sectors of the population in the Florida Keys.” The Plan Amendment limits development of the Big Coppitt parcel to deed-restricted affordable housing and requires, at a minimum, a mix of at least 10 percent median- income category and at least 20 percent mix of very-low and low- income categories. The Plan Amendment would allow development of 213 of the 700 affordable housing units the County has to allocate through 2023. The Plan Amendment addresses affordable workforce housing needs in the County for income levels in both the service industry and the public sector. The Plan Amendment furthers section 380.0552(7)(l) by making available affordable housing for residents in a range of income levels from very low- and low-income to moderate-income. B. Remaining Principles The majority of the remaining Principles either do not apply to the Plan Amendment, or have only limited application. Very little evidence was introduced regarding these Principles. No evidence supports a finding that the Plan Amendment is inconsistent with the remaining Principles. The evidence did not establish that the Plan Amendment is inconsistent with the Principles as a whole.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Monroe County Comprehensive Plan Amendment adopted by Ordinances 003- 2016 and 004-2016 on February 10, 2016, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 9th day of August, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2016.
The Issue The issue to be determined in this case is whether Amendment 10-01A to the Bay County Comprehensive Plan (“the Plan Amendment”), adopted by Ordinance 10-22, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The Parties The Department is the state land planning agency and, at the time of the adoption of the Plan Amendment, was charged with the duty to review comprehensive plan amendments and to determine whether they are “in compliance,” as that term is defined in section 163.3184(1)(b). Bay County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time. Petitioner Diane Brown resides and owns property in Bay County, but not in the Sand Hills STZ. Petitioner submitted comments to Bay County during the time between the transmittal and adoption hearings for the Plan Amendment. Intervenor Cedar Creek is a Florida corporation that owns approximately 1,007 acres of land within the Sand Hills STZ. Intervenor submitted comments to Bay County during the time between the transmittal and adoption hearings for the Plan Amendment. The Sand Hills STZ The Sand Hills STZ is one of three Rural Community STZs in Bay County. The Sand Hills STZ has a number of platted and unplatted subdivisions that were created before the adoption of the Bay County Comprehensive Plan. Within the Sand Hills STZ is a police station, a fire station, and a public school for Pre- Kindergarten through 12th grade. Residences and businesses in the Sand Hills STZ are on private wells and septic tanks. The public school is on central sewer and water. Existing land uses within the Sand Hills STZ include Agriculture, Public/Institutional, Conservation/Preservation, General Commercial, and Rural Residential. Lands designated Agriculture can be developed at one dwelling unit on ten acres ("1 du/10 ac"). Lands designated Rural Residential can be developed at 1 du/3 ac on unpaved roads and 1 du/ac on paved roads. This leads to some semantic confusion. Densities of 1 du/10 ac and 1 du/3 ac are rural densities, but a density of 1 du/ac is a suburban density. That means the Rural Residential land use designation allows for densities that are suburban in character and the rural community STZs are not altogether rural. Abutting the Sand Hills STZ on the north is Washington County. To the south are areas designated Agriculture/ Timberland. The community of Southport is located about five miles to the south. West of the Sand Hills STZ is the Northwest Florida Beaches International Airport and other lands subject to the West Bay Area Sector Plan. East of the Sand Hills STZ is Deer Point Lake/Reservoir, the County’s primary source of drinking water. Also to the east are 8,500 acres of land owned by the Northwest Florida Water Management District that are designated Conservation/Recreation. The Sand Hills region is hydrogeologically sensitive because of significant recharge which occurs throughout the region via ground and surface waters to Deer Point Lake/Reservoir. The Plan Amendment The Plan Amendment creates a new Policy 3.4.10 to guide development in the Sand Hills STZ. The Policy begins: The Sand Hills Area is an established and continually evolving community with unique character and environmental assets that warrant a special planning approach to ensure the preservation and protection of its distinctive qualities. Due to its beautiful natural landscapes, picturesque areas, and its strategic location east of the West Bay Area Sector Plan (Centered around the Northwest Florida Beaches International Airport) and nearby transportation corridors--State Road 77, County Road 388, and State Road 20, development and growth will continue to occur in the Sand Hills Community. The Sand Hills Rural Community Special Treatment Zone is an overlay area that has been established to maintain the area's character while protecting its significant natural resources and advancing Bay County's Wide Open Spaces strategy (Map 3.7). The Sand Hills Rural Community Special Treatment Zone encourages efficient development and infill within an area that has the capacity to service future growth. Guiding principles for the Sand Hills STZ are set forth in new Policy 3.4.10: Protect important recharge areas from the effects of irresponsible development. Create a sense of place by implementing design and landscape standards. Promoting civic and community uses, and providing interconnection between uses, community parks, and open space that protect and enhance the character of the Sand Hills Community. Provide for sustainable development and environmentally responsible design. Maintain the character of the Sand Hills Rural Community while providing for neighborhood commercial, retail, office, and civic uses located within designated commercial area and corridors, appropriately scaled to meet the needs of the Sand Hills Community. Promote an integrated network of local streets, pedestrian paths, and bicycle and equestrian trails. Access management policies that promote development patterns which reduce automobile trip length. Provide for a range of housing types for all ages, incomes, and lifestyles. Provide centralized utilities for all new developments in a planned, coordinated and efficient manner. Policy 3.4.10.1 would allow properties designated Rural Residential to increase from 1 du/ac to 4 du/ac if central water and sewer are available and other conditions are met as set forth in Policy 3.4.10.4. Policy 3.4.10.2 has special conditions applicable to commercial development, such as a maximum floor area ratio of 30 percent. General Commercial land uses are only permitted in three designated "Commercial Nodes." Policy 3.4.10.3 creates special conditions applicable to agricultural uses in the Sand Hills STZ. Policy 3.4.10.4 establishes criteria for new development in the Sand Hills STZ, including the requirement for a site analysis by a licensed engineer or geologist. This requirement is imposed to protect karst features and aquifer recharge areas. This Policy also requires enhanced stormwater treatment and buffers around karst features, low impact design and landscaping standards, and open space requirements. Policy 3.4.10.5 requires the County to complete a plan by January 2012 for the expansion of water and sewer facilities into the Sand Hills STZ and to "retrofit" existing septic tanks by connecting properties to central sewer lines. New developments, regardless of density, are required to connect to central sewer lines if they are within 1,000 feet. Policy 3.4.10.6 addresses roadway access management to reduce reliance on State Road 77 and preserve levels of service. Internal Inconsistency Petitioner contends that the Plan Amendment is inconsistent with existing Policy 3.4.4 which states, in part, that rural community STZs are intended: to promote infill development into existing rural developed areas that will allow residents to work, shop, live, and recreate within one relatively compact area while preserving the rural and low density land uses in the designated and surrounding areas. Petitioner has a misunderstanding about Policy 3.4.4 that is the basis for several of her objections to the Plan Amendment. Petitioner focuses on the words "preserving the rural and low density land uses" and fails to see that the primary purpose of the policy is to enhance communities out in the rural areas of Bay County by encouraging the creation of a "nucleus" of mixed land uses in a compact development, while preserving the rural character of the surrounding area. Petitioner also asserts that the Plan Amendment is inconsistent with Policy 3.4.4 because the policy refers to "existing" developed areas, but the Plan Amendment allows residential density increases on some lands that are currently undeveloped. Petitioner's interpretation of the wording in the policy is not the only interpretation that can be given to the words and it is not the interpretation that Bay County gives to the words. Bay County interprets existing developed areas as a general reference to the areas that are currently recognizable as the core of village-like features, rather than a finite group of parcels. Policy 3.4.4 refers to the designation of rural community STZs "consistent with the Wide Open Spaces Strategy." A 7-page document entitled "Wide Open Spaces Strategy" was admitted into evidence as Petitioner's Exhibit 41. It is stated in the strategy that: This policy is an attempt by the Board of County Commissioners to focus its infrastructure planning and construction efforts. In no way should this policy be construed to discourage anyone choosing to live in the rural area. Rather, the Board is establishing the parameters and expectations that should be associated with that choice. The significance of the strategy to a compliance determination is not clear. It does not appear in the Comprehensive Plan and it may not have been properly adopted by reference. See § 163.3711(1)(b), Fla. Stat. Policy 3.4.4 states that a rural community STZ is to be "designated" consistent with the strategy, but this Plan Amendment does not designate the Sand Hills STZ. There are general statements in the strategy that fail to account for more specific policies of the comprehensive plan. For example, the strategy states that the County will limit residential development in rural communities to 1 du/3 ac, even though the Comprehensive Plan clearly allows 1 du/ac on Rural Residential lands if the lands are on paved roads. Statements in the policy regarding rural services do not reflect the existing public services and utility planning in the Sand Hills STZ. These disharmonies between the Wide Open Spaces Policy and the Comprehensive Plan suggest that the strategy is a collection of general statements that are not intended to have the same force and effect as the policies of the Comprehensive Plan. The record evidence is insufficient to show the intended role of the strategy in Bay County's comprehensive planning. The record evidence is insufficient to show that the Plan Amendment is inconsistent with the strategy. Petitioner contends that the Plan Amendment is inconsistent with Policy 6.10.5 of the Conservation Element, which states: "The County will maintain rural densities and intensities of development in identified high aquifer recharge areas." The existing rural densities in the Sand Hills STZ (1 du/10 ac and 1 du/3 ac) are not changed by the Plan Amendment. The existing suburban densities of 1 du/ac cannot be increased unless the parcels are connected to central water and sewer systems. Therefore, the purpose of Policy 6.10.5--to protect aquifer recharge areas--is achieved by the Plan Amendment. The stated "performance measure" for Policy 6.10.5 is the maintenance of rural designations on the FLUM. The Plan Amendment maintains rural designations on the FLUM. Petitioner contends that the Plan Amendment is inconsistent with Policy 3.2.3 because it conflicts with the intent of the policy to limit the Sand Hills STZ to rural levels of service. However, Policy 3.2.3 does not prohibit the County from providing central services in the Rural STZs. The service area map for the Sand Hills STZ shows that central water and sewer services are already planned. The County already provides central sewer and water to the public school located in the Sand Hills STZ. Petitioner claims that the Plan Amendment, for the first time, allows general commercial uses within the Sand Hills STZ, but General Commercial uses were already allowed in the Sand Hills STZ. In summary, Petitioner failed to prove facts showing that the Plan Amendment causes the Comprehensive Plan to be internally inconsistent with any goal, objective, or policy of the Comprehensive Plan. Data and Analysis Petitioner asserts that there is insufficient data and analysis to support the need for increased residential density to meet population projections for the area. A local government can accommodate more than the projected population. See § 163.3177(6)(a)4., Fla. Stat. The Plan Amendment responds to growth pressures in the Sand Hills STZ, modifies antiquated subdivisions, and furthers numerous other general and specific goals, objectives, and policies of the Comprehensive Plan to promote well-designed, environmentally-protective, infrastructure-efficient, high- quality communities. Petitioner contends that the Plan Amendment is not supported by appropriate data and analysis regarding the protection of aquifer recharge areas. However, the evidence offered by Petitioner only established that she wants the Plan Amendment to be more protective. Petitioner's expert hydrogeologist, Dr. Kincaid, admitted that the County had taken "strong" and "aggressive" measures in the Plan Amendment to protect water quality, but said he wished the County had done more to address water withdrawals. There was no evidence presented indicating that there is insufficient water available to serve the Sand Hills STZ. The Northwest Florida Water Management District has exclusive authority to regulate water withdrawals in Bay County. See § 373.217(2), Fla. Stat. The Deer Point Lake Hydrologic Analysis is the principal data and analysis that the Plan Amendment is based upon. In addition, the Plan Amendment is supported by the analysis presented at the final hearing by Dr. Kincaid and Steve Peene. Petitioner did not present data and analysis showing that the Plan Amendment would be harmful to water resources. Petitioner contends that the Plan Amendment is not supported by data and analysis regarding impacts on species and habitats. Petitioner did not explain what additional data and analysis would be required regarding species and habitat when the lands affected by the Plan Amendment are already designated for residential and commercial development. Petitioner refers to comments made by the Fish and Wildlife Conservation Commission, but those comments are also unexplained, and are hearsay. The Conservation Element of the Comprehensive Plan addresses the protection of natural resources, species, and habitat. The Plan Amendment does not remove any goal, objective, or policy of the Conservation Element. Petitioner did not show the Plan Amendment would be harmful to species and their habitat. A large area where septic tanks are used can be expected to be a source of groundwater contamination because a significant number of septic tanks will fail. The Plan Amendment includes a new map which depicts priority areas for retrofitting existing parcels that use private wells and septic tanks and connecting the parcels to central water and sewer lines. Petitioner contends that the mapping is not supported by data and analysis. The priority areas were selected based on development density and proximity to Deer Point Lake. Those data are sufficient to support the mapping of priority areas. Petitioner produced no contrary data and analysis. In summary, Petitioner failed to prove facts showing that the Plan Amendment is not supported by relevant and appropriate data and analysis. Urban Sprawl Petitioner contends that the Plan Amendment encourages urban sprawl, but her evidence was not persuasive. According to Petitioner's theory of sprawl, every rural town and village would be an example of sprawl because they all "leap frog" from urban areas over agricultural and rural lands. Leap frogging as an indicator of sprawl usually involves a leap from an urban area to an area of undeveloped rural lands which will be transformed into urban or suburban land uses. That is not the situation here. The Plan Amendment's application of modern planning principles to enhance the quality and functionality of an existing rural community does not indicate urban sprawl. Petitioner contends that the Plan Amendment triggers most of the 13 indicators of urban sprawl that are set forth in section 163.3177(6)(a)9., but she failed to prove the existence of any indicator. The Plan Amendment does not promote the development of a single use or multiple uses that are not functionally related. It does not promote the inefficient extension of public facilities and services. It does not fail to provide a clear separation between urban and rural uses. In summary, Petitioner failed to prove facts showing that the Plan Amendment constitutes a failure of Bay County to discourage the proliferation of urban sprawl. Other Compliance Issues Petitioner contends that the Plan Amendment's provisions regarding infrastructure were not shown to be financially feasible, but the record evidence shows otherwise. Bay County has water and sewer facilities with sufficient capacity to serve the Sand Hills STZ. Furthermore, the new law eliminated the financial feasibility provisions of section 163.3177. Petitioner contends that the Plan Amendment improperly changes the FLUM, but the Plan Amendment does not change the FLUM. The rural community STZs are overlays that do not change FLUM designations. Petitioner contends that the Plan Amendment does not address hurricane evacuation times, but did not show that there is any legal requirement for Bay County to address hurricane evacuation times for amendments affecting lands outside of areas of hurricane vulnerability. Petitioner alleges that the Plan Amendment is inconsistent with the requirements of section 163.3177 related to energy conservation and efficiency, but the law cited by Petitioner was eliminated by the new law. Petitioner stated at the final hearing that her real objection is that the Plan Amendment promotes subdivisions far away from employment centers. Growth in the Sand Hills STZ is likely to be affected by and run parallel to growth in the adjacent West Bay Sector Plan because it is a developing employment center. Furthermore, the Plan Amendment is designed to make the Sand Hills STZ more self-sustaining, which would reduce vehicle miles. Petitioner contends that the Plan Amendment does not include sufficient standards and measures for the implementation of its new policies. The Plan Amendment is primarily self- implementing, in that it sets forth specific conditions for development. In addition, the Plan Amendment includes guiding principles that can be used in the application of existing land development regulations (LDRs) or the adoption of new LDRs. There also are references in the Plan Amendment to other regulatory programs that will be used to implement the policies. Petitioner claims the Plan Amendment was not coordinated with Washington County, but she did not prove the claim. In summary, Petitioner failed to prove facts showing that the Plan Amendment is not in compliance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Plan Amendment is in compliance. DONE AND ENTERED this 18th day of October, 2011, in Tallahassee, Leon County, Florida. S 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 18th day of October, 2011.
The Issue The issue is whether Respondent engaged in prohibited discriminatory conduct against Petitioners, Irene Cassermere (Ms. Cassermere) and Milagross Diaz (Ms. Diaz), within the terms and conditions, privileges, or provisions of services or facilities in the sale or rental of real property in violation of Section 760.23, Florida Statutes (2002).
Findings Of Fact Ms. Diaz is a female of Hispanic ethnicity with a physical disability that limits one or more of her major life activities. At all times material, she lived in the State of New York. Ms. Diaz was in Florida during the month of February 2002. On February 20, 2002, she completed an application for lot rental in the Sherwood Forrest Mobile Home Park (Sherwood Forest) with the intent to purchase a mobile home located on a rental lot at 216 London Drive, Kissimmee, Florida, owned by Beth Koze (Ms. Koze), who did not testify. Respondent informed Ms. Diaz that her credit check would be completed within a couple of days to ascertain her income and credit history. It was her understanding that Respondent had no interest in the potential purchase transaction between her and Ms. Koze. However, Respondent explained to Ms. Diaz, that ownership of a mobile home at the time of application was not required in order to be approved. According to Ms. Diaz, Respondent eventually informed her that due to insufficient income shown on her application she had been disapproved for lot rental. Ms. Diaz testified that Respondent informed her that she needed approximately twice the amount of her reported monthly income to qualify for lot rental approval. Thereafter, Ms. Diaz submitted a second lot rental application to Respondent. On the second application, Ms. Diaz included a co-applicant, Ms. Cassermere, who intended to relocate to Florida with her when the mobile home purchase and the lot rental application were completed. No monthly income for Ms. Cassermere was included on the lot rental application. On the second lot rental application, Ms. Diaz testified that she listed her "Occupation of Applicant" as "disabled." In the column regarding "income," she included her income and listed a Mr. LaRosa as a source of monthly income of $400.00, the amount she claimed Respondent previously informed her she needed to qualify for lot rental. According to Ms. Diaz, Respondent received her second lot rental application and called her to discuss the matter. During the conversation Respondent asked "[W]hat she was doing for Mr. LaRosa that he would put out $400.00 on her behalf." Ms. Diaz testified that she was offended by the tone of Respondent's voice and the implications that she believed prompted the question. She believed the question to have been irrelevant and did not answer. Ms. Diaz testified that in the "Assets and Income" column of her second lot rental application, she listed the amount of $10,000. When asked by Respondent the source of the $10,000, which apparently was not initially included on her first lot rental application, she explained to Respondent she intended to make a cash purchase of the mobile home from Ms. Koze for $10,000. When asked by Respondent the source of such a large sum, when her monthly income was insufficient to qualify for lot rental, she explained that she was to receive a lump sum, five years' retroactive social security benefit payment. Ms. Diaz testified that approximately one month after submitting her second rental lot application to Respondent and having received no response, she called Ms. Koze to ascertain the status of the mobile home sale. Ms. Diaz also testified that Ms. Koze advised her to call Respondent to find out what was holding up her second lot rental application. Believing the lot rental approval was a condition precedent to the mobile home sale, Ms. Diaz testified that at no time during her conversation with Ms. Koze did Ms. Koze advise her that she intended to take the mobile home off the market. Ms. Diaz then called Respondent and spoke with Andy Windfelder (Mr. Windfelder) about the rental lot application status. Mr. Windfelder told her to call Ms. Koze. Ms. Diaz's recollection of the telephone conversation between her and Ms. Koze follows: [A]t this point it's just too much trouble, that at this point she was going to keep the house. . . for a family member--So I told her at this point, she's been patient and she's been holding up with me for that whole time that we were waiting on this credit report, which is four weeks, that I'm not going to put her on the spot of going against them and tell me what transpired in that conversation for them to convince her not to sell to me. I told her that at that point I have no alternative but to tell her that I was going to go file a housing complaint, and I'm sorry that I would have to involve her, but that we had a contract and I gave her a deposit. So at that point she took my name and address and she mailed me my deposit back on a check, and at that point, I didn't contact Sherwood--I contacted Sherwood Forest only to tell them right after that that I filed this housing complaint, that I was going to file this housing complaint . . . As stated, Ms. Diaz filed her discrimination complaint with the Florida Commission on Human Relations and no longer communicated directly with Respondent regarding the matter. The core of Ms. Diaz's complaint is Respondent's failure, or refusal, to contact her by mail or by telephone about the result of her second lot rental application. Further, Ms. Diaz opined that Respondent pressured Ms. Koze not to sell her mobile home to her, which caused Ms. Koze to return Ms. Diaz's purchase contract deposit money. Ms. Diaz argued that Respondent's conduct, unreasonable delay in acting upon her lot rental application and pressure on Ms. Koze not to sell, had two direct effects: (1) she lost the opportunity to purchase the mobile home located on the rental lot at 216 London Drive, Kissimmee, Florida, and (2) she was denied the right to reside in Respondent's facility because she was a dark, disabled, Hispanic female. At all times material, Jeff Leeds (Mr. Leeds) was general manager of Sherwood Forest in Kissimmee, Florida. In that position, Mr. Leeds supervised a staff of 28 persons, of whom many were Hispanic. The park consisted of approximately 1,600 rental sites. According to Mr. Leeds, approximately 30 percent of Sherwood Forest residents were Hispanic, and he had never met Ms. Diaz. According to Mr. Leeds, Ms. Diaz's background check reflected insufficient income that raised an alert. Her second application, based upon his conversation with Ms. Diaz, would include her sister, Ms. Cassermere, as co-applicant. Ms. Diaz was unaware that in October 2003, Ms. Koze placed her mobile home back on the market and was willing to sell to her. This information was made available to Ms. Diaz by and through Respondent through the report provided to Respondent by the Commission's investigator. Based on the evidence of record, Ms. Diaz failed to present any credible evidence to substantiate her claim of discrimination. Ultimate Factual Determinations Respondent rejected Ms. Diaz's initial lot rental application, not because of her handicap or her Hispanic ethnicity, but because through a reasonable process of credit check references, it was discovered that Ms. Diaz's disability income was insufficient to meet Respondent's requirements for lot rental. The additional income of $400.00, an apparent loan from her friend, entered on her second rental lot application raised reasonable concerns; and, when inquiry was made, she refused to respond. There is no credible, competent evidence that Respondent attempted to influence and/or pressure the mobile home owner, Ms. Koze, to take her mobile home off the market and/or cancel her contract for sale with Ms. Diaz. Ms. Koze voluntarily returned Ms. Diaz's deposit money. There is no credible, competent evidence that Respondent intentionally delayed processing Ms. Diaz's second lot rental application with the intent or for the purpose of denying her approval because of her disability, gender, or her Hispanic ethnicity. In short, Respondent did not unlawfully discriminate against Ms. Diaz; rather, the delay caused by her second lot rental application to Respondent was for a legitimate, nondiscriminatory reason and was not proven to be the reason Ms. Koze took her mobile home off the market.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing Petitioners', Irene Cassermere and Milagross Diaz, Petition for Relief. DONE AND ENTERED this 1st day of July, 2004, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 1st day of July, 2004.
The Issue The issue in this case is whether Ordinance No. 06-03, as adopted by the Village of Islamorada, Village of Islands (Village), is consistent with the Principles for Guiding Development set forth in Section 380.0552, Florida Statutes (2006) (Guiding Principles).1
Findings Of Fact The Florida Keys were originally designated an Area of Critical State Concern (ACSC) by the Administration Commission in 1975 and were re-designated by the Legislature in 1986. See § 380.0552, Fla. Stat. The Legislative Intent Subsection (2) of the statute and the Guiding Principles together require an effective land use management system that protects the natural environment and character of the Keys, maintains acceptable water quality conditions, ensures adequate public facility capacity and services, and provides adequate emergency and post-disaster planning to ensure public safety. The Village's Comprehensive Plan has been adopted pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act, as well as the authority of Section 380.0552(9), Florida Statutes. Provisions pertaining to vacation rentals are established in Policies 1-2.1.10, 1-2.4.7, 1-2.4.8, and 1-2.4.9. The policies allow vacation rentals but provide limits for such uses within single-family and multi-family residential properties within the Village. In addition, these policies also provide for the establishment of land development regulations (LDRs), which address enforcement and implementation of those policies. The applicable Village Comprehensive Plan Policies are as follows: Policy 1-2.1.10: Restrict Development of New Transient Units. Transient use shall be defined as any use of any structure for a tenancy of 28 days or less. Transient uses shall be considered as residential uses for the purposes of transferring development rights pursuant to conditions established in Policy 1-3.1.4 of this Plan. Islamorada, Village of Islands shall cap the number of new transient units at the number of current and vested hotel and motel rooms, campground and recreational vehicle spaces existing within the Village as of December 6, 2001. Single family and multifamily residences shall not be considered part of the above cap but instead may be used for transient rental use as provided for in Comprehensive Plan Policies 1-2.4.7 and 1-2.4.8. Policy 1-2.4.7: Limit Transient Rental Use of Residential Properties. Islamorada, Village of Islands shall continue to allow the transient rental use of 28 days or less, of single family and multifamily residential properties within the Village, including properties located within the Residential Conservation (RC), Residential Low (RL), Residential Medium (RM), Residential High (RH), Mixed Use (MU) and Airport (A) Future Land Use Map categories. Property owners located in the RL, RM, RC, MU, RH and A Future Land Use Map categories may continue transient rental subject to the following requirements: Owners of such properties shall annually register with the Village and shall demonstrate at the time of registration: That since December 6, 2001 the owner had continuously either paid or filed for all County tourist development taxes due, and paid local impact fees, for the property it wishes to register; That owner has applied for appropriate state licensure to conduct transient rental for the property it wishes to register and shall receive the license within six months of application; That the property is not registered for a homestead tax exemption pursuant to Article VII, Section 6 of the Constitution of the State of Florida; and That the property otherwise meets all requirements of the Village Land Development Regulations. The annual registration shall allow up to a total of 331 single family and multifamily transient rental units. For each annual registration period after the initial registration period, the following shall additionally apply: No new transient rental unit shall be allowed in any Residential Medium (RM) Future Land Use Map category, in mobile home parks or in the Settler's Residential zoning district. No new transient rental unit in the RH and MU Future Land Use Map categories may be registered unless it is assessed by the Monroe County Property Appraiser at a value in excess of 600% of the median adjusted gross annual income for households within Monroe County. No new transient rental unit in the RC, RL, or A Future Land Use Map categories may be registered unless it is assessed by the Monroe County Property Appraiser at a value in excess of 900% of the median adjusted gross annual income for households within Monroe County. The priority of registration for transient rental units for all registration periods, for purpose of the 311 unit cap, shall be based upon the total number of months that the unit owner has paid the Monroe County tourist development tax, with units registered in ascending order (i.e., those licenses demonstrating the most months of payment shall be the last retired). Notwithstanding paragraph 1.a. above, if the 331 unit cap is not reached in any year by those units that have paid the Monroe County tourist development tax, new units may be given priority by registration date. Property owners permitted transient rental use pursuant to this policy shall lose their privileges and retire their licenses when ownership (in whole or in part) of the unit is transferred, through an arm's length sale of the property or the asset. If the unit is owned by a natural person, the transfer of the fee simple ownership of the unit to the owner's spouse or children shall not result in termination of the license. Policy 1-2.4.8: Enforcement and Implementation of Transient Rental Regulations. Property owners permitted transient rental use pursuant to Policy 1- 2.4.7 shall pay an annual fee to the Village as established by resolution to be used for code compliance related to transient rental uses, with any excess funds to be used to further affordable housing programs. Transient rental unit owners shall lose their privileges and their permits shall be revoked for a property being used for transient rental if the property had been found by non- appealable Final Order on two occasions to have violated the Village Code regarding vacation renal units as provided for in the land development regulations. The Village shall establish land development regulations which shall address enforcement and implementation of transient rental use, including, but not limited to, the following: conspicuous notification on transient rental properties; requiring each unit to identify the unit manager who resides within the village; regulating the number and location of watercraft and automobiles on site; lease agreements to disclose village regulatory requirements and provide for access for adequate code enforcement; advertising to require identification of state and village license numbers; notification to adjacent property owners; and fines, penalties, revocation of license for violation of the regulations including but not limited to the advertising of units that are not lawfully licensed by the Village. Policy 1-2.4.9: Affordable Housing Study. The Village, based on its 2004 Workforce Housing Study, shall analyze appropriate policy revisions to the transient rental comprehensive plan policies and prepare a report no later than December 31, 2005. The Village shall establish and support the efforts of an Affordable/Workforce Housing Citizen Advisory Committee to address the relationship between affordable housing needs and transient rental uses within the Village. The applicable Village LDR, as modified by Ordinance No. 06-03 provides the following2: Section 30-1294. Vacation rental uses permitted within certain multifamily developments. Vacation rental uses shall be permitted to continue after May 1, 2003, in properly located in the Residential High (RH) future land use category of the Village Comprehensive Plan within multifamily developments with mandatory property associations, and if the member properly owners pursuant to applicable association requirements approve vacation rental uses within such multifamily development. Registration of Existing Vacation Rental Units. The owner of a property located in the RC, RL, RM, RH, MU, and A Future Land Use Map categories may continue vacation rental use provided that the owner's use of the unit meets all of the following conditions: Since December 6, 2001, the owner had continuously either paid or filed for all County tourist development taxes due and paid local impact fees for the unit it wishes to register as a vacation rental use; The owner has applied for and received the appropriate state licensure to conduct vacation rental use for the unit; The property is not registered for a homestead tax exemption pursuant to Article VII, Section 6 of the Constitution of the State of Florida; The unit is not a deed restricted affordable housing unit; and The property otherwise meets all requirements of the Village Land Development Regulations. The Florida Keys Principles for Guiding Development are set out in Section 380.0552(7), Florida Statutes: To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objections without the continuation of the area of critical state concern designation. To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. To limit the adverse impacts of development on the quality of water throughout the Florida Keys. To enhance natural scenic resources, promote the aesthetic benefits of the natural environment, and ensure that development is compatible with the unique historic character of the Florida Keys. To protect the historical heritage of the Florida Keys. To protect the value, efficiency, cost- effectiveness, and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities; Sewage collection and disposal facilities; Solid waste collection and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks, wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Electric Co-op; and Other utilities, as appropriate. To limit the adverse impacts of public investments on the environmental resources of the Florida Keys. To make available adequate affordable housing for all sectors of the population of the Florida Keys. To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or manmade disaster and for a postdisaster reconstruction plan. To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. Section 30-1294(a)(5) of Ordinance 06-03 has little to no impact on the Guiding Principles, except Principles (a), (d), (j), and (l). All it does it add to the Comprehensive Plan's vacation rental provisions authorizing properties in certain future land use categories to continued pre-existing vacation rental use the requirement those properties "otherwise meet all the requirements of the [LDRs]." In regard to Principle (a), Section 30-1294(a)(5) clearly provides further authority to the local government to regulate land use and development. The evidence also proved that this increased authority will strengthen the Village's capabilities for managing land use and development and achieving the objectives of the Guiding Principles without the continuation of the ACSC designation. Petitioners essentially make the argument that Section 30-1294(a)(5) is inconsistent with Principle (a) because "all requirements" of the Village's LDRs is too broad, too difficult to interpret, gives the planning director too much discretion to interpret the requirement, and places an impossible burden on applicants for vacation rental licenses, which ultimately will discourage compliance and undermine the vacation rental ordinance. The evidence did not prove any of those arguments. In regard to Principle (d), Section 30-1294(a)(5) further ensures the maximum well-being of the Florida Keys and its citizens through sound economic development. In regard to Principle (j), Section 30-1294(a)(5) addresses the critical need for affordable housing within the Florida Keys. With regard to Principle (l), Section 30-1294(a)(5) clearly demonstrates and provides for the public health, safety, and welfare of the citizens of the Florida Keys and maintains the Florida Keys as a unique Florida resource. When the legislative intent behind Chapter 380, Florida Statutes, is taken in account, it is clear that Section 30- 1294(a)(5) is not the type of land use decision that Chapter 380 is most concerned with. Because this provision does no harm to the natural environment and waters of the Florida Keys ACSC, the State's interest is protected. The issue is essentially local, and deference should be afforded the Village in establishing such regulations through its police powers. Given the purpose of DCA's involvement in this matter, the legislative intent of Chapter 380, Florida Statutes, and the evidence presented in this proceeding, it is clear that Section 30-1294(a)(5) is consistent with the Guiding Principles, considered as a whole.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order approving Ordinance No. 06-03 as consistent with the Principles for Guiding Development set out in Section 380.0552(7), Florida Statutes. DONE AND ENTERED this 12th day of January, 2007, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2007.
The Issue Is Respondent TPE Structures of Bay County, Inc. (TPE Bay County) an employer as defined in Section 760.02(7), Florida Statutes (2003), conferring jurisdiction on the Florida Commission on Human Relations (the Commission) to consider the complaint filed by Petitioner William D. Hunt (Petitioner Hunt) and Petitioner Charles C. White (Petitioner White) against TPE Bay County?
Findings Of Fact Petitioner Hunt worked for TPE Bay County from August 13, 2003, through October 4, 2003. Petitioner White worked for TPE Bay County from August 11, 2003, through September 6, 2003. These are the relevant time periods in this inquiry. Both Petitioners were terminated from employment. According to the Amended Employment Charges of Discrimination, the Petitioners accuse their supervisor/manager Gary Williams of sexual harassment while employed with TPE Bay County. On August 21, 2000, TPE Bay County filed the necessary documents for incorporation with the Florida Department of State. It was incorporated as a Florida for profit corporation. As of April 11, 2002, the mailing address for the corporation was Post Office Box 18155, Panama City Beach, Florida 32417. Kenneth L. Karr is the registered agent for the corporation. He is the president and only director. Mr. Karr is the only shareholder in the corporation holding 400 shares. Mr. Karr's address is 7109 Lagoon Drive, Panama City Beach, Florida 32408. This information concerning TPE Bay County and Mr. Karr pertained during the relevant time contemplated by the Amended Charges of Discrimination referred to before, with the exception that Mr. Karr had a prior address in Panama City Beach, Florida. Mr. Karr filed with the Florida Secretary of State a year 2004 for profit corporation annual report. That report was filed April 26, 2004. It is one in a series of reports filed with that agency since the inception of the corporation. Earlier a corporation identified as TPE Structures, Inc. (TPE) had been formed. On March 26, 1999, the necessary documents were filed with the Florida Department of State to incorporate TPE. At times relevant, the principal address for TPE was 5970 Peninsula Avenue, No. 3, Key West, Florida 33040. The mailing address was Post Office Box 2066, Key West, Florida 33045. Mr. Karr serves as resident agent for TPE. His address is 7109 Lagoon Drive, Panama City Beach, Florida 32408 for those purposes. The 2004 TPE for profit corporation annual report was filed with the Florida Department of State on April 4, 2004. Before April 14, 2004, other for profit corporation business reports were filed with that agency. Mr. Karr was the president and only director for TPE from the inception and continues in those roles at present. He holds 500 shares in TPE that represents all shares. At times relevant Mr. Karr received a salary from TPE Bay County and from TPE. The Florida General Contracting license pertaining to TPE Bay County and TPE is No. CBC059131. At times relevant TPE Bay County and TPE maintained separate employee telephone numbers or contact lists. Those lists set forth the names and addresses for the employees. Persons whose names and addresses are related in the TPE Bay County list and the TPE list do not overlap. TPE Bay County is engaged in the business of concrete spalling, stucco repair, termite and water damage, waterproofing, caulking, texture coatings and painting. TPE is engaged in the business of concrete spalling, stucco repair, termite and water damage, waterproofing, caulking, texture coatings and painting. TPE Bay County in its breakout of work performed is involved 60 percent in waterproofing, 25 percent in stucco and wood repair and 15 percent in painting and texture coatings. By contrast TPE is involved with 80 percent concrete spalling, and 20 percent painting. TPE Bay County does work in Bay County, Florida. TPE does work in the lower Florida keys in Monroe County, Florida. The work is done through separate company employees assigned to those jobs from the business locations where the jobs are found. The work is not done by exchanging employees who work for TPE Bay County and TPE respectively. TPE Bay County and TPE have separate managers whose job it is to estimate, promote, market, bid, solicit, and obtain contracts. Those managers do not communicate or deal with each other in the regular course of business. Mr. Karr's job duties in relation to his companies is to deal with corporate functions, set goals for profit, set goals for sales, deal with the respective managers of the two companies, deal with cash-flow, oversee accounting, sign checks, and visit job sites routinely. Mr. Karr hired the managers for the two locations and would be responsible for firing those managers. He has a similar role in dealing with a single accounting staff that serves both companies. Gary Williams serves as the manager for TPE Bay County. Stace Valensuelela manages TPE. Those managers are responsible for labor relations and safety activities. The managers are responsible for approving time cards for payroll purposes and establishment of hourly wages for employees, for billing customers and approving invoices for payment. The bookkeeping for the companies is done by Georgianne Davis who is overseen by Mr. Karr's wife. The business records for TPE Bay County Respondent are maintained at 7915 North Lagoon Drive, Panama City Beach, Florida 32408. The mailing address for that company is Post Office Box 18155, Panama City Beach, Florida 32417. The telephone number for TPE Bay County is (850) 235-4811. The fax number for TPE Bay County is (850) 230-3617. The e-mail address is ken@tpestructures.com. The business records for TPE had been maintained at 5970 Peninsula Avenue, No. 3, Key West, Florida 33040. The mailing address for TPE was Post Office Box 2066, Key West, Florida 33045. The telephone number for TPE was (305) 292-4111. The fax number for TPE was (305) 292-4615. The e-mail address for TPE is ken@tpestructures.com. After September 29, 2004, the Key West office closed and the records of TPE were sent to the Panama City Beach address related to TPE Bay County for storage purposes. TPE Bay County has assigned an FEIN number 59-3666286. TPE has assigned an FEIN number 65-0929637. TPE Bay County does business with Peoples Bank in Panama City Beach, Florida. TPE has transacted banking business with First State Bank in Key West, Florida. An occupational license was issued by Panama City Beach for TPE Bay County's operations in Bay County, whereas TPE's operations in Key West for Monroe County was issued a separate occupational license by that local government. According to employee information for TPE Bay County and TPE, at times relevant nine persons were employed by TPE Bay County and 20-plus persons were employed by TPE. At times relevant none of the persons employed by TPE Bay County worked on projects around south Florida. Similarly, none of the TPE employees worked on projects in the Florida panhandle. No funds related to TPE Bay County were used to pay the debts for TPE. No funds for TPE were used to pay debts of TPE Bay County. On advice of counsel Mr. Karr formed TPE Bay County as a separate corporation from TPE to limit debt liability. These arrangements were not intended in their design to avoid employment discrimination claims by employees. A business card presented as evidence bearing Mr. Karr's name sets forth TPE as the company. It provides the post office address for TPE Bay County and TPE in their respective locations at Panama City Beach and Key West. It gives the telephone numbers for TPE Bay County and TPE. It gives the fax number for TPE. It has a website listed which is www.tpestructures.com. A letterhead refers to TPE with a post office address for both the TPE Key West company and the TPE Bay County Panama City Beach company. Advertising in several telephone book listing services refers to "TPE Structures, Inc." and "TPE" while containing the TPE Bay County's 7914 North Lagoon Drive, Panama City Beach, Florida address and telephone number at 235-4811. Those listings bore the website address www.tpestructures.com with the contractors license number CBCO59131. Two separate telephone listings bore the name "TPE Structures, Inc.," with the initials "TPE" the 5970 Peninsula Avenue address for TPE and the telephone number for TPE as (305) 292-4111. A website address in those listings was given as www.tpestructures.com. A contact form soliciting information from outsiders refers to TPE, not TPE Bay County, at the location 7914 North Lagoon Drive, Panama City Beach, Florida 32408, with a telephone number of (850) 235-4811 and the fax number (850) 230-3617. That same form refers to TPE at telephone number (305) 292-4111 and fax number (305) 292-4615. It carries an e-mail addresses for general information as info@tpestructures.com and under the president as ken@tpestructures.com. An information sheet referring to the "TPE" office staff shows photos of Mr. Karr as founder and president, Suzanne Karr, Gary Williams as manager of Panama City Beach, and Georgianne Davis, secretary and accounting at Panama City Beach, Florida. On that same page with photos unavailable is a reference to Stace Valensuelela as manager of Key West and an unnamed secretary at Key West, Florida. A brief employment application form refers to joining the "TPE" team and sending the information to "TPE Structures, Inc." at 7914 North Lagoon Drive, Panama City Beach, Florida 32408. It provides the fax number (850) 230-3617 related to Panama City Beach. At times relevant TPE Bay County had filed with the Florida Department of Revenue its employers quarterly report. TPE Bay County has filed a Form 940-EZ with the Internal Revenue Service related to the Employers' Federal Unemployment (FUTA) tax return for calendar year 2003. TPE Bay County had filed a Form 941 Employers' Quarterly Federal Tax Return for the quarter ending September 30, 2003, with the Internal Revenue Service. In a document prepared that refers to the "TPE history", it is stated that in addition to the Key West office, TPE is proud to announce the opening of the Panama City Beach, Florida office at 7914 North Lagoon Drive on February 1, 2001. The phone numbers are (850) 235-4800 and fax (850) 230-3617 or toll free at 877-660-4811. A truck used in the business related to TPE Bay County had signs displayed referring to "TPE." One sign on the truck indicated the telephone number for TPE Bay County's business, which is (850) 235-4811. At times relevant employees working for TPE Bay County wore painter whites referring to "TPE Structures" that displayed the telephone numbers for Key West and Panama City Beach with a common 1-800 number. When Petitioner White was hired, Mr. Karr told him that he has trying to keep Key West going and was having monetary trouble in that location. From the hearing record nothing additional was said to Petitioner White on the subject. Mr. Karr told Petitioner Hunt that there was a Key West branch of his business. Notwithstanding this remark, Petitioner Hunt did not become personally familiar with the Key West operation.
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered by the Commission finding that it is without jurisdiction to proceed in these cases based upon Petitioners' failure to show that the Respondent is "an employer" as defined in Section 760.02(7), Florida Statutes (2003). DONE AND ENTERED this 22nd day of December, 2004, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 22nd day of December, 2004. COPIES FURNISHED: Daniel A. Perez, Esquire Allen & Trent, P.A. 700 North Wickham Road, Suite 107 Melbourne, Florida 32935 Kenneth L. Karr, President TPE Structures of Bay County, Inc. Post Office Box 18155 Panama City Beach, Florida 32417 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received, including the parties' proposed findings of fact and conclusions of law, the following relevant facts are found. Petitioner owns and operates the Hilton Inn located generally on the southern portion of Clearwater Beach, Florida. Its ownership extends from the seawall in the area under consideration seaward for a distance of fifty (50) feet. The Hilton Inn is situated within an area currently zoned by the City of Clearwater as CTF-28 (high density commercial/tourist). This district provides for a complete range of motel/hotel development with a major emphasis on tourist facilities. The primary permitted uses and structures within the CTF-28 zone district are combination hotel, motel, apartment, and business buildings, apartment houses, townhouse development and restaurants. A number of special exceptions to the permitted uses are authorized within a CTF-28 district. Such exceptions include three types of marina facilities. The special exception granted Petitioner by the Board of Adjustment and Appeal on Zoning is considered to be an exception to construct a marina facility. The immediate area may be generally described as a combination of high- density residential and hotel buildings and structures catering to tourists, part-time, and permanent residents. The most seaward portion of the dock will be approximately 225 feet from the closest point of the channel of Clearwater Pass and the dock itself will be between 250 and 200 feet west of the bridge under which the narrow portion of Clearwater Pass and the swiftest portion of the current flows. The primary concern of the adjacent property owners who testified in the subject hearing is a fear that the proposed dock will block pedestrian traffic along the beach and that persons who use the dock will be in jeopardy due to the swift currents in the adjoining waters. (Testimony of Arthur Marini, James Scalderbank, Frank Marrow, Don Guntherson, and Intervenors Gibson and Miller.) Bill Burchfield, director of the Marine Department, City of Clearwater, is in charge of monitoring docks, bridges, and similar structures for Respondent. Director Burchfield examined the subject application for its navigational impact and determined that the dock, as proposed by Petitioner, would have no discernible adverse impact on navigation.
The Issue The issue in this case is whether Respondents discriminated against Petitioners based on race regarding the renting of a house.
Findings Of Fact LM Rentals owns 80 houses, which it rents. Mr. Peeples manages LM Rentals. LM Rentals contracts with Vantage to provide management of the rental properties, and Ms. Mossow is employed by Vantage. LM Rentals rented a house to the Odoms for approximately eight years, beginning in 2003. Mrs. Odom is a Native American. Mr. Odom is White and is not a Native American. No evidence was presented to establish that either anyone from LM Rentals or Ms. Mossow was aware that Mrs. Odom is a Native American. Mrs. Odom's physical appearance, her speech, and her surname could reasonably lead one to think that she is not a Native American. Her appearance would lead one to believe that she is White. The application which the Odoms filled out to rent the house did not require the Odoms to state their race. Mrs. Odom never informed employees of LM Rentals or Ms. Mossow that she is a Native American. Mrs. Odom claims that her children have darker skin than she, and, therefore, Ms. Mossow and employees of LM Rentals should have known that she is a Native American by looking at her children. However, no testimony was presented that Ms. Mossow or anyone from LM Rentals ever met Mrs. Odom's children prior to the filing of the discrimination complaint. Ms. Mossow did not meet any of Mrs. Odom's children until a short time before the final hearing when she delivered copies of exhibits to the Odoms' home. Mr. Peeples, the representative of LM Rentals, did not meet the Odoms' children and never met the Odoms until a few days before the final hearing. The house which the Odoms rented from LM Rentals developed a mold problem. Instead of bringing the mold problem to the attention of Ms. Mossow or anyone at LM Rentals, the Odoms contacted the Polk County Health Department (Health Department), which sent an environmental specialist to investigate the mold situation in January 2010. LM Rentals received a letter from the Health Department concerning the mold. LM Rentals hired a third-party testing company to test the house for mold. The coils on the air conditioner were replaced. The Odoms were not satisfied and requested that Ms. Mossow find them another rental house in the same school district in which they currently resided. LM Rentals has an average vacancy rate of five percent, which equates to about four houses at any given time. At the time that the Odoms requested to be relocated, there was only one house vacant in the school district which the Odoms wanted. The Odoms did not like the house and refused to relocate. Mrs. Odom claims that there were other houses available, but could not point to any specific house. Her claim is based on sheer speculation. The Odoms requested that the carpet be replaced, but, based on the tests of the third-party testing company, LM Rentals refused to do so. About the time they were having the mold problems, the Odoms' daughter was suspended from school. Mrs. Odom attributes the suspension to discrimination by Respondents. Mrs. Odom called, as a witness, the teacher who made the referral which resulted in Mrs. Odom's daughter being suspended. The teacher did not know Ms. Mossow and did not know Mr. Peeples. The teacher, who is also an attorney, was not sure if she had ever represented LM Rentals in the past as an attorney. The suspension was totally unrelated to any mold problems and any alleged discrimination. Mrs. Odom also claims that her son was arrested for disorderly conduct about the time of the mold problem, and she lays the arrest at the door of Respondents. Her rationale for her claim is that the arrest happened at the time they were dealing with the mold issues and that LM Rentals knew people. There is not a scintilla of evidence to connect the arrest of the Odoms' son to any actions by Respondents. In April 2010, during the period in which the mold was an issue, a code enforcement inspector saw a small grill on the Odoms' driveway, which was apparently a code violation. The inspector told the Odoms that the grill needed to be removed. LM Rentals received a letter from the code enforcement department stating that LM Rentals would be fined if the violation was not corrected. Ms. Mossow contacted the Odoms in an attempt to get the grill removed in order to avoid being fined. Mrs. Odom claims that Ms. Mossow and LM Rentals caused the code enforcement inspector to come to the Odoms' home and ask that the grill be removed. Mrs. Odom's claim is without merit. It is unlikely that Ms. Mossow or LM Rentals would request a code enforcement inspector to find a code violation which would result in LM Rentals, as owner of the property, being fined. No evidence was presented to show that Respondents treated non-minorities any differently than the Odoms were treated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Lawrence and Candace Odom's Petition for Relief. DONE AND ENTERED this 6th day of December, 2011, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2011.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition for Establishment of the Villages of Westport Community Development District (Petition), dated September 4, 2003. The local public hearing was for purposes of gathering information in anticipation of rulemaking by FLWAC.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1) (C) AND 9.110. . TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA09-GM-278 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by the manner indicated to each of the persons listed below on this 5 OM aay ° , 2009. Paula Ford Agency Clerk By U.S. Mail Honorable Donald R. Alexander Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Shannon K. Eller Deputy General Counsel City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, FL 32202 By Hand Delivery Lynette Norr Assistant General Counsel Department of Community Affairs
