The Issue Whether Respondent discriminated against Petitioners in violation of the Florida Fair Housing Act (Florida FHA); and, if so, the relief to which Petitioners are entitled.
Findings Of Fact Sun Lake is an apartment complex located in Lake Mary, Florida. Ms. Pollock is the property manager of Sun Lake, and has been employed in this capacity for approximately seven years. Mr. Green is an African-American male. The brothers leased and resided in an apartment at Sun Lake from 2012 through July 31, 2017. Mr. Green asserted that Jude is disabled, however, no other evidence to support that assertion was provided. Mr. Green alleged that Respondent failed to provide Petitioners accommodations that were requested in December 2016: change their apartment locks to the brothers’ “own private locks”; stop the trash service pick-up to the brothers’ apartment; and establish a community garden within the Sun Lake property. It is undisputed that Respondent ceased the trash service pick-up, but the evidence was insufficient to support whether the apartment locks were or were not changed. There was insufficient evidence to support a finding of fact regarding the establishment of a community garden within the Sun Lake property.5/ Mr. Green suggested a December 2016 police report was fraudulent because a name on the report was incorrect, and he had not filed a police complaint regarding noise above their apartment. The evidence was insufficient to support a finding of fact on this allegation. Mr. Green admitted to withholding rent on several occasions as a method to have the requested accommodations secured. Ms. Pollack confirmed there was a valid lease agreement between Sun Lake and Petitioners. Further, she provided that Respondent did, in fact, stop the trash service pick-up to their apartment as Petitioners requested. Ms. Pollack lacked specific knowledge regarding whether Petitioners’ apartment door locks were changed, but offered that Respondent must maintain an apartment key. This is done in order to secure access to each apartment in a timely manner for health and safety reasons. Respondent’s maintenance staff would not enter any apartment without a specific request for service. Ms. Pollack provided the multiple dates on which Petitioners’ rental payments were late. Petitioners and Respondent became involved in eviction proceedings in circuit court. At some point, Petitioners and Respondent entered a settlement stipulation that Petitioners would vacate their apartment earlier than their lease agreement, and pay the rental fees and other associated fees to Respondent. Following Mr. Green’s testimony, and both the direct and cross-examination testimony of Respondent’s sole witness, Ms. Pollock, Mr. Green moved to dismiss the case. No credible evidence was presented that Respondent discriminated against Petitioners in any fashion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing Petitioners’ Petition for Relief in its entirety. DONE AND ENTERED this 21st day of May, 2019, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 2019.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the respondent Division of Beverage issue the type 11-C license to petitioner without further delay. Respectfully submitted and entered this 24th day of March, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Charles A. Nuzum Division of Beverage Johns Building. Tallahassee, Florida
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether the Petition to Establish the Myakka Ranch Community Development District (Petition) meets the criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code. The local public hearing was for the purpose of gathering information in anticipation of quasi-legislative rulemaking by FLWAC.
The Issue The issue is whether the Petition to Establish the Coastal Lake Community Development District should be granted pursuant to Chapter 190, Florida Statutes, and Florida Administrative Code Chapter 42-1. The local public hearing was conducted for the purpose of gathering information in anticipation of rulemaking by the Florida Land and Water Adjudicatory Commission (Commission).
The Issue The issue in this proceeding was whether the Petition to Establish the Harmony Ranch Community Development District (Petition) meets the applicable criteria in chapter 190, Florida Statutes, and Florida Administrative Code Chapter 42-1.
The Issue The issue in this case is whether the Future Land Use Map (FLUM) Amendment, LUPA1-2000/04, adopted by the Village of Wellington (Village) on December 12, 2000, by ordinance numbers 2000-27, 2000-30, 2000-31, is "in compliance" as defined in and required by the "Local Government Comprehensive Planning and Land Development Regulation Act," Chapter 163, Part II, Florida Statutes (the Act).
Findings Of Fact The Parties DCA is the agency of the State of Florida charged with responsibility to review local government comprehensive plans and amendments under Part II, Chapter 163, Florida Statutes. The Village is a municipal corporation located within Palm Beach County. It was not incorporated on December 31, 1995. However, its Village Council sits as the governing board of the ACME Improvement (Drainage) District, which has essentially the same geographic boundaries as the Village and has been in existence since the mid-1970's. It adopted the FLUM Amendment that is the subject of these proceedings. The Village is bordered on the south by the Arthur R. Marshall Loxahatchee National Wildlife Refuge (Refuge), which is part of the Florida Everglades. Polo has a deed to the property subject to the FLUM Amendment. Friends is a Florida not-for-profit corporation. The corporate purpose of Friends includes monitoring and ensuring the proper implementation of the State's growth management laws. In Palm Beach County in particular, that would include protection of the Refuge and the Everglades. Audubon is a Florida not-for-profit corporation. It is legally distinct from but affiliated with the statewide Audubon of Florida and the National Audubon Society. The corporate purpose of Audubon is to promote the understanding of and interest in wildlife and the environment that supports it and to further the cause of conservation of all natural resources. In particular, like Friends, that also would include protection of the Refuge and the Everglades. Friends' Standing--"Business" in the Village In 1995, Friends established the Loxahatchee Greenways Initiative, which was a planning effort to show how greenways and habitat protection were compatible with growth. The Initiative produced a publication called the Loxahatchee Greenway Project. While the Village of Wellington was incorporated after the date of the publication, the study area for the Greenways Project included lands adjacent to and within the current Village boundaries. While land now within the Village was not a "major component" of the Project, the Project contained a recommendation to link conservation lands located to the north of the Village with the Refuge, which is located on its southern border. In 1999, Friends opened an office in West Palm Beach and hired a community planner, Joanne Davis, to further another planning initiative called the Palm Beach County Green Initiative. The primary focus of this Initiative was to look at the impacts of development on the Everglades and to promote education and advocacy on these issues in Palm Beach County, including the Village. To further the purposes of the Green Initiative, Friends prepared and distributed several publications throughout Palm Beach County, including the Village. These publications included a pamphlet called "The Citizens Guide to Smarter Growth in Palm Beach County." This document was intended to educate people throughout Palm Beach County, including the Village, on the values of better planning for growth to protect the environment. It listed the Village as one of the cities in Palm Beach County and was made available throughout the County's library system. Another educational publication of the Initiative was a newspaper insert in the Sunday edition of the Palm Beach Post entitled "Smart Growth Building Better Communities and Protecting the Environment in Palm Beach County," which was distributed throughout the County, including in the Village. Both of these publications were intended to educate people in Palm Beach County, including in the Village, about development and its impacts on the Everglades and to promote appropriate planning, which issues are central to the issues in this proceeding. Friends' Palm Beach County Green Initiative and local office are funded in part by private foundation grants. The purpose of these grants includes education and advocacy on issues related to development in Palm Beach County and the Everglades. The goal of these grants is to encourage better development in the area, which includes the Village, so as to better protect the Everglades. Friends must report to these foundations on the progress toward achieving the goals of the grants. Friends could lose financial support if it fails to meet the goals of these grants. However, there was no evidence of any fund-raising activities with the Village. (No more than 7 of Friends' 3,631 members have mailing addresses in the Village.) Friends' employees have participated to a limited extent in planning and development activities other than the FLUM Amendment at issue in this case. The evidence was that employees of Friends monitored and participated in at least one meeting and one site visit relating to Big Blue Trace, another tract of land designated Conservation on the Village's FLUM. Friend's participation was in response to concerns about a change to the FLUM designation of Big Blue Trace. Friends ascertained from its participation that no change was being considered by the Village. Friends also participated to a limited extent in monitoring efforts by various governments in collaboration to purchase Section 34, which is within the Village, as part of a plan to resolve the Village's drainage problem--a problem involved in FLUM Amendment in this case. It is not clear from the evidence whether employees of Friends attended the public auction on Section 34 held in the Village. Friends' local community planner, Joanne Davis, also monitors and attends meetings regarding the Comprehensive Everglades Restoration Plan (CERP), which is a joint state and federal process to restore the Everglades. While these meetings are not held in the Village, CERP specifically addresses, among other things, the activities of the Village's drainage district, ACME, and calls for the use of Section 34 as an attenuation area for a storm water treatment area (STA) for storm water leaving the Village before it gets into the Refuge. Friends was very involved in the FLUM Amendment at issue in this case. Besides submitting oral and written comments to the Village during the time between the transmittal hearing and the adoption hearing, three employees of Friends met with the Village's City Manager before the amendment was adopted. Friends' Executive Director, Charles Pattison, wrote two letters to the Village regarding the Amendment before it was adopted, one to the City Manager and the other to the Mayor. Both of these persons responded in writing to Pattison before the Amendment was adopted. Counsel for the Village elicited testimony from Pattison that Friends did not feel constrained, inhibited, or prevented from conducting its business by the Village's comprehensive plan. But it potentially could be. For example, the comprehensive plan potentially could be written to limit public participation, which is essential to conduct of Friends' business. It also potentially could be written so as to plan poorly and damage the environment, which could have an adverse effect on Friends' membership and financial support. Audubon's Standing--"Business" in the Village Audubon was incorporated in 1966. As its name suggests, its focus is the Everglades; in particular, it focuses on the nearby Refuge. National Audubon has designated the local chapter as official "Refuge Keeper" of the Refuge. The group's mascot is the Everglades Kite, an endangered species known to use the Refuge and, for at least a time in the 1980's, the land subject to the FLUM Amendment. Audubon does not have an office or mailing address in the Village. It receives mail at a post office box in West Palm Beach. Due to the focus of its concern, the group has always been concerned about drainage of wetlands west of State Road (SR) 7 into the Refuge and the discharge of water east to tide, which is a loss of both estuarine and wetland habitat. The Village is located in this area of concern. In her capacity as Chairman of the Conservation Committee since 1980, Rosa Durando has attended hundreds of meetings on permitting activities at the South Florida Water Management District (SFWMD) and on land use issues before local governments over the years to promote concern for wetlands and the Everglades. Some of these involved activities in the area now within the boundaries of the Village. In her capacity as Chairman of Audubon's Conservation Committee, Durando was involved in the original adoption of the Palm Beach County comprehensive plan, which governed the lands within the Village until its incorporation. She questioned the extension of Forest Hill Boulevard west of SR 7. (After the extension took effect, SR 7 became the main road access into the Village from the east. After development in what is now the Village, Durando was on a panel that discussed whether the Village should incorporate. Durando also reviewed and commented on Palm Beach County’s plans to widen SR 7, which is a major north-south road through the east side of the Village. In the SR 7 Corridor Study which has been conducted in the last two or three years, Durando represented Audubon and made presentations to the Village and other agencies. Other land use issues Durando monitored for Audubon included the Northlake Corridor study, which was proposed to relieve traffic on SR 7. She opposed the creation of a Constrained Roadway At Lower Level of Service (CRALLS) designation--a type of traffic concurrency exemption--for Forest Hill Boulevard. When the Village adopted its initial comprehensive plan in 2000, Durando testified on behalf of Audubon in support of the Village's placing a conservation designation the land subject to the FLUM Amendment in this case. She also reviewed and commented on proposals to adopt best management practices for treating storm water in the Village. On behalf of Audubon, Durando reviewed and made comments on the Western C-51 basin study by SFWMD related to wetlands and drainage issues. The C-51 is a major canal that borders the Village to the north. The canal runs from Lake Okeechobee to the Lake Worth Lagoon. The northern part of the Village, called Basin A, drains into the C-51. While the Village did not exist at time, its drainage district, ACME, existed and was involved in this study. Durando also attended meetings and made presentations to SFWMD on the Lower East Coast Water Supply Authority and proposals for the Water Preserve Areas designed to buffer the Refuge and the Everglades. Durando's presentations raised concerns over the Village's drainage problems in Basin B, which drains the southern half of the Village into the Refuge. In 1979, Audubon challenged a permit issued by SFWMD to ACME to drain 900 acres of land in what is now Basin B of the Village for a development called the Wellington Country Place PUD. SFWMD, ACME, and Audubon settled the administrative challenge by agreeing to enlarge the proposed storm water detention area of the proposed water management system from 49 to 79 acres to increase protection of the Refuge from storm water runoff leaving the PUD. These 79 acres constitute virtually all of the very land that is subject to the FLUM Amendment in this case. In the early 1980's, Dr. and Mrs. Peacock, who were members of Audubon and residents of what is now the Village, discovered endangered Everglades (a/k/a Snail) Kites using the Wellington Country Place detention area. Subsequently, Audubon organized field trips to Peacock Pond during the 1980s to do bird watching. The detention area came to be known locally and among Audubon members as Peacock Pond. Durando personally visited Peacock Pond for bird-watching on several occasions in those years. She was there when environmental specialists for the US Fish and Wildlife Service and SFWMD visited the site and noted its importance as habitat for the Snail Kite. (As will be seen, events since approximately 1989 have led to dewatering of the area and degradation of its usefulness as habitat for Snail Kite and other wildlife, and bird-watching no longer takes place there. See Findings of Fact 49 and 66-67, infra. Nonetheless, the land still is often referred to as Peacock Pond.) About two years ago, Audubon was asked to make a presentation to the Boys and Girls Club, which is located in the Village adjacent to Peacock Pond. Durando responded and specifically discussed Peacock Pond. She also showed photographs of the area and discussed the value of wetlands. Audubon is supported with donations, grants, and membership dues to further the organization's work on behalf of the Everglades and on land development issues in the Village. Some of this money comes from people in the Village. There is a financial connection between the organization and the land use decisions of the Village. While there was no direct evidence of fund-raising activities with the Village, there was evidence that Audubon could lose financial support if it fails to meet its goals to protect the Refuge. Durando attended the Village's transmittal and adoption hearings on the FLUM Amendment on behalf of Audubon and spoke against the Amendment. At those hearings, she told the Village about the SFWMD permitting history of Peacock Pond and discussed its use and importance to Snail Kites. Counsel for the Village also elicited testimony from Durando that Audubon did not feel constrained, inhibited or prevented from conducting its business by the Village's comprehensive plan. But, as with Friends' business, it potentially could be--e.g., by limiting public participation, damaging the environment, or otherwise planning poorly. See Finding of Fact 14, supra. The Planning and Zoning History The FLUM Amendment applies to 80 acres, essentially Peacock Pond, which is centrally located in the 960-acre Wellington Country Place PUD. The PUD was created in 1976 when Palm Beach County rezoned the PUD to RE-Residential Estate District. This zoning classification has remained in effect on the entire PUD through final hearing in this case. In 1977, Palm Beach County approved the Wellington Country Place PUD Master Plan. The approved Master Plan includes 440 dwelling units with a gross density of 0.44 units per acre, plus equestrian recreation, civic, and commercial uses. It also designated Peacock Pond as a "Natural Reserve," which was included in the "open space" calculations for the PUD. Now, almost 25 years later, the PUD is about half built-out, with about 200 units left to be built. Within the PUD, Mallot Hill subdivision, a residential estate development, is located north of Peacock Pond. To the north and northeast of the Pond is a park, the Boys and Girls Club, and a fire station. Equestrian Club Estates is located to the west of the Pond. Undeveloped portions of the PUD are located to the east and south of Peacock Pond. Under the 1980 Palm Beach County Comprehensive Plan, the entire Wellington Country Place PUD was designated very low to low residential. In 1989, the County adopted a revised Comprehensive Plan, as required by the Act. The 1989 County Comprehensive Plan applied a future land use classification of Low Residential-1 (a maximum 1 unit per acre) to the entire PUD site. In 1999, the Village adopted its Comprehensive Plan, as required by the Act. The Village Plan designated the Peacock Pond site as Conservation and the remainder of the Country Place PUD as Residential. Under the Conservation future land use classification, parks and ball fields are permitted uses, and building coverage of 5 percent is allowed. The Peacock Pond property was not required to be operated as a storm water facility. The entire PUD, including the Peacock Pond property, is within the urban service area designated in the Village's Comprehensive Plan. Data and analysis in the Land Use Element of the Village's 1999 plan referred to Peacock Pond as one of the "two primary sites designated conservation in the Village." Data and analysis also referenced the phosphorus reduction goals of the Everglades Forever Act and discussed the need for "a plan for handling water quality and water quantity concerns in Basin B." Data and analysis in the Recreation and Open Space Element of the 1999 plan stated that Peacock Pond "continues to boast habitat for listed species and . . . could be a great resource if restored." Data and analysis in the Conservation Element of the Village's 1999 comprehensive plan recognized Peacock Pond's importance for wildlife and storm water treatment. Data and analysis referred to Peacock Pond as a "Significant Wellington Wetland and Preserve Area". Data and analysis at page CON 6 noted that Peacock Pond was established primarily for water quality treatment, and concluded by stating: "The Village is concerned with finding a long term solution to the problems at Peacock Pond so that it may be restored as a viable wetland reserve and become an integral part of Wellington’s natural areas." On the Conservation Map and Natural Resource Map in the Conservation Element, the site was labeled "Peacock Pond Natural Reserve." However, the map legend identified site as "Wetlands/Possible Wetlands" on the Conservation Map and as "Emergent Wetlands" on the Natural Resource Map. In addition, neither the data and analysis nor the Goals, Objectives, and Policies (GOP's) define "natural reserve." On the Future Equestrian Circulation Map in the Equestrian Preservation Element of the Village's 1999 plan, Peacock Pond is labeled "Natural Preserve," and the map legend identifies it as "Parks natural preserves." Neither the data and analysis nor the GOP's define either of these terms. On December 12, 2000, the Village adopted Ordinance No. 2000-27 which amended the Future Land Use Map of the Village Comprehensive Plan to designate the Peacock Pond site as "Residential B," which allows a maximum density of 1 unit per acre. Surface water management facilities are allowed in the residential future land use classifications of the Village's Comprehensive Plan and would be allowed on the Peacock Pond site if the Amendment becomes effective. In addition, under the Village's zoning regulations, storm water management facilities are allowed and even required in residential zoning districts. The 2000 FLUM Amendment also deleted the data and analysis referred to in Findings of Fact 36-38, supra, and replaced them with updated data and analysis. The FLUM Amendment did not, however, amend the maps identified in Findings of Fact 39-40, supra. Permitting and Operation of Peacock Pond Facility The evidence was that, at one time, Peacock Pond was part of one of the many headwaters of the Everglades. Having been both topographically and hydrologically connected to the Everglades, its soils are hydric--largely Okeelanta muck (approximately 75%), Tequesta muck, and Sanibel muck soils. Aerial photography suggests that, at some point, horticulture may have been attempted at Peacock Pond, as it was elsewhere in the vicinity. There are possible faint signs past perimeter and ditching on the site. However, if horticulture was attempted at the site, it was discontinued and abandoned well before 1965, quite possibly failing due to the muck soils. There was more persistent horticultural use north, east, and south of Peacock Pond, with attendant perimeter and infield ditching; in addition, ACME dug a drainage canal along the western boundary of the site by 1965. The Peacock Pond site was altered from natural conditions by these activities. Notwithstanding the agricultural history in the vicinity, the evidence indicates that Peacock Pond continued to function as a wet prairie through 1979, and aerial photography suggests that the site may have been used for open pasture during that timeframe. In 1979, the site was the major part of a large area of contiguous wet prairie within the PUD that was relatively undisturbed by agricultural activity. After approval of the Wellington Country Place PUD, ACME applied to the SFWMD for a surface water management permit for the PUD. The application proposed a 49-acre detention facility in part of Peacock Pond. Following review of the application, SFWMD's staff recommended approval of the application with a 49-acre detention facility. But, as mentioned previously, Audubon (and Florida Audubon) challenged SFWMD's intent to grant the application, and the challenge was settled by ACME's agreement to increase the size of the detention facility to 79 acres. In 1979, by Order No. 79-3, SFWMD issued the agreed permit for the system, which also included a 12-acre lake, canals, and collector swales. SFWMD's 1979 permit contemplated use of the Peacock Pond site as a "detention-type" surface water management facility. Generally, such a facility detains the water, allows the pollutants to settle, then pumps the water out. Characteristic of the time period, there was no vegetative requirement for the system and no mention of the detention area being a "filter marsh," as Petitioners contend, although that is essentially how it functioned. The permit simply required that an above-ground impoundment be constructed by placing a berm or dike around the detention area, which was larger than normal for a PUD the size of Wellington Country Place; no excavation was required. Pumps were required to be installed at the northwest corner of Peacock Pond to pump water into the site from the ACME canal to the west. The berm was to detain water on the site until it reached a certain level and then return it to the ACME canal through an outfall structure at the southwest corner of the site. From there, the water reentered ACME's system of Basin B canals. SFWMD calculated that Peacock Pond treated approximately 200,000,000 gallons of water a year in this way. After issuance of the 1979 permit, an above-ground impoundment was constructed, and the pumps were installed. The detention area was operated under the permit for approximately ten years--until approximately 1989. During that time, the pumps at the northwest corner of the property kept Peacock Pond hydrated, even in dry conditions. As a result, there was standing water in Peacock Pond virtually continuously, particularly in areas of isolated depressions, and Peacock Pond remained wetter, longer compared to surrounding areas. As a result, apple snails thrived there, and Everglades Kites began using Peacock Pond as habitat, especially in dry conditions when other habitat dried out. That is what resulted in siting of unusually large numbers of Everglades Kites in Peacock Pond in the mid-1980's. See Finding of Fact 26, supra. It appears that ACME stopped operating the water quality detention facility in accordance with the 1979 permit in about 1989. For reasons not explained by the evidence, no action was taken to enforce the permit conditions for the next five to six years. In about 1995, a local Audubon member reported the condition of Peacock Pond (including apparent illegal excavation and bull-dozing of cypress trees) to Rosa Durando, who complained to SFWMD. SFWMD inspected Peacock Pond in 1995, confirmed that ACME was not operating the facility in accordance with the 1979 permit, and found several violations. It was not established by the evidence in this case whether SFWMD performed an ecological assessment of the property at the time. Subsequently, on April 2, 1996, SFWMD issued notices of violation against ACME--by this time, a dependent district of the Village--and the Village. Polo also was cited for illegal unpermitted excavation in wetlands. During SFWMD enforcement proceedings, it was estimated that it would cost approximately $2.5 million to restore the drainage facility for operation in accordance with the 1979 SFWMD permit. However, SFWMD's 1979 permit unfortunately did not require ACME to acquire legal control over Peacock Pond, as applicants are now required to do. As a result, ACME and the Village were unable to take over and operate the surface water management facility because neither had ownership interest in the Peacock Pond property or the pumps and outfall structures, and neither had or could not get an access easement to the property from Polo. To settle SFWMD's enforcement action against ACME, the parties entered into a Consent Agreement on December 11, 1997. The Consent Agreement required ACME and the Village to undertake various actions, including obtaining from the landowner immediate temporary access to the property; filing an eminent domain or other actions to effectuate perpetual access to the property; and either filing an application to modify the permit, so as to eliminate the necessity of utilizing Peacock Pond for water quality treatment, or restoring the Peacock Pond facility. Pursuant to the Consent Agreement, the Village first instituted a court proceeding to obtain an easement over the Peacock Pond property so that it could be operated in accordance with the 1979 SFWMD permit. For reasons unclear from the evidence, this court action was unsuccessful. Next, the Village instituted an eminent domain action against Polo to obtain title to Peacock Pond property so that it could access and operate the storm water management facility. This eminent domain action resulted in a jury verdict of $5.2 million against the Village. (In addition, the Village had to pay attorney's fees in the amount of $1.5 million.) On November 8, 1999, following the eminent domain proceedings, Polo filed a claim against the Village under the Bert J. Harris Act, Section 70.001, Florida Statutes. The basis of the claim was that the Conservation designation applied to the Peacock Pond property by the Village inordinately burdened the property within the meaning of the Harris Act. The property owner claimed that the value of the property with the residential designation was $5.2 million, while the value of the property with the Conservation designation was only $200,000. On April 27, 2000, the Village offered to settle the claim by changing the future land use designation of the property from Conservation to "Residential B." At the final hearing in this case, SFWMD, Petitioners, and the Village agreed that $5.2 million was not a reasonable price to pay for the opportunity to spend another $2.5 million or more to restore Peacock Pond's ability to improve water equality, particularly given the larger Basin B drainage problems. The purpose of ACME was to drain and reclaim for development the acreage under its jurisdiction, including what later became the Village of Wellington. ACME, through manmade alterations, divided the land into two drainage basins: Basin A and Basin B. In relation to the Village's current boundaries, Basin A is to the north and discharges into the C- 51 canal which ultimately takes water to the east. Basin B is to the south. In total, Basin B drains an area of approximately 9,000 acres, which are more rural in nature. Drainage from Basin B is discharged through a set of pumps into the Loxahatchee Wildlife Preserve, an Outstanding Florida Water which basically forms the edge of the Everglades in this region, at an annual volume of about 40,000 acre feet per year. Section 373.4592, the Everglades Forever Act, regulates all discharge that flows into what is called the Everglades Protection Area, which includes the Refuge. SFWMD has studied sources of urban storm water entering the Everglades, and the Village is the highest source of phosphorus pollution of all areas in the Everglades Storm Water Program and the main source of pollution in Basin B. The Village contributes an average total phosphorus load to the Refuge of 164 ppb. The Everglades Forever Act requires the Village to meet established water quality standards by 2006. The default standard for phosphorus is an average total phosphorus load of 10 ppb. It is anticipated that the phosphorus standard to be adopted will be higher, but it cannot be ascertained at this time. The size of the jury verdict in the eminent domain case caused the Village great concern because one proposed solution to the greater Basin B drainage problems would require purchase of approximately 800 acres for use as a modern storm water treatment area (STA). Consequently, the Village hired a consulting team to evaluate the Peacock Pond facility and develop alternatives for addressing Basin B problems. (The consulting team included James Hudgens, Jay Foy, and Robert Higgins, all of whom testified for the Village as experts at the final hearing.) Following the eminent domain verdict, SFWMD also concluded that there were other solutions to the Basin B drainage problems which would be more cost effective than requiring the Village to purchase the Property for $5.2 million. Accordingly, on May 23, 2000, the Village and SFWMD entered into a Joint Cooperation Agreement which outlined a strategy for addressing Peacock Pond and for implementing a water quality improvement plan for drainage of Basin B. Among other things, this Agreement required the Village to submit an application to the SFWMD to modify the Peacock Pond permit and a Consent Agreement to either eliminate or substantially reduce the size of Peacock Pond. In addition, the Agreement required the Village's proposed modification to provide reasonable assurances and demonstrate that the water quality treatment, water quantity, and environmental benefits associated with the Peacock Pond permit are maintained through the facility or by other equivalent measures. Further, the Agreement provided that until the application to modify the Peacock Pond permit was approved by SFWMD, the conditions of the existing SFWMD permit would remain in full force and effect, but that SFWMD would stay any enforcement action concerning Peacock Pond until December 31, 2001, so long as the parties to the Agreement were carrying out the other provisions of the Agreement. The Village has since identified several other alternative possible solutions to Basin B drainage problems. One alternative is to acquire land outside the Village, construct an STA, and divert Basin B drainage to the STA. A second plan is to divert Basin B water away from the Loxahatchee preserve and the Everglades. A third alternative would be for the Village to utilize Aquifer Storage and Recovery (ASR) Wells. Finally, the Village has considered the utilization of a rock pit north of the Village in conjunction with an STA; the pit would hold the water, and the STA would treat the water. Additionally, other techniques could be used to reduce phosphorus discharge, such as: best management practices, which can be and to some extent have been instituted in the Village: chemical treatment of water to remove phosphorus; and controlling fertilizer. The FLUM Amendment does not prevent the Village from pursuing any of these alternatives. The Joint Cooperation Agreement is the last and most recent action taken by SFWMD regarding the property. At the time of the final hearing, the Village was in compliance with the Joint Cooperation Agreement and had filed an application to modify the permit for Peacock Pond. The modification would double the water treatment ability, not the size, of the Pond. By the time of final hearing, SFWMD had not yet acted on the application. Meanwhile, the existing surface water management facility on the Peacock Pond property cannot be changed or eliminated without a permit from SFWMD. Even if the FLUM Amendment takes effect, a SFWMD permit would be required before any development could take place on the property. Also, in order to develop the property, an amendment to the PUD Master Plan would have to go through the Village's development review process and be approved by the Village. The Amendment does not repeal, revise, or exempt Peacock Pond from the Village's Comprehensive Plan. The Village Comprehensive Plan has a drainage element which requires the Village to provide adequate drainage facilities which are subject to concurrency and level of service standards. Development of the Peacock Pond property would have to comply with these drainage facilities. Because the property is in the Village's urban service area, it is reasonable to assume that the Village or the developer will provide any necessary drainage facilities. Environmental and Natural Resource Characteristics When Peacock Pond was operated as required by the 1979 SFWMD permit, it was a high-quality wetland. Based on environmental assessments of the property performed by SFWMD in the 1986-1988 time period, it is clear that Peacock Pond had wetland characteristics in the 1980s. In 1986, SFWMD employees noted that Peacock Pond "supports diverse areas of wetland vegetation, including saw grass, cypress, carolina willow, pickerel weed, water lettuce, primrose willow and cat tails [sic]." In 1989, SFWMD staff wrote that Peacock Pond was "the only functional marsh habitat left in the Wellington area" and was "heavily used by both breeding and migrant birds and supports a large population of apples snails, used by the threatened limpkins and the endangered Everglades kite." Peacock Pond had substantial wetland vegetation, and wildlife associated with wetlands. As found previously, substantial numbers of the Everglades Kite were observed on the Property at times in the mid-1980's. When Peacock Pond failed to be operated in accordance with the 1979 SFWMD permit, its wetlands features and functions declined. With no water on the property, exotic plant species invaded. In addition, there was illegal unpermitted excavation, and cypress trees were bulldozed. Over time, improper operation of the facility had resulted in severe degradation of the wetlands on the property and the invasion of undesirable exotic vegetation, such as maleleuca and Brazilian Pepper. Unfortunately, the evidence establishes that Peacock Pond currently has no or very low natural resource and environmental values in terms of wetlands or wildlife. The site is devoid of any significant wetland functions or wildlife values. It is mostly dry and covered by exotic species, at least in part because it and the surrounding area have been drained. There are no Everglades Kites on the site; apparently, there have not been any for about 10 years. Any remaining wetlands on the site were variously described as "remnant," "isolated," and of "poor quality." It would not be impossible to restore Peacock Pond to some semblance of its condition in the mid-1980's. Restoration would require operation of the drainage facility in accordance with the 1979 SFWMD permit and eradication of exotic vegetation. If restored, wetland wildlife such as the apple snail and Everglades Kite probably would return. Indeed, in 1996, the Village submitted an application to the Florida Communities Trust to buy Peacock Pond. The FCT grant application mentioned the potential of Peacock Pond "to provide important habitat for listed and threatened species" and for "improving water quality." But the FCT has not purchased the property, and it now appears that it would cost the Village over $5 million to purchase the property, another $2.5 million to comply with the conditions of the 1979 SFWMD permit, plus the cost of eradicating exotic plants. Soil Suitability The testimony regarding soils and septic tank use in this area was not in substantial dispute. It was undisputed that Peacock Pond consists of "hydric" soils, mostly Okeelanta muck, Tequesta muck, and Sanibel muck. Hydric and muck soils are relatively unsuited for residential development. Nonetheless, residential development of land characterized by hydric or muck soils is common throughout Florida, including Palm Beach County, and the coastal plane of the United States. It was undisputed that approximately 89 percent of the soils in the Village are "hydric" soils. In these areas, it is standard residential construction practice to remove muck soils and replace them with other soils on which construction can take place. Substantial portions of the Village having hydric soils have been developed for residential uses in this manner. Also, the extensive dewatering through ditching and canal systems in the area has made the land more available and suitable for development. For these reasons, it cannot be said that Peacock Pond's soils are absolutely unsuitable for residential development. While there was evidence that Okeelanta soils in their natural state are not suitable for septic tanks, it is undisputed that the Okeelanta soils in the Wellington Country Place PUD are not in their natural state. Moreover, septic tanks can be used on such property by use of enough appropriate fill dirt. Septic tanks are used extensively in Wellington Country Place PUD; the entire PUD is on septic tanks except for the Equestrian Club Estates, a portion of the PUD on the west side. Further, much of the Village south of Pierson Road, where the Country Place PUD is located, is on septic tanks. There was some evidence of failure of septic tanks in the Village when inundated from heavy rains. But despite widespread use of septic tanks on land that contains hydric soils, including the Okeelanta muck, there was no evidence of substantial health problems. It is common for land that contains some wetlands to be designated residential. This is especially true in western Palm Beach County, including the Village, where much of the soils are hydric and contain wetland features. For example, there are other wetlands in the Wellington Country Place PUD that are designated residential, and there are other wetlands in the Village, outside of Country Place PUD, that have non- conservation land use designations. Conversely, it is relatively uncommon to have private land, such as Peacock Pond, designated Conservation without any density. The Village's Comprehensive Plan contains provisions that protect the wetlands and other natural resources. The Amendment does not exempt the Peacock Pond property from these provisions. Therefore, any development of the Property would have to be consistent with these Plan provisions. Functioning and Efficiency of Peacock Pond Facility Even if restored, Peacock Pond could not begin to solve the larger Basin B drainage problems and indeed may not even be effective enough to serve the Country Place PUD. Whether Peacock Pond is restored or not, the Village must seek alternatives to comply with the Everglades Forever Act. The Peacock Pond facility, as designed, was not very effective as a storm water quantity attenuation area. As designed, the facility can only hold about 1/2 inch of runoff from the Wellington Country Place PUD. Due to this limited capacity, the facility is barely adequate to serve the PUD and is of no use at all to the rest of the Village as a storm water attenuation area. In terms of water quality treatment, the Peacock Pond facility is also not very effective or efficient. If operated as permitted, without consideration of any vegetative uptake of nutrients, the facility would have only limited ability to remove phosphorus, about 32 kilograms per year. (Considering vegetative uptake of nutrients, the percentage of phosphorus removal would be higher but no estimate was calculated.) Also, the facility cannot provide adequate storm water quality treatment because of its inadequate design capacity. Without adequate storm water quantity attenuation capacity, the facility cannot treat for water quality effectively. Storm water treatment technology has advanced greatly since the permitting of the Peacock Pond facility in 1979. Both passive and active/harvested STA's are examples. A passive STA is designed to include vegetation utilized to remove nutrients from storm water but leaves the vegetation on site. An active/harvested STA is an emerging technology which goes one step further by actively cutting and removing the aquatic vegetation to an off-site location, thereby removing the nutrients from the system. As permitted, the Peacock Pond facility is neither a passive nor an active/harvested STA. It is only a detention area which holds the water and allows the nutrients to settle to the bottom, with limited, incidental uptake of nutrients by whatever vegetation happens to be onsite. A 1.5-acre active/harvested STA could perform the same water quality treatment function that Peacock Pond would perform if operated in accordance with the 1979 permit, assuming no vegetative uptake of nutrients. Moreover, the 1.5-acre STA could be located anywhere in Basin B. Another alternative to Peacock Pond is also available for addressing drainage in the Country Place PUD. The storm water management system permitted in 1979 included a 12-acre lake in addition to the 79-acre Peacock Pond facility. However, the development of the PUD thus far has actually generated 54 acres of lakes. Based on current development patterns, it is reasonable to assume another 37 acres of lakes will be generated by the build out of the Country Place PUD. Thus, the original 91 acres of storm water management areas planned for the PUD (a 12-acre lake plus the 79-acre Peacock Pond) is likely to be satisfied by development of the remainder of the PUD, even without retaining Peacock Pond as a drainage facility. It was indicated at final hearing that Polo would acquiesce in the future development of an additional 37 acres of lakes. However, Polo had not made any binding commitment to do so at the time of final hearing, and the requirement for Polo to add 37 acres of lakes in the future, as a condition to future development, has not yet been incorporated in a binding SFWMD permit. DCA Review and Approval of the FLUM Amendment The FLUM Amendment was transmitted to the DCA on June 20, 2000. Roger Wilburn supervised DCA's review of the Amendment. On September 8, 2000, the DCA issued its ORC report, which objected to the Amendment because the FLUM Amendment, which is essentially all that was included in the transmittal package to DCA, conflicted starkly with data and analysis in the existing Village Plan. Data and analysis in the existing plan of just one year prior justified designation of Peacock Pond as Conservation by its potential for restoration of important wetlands, wildlife habitat, water quantity treatment, and water quantity functions. A year later, and without adequate explanation, the Village was proposing to change the FLUM designation to "Residential B." Following the issuance of DCA's ORC report to the Village, Wilburn traveled to the Village for a meeting with Village officials and consultants to discuss DCA's objections. During these discussions and his visit to the site, Wilburn learned of the degradation of Peacock Pond, the development around the Pond, the Village's legal problems in gaining access to the site, and the Village's desire to pursue alternatives other than Peacock Pond to address its drainage issues. Based on this information, Wilburn advised the Village that it needed to update its data and analysis to reflect current conditions to support the proposed Amendment. After responding to DCA's ORC, the Village adopted the Amendment on December 12, 2000, and transmitted it to DCA along with the new supporting data and analysis. The supporting data and analysis included, among other things, the Joint Cooperation Agreement with SFWMD and the reports prepared by Village consultants Hudgens and Foy regarding the environmental assessment of Peacock Pond and its efficiency as a surface water management facility. In addition, the Village submitted revisions to the data and analysis in the Conservation Element of its Plan to reflect the new data and analysis and the changed circumstances regarding Peacock Pond. DCA also received comments on the Amendment from SFWMD. SFWMD did not object to the Amendment and, in its comments, informed DCA of its Joint Cooperation Agreement with the Village. DCA also received comments on the Amendment from the Treasure Coast Regional Planning Council. The Council found that the Amendment was consistent with its Strategic Regional Policy Plan. Based on the adoption transmittal package, Wilburn and his staff recommended that the DCA find the Amendment in compliance. DCA concurred with that recommendation and issued its Notice of Intent to find the Amendment in compliance on February 7, 2001.
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 finding the Village's FLUM Amendment LUPA1-2000/04, adopted on December 12, 2000, by ordinance numbers 2000-27, 2000-30, 2000-31, "in compliance." DONE AND ENTERED this 2nd day of October, 2001, in Tallahassee, Leon County, Florida. _______________________________ 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 2nd day of October, 2001. COPIES FURNISHED: Terrell Arline, Esquire 1000 Friends of Florida 808 Greenbriar Drive Lake Park, Florida 33403 Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Thomas G. Pelham, Esquire Thomas G. Pelham Law Offices 909 East Park Avenue Tallahassee, Florida 32301-2646 Michael P. Donaldson, Esquire Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32301 Christine P. Tatum, Esquire Village of Wellington 14000 Greenbriar Boulevard Wellington, Florida 33414-7615 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition to Establish the Lakewood Ranch Community Development District Seven (Petition). The local public hearing was for the purpose of gathering information in anticipation of rulemaking by FLWAC.
The Issue The issue posed for decision herein is whether or not the Respondent properly denied Petitioner's refund request for that portion of his Foresters licensing fee for the period July 1, 1979, through December 31, 1981.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, and the entire record compiled herein, the following relevant facts are found. John T. Clark, Petitioner, is a licensed Florida Forester and, as such, received during December of 1978 a notice mailed by the Board of Registration for Foresters a license fee request for the period of January 1, 1979, through December 31, 1981. Petitioner timely submitted his license fee for the registration period in question. The Forestry Practice Act expired on June 30, 1979, based upon a veto by the Governor. (Chapter 76-168 as amended by Chapter 77-457, Chapter 6, Florida Statutes, the "Sunset Act".) Petitioner, by letter dated July 2, 1979, requested a refund of the license fee paid for the eighteen-month period of July, 1979, through December, 1981. On October 22, 1979, Gerald A. Lewis, Comptroller, advised Petitioner of the Respondent's notice of intent to deny his refund. That notice alleged in pertinent part that "pursuant to an Attorney General Opinion dated January 27, 197P) (AGO No. 078-14), Section 215.26, Florida Statutes, as construed by Florida Courts, provides that refunds may only be made from the funds benefited and if such fund does not have sufficient monies. . . to make the requested refunds, then the refunds cannot be made absent a specific legislative appropriation or claims bill." Petitioner was then advised that the fund benefited by the license payment did not have sufficient monies to pay the requested refund and, therefore, the request would be denied. Florida Statutes 215.26(1)(a) provides in pertinent part that the Comptroller of the State may refund to the person who paid same . . . any monies paid to the State Treasury which constitute: An overpayment of any tax, license or account due. Petitioner introduced into evidence the financial statement for the Board of Registration for Foresters for the quarter ending October 31, 1979, which indicates that as of October 31, 1979, the Board of Foresters had total net resources available of $17,767.91. (Petitioner's Composite Exhibit 1.) At the time Petitioner remitted his payment, the amount remitted was correct under the laws and applicable rules of the Board of Registration for Foresters then in effect. Rule 211-2.06, Rules of the Board of Registration for Foresters, Florida Administrative Code. However, the parties also further agree that the payment tendered was a regulatory fee (as contrasted to a tax) and was used to defray the cost of regulation, and not as a general revenue producing measure. As such, the monies were deposited in a regulatory trust fund which of course reflects the fact that monies are available in said fund and which, in this instance, can be used as a refund for any overpayments. It is further undisputed that the period of regulation was for a two-year period while the regulation only lasted six months. In view of these factors, Section 215.26(1))a), Florida Statutes, authorizes a refund of an overpayment such as was paid by the Petitioner in this case. I shall so recommend.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Petitioner's refund request of July 2, 1979, be GRANTED. RECOMMENDED this 3rd day of March, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether respondent's Florida Teacher's Certificate should be revoked or otherwise disciplined on charges of professional misconduct, including gross immorality, acts involving moral turpitude, conduct which seriously reduces his effectiveness as an employee of the school board, intentionally exposing a student to unnecessary embarrassment or disparagement, exploiting a professional relationship with a student for personal gain, and failing to conform to standards of ethical conduct, in violation of Section 231.28, Florida Statutes, and Rules 6B-1.06(3)(e) and (h), and 6B-1.01(3), Florida Administrative Code.
Findings Of Fact Respondent holds Florida Teacher's Certificate 342171, covering the area of physical education. At all times material to the administrative complaint, respondent was employed as a physical education teacher at Lake Worth High School in the Palm Beach County School District. From 1973, when he joined the Palm Beach County School District, to the date of his suspension for the acts complained of in the administrative complaint, he was consistently rated to be a good teacher. His teaching ability and performance were not in question. He also maintained a close relationship with his students, frequently assisting them beyond the requirements of his job. On the afternoon of May 23, 1983, at approximately 2:30 p.m., respondent entered the K-Mart department store in Lantana, Florida, accompanied by his niece, Cathy Brown. While shopping in the store, he selected a 68-quart cooler, bearing a price tag of $43.58, then proceeded to the hardware department, where he selected a Black and Decker electric drill, bearing a price tag of $22.99. He left the hardware department and proceeded to the garden/patio area or Garden Shop. Before reaching the double glass doors separating the main building from the Garden Shop, he stopped and placed the large box (containing the 68-quart cooler) and the small box (containing the electric drill) on the floor at the end of an aisle approximately 30 feet from the double glass doors. Be then walked directly to the double glass doors opening onto the Garden Shop, and glanced in the direction of the checkout counter located at the Garden Shop exit. He then walked back past the cooler and electric drill, and proceeded into the appliance department where he met Cathy Brown. Ms. Brown had previously selected a package of hair curlers, bearing a price tag of $1.38. He and Ms. Brown briefly examined several items on a display counter in the appliance department, then returned to the place where he had placed the cooler and electric drill. He picked up these two items and proceeded to the Garden Shop; Cathy Brown, who was carrying the hair curlers, accompanied him. Jeanette Grimes, a 17-year-old Lake Worth High School student, was--at that particular time--the cashier at the register located at the Garden Shop checkout counter. Ms. Grimes knew respondent. Be had been her physical education teacher for two years and basketball coach for one year. She considered him a friend. As respondent approached the checkout counter where Ms. Grimes was serving as cashier, he placed the box containing the cooler and the box containing the electric drill on the floor at the far end of the checkout counter, not on the counter itself. At that time there were customers at the checkout counter who were being waited on by Ms. Grimes. He and Cathy Brown walked away from the checkout counter and began looking at plants. After Ms. Grimes had finished checking out the customers at her counter, he and Ms. Brown again approached the checkout counter, where he engaged Ms. Grimes in conversation. At no time did he place any items on the counter for Ms. Grimes to examine and ring up. At that time she rang up a $1.00 item and a $5.00 item, totalled the transaction at $6.00, then rang up a $.30 tax, and totalled the transaction at $6.30. He handed Ms. Grimes $10.00 in payment for the merchandise. She mistakenly rang up $10.00 for an additional item of merchandise, voided the $10.00 item off her tape, and re-rang $10.00 as cash tendered. At that point the cash register opened and indicated that change in the amount of $3.70 was due. Ms. Grimes gave respondent $3.70 in change and a receipt for the transaction. During the course of ringing up the transaction, the items of merchandise remained on the floor at the end of the counter. Ms. Grimes did not pick up the items and examine them for a price tag while ringing up the amounts. Upon the completion of the transaction, Ms. Brown engaged Ms. Grimes in conversation. Ms. Brown handed to Ms. Grimes the box containing the electric drill and the package containing the curlers; Ms. Grimes placed the items into a bag which she gave to Ms. Brown. Respondent then picked up the box containing the 68-quart cooler and left the store, accompanied by Ms. Brown, who carried the bag containing the curlers and the electric drill. Both respondent and Ms. Brown were aware that they had not paid the full price for the merchandise, and that what they were doing was wrong. Mr. Frank Heim, K-Mart's Lobs Prevention Manager, (store detective) observed respondent's activities in the K-Mart continuously, from the time respondent selected the electric drill in the hardware department to his exit from the store. Mr. Heim observed the transaction at the checkout counter, then immediately proceeded to Ms. Grimes' register, examined the register tape, and proceeded to the parking lot to ask that respondent return to the store. Mr. Heim located respondent at his (respondent's) truck in the parking lot. Respondent had placed the cooler in the back of his truck and Cathy Brown was still holding the bag containing the curlers and the electric drill. Mr. Heim identified himself to respondent, advised him of a problem with the purchase which he had just made, and requested that he return to the store with the merchandise to clear the matter up. Respondent replied that he had paid for the merchandise and had a receipt, that it was not his fault if the cashier rang up the wrong prices. After some additional conversation, respondent removed the cooler from the back of his truck and accompanied Mr. Heim back to the store. Upon entering the store through the Garden Shop entrance, respondent placed the cooler on the floor just inside the entrance, then stopped and attempted to discuss the matter with Mr. Heim. Mr. Heim advised respondent that they could not discuss the matter at that location, that they would have to go to his office. As they approached Mr. Heim's office, respondent again stopped, placed the cooler and the bag containing the other two items on the floor, and stated to Mr. Heim that he was not going inside his office. Mr. Heim replied that they could not discuss the matter in the store, and that respondent would have to accompany him inside his office. Respondent replied that he did not have time to discuss the matter, that he was in a hurry and had to leave. Mr. Heim then advised respondent that he was not free to leave and that he was being detained for shoplifting. Respondent became agitated, stated "You've got your stuff back," and began walking away. Mr. Heim sought help from others, then blocked respondent's path at the glass doors between the main store and the Garden Shop. He told respondent not to make the situation worse by trying to leave the store, but respondent attempted to force his way by Mr. Heim. Mr. Heim grabbed him by the arm and a brief scuffle ensued. At that point, respondent ripped up his cash register receipt and discarded the remnants onto a display counter. Mr. Heim immediately retrieved the remnants and later Scotch- taped the pieces together. After respondent became calmer, he returned with Mr. Heim to his office. After entering the office, Mr. Heim advised respondent of his "Miranda" rights. Mr. Heim asked him for identification and asked him to empty his pockets in order to make sure he had no weapons. Respondent removed a total of approximately $22.00 from one of his socks while in the office. Respondent admits that at the time he entered the K-Mart store, he had only approximately $30.00 on his person. The total retail price of the three items, according to the price tags affixed to each, totalled $67.95. In response to Mr. Heim's questions, respondent continuously stated that it was not his fault that the cashier rang up the wrong prices and that he paid her the amount she rang up. Conflicting accounts of this incident were given by Mr. Heim and respondent. Taking into account Mr. Heim's detached and professional manner, and his lack of apparent bias or motive to falsify, it is concluded that his testimony is more credible than respondent's, and is persuasive. As a result of this incident, respondent was arrested and charged with the crime of retail theft. Based upon the circumstances described herein, Jeanette Grimes was fired by the K-Mart department store. She was also arrested and charged with the crime of retail theft. Jeanette Grimes' job at K-Mart was a requirement for one of her school classes, "Work Experience." As a result of her being fired, she failed the course. Respondent's effectiveness as a teacher was seriously reduced as a result of his conduct and the accompanying notoriety which it received in the community. The circumstances of his offense, his arrest, and his suspension from his teaching position, all received notoriety through publication of articles in three newspapers of general circulation in the Lake Worth community.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Education Practices Commission find respondent guilty of violating Section 231.28 and Rule 6B-1.06, as alleged, and revoke his Florida Teacher's Certificate. DONE and ENTERED this 4th day of May, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1984. COPIES FURNISHED: J. David Holder, Esquire P. O. Box 1694 Tallahassee, Florida 32302 John Chamblee, Esquire 202 Cardy Street Tampa, Florida 33606 Donald L. Griesheimer, Executive Director Department of Education Education Practices Commission Knott Building Tallahassee, Florida 32301 Ralph D. Turlington, Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301
The Issue The issue to be determined in this bid protest matter is whether Respondent, Florida Housing Finance Corporation’s, intended award of funding under Request for Applications 2017- 108, entitled “SAIL Financing of Affordable Multifamily Housing Developments To Be Used In Conjunction With Tax-Exempt Bond Financing And Non-Competitive Housing Credits” was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Florida Housing is a public corporation created pursuant to section 420.504, Florida Statutes. Its purpose is to provide and promote public welfare by administering the governmental function of financing affordable housing in Florida. Florida Housing is designated as the housing credit agency for Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code. As such, Florida Housing is authorized to establish procedures to distribute low income housing tax credits and to exercise all powers necessary to administer the allocation of these credits. § 420.5099, Fla. Stat. For purposes of this administrative proceeding, Florida Housing is considered an agency of the State of Florida. To promote affordable housing in Florida, Florida Housing offers a variety of programs to distribute housing credits. (Housing credits, also known as tax credits, are a dollar-for-dollar offset of federal income tax liability.) One of these programs is the State Apartment Incentive Loan program (“SAIL”), which provides low-interest loans on a competitive basis to affordable housing developers. SAIL funds are available each year to support the construction or substantial rehabilitation of multifamily units affordable to very low- income individuals and families. See § 420.5087, Fla. Stat. Additional sources of financial assistance include the Multifamily Mortgage Revenue Bond program (“MMRB”) and non- competitive housing credits. Florida Housing administers the competitive solicitation process to award low-income housing tax credits, SAIL funds, nontaxable revenue bonds, and other funding by means of request for proposals or other competitive solicitation. Florida Housing initiates the competitive application process by issuing a Request for Applications. §§ 420.507(48) and 420.5087(1), Fla. Stat.; and Fla. Admin. Code R. 67-60.009(4). The Request for Application at issue in this matter is RFA 2017-108, entitled “SAIL Financing of Affordable Multifamily Housing Developments to Be Used in Conjunction with Tax-Exempt Bond Financing and Non-Competitive Housing Credits.” Florida Housing issued RFA 2017-108 on August 31, 2017. Applications were due by October 12, 2017.6/ The purpose of RFA 2017-108 is to distribute funding to create affordable housing in the State of Florida. Through RFA 2017-108, Florida Housing intends to award approximately $87,000,000 for proposed developments serving elderly and family demographic groups in small, medium, and large counties. RFA 2017-108 allocates $46,279,600 to large counties, $32,308,400 to medium counties, and $8,732,000 to small counties. RFA 2017-108 established goals to fund: Two Elderly, new construction Applications located in Large Counties; Three Family, new construction Applications located in Large Counties; One Elderly, new construction Application located in a Medium County; and Two Family, new construction Applications located in Medium Counties. Thirty-eight developers submitted applications in response to RFA 2017-108. Of these applicants, Florida Housing found 28 eligible for funding, including all Petitioners and Intervenors in this matter. Florida Housing received, processed, deemed eligible or ineligible, scored, and ranked applications pursuant to the terms of RFA 2017-108, Florida Administrative Code Chapters 67- 48 and 67-60, and applicable federal regulations. RFA 2017-108 provided that applicants were scored based on certain demographic and geographic funding tests. Florida Housing sorted applications from the highest scoring to the lowest. Only applications that met all the eligibility requirements were eligible for funding and considered for selection. Florida Housing created a Review Committee from amongst its staff to review and score each application. On November 15, 2017, the Review Committee announced its scores at a public meeting and recommended which projects should be awarded funding. On December 8, 2017, the Review Committee presented its recommendations to Florida Housing’s Board of Directors for final agency action. The Board of Directors subsequently approved the Review Committee’s recommendations and announced its intention to award funding to 16 applicants. As a preliminary matter, prior to the final hearing, Florida Housing agreed to the following reassessments in the scoring and selection of the applications for funding under RFA 2017-108: SP Lake and Osprey Pointe: In the selection process, Florida Housing erroneously determined that SP Lake was eligible to meet the funding goal for the “Family” demographic for the Family, Medium County, New Construction Goal. (SP Lake specifically applied for funding for the “Elderly” demographic.) Consequently, Florida Housing should have selected Osprey Pointe to meet the Family, Medium County, New Construction Goal. Osprey Pointe proposed to construct affordable housing in Pasco County, Florida. Florida Housing represents that Osprey Pointe is fully eligible for funding under RFA 2017-108. (While Osprey Pointe replaces SP Lake in the funding selection for the “Family” demographic, SP Lake remains eligible for funding for the “Elderly” demographic.) Sierra Bay and Northside II: In the scoring process, Florida Housing erroneously awarded Sierra Bay proximity points for Transit Services. Upon further review, Sierra Bay should have received zero proximity points. Consequently, Sierra Bay’s application is ineligible for funding under RFA 2017-108. By operation of the provisions of RFA 2017-108, Florida Housing should have selected Northside II (the next highest ranked, eligible applicant) for funding to meet the Elderly, Large County, New Construction Goal. Florida Housing represents that Northside II is fully eligible for funding under RFA 2017-108. Harbour Springs: Florida Housing initially deemed Harbour Springs eligible for funding under RFA 2017-108 and selected it to meet the Family, Large County, New Construction Goal. However, because Harbour Springs and Woodland Grove are owned by the same entity and applied using the same development site, under rule 67-48.004(1), Harbour Springs is ineligible for funding. (Florida Housing’s selection of Woodland Grove for funding for the Family, Large County, New Construction Goal, is not affected by this determination.) The sole disputed issue of material fact concerns Liberty Square’s challenge to Florida Housing’s selection of Woodland Grove to meet the Family, Large County Goal. Liberty Square and Woodland Grove applied to serve the same demographic population under RFA 2017-108. If Liberty Square successfully challenges Woodland Grove’s application, Liberty Square, as the next eligible applicant, will be selected for funding to meet the Family, Large County Goal instead of Woodland Grove. (At the hearing on December 8, 2017, Florida Housing’s Board of Directors awarded Woodland Grove $7,600,000 in funding.) The focus of Liberty Square’s challenge is the information Woodland Grove provided in response to RFA 2017-108, Section Four, A.5.d., entitled “Latitude/Longitude Coordinates.” Liberty Square argues that Woodland Grove’s application is ineligible because its Development Location Point, as well as the locations of its Community Services and Transit Services, are inaccurate. Therefore, Woodland Grove should have received zero “Proximity” points which would have disqualified its application for funding. RFA 2017-108, Section Four, A.5.d(1), states, in pertinent part: All Applicants must provide a Development Location Point stated in decimal degrees, rounded to at least the sixth decimal place. RFA 2017-108 set forth scoring considerations based on latitude/longitude coordinates in Section Four, A.5.e, entitled “Proximity.” Section Four, A.5.e, states, in pertinent part: The Application may earn proximity points based on the distance between the Development Location Point and the Bus or Rail Transit Service . . . and the Community Services stated in Exhibit A. Proximity points will not be applied to the total score. Proximity points will only be used to determine whether the Applicant meets the required minimum proximity eligibility requirements and the Proximity Funding Preference ” In other words, the Development Location Point identified the specific location of an applicant’s proposed housing site.7/ Applicants earned “proximity points” based on the distance between its Development Location Point and selected Transit and Community Services. Florida Housing also used the Development Location Point to determine whether an application satisfied the Mandatory Distance Requirement under RFA 2017-108, Section Four A.5.f. To be eligible for funding, all applications had to qualify for the Mandatory Distance Requirement. The response section to Section Four, A.5.d., is found in Exhibit A, section 5, which required each applicant to submit information regarding the “Location of proposed Development.” Section 5 specifically requested: County; Address of Development Site; Does the proposed Development consist of Scattered Sites?; Latitude and Longitude Coordinate; Proximity; Mandatory Distance Requirement; and Limited Development Area. Section 5.d. (Latitude and Longitude Coordinates) was subdivided into: (1) Development Location Point Latitude in decimal degrees, rounded to at least the sixth decimal place Longitude in decimal degrees, rounded to at least the sixth decimal place In its application, Woodland Grove responded in section 5.a-d as follows: County: Miami-Dade Address of Development Site: NE corner of SW 268 Street and 142 Ave, Miami-Dade, FL 33032. Does the proposed Development consist of Scattered Sites? No. Latitude and Longitude Coordinate; Development Location Point Latitude in decimal degrees, rounded to at least the sixth decimal place: 25.518647 Longitude in decimal degrees, rounded to at least the sixth decimal place: 80.418583 In plotting geographic coordinates, a “-” (negative) sign in front of the longitude indicates a location in the western hemisphere (i.e., west of the Prime Meridian, which is aligned with the Royal Observatory, Greenwich, England). A longitude without a “-” sign places the coordinate in the eastern hemisphere. (Similarly, a latitude with a negative value is south of the equator. A latitude without a “-” sign refers to a coordinate in the northern hemisphere.) As shown above, the longitude coordinate Woodland Grove listed in section 5.d(1) did not include a “-” sign. Consequently, instead of providing a coordinate for a site in Miami-Dade County, Florida, Woodland Grove entered a Development Location Point located on the direct opposite side of the planet (apparently, in India). At the final hearing, Florida Housing (and Woodland Grove) explained that, except for the lack of the “-” sign, the longitude Woodland Grove recorded would have fallen directly on the address it listed as its development site in section 5.b., i.e., the “NE corner of SW 268 Street and 142 Ave, Miami-Dade, FL 33032.” In addition to the longitude in section 5.d., Woodland Grove did not include a “-” sign before the longitude coordinates for its Transit Services in section 5.e(2)(b) or for any of the three Community Services provided in section 5.e(3). Again, without a “-” sign, the longitude for each of these services placed them in the eastern hemisphere (India) instead of the western hemisphere (Miami-Dade County). In its protest, Liberty Square contends that, because Woodland Grove’s application listed a Development Location Point in India, Florida Housing should have awarded Woodland Grove zero proximity points under Section Four, A.5.e. Consequently, Woodland Grove’s application failed to meet minimum proximity eligibility requirements and is ineligible for funding. Therefore, Liberty Square, as the next eligible applicant, should be awarded funding for the Family, Large County Goal, under RFA 2017-108.8/ Liberty Square asserts that a correct Development Location Point is critical because it serves as the beginning point for assigning proximity scores. Waiving an errant Development Location Point makes the proximity scoring meaningless. Consequently, any such waiver by Florida Housing is arbitrary, capricious, and contrary to competition. At the final hearing, Woodland Grove claimed that it inadvertently failed to include the “-” sign before the longitude points. To support its position, Woodland Grove expressed that, on the face of its application, it was obviously applying for funding for a project located in Miami-Dade County, Florida, not India. In at least five places in its application, Woodland Grove specified that its proposed development would be located in Miami-Dade County. Moreover, several attachments to Woodland Grove’s application specifically reference a development site in Florida. Woodland Grove attached a purchase agreement for property located in Miami-Dade County (Attachment 8). To satisfy the Ability to Proceed requirements in RFA 2017-108, Woodland Grove included several attachments which all list a Miami-Dade address (Attachments 9-14). Further, Woodland Grove submitted a Local Government Verification of Contribution – Loan Form executed on behalf of the Mayor of Miami-Dade County, which committed Miami-Dade County to contribute $1,000,000.00 to Woodland Grove’s proposed Development (Attachment 15). Finally, to qualify for a basis boost under RFA 2017-108, Woodland Grove presented a letter from Miami-Dade County’s Department of Regulatory and Economic Resources, which also referenced the address of the proposed development in Miami-Dade County (Attachment 16). In light of this information, Woodland Grove argues that its application, taken as a whole, clearly communicated that Woodland Grove intended to build affordable housing in Miami-Dade County. Nowhere in its application, did Woodland Grove reference a project in India other than the longitude coordinates which failed to include “-” signs. Accordingly, Florida Housing was legally authorized to waive Woodland Grove’s mistake as a “harmless error.” Thus, Florida Housing properly selected the Woodland Grove’s development for funding to meet the Family, Large County Goal. Florida Housing advocates for Woodland Grove’s selection to meet the Family, Large County Goal, under RFA 2017- 108. Florida Housing considers the omission of the “-” signs before the longitude coordinates a “Minor Irregularity” under rule 67-60.002(6). Therefore, Florida Housing properly acted within its legal authority to waive, and then correct, Woodland Grove’s faulty longitude coordinates when scoring its application. In support of its position, Florida Housing presented the testimony of Marisa Button, Florida Housing’s current Director of Multifamily Allocations. In her job, Ms. Button oversees the Request for Applications process; although, she did not personally participate in the review, scoring, or selection decisions for RFA 2017-108. Ms. Button initially explained the process by which Florida Housing selected the 16 developments for funding under RFA 2017-108. Ms. Button conveyed that Florida Housing created a Review Committee from amongst its staff to score the applications. Florida Housing selected Review Committee participants based on the staff member’s experience, preferences, and workload. Florida Housing also assigned a backup reviewer to separately score each application. The Review Committee members independently evaluated and scored their assigned portions of the applications based on various mandatory and scored items. Thereafter, the scorer and backup reviewer met to reconcile their scores. If any concerns or questions arose regarding an applicant’s responses, the scorer and backup reviewer discussed them with Florida Housing’s supervisory and legal staff. The scorer then made the final determination as to each application. Ms. Button further explained that applicants occasionally make errors in their applications. However, not all errors render an application ineligible. Florida Housing is authorized to waive “Minor Irregularities.” As delineated in RFA 2017-108, Section Three, A.2.C., Florida Housing may waive “Minor Irregularities” when the errors do not provide a competitive advantage or adversely impact the interests of Florida Housing or the public. See Fla. Admin. Code R. 67- 60.002(6) and 67-60.008. Such was the case regarding Woodland Grove’s application. Heather Green, the Florida Housing staff member who scored the “Proximity” portion of RFA 2017-108, waived the inaccurate longitude coordinates as “Minor Irregularities.” Ms. Green then reviewed Woodland Grove’s application as if the proposed development was located in Miami-Dade County, Florida. Florida Housing assigned Ms. Green, a Multifamily Loans Manager, as the lead scorer for the “Proximity” portion of RFA 2017-108, which included the Development Location Point listed in Exhibit A, section 5.d. Ms. Green has worked for Florida Housing since 2003 and has scored proximity points for Request for Applications for over ten years. At the final hearing, Florida Housing offered the deposition testimony of Ms. Green. In her deposition, Ms. Green testified that she is fully aware that, to be located in the western hemisphere (i.e., Miami-Dade County), a longitude coordinate should be marked with a negative sign or a “W.” Despite this, Ms. Green felt that the longitude coordinates Woodland Grove used without negative signs, particularly its Development Location Point, were clearly typos or unintentional mistakes. Therefore, Ms. Green waived the lack of a negative sign in front of the longitude coordinates in section 5.d. and section 5.e. as “Minor Irregularities.” Ms. Green understood that she was authorized to waive “Minor Irregularities” by rule under the Florida Administrative Code. Ms. Green felt comfortable waiving the inaccurate longitude coordinates because everywhere else in Woodland Grove’s application specifically showed that its proposed housing development was located in Miami-Dade County, not India. Accordingly, when scoring Woodland Grove’s application, Ms. Green corrected the longitude entries by including a negative sign when she plotted the coordinates with her mapping software. Ms. Green then determined that, when a “-” was inserted before the longitude, the coordinate lined up with the address Woodland Grove listed for the Development Location Point. Therefore, Woodland Grove received proximity points and was eligible for funding under RFA 2017-108. (See RFA 2017-108, Section Five.A.1.) However, Ms. Green acknowledged that if she had scored the application just as it was presented, Woodland Grove would not have met the required qualifications for eligibility. Ms. Button relayed that Florida Housing fully accepted Ms. Green’s decision to waive the missing negative signs in Woodland Grove’s response to section 5.d. and 5.e. as “Minor Irregularities.” Ms. Button opined that Woodland Grove’s failure to place a “-” mark before the longitude was clearly an unintentional mistake. Ms. Button further commented that Florida Housing did not believe that scoring Woodland Grove’s development as if located in the western hemisphere (instead of India), provided Woodland Grove a competitive advantage. Because it was evident on the face of the application that Woodland Grove desired to develop a housing site in Miami-Dade County, Ms. Green’s decision to overlook the missing “-” sign did not award Woodland Grove additional points or grant Woodland Grove an advantage over other applicants. Neither did it adversely impact the interests of Florida Housing or the public. However, Ms. Button also conceded that if Ms. Green had scored the application without adding the “-” sign, Woodland Grove would have received zero proximity points. This result would have rendered Woodland Grove’s application ineligible for funding. Ms. Button also pointed out that Ms. Green waived the omission of “-” signs in two other applications as “Minor Irregularities.” Both Springhill Apartments, LLC, and Harbour Springs failed to include negative signs in front of their longitude coordinates. As with Woodland Grove, Ms. Green considered the development sites in those applications as if they were located in Miami-Dade County (i.e., in the western hemisphere). Ms. Green also waived a mistake in the Avery Commons application as a “Minor Irregularity.” The longitude coordinate for the Avery Commons Development Location Point (section 5.d(1)) was blank. However, Ms. Green determined that Avery Commons had placed the longitude in the blank reserved for Scattered Sites coordinates (section 5.d(2)). When scoring Avery Commons’ application, Ms. Green considered the coordinate in the appropriate section. According to Ms. Button, Florida Housing felt that this variation did not provide Avery Commons a competitive advantage. Nor did it adversely impact the interests of Florida Housing or the public. Finally, Ms. Button explained that the application Florida Housing used for RFA 2017-108 was a relatively new format. In previous Request For Applications, Florida Housing required applicants to submit a Surveyor Certification Form. On the (now obsolete) Surveyor Certification Form, Florida Housing prefilled in an “N” in front of all the latitude coordinates and a “W” in front of all the longitude coordinates. However, the application used in RFA 2017-108 did not place an “N” or “W” before the Development Location Point coordinates. Based on the evidence presented at the final hearing, Liberty Square did not establish, by a preponderance of the evidence, that Florida Housing’s decision to award funding to Woodland Grove for the Family, Large County Goal, under RFA 2017-108 was clearly erroneous, contrary to competition, arbitrary, or capricious. Florida Housing was within its legal authority to waive, then correct, the missing “-” sign in Woodland Grove’s application as “Minor Irregularity.” Therefore, the undersigned concludes, as a matter of law, that Petitioner did not meet its burden of proving that Florida Housing’s proposed action to select Woodland Grove for funding was contrary to its governing statutes, rules or policies, or the provisions of RFA 2017-108.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Housing Finance Corporation enter a final order dismissing the protest by Liberty Square. It is further recommended that Florida Housing Finance Corporation rescind the intended awards to Sierra Bay, SP Lake, and Harbour Springs, and instead designate Northside II, Osprey Pointe, and Pembroke Tower Apartments as the recipients of funding under RFA 2017-108.10/ DONE AND ENTERED this 19th day of April, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 19th day of April, 2018.
