The Issue Whether, under section 120.569(2)(e), Florida Statutes, Petitioner, Garber Housing Resorts, LLC ("Garber"), is entitled to its reasonable attorney's fees incurred because of responding to three specific pleadings filed by Respondent, Glenda Q. Mahaney ("Mahaney"), and if so, the amount of such reasonable attorney's fees.
Findings Of Fact On March 27, 2019, DEP issued an SRCO after reviewing a limited groundwater assessment dated May 9, 2018, which included a recommendation for risk management option level one. DEP's SRCO stated that the prior conditional SRCO was being replaced because the limited groundwater assessment "demonstrates that conditions on the property have changed and improved such that the [conditional SRCO] is no longer appropriate.” Mahaney's May 13, 2019, petition and Garber's May 23, 2019, motion to dismiss were referred to DOAH on June 25, 2019, and assigned Case No. 19-3429. Garber's petition was 77 pages, 654 paragraphs, and contained 56 pages of attachments. 2 The Office Depot email suggested that an email was sent on January 4, 2020, but without the documents attached. The email address to which the document was allegedly sent was "AskDOAH," which is not a proper method for filing pleadings. The November 6, 2019, Notice from DOAH opening this fees case explained that "Parties not represented may file electronically through eALJ, facsimile, or mail. CHOOSE ONE METHOD of filing for each document." On July 18, 2019, Mahaney's petition was dismissed with leave to amend as legally insufficient under Florida Administrative Code Rule 28-106.201(2). The petition also contained irrelevant allegations that were not cognizable in an environmental administrative proceeding. Mahaney was allowed ten days to file an amended petition that "shall comply with the requirements of rule 28-106.201(2) and shall not contain the irrelevant and immaterial allegations discussed in this Order." On August 1, 2019, DEP received from Mahaney a document titled "Petitioner's 7-25-2019 Amended 5-9-2019 Petition for Hearing Regarding SRCO Dated Dated [sic] 3-27-2019 for Lamont Garber and/or Garber Housing Resorts, Inc., and Motion for Summary Proceedings Regarding Issues Admitted by FDEP and/or Motion to Immediately Revoke SRCO or Motion to Abate Proceedings Until Such Time as Petitioner's Property is Tested" ("amended petition"). DEP forwarded Mahaney's amended petition to DOAH on August 5, 2019. The amended petition was 69 pages, 690 paragraphs, and contained 59 pages of attachments. Garber had already filed, on August 2, 2019, its motion to dismiss the amended petition. On August 13, 2019, Mahaney filed her response to Garber's motion to dismiss the amended petition. A Recommended Order of Dismissal was issued on August 19, 2019, finding that the amended petition remained legally insufficient. The amended petition still contained irrelevant allegations concerning issues outside the subject matter of the SRCO. Those issues included a property boundary dispute, trespass and nuisance claims, alleged violations of pollution laws, alleged non-compliance with local land use regulations, flooding issues, and stormwater runoff issues. DEP issued its Final Order on November 1, 2019. Attached to the Final Order provided to DOAH were Mahaney's exceptions and Garber's responses to exceptions that had been timely filed with DEP. The Final Order denied each of Mahaney's exceptions, adopted the Recommended Order of Dismissal, and approved the SRCO. Mahaney is opposed to Garber's plan to develop the property that is the subject of DEP's SRCO. It was clear from Mahaney's testimony and her history of challenging remediation actions taken by Garber and prior property owners, that her primary purpose for bringing the underlying proceeding was her concern for potential contamination of her well and property. In addition, she was concerned that the SRCO did not "certify the entire [Garber] property as clean." Because of Mahaney's stated belief that DEP has not done its job over the years with regard to Garber's property and her property, she had challenged the prior conditional SRCO, and then the replacement SRCO. In addition, Mahaney testified that additional remediation occurred on Garber's property in February 2019, approximately a month before DEP issued the SRCO. She obtained a letter that was from the remediation company to Mr. Lamont Garber describing the remediation activities. Through reasonable inquiry, she learned that the letter was not in DEP's possession at the time of issuing the SRCO. The circumstances surrounding Mahaney's filing of her petition, amended petition, and exceptions show that her pleadings were not filed for an improper purpose. Garber's expert on reasonable attorney's fees reviewed the invoices of legal fees and the filings in the underlying proceeding. He testified that the time spent and legal fees incurred by Garber responding to Mahaney's pleadings and litigating entitlement to fees, were reasonable.3 Mahaney did not present an expert to dispute his testimony. 3 Garber's Composite Exhibit No. 1 consisted of nine invoices for legal services and three prebilling reports dated through January 21, 2020, which was the date of the final hearing. One invoice and one prebilling report addressed a separate matter titled "Maitland Rezone." One invoice did not separate Mahaney's petition from a separate petition filed by Corinne Garrett. The time spent on the underlying proceeding and this fees case reflected in the other seven invoices and two prebilling reports, total $16,621.00.
The Issue The issue for determination is whether Celina Hills Property Owner’s Association (the Association) violated the Fair Housing Act, in its enforcement of the Association’s deed restrictions. The Association refused to allow a homeowner within the Association’s community to put a fence around the front of the homeowner's property to accommodate the disability of the homeowner's son. A secondary issue, if the Association violated the Fair Housing Act, is whether the Association's action is sufficient to permit the award of damages to the Florida Commission on Human Relations (FCHR) for frustration of agency purposes in this matter.
Findings Of Fact Sheila and Fred Swasey purchased a home in the Celina Hills Community in 2001, where they currently reside. When they purchased their home, the Swaseys had full knowledge that the home was part of a homeowner’s association which had certain deed restrictions and covenants. The Swaseys furthermore understood that they were subject to the deed restrictions, and at the time of purchase, had no concerns regarding such restrictions. One such restriction was that they could not have a fence in the front yard of their property. The Swaseys have a 22-year-old, mentally retarded son, named Brad. The Swasey’s son has the mental capacity of a two- year-old, certain gait difficulties, and by stipulation of the parties, qualifies under the applicable Fair Housing Act as a handicapped individual in that he has physical and mental impairments that substantially limit one or more major life activities. The Association is a not-for-profit corporation organized in the mid 70's for the sole purpose of operating and maintaining the Celina Hills Community. Every home owner in Celina Hills is a member of the Association, and is subject to the deed restrictions, and covenants that attach to each of the properties within the Association. The Association is operated by a board of directors, which consists of volunteer homeowners, and is charged with the responsibility of enforcing the covenants, restrictions and other governing documents of the Association. The Association, through its officers, was fully aware of Brad's disability. As established by testimony of two of Brad’s doctors, Brad has the mental capacity of a young child approximately two to three years old. Although in the short term his mental capacity has stabilized and will probably not improve, his long- term capacity will be accelerated in regard to dementia, making him much harder to control or exhibit control. The supervisor of Brad’s sheltered workshop testified that, based on her observations, she believes he has the mental capacity of less than a two or three year old. Brad has recently, within the last 3 years, grown dramatically (from 5’3”/160 pounds to 6’2”/240 pounds) and, although he walks with a wide gait and has trouble walking on uneven surfaces, has become significantly harder to control and catch. His parents are in their fifties, and increasingly, subject to the health deficits imposed by the process of aging. Brad’s doctors have advised the Swaseys to have Brad spend time outside, breathe fresh air and get exercise. Brad’s parents’ testimony and observation of Brad at the final hearing establishes that he has the capacity of a two-year-old, but with no fear and no understanding of dangers that confront him in life. Further, he has only recently exhibited a predilection to run towards the street and trucks and cars that attract his attention. Brad is attracted to trucks and cars, especially yellow school buses and blue mail trucks, and attempts to run towards them when possible. With regard to motorists going up the hill on the street in front of the Swaseys and Brad’s home, visibility from the road to the yard (and yard to the road) is poor and cars on the street drive fast. The Swaseys’ home is located in the middle of the block and not at an intersection. The decision of the Swaseys to fence their front yard results in the provision of the best setting for Brad to fully enjoy the premises and gain needed fresh air and exercise. This choice by the Swaseys also provides better observation for them over Brad and more shade and opportunities for him to observe surrounding life and activities. Such a fence would protect Brad from running into the street and provide his parents an opportunity to allow Brad some “independence” while still being under their direct supervision when they work in the front yard. The fence would also keep him from running away from them into the street before they can catch him. Such a front yard fence requires an accommodation from the Association in order to build higher than the Association's allowable three feet and also along the required county set-back line for fences. The Swaseys' backyard has severe slopes, contains the screened-in pool and is generally unusable as an outside area for Brad because of his walking disability. Nevertheless, his parents also plan to fence the side and back- yards as well, which requires only the standard approval as to style, material and installation and no accommodation. Should they fence just the back and side yard, however, a problem would result in the form of entry problems, since the only direct entry to the backyard is through the pool area. Such an entry would redirect Brad’s attention to areas of the home and yard where the pool is located. Unfortunately, the backyard alone would not allow Brad full enjoyment because of the nature of the property (uneven with major slopes) and his walking disability. Further, direct observation of Brad would be difficult in some areas, if not impossible. On April 8, 2003, Brad's mother submitted a written request to the Association for a fence on the front, side and backyards. She also indicated that they would have the fence removed if they ever sold the house. On May 1, 2003, the Association's Board of Directors had a meeting at which Brad's father presented the request of he and his wife. Simply put, their request was to erect a front fence in a wooden picket style and an electric wood-faced gate for the front of the property (more in keeping with the covenants and restrictions placed on the property). As affirmed by Brad's father at the final hearing, he has no desire to denigrate property values in the community due to his own home investment. This summarizes the request of Brad's parents for need of an accommodation from the Association. The relevant restriction for which an accommodation was requested is found on page 6 of the Celina Hill’s Property Owners Handbook (January 2002 edition) which provides: No fence or wall shall be erected or maintained in the front beyond the front building setback line. No wire, chain link, or cyclone is permitted on any lot. No fence or hedge over three (3) feet in height shall be permitted along the front. No fence or hedge shall be erected or maintained which shall: i) unreasonably restrict or obstruct sight lines at corners and at intersections or driveways with streets; ii) detract from the overall appearance of the property (the use of rough hewn woods or natural plantings as fencing and screening materials is encouraged); or iii) stand greater than four (4) feet in height. The Swaseys met all conditions, except for the deed restriction, in their request for a front yard fence. As established by witnesses for the Swaseys, inclusive of the school bus driver who frequently drives a school bus by the Swaseys' property, there are no safety concerns about the proposed front yard fence obscuring motorists' view since it is not going to be at an intersection. On May 24, 2003, the Association denied the Swaseys' request stating that, “We cannot authorize your request for a fence of any style in your front yard, the Celina Hills Homeowners manual makes clear that no fence can be installed beyond the front setback line and that setback line is the front of your house.” In the same letter, the Association indicated it had no problem with the Swaseys' pursuing fencing the side and backyards since there was no deed restriction and only a style, materials and installation review. On June 18, 2003, FCHR issued a determination that there was reasonable cause to believe that the Association was engaging in a discriminatory housing practice in violation of Section 760.23, Florida Statutes. FCHR’s efforts to conciliate the case failed as stated in its Notice of Failure of Conciliation on July 30, 2003. FCHR also placed into evidence its calculation of damages, in addition to attorney’s fees and costs to be determined upon completion of the case, for “frustration of agency purpose.” These damages were calculated at $1,035.40 consisting of $358.70 for 20.6 investigative hours; $600.00 for legal review and advisor hours; $66.70 in direct travel costs; and $10.00 in photographic development costs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter an order finding Respondent guilty of a discriminatory housing practice against the Complainant and her son in violation of Section 760.23 (7) and (9), Florida Statutes; prohibiting further unlawful housing practices by Respondent; and allowing the building of an esthetically acceptable fence in the front yard as necessary to provide containment and safety for Brad Swasey to use and enjoy his dwelling, with the proviso that such fence be removed when Brad is no longer a regular resident in the Swasey home. DONE AND ENTERED this 1st day of December, 2003, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2003. COPIES FURNISHED: Barry A. Postman, Esquire Cole, Scott & Kissane, P.A. Pacific National Bank Building 1390 Brickell Avenue Miami, Florida 33131 Sheila Swasey 2125 East Celina Street Inverness, Florida 34453 William J. Tait, Jr., Esquire Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301-4830 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
The Issue Whether the Ochlocknee Management Corporation has demonstrated that development rights in certain real property it owns have vested against the provisions of the 2010 Comprehensive Plan?
Findings Of Fact The Initial Purchase. In January, 1986, Ochlocknee Management Corporation (hereinafter referred to as "Ochlocknee"), began negotiations for the purchase and development of land located on Buck Lake Road (hereinafter referred to as the "Buck Lake Property"). On January 25, 1986, a document indicating an intent to sell 100 acres of the Buck Lake Property to Ochlocknee was executed. On October 31, 1986, a Contract for Sale was entered into between Ochlocknee and the owners of the Buck Lake Property. Pursuant to the Contract for Sale, Ochlocknee agreed to purchase 100 acres of the Buck Lake Property (hereinafter referred to as the "100 Acres"). The 100 Acres were to be developed in three phases by Ochlocknee. The development was named Avondale. In February of 1987, the 100 Acres were rezoned and platted. The Development of Units I, II and III. Development of Avondale Unit I began in March, 1987. In August, 1987, the Unit I plat was recorded. All roads, utilities and storm water for Unit I were complete. In April, 1988, development of Avondale Unit II began. The development of Unit II began approximately 8 months after the Unit I plat was recorded. In October, 1988, the Unit II plat was recorded. All roads, utilities and storm water for Unit II were complete. In May, 1989, development of Avondale Unit III began. The development of Unit III began approximately 7 months after the Unit II plat was recorded. In November, 1989, the Unit III plat was recorded. All roads, utilities and storm water for Unit III were complete. During the construction of Unit III Ochlocknee intended to purchase an additional parcel of the Buck Lake Property. This property was to be developed as additional phases or units of the Avondale development, including Avondale Unit IV, the development which is the subject of this proceeding. When constructed, the main road running through Units I, II and III was intended to continue through, and serve, Avondale Unit IV. The road is the only road providing access between Unit IV and Buck Lake Road. Utilities for Unit III were designed and stubbed to serve Unit IV. The weight of the evidence failed to prove that any action which Leon County took in approving the development of Units I, II, or III could have been reasonably relied upon by Ochlocknee in its development of Unit IV. Most of Leon County's actions in approving the development of Avondale were taken before the Unit IV property was even purchased. Additionally, the evidence failed to prove that Leon County specifically reviewed any plans concerning Ochlocknee's plans to develop Unit IV until after the preliminary plat for Unit IV was filed for approval. The Second Purchase. In November, 1988, Ochlocknee began negotiations for the purchase of the additional parcel of the Buck Lake Property to be developed as Unit IV. The property consisted of 40.5 acres and was to be developed as Unit IV, the development at issue in this proceeding, and Unit V. In March, 1989, the owners of the 40.5 acres applied for rezoning of the 40.5 acre parcel from A-2 (agricultural use) to R-1 (residential use). In March, 1989, Ochlocknee entered into a Contract for Sale and Option, pursuant to which Ochlocknee was to purchase the 40.5 acres. Unit IV was to consist of 10 acres of the parcel. The 10 acres abut Unit III. The remaining 30.5 acres of the parcel were to be developed as Unit V. In May, 1989, the 40.5 acre parcel was rezoned as R-1, limited use. The zoning limited septic tanks on the property to 2.2 units per acre. On June 27, 1989, Ochlocknee purchased the 10 acres to be developed as Unit IV. The Regional Stormwater Facility. In April, 1988, Poole & Associates, Inc. (hereinafter referred to as "Poole"), prepared plans and designs for a regional stormwater facility for 126 acres of the Buck Lake Property. Poole provided the engineers for Avondale. The plan developed by Poole was intended to handle stormwater for all of Units II and III, all of what was to be Unit IV, part of what was to be Unit V and part of the Buck Lake Property which was not to be developed by Ochlocknee. This regional stormwater facility will hereinafter be referred to as the "Stormwater Facility". The plans and designs for the Stormwater Facility were completed before Unit IV was purchased by Ochlocknee and before Unit IV was rezoned from A-2 to R-1. In July, 1989, Ochlocknee began construction of the Stormwater Facility. Ponds used in the Stormwater Facility are located on Unit III. In November, 1989, when the Unit III plat was recorded, the Stormwater Facility was substantially completed. The Stormwater Facility was generally approved upon the recording of the Unit III plat. Recording of the Unit III plat and the approval of the Stormwater Facility only applied to the use of the Stormwater Facility for Unit III. The use of the Stormwater Facility for Unit IV was not approved or even reviewed by Leon County in November, 1989. Ochlocknee was required to maintain the Stormwater Facility for an additional year after it was approved for Unit III. After approval of the Stormwater Facility for Unit III, problems arose with the Stormwater Facility. These problems began as early as August, 1989 based upon an August 31, 1989, letter from Broward Davis & Assoc., Inc., to Ochlocknee. In a letter dated November 22, 1989, from the Respondent's engineering inspectors, Poole was provided with a "punch list" of problems associated with Units I, II and III, including problems associated with the Stormwater Facility. The punch list was developed during a meeting held on November 21, 1989. Ochlocknee informed Leon County that the problems raised in the letter referred to in finding of fact 29 would be resolved in 30 days. The problems continued, however, into 1990. Efforts continued during the remainder of 1989 and early 1990 to resolve the problems. On January 17, 1990, a new Environmental Management Act became effective in Leon County. Ochlocknee was required to insure that its proposed use of the Stormwater Facility for Unit IV complied with the Act. In a letter dated February 22, 1990, Leon County notified Poole that preliminary plans for the development of Unit IV which had been submitted to Leon County had been reviewed. Poole was informed that additional information concerning the preliminary site plans was needed before Unit IV could be approved for development. Among other things, Leon County informed Poole that additional information concerning the use of the Stormwater Facility for Unit IV would have to be submitted. Unit IV Development. In October, 1988, Poole prepared a preliminary site plan for the development of Unit IV. These plans were prepared before the property which constitutes Unit IV was purchased or rezoned from A-2 to R-1. On June 27, 1989, Ochlocknee purchased the 10 acres of Unit IV for $104,956.50. In November, 1989, Ochlocknee entered into an agreement with Poole to design roadways, utilities and obtain construction approvals for Unit IV. On December 1, 1989, preliminary plat approval for Unit IV was applied for. The preliminary plat was approved by the Tallahassee-Leon County Planning Department on January 10, 1990. On January 17, 1990, the City of Tallahassee approved the water distribution plans for Unit IV. On January 12, 1990, the City of Tallahassee agreed to provide water and electrical service for Unit IV. On February 2, 1990, a commitment for a construction loan for Unit IV was received by Ochlocknee. The Leon County comprehensive plan was submitted to the Department of Community Affairs on February 1, 1990. Ochlocknee should have been aware of the drafting of the comprehensive plan and the fact that it had been provided to the Department of Community Affairs for approval. 41 In March, 1990, Poole completed final construction drawings for the Unit IV roadways. In April, 1990, Ochlocknee received contracts for the construction of roadways and utilities for Unit IV. In May, 1990, Poole held an onsite pre-construction conference with Leon County officials, utility providers and construction personnel. Poole placed stakes for clearing limits on Unit IV during May, 1990. On June 29, 1990, Leon County approved roadway construction plans for Unit IV. At the time that the preliminary plat for Unit IV was filed by Ochlocknee for approval, Ochlocknee knew that the Stormwater Facility needed to be modified before development of Unit IV would be approved. Despite this knowledge, Ochlocknee chose to continue to propose that the Stormwater Facility be used for Unit IV. These problems continued throughout the time after the preliminary plat for Unit IV was filed. In May, 1990, Leon County informed Ochlocknee that a permit for clearing and grading, the last permit needed to begin construction, would not be issued until the Stormwater Facility proposed for Unit IV was modified and the problems previously identified by Leon County with the Stormwater Facility in 1989, were corrected. Construction on Unit IV has not commenced. Costs Associated with Unit IV. The cost of rezoning the 10 acres of Unit IV was $2,911.25 plus a $300.00 fee. The $300.00 fee was incurred in March, 1989, before the Unit IV property was purchased or the rezoning had taken place. Therefore, the fee was not incurred in reliance upon any representation from Leon County. The $2,911.25 cost was incurred between October, 1988 and May, 1989. This amount was incurred before the purchase of the Unit IV property or the approval of the rezoning. Therefore, this cost was not incurred in reliance upon any representation from Leon County. The cost of purchasing the 10 acres which are to be developed as Unit IV was $104,956.50. This cost was incurred in June of 1989. The only action taken by Leon County concerning any possible development of Unit IV prior to the time this cost was incurred was to approve rezoning Unit IV from A-2 to R-1. The cost of purchasing the 10 acres of Unit IV was not, therefore, incurred in reliance upon any action of Leon County other than approval of the rezoning of Unit IV. The cost of constructing the Stormwater Facility attributable to Unit IV was approximately $8,000.00. This cost was incurred between July, 1989, and November, 1989. Therefore, the cost was incurred after the Unit IV property was rezoned but before the preliminary plat and the development plans for Unit IV were approved by Leon County. Therefore, the cost of the Stormwater Facility attributable to the Unit IV property was not incurred in reliance upon any action of Leon County other than approval of the rezoning of Unit IV. Ochlocknee failed to present sufficient evidence to conclude what expenses were incurred by it in stubbing the road and utilities that run through Units I, II, and III are attributable to Unit IV. The weight of the evidence also failed to prove when any such expenses were incurred. These expenses were incurred sometime after the development of Unit I began (before the Unit IV property was acquired or rezoned) and sometime before Unit III was completed (before the preliminary plat for Unit IV was approved). Therefore, any expenses attributable to Unit IV for the road and utilities were incurred before Leon County took any action with regard to the development of Unit IV or were incurred only in reliance upon the rezoning of the Unit IV property. Engineering, surveying and permitting costs associated with Unit IV totalled $13,384.49. These costs were incurred between January, 1990 and May, 1990. Prior to the expenditure of these funds Leon County had approved the rezoning of Unit IV, the preliminary plat and some of the other plans for the development of Unit IV. All of these costs were incurred after Ochlocknee had been informed that there was a problem with the Stormwater Facility. All of the engineering costs were incurred before Leon County had indicated that it would approve the development of Unit IV. On April 25, 1990, Ochlocknee refinanced the note for the 10 acres of Unit IV. The new note was for $219,750.00. This amount was borrowed to refinance the cost of purchasing the 10 acres and to pay construction costs for the development of Unit IV. The funds intended for construction costs for Unit IV have not, however, been expended. The weight of the evidence failed to prove what costs Ochlocknee incurred in obtaining the $219,750.00 note. All of the costs incurred by Ochlocknee relating to the development of Unit IV were incurred in an effort to obtain approval from Leon County for the development of Unit IV. The costs were incurred before any representation from Leon County that development of Unit IV would be allowed to proceed. Some of the costs were incurred before the Unit IV property was rezoned from an agricultural use to R-1. Leon County had taken no action before approval of the rezoning. Some of the costs were incurred only in reliance upon the rezoning of the Unit IV property. Finally, all of the costs were incurred in an effort to obtain approval to develop Unit IV and before Leon County indicated through any action that development of the property would be allowed to proceed. These costs were incurred at a time when Ochlocknee should have known that the development of Unit IV would probably have to be consistent with the 2010 Comprehensive Plan. Procedure. On or about August 1, 1990, Ochlocknee filed an Application for Vested Rights Determination (hereinafter referred to as the "Application"), with Leon County. The following information concerning the development of Unit IV was contained on the Application: "Ochlocknee Management" is listed as the "Owner/Agent." Question 3 of the Application requests the name of the project, including the name and address of each owner of, and interested party in, the project or property. "AVONDALE UNIT IV" was included as the response to question 3. The project is described as "22 Residential Lots on 10 acres, Proposed with Public Road, Water, and Recorded Plat." The project location is described as "AVONDALE WAY, SOUTH OF AVONDALE III." Total project costs are estimated at "$226,205.95" and it is estimated that "$126,952,24 " have been expended to date. "Progress . . . Towards Completion" is described as: (1) all utility site, drainage plans completed as of May 4, 1990; (2) preliminary plat approval 1/10/90, water plans approved 2/1/90 and environmental permit 6/27/90; and (3) the drainage facility located in Unit III is complete. "Preliminary Plat, Water Plan Approval, Environm. Permits" are included as forms of "government approval." The response to question 10 of the Application, which requests information concerning government action relied upon prior to committing funds towards completing the project, was "[s]ubdivision Ordinance for Preliminary Plat, The Letter of Agreement, Policy & Procedures Manual for Utilities and the Environmental Management Act for the Stormwater Permits." In a letter dated August 7, 1990, Ochlocknee was informed that its Application was being referred to a Staff Committee comprised of Jim English, Mark Gumula, Howard Pardue, Buddie Holshouser and Herb Thiele. By letter dated August 24, 1990, Ochlocknee provided additional information for the Staff Committee to consider. On August 27, 1990, a hearing was held to consider the Application before the Staff Committee. Barry Poole, of Poole, and Jody Elliott, of Ochlocknee, testified. By letter dated August 27, 1990, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department informed Ochlocknee that the Application had been denied. By letter dated September 5, 1990, to Mr. Gumula, counsel for Ochlocknee appealed the decision to deny the Application. By letter dated October 5, 1990, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter. By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on October 25, 1990. During the hearing before the undersigned Ochlocknee stipulated that it had sought approval of its Application based upon "common law vesting" and not "statutory vesting" as those terms are defined in Leon County Ordinance 90- 31.
The Issue The central issue in this case is whether the Respondent is indebted to the Petitioner for agricultural products and, if so, in what amount.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner, Holmes Nursery & Gardens Associates, LTD., is a wholesale and retail nursery providing a variety of landscape agricultural products. The east coast regional office for Petitioner is located at 1600 SW 20th Street, Fort Lauderdale, Florida. Respondent, Garden of Eden Landscape and Nursery, Inc., is an agricultural dealer with its office located at 3317 So. Dixie Highways Delray Beach, Florida. Respondent, Garden of Eden is subject to the licensing requirements of the Department of Agriculture and Consumer Services. As such, Garden of Eden is obligated to obtain and to post a surety bond to ensure that payment is made to producers for agricultural products purchased by the dealer. To meet this requirement, Garden of Eden delivered a certificate of deposit from Sun Bank of Palm Beach County to the Department. On or about April 23, 1986, Garden of Eden ordered and received delivery of $1770.00 worth of agricultural products from Petitioner. This purchase consisted of four viburnum odo., five weeping podocarpus and one bottlebrush. On or about April 25, 1986, Garden of Eden ordered and received delivery of $420.00 worth of agricultural products from Petitioner. This purchase consisted of three live oaks. On or about April 28, 1986, Garden of Eden ordered and received delivery of $312.50 worth of agricultural products from Petitioner. This purchase consisted of twenty-five viburnum odo. On or about April 29, 1986, Garden of Eden ordered and received delivery of $520.00 worth of agricultural products from Petitioner. This purchase consisted of four laurel oaks. On or about May 5, 1986, Garden of Eden ordered and received delivery of $1,130.00 worth of agricultural products from Petitioner. This purchase consisted of forty-seven crinum lily and six hundred and twenty-two liriope muscari. On or about May 13, 1986, Garden of Eden ordered and received delivery of $2,943.00 worth of agricultural products from Petitioner. This purchase consisted of seven cattley grava, and six paurotes. On or about May 28, 1986, Garden of Eden ordered and received delivery of $315.00 worth of agricultural products from Petitioner. This purchase consisted of one roebelinii single and one roebelinii double. On or about June 19, 1986, Garden of Eden ordered and received delivery of $300.00 worth of agricultural products from Petitioner. This purchase consisted of one paurotis 5 stem. The total amount of the agricultural products purchased by Garden of Eden was $7,710.50. On August 8, 1986, Garden of Eden paid $1060.00 on the account. On September 24, 1986, another $2500.00 was remitted to Holmes Gardens on this account. The balance of indebtedness owed by Garden of Eden to Holmes Gardens for the purchases listed above is $4,150.00. Petitioner claims it is due an additional sum of $436.04 representing interest on the unpaid account since the assessment of interest to an unpaid balance is standard practice in the industry; however, no written agreement or acknowledgment executed by Garden of Eden was presented with regard to the interest claim.
