Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Conditional Site Approval Order No. 82-49 was issued in accordance with Section 330.30, Florida Statutes, and Chapter 14-60, Florida Administrative Code, and that it is affirmed. THIS RECOMMENDED ORDER entered this 17th day of July, 1984, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1984. COPIES FURNISHED: Mary M. Callaway, Esquire Post Office Box 3697 Pensacola, Florida 32516 T. Sol Johnson, Esquire Johnson, Green & Westmoreland, P.A. P. O. Box 605 Milton, Florida 32570 Vernon L. Whittier, Jr., Esquire Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32301-8064
Findings Of Fact Documentary evidence was received that Hangar Two, Inc. was chartered on April 4, 1980, and had "Hangar Two, Inc." and its unique logo registered as a service mark on June 18, 1980. See Exhibits 1, 2, 3 and 6. Documentary evidence was received that Hanger Two Aviation, Inc. was incorporated on November 25, 1980. See Exhibits 4 and 5. Wallace I. Garrick testified on behalf of Hangar Two, Inc. Garrick has been the attorney for Carl Knight for a number of years and handled the incorporation of Hangar Two, Inc. for Knight. For several years, Knight has been engaged in the business of repairing, rebuilding and maintaining aircraft. Garrick has been to Knight's place of business many times. The business was located at North Perry Airport for a number of years and did business as Hangar Knight was forced to move his business and incorporated his business as Hangar Two, Inc. The business of the corporation is the repair and maintenance of aircraft. Knight moved his business to a building on the southeast corner of the same airport, which he caused to be identified and marked with his service mark "Hangar 2." See Exhibit 6. Located in this building when Knight moved there was an aircraft repair and maintenance business operated by George Ritch. Thereafter, Ritch retained a one-room office and leased a small portion of the floor space for his business use. Hanger Two Aviation, Inc. was incorporated by Milton Margulies, a local attorney. Its primary Director and agent for service of process is Jean S. Morse, an employee of Margulies. Garrick was advised by Margulies that he had incorporated Hanger Two Aviation, Inc. for George Ritch, and that he had no further relationship with the corporation or with Ritch. Incorporation of Hanger Two Aviation, Inc. was sought after the date that Knight's business moved into the same building occupied by Ritch and after the date Knight's business was incorporated in the name Hangar Two, Inc. Incorporation of Hanger Two Aviation, Inc. was not in good faith. Both corporations are engaged in the same business, aircraft repair and maintenance, and their principal places of business are located in the same building at the same airport. Garrick has seen bills and other mail intended for Ritch's business delivered to Knight's business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of State revoke the reservation for the corporate name Hanger Two Aviation, Inc. DONE and ORDERED this 26th day of October, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1981. COPIES FURNISHED: Wallace I. Garrick, Esquire Concord Building, Suite 1000 66 West Flagler Street Miami, Florida 33130 Jean S. Morse, Registered Agent Hanger Two Aviation, Inc. 2020 NE 163rd Street North Miami Beach, Florida 33162 Stephen Nall, Esquire Office of the General Counsel Department of State The Capitol Tallahassee, Florida 32301 George Firestone, Secretary Department of State The Capitol Tallahassee, Florida 32301
The Issue The issue in this case is whether proposed amendments to Rule 12A-1.070 are an invalid exercise of delegated legislative authority. Petitioners and Intervenors challenge Proposed Rule 12A-1.070(1) and (4)(a) and (b). Respondent published the amendments in the Florida Administrative Law Weekly on March 18, 1994 and June 10, 1994. As described in the Joint Prehearing Stipulation, the proposed rule amendments address, among other things, the taxation of payments to airport authorities from concessionaires like rental car companies and airport restaurants. The law imposes a sales tax on payments for the use or occupancy of real property, whether the agreement consists of a lease or a license to use real property. The main dispute in these cases is whether the proposed rule amendments illegally extend the sales tax to payments for intangibles like a concession, franchise, or privilege to do business.
Findings Of Fact The Proposed Rules By notice published in 20 Florida Administrative Law Weekly 1549 on March 18, 1994, Respondent proposed amendments to existing Rule 12A-1.070. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code. All references to Proposed Rules are to the rule amendments that are the subject of this proceeding.) The notice explains that the purpose of the rule amendments is to clarify the application of specific statutory sales tax exemptions for the lease or license to use real property at airports, malls and nursing homes. The rule amendments clarify that the total payment pursuant to a lease or license of real property is subject to tax, unless specifically exempt, irrespective of how the payment, or a portion thereof, is identified. However, if such leased property includes specifically exempt property, then such exemption may be applied on a pro rata basis. 20 Florida Administrative Law Weekly 1549 (March 18, 1994). In the notice, Respondent cites as specific authority for the proposed amendments Sections 212.17(6), 212.18(2), and 213.06(1). Respondent states that the proposed amendments implement Sections 212.02(10)(h) and (i) and (13), 212.03(6), and 212.031. By notice published June 10, 1994, in 20 Florida Administrative Law Weekly 4096, Respondent proposed amendments to the amendments previously proposed. As amended by both notices, Rule 12A-1.070 provides, with deletions stricken through and additions underlined: * 12A-1.070 Leases and Licenses of Real Property; Storage of Boats and Aircraft (1)(a) Every person who rents or leases any real property or who grants a license to use, occupy, or enter upon any real property is exer- cising a taxable privilege unless such real property is: * * * <<a>>. Property used at an airport exclusively for the purpose of aircraft landing or aircraft taxiing or property used by an airline for the purpose of loading or unloading passengers or property onto or from aircraft or for fueling aircraft. See Subsection (3). <<b. Property which is used by an airline exclusively for loading or unloading passengers onto or from an aircraft is exempt. This property includes: common walkways inside a terminal building used by passengers for boarding or departing from an aircraft, ticket counters, baggage claim areas, ramp and apron areas, and departure lounges (the rooms which are used by passengers as a sitting or gathering area immed- iately before surrendering their tickets to board the aircraft). Departure lounges commonly known as VIP lounges or airport clubs which are affiliated with an airline or a club which requires a membership or charge or for which membership or usage is determined by ticket status are not included as property exempt from tax. The lease or license to use passenger loading bridges (jetways) and baggage conveyor systems comes under this exemption, provided that the jetways and baggage conveyor systems are deemed real property. In order for the jetways and baggage conveyors to be deemed real property, the owner of these items must also be the owner of the land to which they are attached, and must have had the intention that such property become a permanent accession to the realty from the moment of installation. The items shall not be considered real property if the owner, when the owner is not the airport, retains title to the items after the purchase/installation indebtedness has been paid in full. Any operator of an airport, such as an airport authority, which is the lessee of the land on which the airport has its situs is, for the purposes of this sub- subparagraph, deemed the owner of such land. Real property used by an airline for purposes of loading or unloading passengers or property onto or from an aircraft which is exempt from tax includes: office areas used to process tickets, baggage processing areas, operations areas used for the purpose of the operational control of an airline's aircraft, and air cargo areas. If any portion of the above property is used for any other purpose, it is taxed on a pro- rata basis, which shall be determined by the square footage of the portions of the areas in the airport that are used by an airline exclusively for the purpose of loading or unloading passengers or property onto or from aircraft (which areas shall be the numerator) compared to the total square footage of such areas used by the airlines (which areas shall be the denominator). Example: An airline leases a total of 3,000 square feet from an airport authority. The airline uses the space as follows: 1,000 square feet are used to process tickets and check in the passengers' luggage; 1,000 square feet are used for the passengers' departure lounge; and 1,000 square feet are used for the management office and the employees' lounge. The 1,000 square feet used to process tickets and check in the luggage is exempt; the 1,000 square feet used as a passengers' departure lounge is also exempt; and the 1,000 square feet used as the management office and employees' lounge is taxable. Therefore, a total of 2,000 square feet is exempt because that portion of the total space leased by the airline is used exclusively for the purposes of loading or unloading passengers or property onto or from an aircraft. However, the total amount used as office space and the employees' lounge (i.e., 1,000 square feet) is taxable, because that portion of the space leased by the airline is not used exclusively for the purposes of loading or unloading passengers or property onto or from an aircraft. Real property used for fueling aircraft is taxable when the fueling activities are conducted by a lessee or licensee which is not an airline. However, the charge made to an airline for the use of aprons, ramps, or other areas used for fueling aircrafts is exempt. From July 1, 1990, through June 30, 1991, property used at an airport to operate advertising displays in any county as defined in s. 125.011(1), F.S., was exempt from tax.>> * * * (b)1. A person providing retail concessionaire services involving the sale of food or drink or other tangible personal property within the premises of an airport shall be subject to tax on the rental of such real property. 2. However, effective July 1, 1987, a person providing retail concessionaire services involving the sale of food and drink or other tangible personal property within the premises of an airport shall not be subject to the tax on any license to use such property. For purposes of this subparagraph, the term "sale" shall not include the leasing of tangible personal property. <<3. For purposes of this rule, the term "retail concessionaire," which may be either a lessee or licensee, shall mean any person .. . who makes sales of food, drinks, or other tangible personal property directly to the general public within the premises of an airport. With regard to airports, any persons which contract to service or supply tangible personal property for airline operations are considered to be providing aircraft support services and are not concessionaires for purposes of this rule.>> * * * The provisions of this rule relating to the license to use, occupy, or enter upon any real property are effective July 1, 1986, unless other- wise noted. "Real property" means the surface land, improvements thereto, and fixtures, and is synonymous with "realty" and "real estate." "License," with reference to the use of real property, means the granting of a privilege to use or occupy a building or parcel of real property for any purpose. <<1. Example:>> [[(g)]] An agreement whereby the owner of real property grants another person permission to install and <<operate>> [[maintain]] a full service coin-operated vending machine, coin- operated amusement machine, coin-operated laundry machine, or any like items, on the premises is a [[taxable]] license to use real property. The consideration paid by the machine owner to the real property owner <<for the license to use the real property>> is taxable. . . . <<2. Example:>> [[(h)]] An agreement between the owner of real property and an advertising agency for the use of real property to display advertising matter is a [[taxable]] license to use real property. <<The consideration paid by the advertising agency to the real property owner for the license to use the real property is taxable.>> * * * (4)(a)<<1.>> The tenant or person actually occupying, using, or entitled to use any real property from which rental or license fee is subject to taxation under s. 212.031, F.S., and shall pay the tax to his immediate landlord or other person granting the right to such tenant or person to occupy or use such real property. <<2. Where the lessor's or licensor's ability to impose fee(s) is based on its ownership or control of the real property, and the payment made to the lessor or licensor is for the lessee's or licensee's use of the real property, such fees are subject to tax. In such circumstances, the total payment for the use of real property, including airport property, is taxable, irrespective that the payment or a portion of the payment may be identified as consideration for the privilege to do business at that location, privilege fee, guaranteed minimum, concession fee, percentage fee, or by the use of similar terms which seek to distinguish such portion(s) from the payment for the lease of or license to use such real property for any purpose, unless such lease or license is otherwise specifically exempt. Example: A clothing retailer occupying a location inside a mall has an agreement with the owner of the mall under which it pays a minimum rent plus a percentage of its gross sales for the right to operate its store at that location. The agreement characterizes the minimum rent as consideration for the lease of designated real property and the percentage of gross sales as consideration for the privilege to do business in the mall; failure to make any of these payments can cause the agreement to be terminated. The total amount required under the agreement is subject to tax, regardless of how the consideration, or a portion thereof, is characterized. Example: A push cart or kiosk vendor has an agreement with the owner of the mall under which it pays a minimum rent plus a percentage of its gross sales for the right to sell its merchandise at various locations within the common areas of the mall. Failure to make the payments can terminate the right to sell merchandise in the mall. The total amount under the agreement is subject to tax because the statute defines a taxable license as the granting of the privilege to use real property for any purpose, including the privilege to use the real property to do business. Example: A car rental company has an agree- ment with an airport authority to operate its rental car business with a designated office and counter space within the airport terminal building. The agreement provides for a payment designated as rent for the use of real property as well as a payment based on a percentage of gross sales designated as a privilege fee for engaging in business at the airport. Failure to make either payment can terminate the agreement. The total amount required under the agreement is subject to tax. All past declarations, including Temporary Technical Assistance Advisements issued pursuant to Emergency Rule 87AER-91, Technical Assistance Advisements, Letters of Technical Assistance, and similar correspondence, issued by the Department, which advised that fees or portions of fees identified as privilege fees to engage in business were exempt, and which are inconsistent with this rule are rescinded. Therefore, such privilege fees are taxable payments for a lease or license to use real property for business purposes. (b) Except for tolls charged to the travelling public, both commercial and non- commercial, imposed exclusively for the right to travel on turnpikes, expressways, bridges, and other public roadways, the full consideration paid for the license to use airport real property for the purpose of picking-up or dropping-off passengers and baggage from airport sidewalks, landings, and other facilities by any person providing ground transportation services to such airport, shall be taxable as a license to use airport real property, irrespective of whether the operator of such service enters the airport terminal building while engaged in providing such service. Example: The fee paid by a hotel to an airport, for the privilege of coming on the airport property for the purpose of picking-up and dropping- off its guests at the airport terminal, is a license to use airport real property, and is taxable. Example: The fee paid by a taxicab and limousine company to an airport, for the privilege of coming on the airport property for the purpose of picking-up and dropping- off its passengers at the airport terminal, is a license to use airport real property, and is taxable. Example: The fee paid by a remote location rental car company, for the privilege of using the airport premises to pick-up and drop-off its customers at the airport terminal, is a license to use real property, and is taxable.>> Note: In the above text, language added to the statute is within the <<>>; deleted language is within the [[]]. Statutes and Legislative History As amended by 66, Chapter 86-152, Laws of Florida, Section 212.031 states: (1)(a) It is declared to be the legislative intent that every person is exercising a taxable privilege who engages in the business of renting, leasing, [[or]] letting<<, or granting a license for the use>> of any real property unless such property is: * * * Note: In the above text, language added to the statute is within the <<>>; deleted language is within the [[]]. Section 212.02(10)(h) defines "real property" as "the surface land, improvements thereto, and fixtures, and is synonymous with 'realty' and 'real estate.'" The 1986 amendments extend the sales tax to licenses for the use or occupancy of real property. Section 212.02(10)(i) defines "license." "License," as used in this chapter with reference to the use of real property, means the granting of a privilege to use or occupy a building or a parcel of real property for any purpose. Section 212.031 imposes a sale tax for the use and occupancy of real property, but not upon payments for intangibles, such as a franchise, concession, or other privilege to do business. The sales tax imposed by Section 212.031 is limited to the payments, or portions of payments, for the use or occupancy of real property. Each of the ten subsections under Section 212.031 exempts from the sales tax various types of property. Three exemptions relevant to these cases are at Section 212.031(1)(a)6, 7, and 10, which exempt real property that is: 6. A public street or road which is used for transportation purposes. 7. Property used at an airport exclusively for the purpose of aircraft landing or aircraft taxiing or property used by an airline for the purpose of loading or unloading passengers or property onto or from aircraft or for fueling aircraft or, for the period July 1, 1990, through June 30, 1991, property used at an airport to operate advertising displays in any county as defined in s. 125.011(1). Leased, subleased, or rented to a person providing food and drink concessionaire services within the premises of [[an airport,]] a movie theater, a business operated under a permit issued pursuant to chapter 550 or chapter 551, or any publicly owned arena, sport stadium, convention hall, [[or]] exhibition hall<<, auditorium, or recreational facility. A person providing retail concessionaire services involving the sale of food and drink or other tangible personal property within the premises of an airport shall be subject to tax on the rental of real property used for that purpose, but shall not be subject to the tax on any license to use the property. For purposes of this subparagraph, the term "sale" shall not include the leasing of tangible personal property.>> Note: In the above text, language added to the statute is within the <<>>; deleted language is within the [[]]. The indicated changes in subparagraph 10 were enacted by 10, Chapter 87-101, Laws of Florida. The remaining statutes cited by Respondent as law implemented by the Proposed Rules are not relevant to this proceeding. Court Decisions In Quick and Havey v. Department of Revenue, Case No. 72-363, Second Judicial Circuit, decided December 5, 1974, Donald O. Hartwell, Circuit Judge, entered a summary judgement in favor of Respondent. Quick and Havey operated a food concession at the municipal auditorium in West Palm Beach. In return for the concession, they agreed to pay the city base rental and a percentage of gross sales. The agreement entitled Quick and Harvey to the exclusive occupancy of part of the auditorium; they also provided concession services at other locations throughout the auditorium. Quick and Harvey paid the sales tax on the base rental, but argued that the percentage payment constituted "a fee paid for the exercise of a privilege." Judge Hartwell held that the tax applied to the base rent and percentage rent because the latter payments "are so inextricably entwined and enmeshed in the agreement to pay rent that they cannot be separated or distilled . . .." Judge Hartwell reasoned that rent is the "compensation paid for the use and occupation of real property." Recognizing that a tenant might make payments to its landlord that are not rent, Judge Hartwell found that at least under the terms of the instruments before it for construction and analysis that there has not been such a sufficient separation of the source of these funds as to warrant their classification solely as a fee for the exercise of a privilege. The right to use property cannot be separated from the property itself. We, of course, do not pass upon the question of whether the so-called concession rights can be [illegible] separated from the lease of the property itself. Suffice it to say that under the facts as herein presented, the Court is of the opinion that all payments made to the City of West Palm Beach under the agreement before the Court constitute payment of rent and are therefore subject to the tax specified in Section 212.031, Florida Statutes. In Avis Rent-A-Car System, Inc. v. Askew, Case No. 74- 338, Second Judicial Circuit, decided January 20, 1977, Judge Hartwell decided whether certain payments made by Avis were taxable under Section 212.031. Avis had "entered into various contracts for a concession or license to do business at various airports and for the rental of real property," as well as contracts with private individuals for the rental of real property to conduct business at nonairport locations. Judge Hartwell divided the contracts of Avis into three categories. The first type of contract was for the payment of rental for the use real property. The second type of contract was for the payment of a concession fee for the right to do business on the premises and for the payment of a sum explicitly identified as rent for the use of real property. The third type of contract was for the payment of a concession fee for the right to do business on the premises and for the use of real property without a sum explicitly identified as rent. Judge Hartwell concluded that all payments for the rights conveyed by the first type of contract were taxable under Section 212.031. He ruled that the payments for the right to rent real property under the second type of contract were taxable, but the payments for the remaining rights were not. Declining to aggregate payments as he had in Quick and Havey two years earlier, Judge Hartwell ruled that the payments for the rights conveyed by the third type of contract required a "reasonable allocation." The allocation was between the payments for the use of real property, which were taxed, and the remaining payments, which were not. Judge Hartwell ordered that the allocation should be based on rental rates charged for the right of occupancy of the real property charged other tenants for comparable space. In a per curiam decision not yet final, the Fifth District Court of Appeal recently considered the taxation of concession fees in Lloyd Enterprises, Inc. v. Department of Revenue, 20 Fla. Law Weekly D552 (March 3, 1995). The findings of fact and conclusions of law in this final order do not rely upon Lloyd Enterprises, which is discussed merely as supplemental material. In Lloyd Enterprises, the taxpayer entered into a concession agreement with Volusia County for the rental of motorcycles at the beach. A fixed- location concessionaire, the taxpayer had the right to park its vehicles within 100 feet in either direction of its assigned spot during its assigned operating hours. Other concessionaires were allowed to roam the beach, but beach rangers would enforce the taxpayer's exclusive right to sell goods within its 200-foot territory if the free- roaming concessionaires parked or tried to sell goods in this territory. Rejecting Respondent's interpretation of its own rules, the court considered the language of the agreement, as well as a county ordinance incorporated by the agreement. The court held that neither document created a lease or license for the use of real property. Rather, they reflected the County's concern with the image that activities on the beach projected to visitors. The documents evidenced the County's intent to enhance the public's enjoyment of the beach through the provision of goods and services, as well as to raise revenue, mostly to defray cleanup costs at the beach. Thus, under the documents, the payments were nontaxable concession fees. Agency Interpretations Interpretations of Law Prior to Proposed Rule Amendments By letter dated May 14, 1968, Mr. J. Ed Straughn, Executive Director of Respondent, advised Mr. Wilbur Jones that tax is due on the space rented to car rental companies in any airport building. If the agreement makes no allocation between rental and nonrent payments, Respondent would require a "reasonable allocation" between rent and other payments with the tax due only on the amount paid for the right of occupancy. Mr. Straughn suggested that the rent component be estimated by the use of comparable rental rates for space elsewhere in the building. By letter dated August 14, 1985, Mr. Hugh Stephens, a Technical Assistant for Respondent, advised Mr. Victor Bacigalupi that a contract between an advertising company and Dade County, concerning advertising at Miami International Airport, did not involve the rental of real property. Mr. Stephens evidently relied on the nonexclusive right of posting advertising displays and the right of Dade County to require the advertiser to relocate or remove displays. By memorandum dated October 28, 1986, Mr. William D. Townsend, General Counsel, proposed policy for the taxation of licenses. Consistent with the Straughn letter 18 years earlier, the memorandum, which is directed to Mr. Randy Miller, Executive Director, states: A license in real property can be defined as a personal, revocable, and unassignable privilege, conferred either by writing or orally, to do one or more acts on land without possessing any interest in the land. Every license to do an act on land involves the occupation of the land by the licensee so far as it is necessary to do the act. Example: A concessionaire pays for permission (a license) to sell hot dogs in the building of a wrestling arena. The concessionaire has no possessory interest in the building. He normally has no specifically or legally described area which is his. He is allowed simply to vend his hot dogs in the building. Perhaps he delivers and vends in the stands. Without special permission, he cannot assign his license and it is normally revocable by the licensor unless specifically agreed otherwise. . . . For purposes of F.S. 212.031, however, the Department of Revenue (DOR) takes the position that either a lease or license is present in any business arrangement in which one or more owners, lessors, sublessors, or other persons holding a possessory interest in real property, permits a third party to use such real property for authorized acts unless all of the facts and circumstances surrounding the agreement between the parties conclusively indicate that the agreement is neither a lease nor a license. The form in which the transaction is cast is not controlling. Accordingly, some portion of the consideration paid for an agreement that in form is a joint venture, profits interest, management agreement, franchise, manufacturer's discount, bailment or other arrange- ment will be presumed by the DOR to be allocable to a lease or license if the arrangement involves the use of real property to perform authorized acts by the lessee or licensee. If the terms of the agree- ment are silent with respect to the portion of the consideration allocable to the inherent lease or license or if the consideration allocated under the terms of the agreement is less than its fair market value, the DOR will allocate to the lease or license a portion of the consideration that is equal to the fair market value of the lease or license. Contrary to the Straughn letter and Townsend memorandum eight months earlier, Technical Assistance Advisement 87A-011 dated July 2, 1987, which was prepared by Mr. Melton H. McKown, advised the Hillsborough County Aviation Authority that the privilege fees paid by car rental companies to the aviation authority were taxable. The agreement between the parties stated that the fees were "for the concession privileges granted hereunder, and in addition to the charges paid for the Premises .. ., [the car rental company] shall pay a privilege fee " Two months later, Temporary Technical Assistance Advisement TTAA 87(AER)-225 reversed TAA 87A-011. In TTAA 87(AER)-225, which is dated September 10, 1987, Ceneral Counsel William Townsend informed Mr. Samuel J. Dubbin that the payments made to airport authorities from concessionaires are "not for the right to use real property, but are for the right to engage in business at the airport." The letter relies upon Avis Rent-A- Car Systems, Inc. v. Askew. Respondent confirmed TTAA 87(AER)-225 in TTAA 88(AER)- 198, which is dated March 24, 1988, and in a letter dated April 6, 1989, from Mr. Robert M. Parsons, Technical Assistant, to Mr. Thomas P. Abbott. The April 6 letter confirms that payments from on- airport rental car companies are taxed only to the extent that the payments represent rent for space on airport property and not to the extent that the payments represent consideration for the privilege to do business. The April 6 letter adds that the payments from off-airport car rental companies for the right to pick up customers at the airport are not taxable because such payments are merely consideration for the privilege to engage in business. The April 6 letter discusses fees paid by other airport concessionaires. Acknowledging the recent enactment of the statutory exemption for license payments made to airports by food and drink concessionaires, the letter notes that, after July 1, 1987 (the effective date of the statutory changes), such payments, even if calculated as percentages of sales, are not taxable because such payments are construed as payments for a mere privilege or license to engage in business. The April 6 letter evidently marks the first time that, in a single document, Respondent inconsistently treats car rental company concession fees and all other concession fees. The April 6 letter adopts the Straughn/Townsend approach when it states that percentage rent is not taxable because it is payment for the privilege to do business. (The letter actually states "privilege or license" to do business, and this alternative use of "license," not involving the use or occupancy of real property, may have caused part of the confusion.) But the assurance of nontaxability of concession fees in the April 6 letter is limited to the period after July 1, 1987. Consistent with the McKown approach, the letter relies on the relatively recent statutory exemption for license payments from airport retail concessionaires. Consistent with the McKown approach, the letter later adds that percentage rent was taxable after the legislature amended Section 212.031 to tax payments for a license to use real property. The April 6 letter concludes erroneously that it is treating all airport concessionaires like on-airport car rental companies. In a Notice of Decision dated July 28, 1992, Respondent addressed the taxation of payments to airport authorities from car rental companies. Under a concession agreement, the airport charged a car rental company a fixed rent for occupied airport space, such as for parking, check-in, and service. Under the same agreement, the airport also charges the car rental company the greater of a guaranteed minimum or percentage of gross revenues. Taking the Straughn/Townsend approach, the Notice of Decision reversed a tentative assessment and held that the additional payments were not taxable. The July 28, 1992 Notice of Decision also addresses the taxation of percentage payments to airport authorities from other concessionaires. Explicitly endorsing the inconsistency of the April 6 letter, Respondent determined that percentage payments from concessionaires other than rental car companies were taxable either as leases or, since July 1, 1986, as licenses. The only explanation offered for the inconsistent treatment of concessionaires is that TTAA 87(AER)-225 applies only to rental car companies. Two years later, as reflected in a March 3, 1994 internal memorandum from Ms. Nydia Men,ndez to two Miami auditors, Respondent continued to perpetuate its inconsistent policy of taxing all payments for the privilege of engaging in business at airports, except for such payments from rental car companies. Returning to advertising, the July 28, 1992, Notice of Decision also states that the payments from the advertiser addressed in the letter dated August 14, 1985, have been taxable, as payments for a license, since July 1, 1986. This conclusion represents the correct treatment of licenses, as another means of granting a right to use or occupy real property. This treatment contrasts with the apparent misinterpretation in the April 6 letter that taxable licenses include grants of privileges to do business. In an early attempt to revisit the tax treatment of payments for concessions, franchises, and other privileges to do business, especially at airports, Respondent evidently chose the Quick and Havey and McKown approach that such business payments are taxable, at least when they are combined with taxable payments for the use or occupancy of real property. By memorandum dated January 14, 1993, from Assistant General Counsel Jeff Kielbasa to Ms. Lorraine Yoemans, Legislative Affairs Director, Mr. Kielbasa explained the purpose of unidentified proposed rule amendments addressing the same issues addressed by the subject proposed rule amendments. He wrote: The proposed rule amendment attempts to level the field by recognizing that any charge for the right, privilege, or license to do business at an airport is fundamentally a charge for the privilege to use or occupy land. If an airport business refuses to pay the fee, the airport's remedy is to have the business removed as a trespasser. It should be pointed out that we are not concerned with true business licenses or privilege fees attendant to use of trademarks, franchises and the like. These are licenses or privilege fees unrelated to the use of real property. The proposed rule does not differentiate between businesses such as on-airport car rental companies (with counterspaces) and off-airport car rental companies. The fee (however characterized) charged by the airport for the privilege to use or occupy the airport for business purposes is subject to the section 212.031 sales tax. See section 212.02(10)(i) defining license with reference to the use of real property as the "privilege to use or occupy a building or parcel of real property for any purpose." We believe that separation of a payment by characterizing one portion as a lease or license of realty (whether site specific or not) and another for the privilege of conducting business on the premises is artificial. It would be just as easy for the property owner on the corner of College and Monroe to charge a business tenant the average commercial square footage rental in Leon County for the lease and require the tenant to pay the premium attributable to the location at College and Monroe as a separate charge in the form of a license to do business. However carved up and characterized, under the statute each charge would be taxable since both leases and licenses to use real property are taxable. Interpretations of Proposed Rule Amendments On April 14, 1994, Respondent conducted a workshop on the proposed rule amendments prior to the modification published June 10, 1994. Respondent's representatives were understandably reluctant to opine on questions of law without detailed facts. However, explaining the tax consequences of payments from a concessionaire to an airport, Assistant General Counsel Kielbasa stated: I think the notion that there is a separate privilege fee that an airport charges unrelated to the fact that the privilege is being granted to function at the airport, I don't think that's what's happening. I think it's a very simple case, and I think it's very clear. But there may be separate provisions in contracts or lease agreements which have nothing to do with operating at that location, and to that extent, I don't think it would be subject to tax at all under the statute, and that's what we're trying to get at. Respondent's Exhibit 1A, pages 33-34. A major element of the dispute between Respondent and Petitioners and Intervenors (collectively, Petitioners) concerned Respondent's choice to take the Quick and Havey and McKown approach over the Avis and Straughn/Townsend approach in taxing mixed payments for the use of real property and for business intangibles. Following the rule workshop, Respondent made some Avis and Straughn/Townsend changes to the proposed rules, but the changes did not preclude a Quick and Havey and McKown approach, as evidenced by the following statement in the Prehearing Stipulation: "The Department contends that where the amount paid for a privilege fee is so intertwined or meshed with a payment for a license or lease to use real property that it cannot be separated, the full amount is taxable." Airports and Concessions Governmental entities operate and typically own large commercial airports, such as those in Orlando, Miami, and Tampa. By law, these airport authorities are empowered to enter into contracts with third parties to supply persons using airports with goods and services, such as food and beverage, retail sales, and car rentals. In some cases, airport authorities may obtain services by management agreements, which are not subject to sales tax. In most cases, though, airport authorities obtain goods and services for airport visitors by leases and grants of concessions, franchises, or other privileges to do business. The Dictionary of Real Estate Appraisal defines "concession" as "a franchise for the right to conduct a business, granted by a government body or authority." The Dictionary of Real Estate Appraisal defines "franchise" as "a privilege or right that is conferred by grant to an individual or group of individuals; usually an exclusive right to furnish public services or to sell a particular product in a certain community." By what are normally labelled "concession" or "franchise" agreements, airport authorities permit a concessionaire to operate a business with some nexus to the airport or at least its passengers, in return for which the concessionaire pays money to the airport authority. The nexus to the airport may take various forms. Some concessionaires sell food or drink or retail merchandise at exclusively assigned locations within the airport terminal. Hotel concessionaires operate hotels at fixed locations in the terminal. Some concessionaires, like taxi companies and nonairport hotels, pick up and drop off passengers at the airport terminal in areas designated for such purpose, but not reserved exclusively for any one concessionaire. An on-airport car rental concessionaire rents cars at the airport, using fixed counter space, parking areas, car service areas, and car pick-up and drop-off areas. A variation of the car rental concession is the off- airport car rental concessionaire, which has no fixed space at the airport except for customer pick-up and drop-off areas and usually counter space. In Florida, all off-airport rental car companies use their own vans to pick-up and drop-off customers. At some airports outside Florida, such as Sacramento, Dallas, and Minneapolis, the airport authorities operate their own vans to pick up and drop off customers of off-airport rental car companies. In such cases, the off-airport rental car companies do not directly use or occupy any of the real property of the airport. In general, the payments from the concessionaires to the airport authorities consist of two categories. First, there is a fixed payment, which the concession agreement typically characterizes as consideration for the use and occupancy of real property. The airport authority normally bases this rental payment on the fair market value of the space leased, as estimated by a licensed real estate appraiser, or under a cost-based formula. Second, there is a payment representing a percentage of the gross revenue of the concessionaire derived from airport business. The concession agreement typically characterizes this payment as consideration for the privilege to do business with airport passengers. Rents typically exceed $50 per square foot per year. Most, but not all concessionaires, make total payments of considerably more that $50 per square foot per year, often totalling hundreds and sometimes thousands of dollars. In entering into concession agreements, airport authorities pursue a variety of goals. They must produce high revenues because airport authorities do not operate on public subsidies, aside from the monopoly grant of the airport operation itself. But high returns from concessionaires are not the only goal. Airport authorities must serve airport visitors in order to maintain successful relations with the airlines. And airport visitors demand a mix of goods and services at acceptable prices and quality. In selecting concessionaires and pricing concession fees, airport authorities therefore balance maximizing revenues with serving visitors' needs. Airport authorities price concession fees based on the type of goods and services offered by the concessionaire. A bank at one major Florida airport pays six times the concession fees of a travel agency, which occupies space of equal size next to the bank. At the same airport, one theme-park retailer pays concession fees of more than three times what another theme-park retailer pays for the identical space. In the typical concession arrangement, the airport authority receives payments consisting of rent and "something else." The rent is attributable to the use and occupancy of real property. The "something else" is business income, which is attributable to an intangible business asset, such as a franchise, concession, or privilege to do business. Like any other lessor, airport authorities undertake, in their concession agreements, to provide their lessees with offices or retail space for their use and occupancy. Unlike other lessors, however, airport authorities also undertake, in their concession agreements, to provide nearly all of the concessionaire's customers through operating agreements with airlines. Through concession agreements, airport authorities allow concessionaires to share in the authority's most valuable asset, which is not the real property comprising the airport, but the exclusive, governmental franchise to operate the airport. In these regards, airport authorities are in very similar roles to the county in Lloyd Enterprises with the subjects of the government monopoly being in one case a beach and another an airport. Both governmental "owner/operators" provide customers for their respective concessionaires and predicate their agreements upon the ability of the contracting party to supply the needs of the customers in a manner that does not compromise the public asset--i.e., an airport or a beach. These elements are not typical of a lessor or licensor. To varying, lesser degrees, airport authorities also distinguish themselves from mere lessors through the marketing, management, working capital, and workforce that characterize the airport operation. Respondent's key witness identified four factors useful in determining whether a payment is for the use or occupancy of real property: the relationship of the parties to the real property, the use to be made of the real property, the rights granted the parties under the agreement, and the basis for the payment or charge for the real property. These four factors assist in the determination whether a payment is for the use or occupancy of real property. But the usefulness of the four factors is limited because they do not directly address the other possible component of a mixed payment, which is a payment for a franchise, concession, or other privilege to do business. It is easy to determine that concessionaire payments typically comprise rent or some other payment for the use and occupancy of real property plus a payment for an intangible, such as the privilege to do business with airport users. Obviously, Respondent is not required to accept the parties' labelling or allocations of these payments. But it is difficult to determine how much of a mixed payment is for the use or occupancy of real property, which is taxable (ignoring, as always, the special treatment of certain airport license payments, as well as other exemptions), and how much is for a privilege to do business, which is nontaxable. The issue is whether a "reasonable allocation" is possible between the two components in a mixed payment. As ordered in Avis and suggested by the Straughn letter and Townsend memorandum, the allocation process should begin with finding a fair rental value. It is difficult to estimate the fair market rent for space in a large commercial airport. The universe of comparables is small due to the uniqueness of major airports. But the appraisal of airport real property is not impossible. Nonairport comparables normally exist that, with suitable adjustments, yield reasonable approximations of fair market rentals. A real estate appraisal helps determine how much of a concessionaire's payment should be characterized as rent. However, the allocation problem can be approached at the same time from the opposite end. In appraising business assets, an accountant or business appraiser estimates the value of the concession, franchise, or other privilege to do business with airport visitors. The business-income approach to the allocation problem is aided by analysis of the payments made by completely off- airport car rental concessionaires in Sacramento, Minneapolis, and Dallas. These payments provide a rough approximation of the value of this intangible, even though they probably require major adjustments to reflect, among other things, differing passenger counts and demographics, as well as the costs incurred by the airport authorities in providing transportation to the off- airport sites. Based on the foregoing, the record demonstrates that: a) the payments of a concessionaire to an airport authority ordinarily consist in part of rent or license payments and in part of payments for an intangible, such as a franchise, concession, or other privilege to do business and b) these payments may be allocated, with reasonable precision, between the real property and business components. The Proposed Rules Proposed Rule 12A-1.070(4)(a)2 and (b) Rule 12A-1.070(4)(a)1. is not materially changed by the proposed rule amendments. Consistent with the statute, this paragraph of the rule merely imposes the sales tax in taxable transactions on the person actually occupying, using, or entitled to use the real property and requires that such person pay its immediate landlord or grantor. The next subparagraph is new. Proposed Rule 12A- 1.070(4)(a)2 contains two introductory sentences followed by three examples and a notice. The first sentence of Proposed Rule 12A-1.070(4)(a)2 fairly interprets the statute. The first sentence states that the sales tax is due on payments made to lessors or licensors when the payment is for the use of the real property and is based on the ownership or control of the real property by the lessor or licensor. By limiting the tax to those payments based on the payee's interest in the real property, the proposed rule ensures that the tax is imposed only on the portion of the payment attributable to the use or occupancy of real estate. The first sentence is unobjectionable. The second sentence of Proposed Rule 12A-1.070(4)(a)2 is no more controversial. This sentence provides that the "total payment for the use of real property" is taxable, even though the payment or part of the payment "may be identified" as payment for a privilege to do business. The use of "may be identified" in the "even though" clause refers to the label given such payments by the parties. The second sentence of Proposed Rule 12A-1.070(4)(a)2 merely provides that the taxable consequence of the transaction is not governed by the label given the payments by the parties. In other words, just because the parties use "concession fee," "privilege fee," "percentage fee," or "similar terms" does not necessarily make them payments for the privilege to do business. The second sentence assures that Respondent will not be deterred by mere labels from its lawful responsibility to characterize properly the nature of the payments, and make reasonable allocations when allocations are indicated. The three examples under Proposed Rule 12A-1.070(4)(a)2 are neither illustrative nor useful. To the contrary, they are vague and misleading and appear to reveal a misunderstanding of the proper taxation of mixed payments consisting of rent and payments for a privilege to do business. The first example is Proposed Rule 12A-1.070(4)(a)2.a. A clothing retailer occupies a location in a shopping mall. The retailer pays the mall owner minimum rent plus a percentage of gross sales. The agreement characterizes the minimum rent as consideration for the lease of designated space and the percentage of sales as consideration for the privilege to do business in the mall. The failure to pay either amount is grounds for termination of the agreement. The proposed rule concludes: "The total amount required under the agreement is subject to tax, regardless of how the consideration, or a portion thereof, is characterized." In fact, both payments made by the retailer to the mall owner may constitute taxable payments for the use of real property. Supplying little useful information as to how to determine the true character of payments, the proposed example ignores all of the important factors necessary in making this determination. The proposed example overrides the characterization of the payments by the parties. As discussed above, the parties' labelling of a payment may be tax-motivated, but it may also reveal their true intent. However, the proposed example offers insufficient explanation why it ignores the label of "privilege to do business" at the mall. The only possible grounds for ignoring the label are that the retailer occupies a location inside a mall under which it pays minimum rent and percentage rent and a default in the payment of either amount is grounds for terminating the agreement. The first basis is only that the payments are mixed and, except under the most strained reading of Quick and Havey, cannot, without more, possibly be considered justification for taxing the total payments. The key factor in the first proposed example is thus the presence of a cross-default clause. Such a clause may play a role in distinguishing between payments for the use of real property and other types of payments. In certain cases, the total amount actually being paid for the use of the real property may include all payments that must be paid in order for the agreement to remain in good standing. This would likely be true of base rent and additional rent, consisting of a lessee's prorata share of insurance, taxes, maintenance, and utilities. However, there is nothing in the record to suggest that a cross- default clause is of such importance as to confer upon it the status that it is given in the rule example. Nothing in the record supports the assertion that all cross-defaulted payments are therefore payments for the use or occupancy of real property. For instance, Respondent concedes that a lessee/payor might be obligated under a lease to make taxable payments of rent and nontaxable payments of promotional fees, such as for the use of logos or other intangibles. It is conceivable that a prudent (and powerful) lessor/payee might provide in the agreement, even if called a "lease agreement," that a default in either payment is grounds for terminating the agreement. Even so, the mere existence of such a cross-default clause does not, without more, transform the promotional fee into rent. The proper characterization of the two payments under the first proposed example requires consideration of, among other things, the four factors identified by Respondent's key witness: the relationship of the parties to the real property, the use to be made of the real property, the rights granted the parties under the agreement, and the basis for the payment or charge for the real property. The proper characterization requires consideration, in some fashion, of the elements that distinguish a real property asset from a business asset, such as any contributions by the mall owner in the form of operating agreements, other leases, marketing, management, working capital, and workforce, as well as the method by which the mall owner decides with whom it will enter into agreements and the total payments that it will require. The second example is Proposed Rule 12A-1.070(4)(a)2.b. A push cart vendor pays a mall owner minimum rent plus a percentage of gross sales for the right to sell merchandise at various locations within the common area of the mall. The mall owner may terminate the agreement if the vendor fails to make either payment. The example concludes that both payments are taxable "because the statute defines a taxable license as the granting of a privilege to use real property for any purpose, including the privilege to use real property to do business." The only difference in the first two examples is that the second involves a license and the first involves a lease. Like the example of the mall retailer, the example of the push cart vendor elevates the cross-default provision to outcome-determinative status. Again, the record does not support such reliance upon this factor for the above-discussed reasons. The third example is Proposed Rule 12A-1.070(4)(a)2.c. A car rental company pays an airport authority for designated office and counter space in the terminal. The agreement identifies a payment as rent for the use of real property. The agreement also identifies a payment, representing a percentage of gross sales, as a privilege fee for the right to engage in business at the airport. Failure to make either payment is grounds for terminating the agreement. The example concludes that the "total amount required under the agreement is subject to tax." As with the preceding examples, the example of the airport car rental company relies upon a cross-default clause to characterize all payments as for the use of real property. Again, for the reasons stated above, the record does not support such reliance upon this single factor. The three examples make no "reasonable allocation" between the real property and business components of what are probably mixed payments. Best revealed by the last sentence of the second example, the examples illegitimately transform business payments into real property payments simply because the business payor uses or occupies real property to conduct its business. In reality, the three examples seek to find their way back to the haven of Quick and Havey by equating cross-default clauses with inextricable intertwining and enmeshment. It is only conjecture whether a court would today so readily abandon an attempt to allocate between real property and business income. In any event, the present record demonstrates that "reasonable allocations" are achievable and require consideration of much more than cross- default clauses. Respondent's defense of the examples is inadequate. Respondent argues that the examples are modified by the language of Proposed Rule 12A- 1.070(4)(a)2. As previously stated, the two sentences of Proposed Rule 12A- 1.070(4)(a)2 represent a fair restatement of the statutory taxing criteria. But the role of the two examples is to illustrate the application of Proposed Rule 12A-1.070(4)(a)2, not provide a circular restatement of the rule and, thus, the statute. Given their language, the proposed examples stand alone and cannot be saved by the implicit incorporation of the first two sentences of Proposed Rule 12A- 1.070(4)(a)2. Standing alone, the illustrations are erroneous in their reliance on cross-default clauses, misleading in their omission of material factors required for any reasonable allocation, and misguided in their implicit bias against making allocations between payments for real property and business components. Respondent claims that the examples create presumptions that a taxpayer may rebut. This claim is dubious on two counts. First, Respondent's key witnesses disagreed on whether the presumptions created by the examples were indeed rebuttable. One witness testified clearly that, if a nonexempt transaction fit one of the examples, then the transaction was taxable. Nothing in the examples suggests that these presumptions are rebuttable. But the examples do not work even if they establish only rebuttable presumptions. The cross-default provision cannot bear the burden even of creating a rebuttable presumption. A cross-default provision is simply not that important to the proper characterization of the payments, especially in light of far more important factors. Proposed Rule 12A-1.070(4)(a)d warns taxpayers that all past declarations, including technical assistance advisements, that "advised that fees . . . identified as privilege fees to engage in business were exempt, and . . . are inconsistent with this rule" are rescinded. Proposed Rule 12A- 1.070(4)(a)d concludes: "Therefore, such privilege fees are taxable payments for a lease of license to use real property for business purposes." Respondent's key witness could not identify with certainty the past declarations rescinded by Proposed Rule 12A-1.070(4)(a)d or the past declarations left unaffected. This leave the proposed rule unnecessarily vague, at least as to airport authorities. There are a limited number of airport authorities and concessionaires that could be relying on past declarations and, if there are any besides those uncovered in this proceeding, they should be easily found. Proposed Rule 12A-1.070(4)(b) identifies as a taxable license to use real property the "full consideration paid for the license to use airport real property for the purpose of picking- up or dropping-off passengers and baggage from airport sidewalks, landings, and other facilities" by any provider of ground transportation services, regardless whether the provider "enters the airport terminal building while . . . providing such service." The full payment for the real property component is taxable, and Proposed Rule 12A-1.070(4)(b) accurately interprets the statutes. However, Respondent again encounters problems in the three examples that follow Proposed Rule 12A-1.070(4)(b). In Proposed Rule 12A-1.070(4)(b)1, a hotel pays a fee to an airport authority for the privilege of coming onto airport property to pick up and drop off hotel guests at the terminal. The example states that the payment is taxable because it is for a license to use airport real property. The second and third examples are identical except they involve a taxicab and limousine company and an off-site car rental company. Proposed Rule 12A-1.070(4)(b) states the obvious-- i.e., that whatever the payor pays for the right to use or occupy real property is subject to sales tax. Proposed Rule 12A- 1.070(4)(b) does not require the characterization of all payments between such parties as taxable payments for the use or occupancy of real property. The problem with the proposed examples is that they depart from the real-property language of Proposed Rule 12A- 1.070(4)(b) and use the business language of a privilege to do business. The first example baldly provides that a fee paid by a hotel to an airport for the "privilege" to enter airport property and pick up and drop off hotel guests is a license to use airport property and is taxable. There is no mention of allocation or of the factors that would go into a reasonable allocation. The fee is taxable. The language and paucity of reasoning are practically identical for the second and third examples. Respondent argues that Proposed Rule 12A-1.070(4)(b) must be read in connection with the language of Proposed Rule 12A-1.070(4)(a)2, which restates the statutory language. This argument fails for two reasons. Like the examples under Proposed Rule 12A-1.070(4)(a)2, Proposed Rule 12A-1.070(4)(b) does not incorporate by reference the language of Proposed Rule 12A-1.070(4)(a)2. Respondent's argument of implicit incorporation is even weaker here because Proposed Rule 12A-1.070(4)(b) is not even a subparagraph of Proposed Rule 12A- 1.070(4)(a)2. The first set of proposed examples at least mentions a cross-default clause, which could have some bearing on the proper characterization of the payments, even though the omission of far more important factors invalidates the first set of examples. The second set of proposed examples fails even to mention a single factor. If the hotel, taxi cab company, or rental car company pays for the privilege of entering airport property to do business, the entire payment is taxable. Proposed Rule 12A-1.070(1)(a)6.b and c Proposed Rule 12A-1.070(1)(a)6.b provides that property "used by an airline exclusively for loading or unloading passengers onto or from an aircraft is exempt." The proposed rule identifies examples of such property as common terminal walkways used by passengers for boarding or exiting planes, ticket counters, baggage claim areas, ramp and apron areas, and departure lounges (but distinguished from VIP lounges or clubs that require a membership not determined by ticket status). Proposed Rule 12A-1.070(1)(a)6.c adds that "[r]eal property used by an airline for purposes of loading or unloading passengers or property . . . which is exempt from tax includes ... office areas used to process tickets, baggage processing areas, operations areas used for the purpose of the operational control of an airline's aircraft, and air cargo areas." Petitioners object to the use of "exclusively" in subparagraph b. The statute provides an exemption for property used exclusively for aircraft landing or taxiing or property used by an airline for loading or unloading persons or property or for fueling. Clearly, due to the repetition of "property used" in the second clause, the modifier "exclusively" applies only to the first clause, which is consistent with the doctrine of the nearest antecedent argued in Petitioner's proposed final order. It is unclear how Proposed Rule 12A-1.070(1)(a)6.b and c work together because they seem to define the same exempt property under different subparagraphs. Both subparagraphs apply to real property, and both seem to describe the same examples of real property, using different words. The subparagraphs under subparagraph b present reasonable rules for determining what is real property based on ownership of the underlying land, with a special rule when the airport authority leases, but does not own, the land on which the airport is situated. The subparagraphs under subparagraph c identify a prorating process, which applies when the property is used for both exempt and nonexempt purposes. It is unclear how property could be used for exempt and nonexempt purposes under the requirement of "exclusive" use in subparagraph b, although such mixed uses is contemplated by subparagraph c. The requirement contained in the first sentence of Proposed Rule 12A- 1.070(1)(a)6.b that the property be used exclusively for loading or unloading passengers conflicts with the language of Proposed Rule 12A-1.070(1)(a)6.c, as well as the language of Rule 12A-1.070(1)(a)6.a; neither of the latter two provisions predicates the exemption upon exclusivity of use. More importantly, the first sentence of Proposed Rule 12A- 1.070(1)(a)6.b conflicts with the relevant statutes. However, the remainder of Proposed Rule 12A- 1.070(1)(a)6.b, including subparagraphs (I) and (II), is a reasonable interpretation of the relevant statutes, as is Proposed Rule 12A-1.070(1)(a)6.c, including subparagraphs (I) and (II). Petitioners argue that Respondent intends to tax nonairline concessionaires for their use of property used for loading or unloading persons or property. This argument is unclear, perhaps because the unobjectionable proposed rules do not require such an application. Proposed Rule 12A-1.070(1)(b)3 Proposed Rule 12A-1.070(1)(b)3 defines "retail concessionaire" as either a lessee or licensee that makes sales directly to the public within an airport. The words "retail concessionaire" are not used elsewhere in the rule or proposed rules at issue except in Rule 12A-1.070(1)(b)1 and 2, which addresses "a person providing retail concessionaire services" involving the sale of food or drink or other tangible personal property in an airport. Subparagraph 1 imposes tax on rent paid by such persons, and subparagraph 2 exempts from tax any license payments made by such persons. Petitioners' arguments against the definitional proposed rule are misplaced. The definition covers lessees and licensees, but does not impose any tax. In conjunction with subparagraphs 1 and 2, the proposed definition of "retail concessionaire" says, in effect, that all lessees and licensees selling food and drink or other personal property are subject to tax on payments for the rental of associated real property, but are not subject to tax on payments for the licensing of associated real property. The subparagraphs that carry tax consequences honor the legislative directives as to taxability.
The Issue The issue in this case is whether Respondent, Parsec, Inc. ("Respondent" or "Parsec"), is liable to Petitioner, Yoandra Lopez Garcia ("Petitioner" or "Ms. Lopez Garcia"), for discrimination based on pregnancy.
Findings Of Fact Based on the demeanor and credibility of the witnesses, the documentary evidence admitted, and the record as a whole, the following facts are found: The Parties and Complaint Allegations Parsec is an intermodal transportation operator that contracts with railroads to load and unload shipping containers. Parsec hired Ms. Lopez Garcia on November 18, 2013, as an administrative clerk. At all times relevant to this proceeding, Petitioner held the position of Administrative Manager at Parsec’s Miami Terminal. On June 11, 2019, Petitioner filed a complaint, under penalty of perjury, with the Commission. Petitioner’s complaint claims, in its entirety: I am a female. I was discriminated against because of my gender (pregnancy). I began working for Respondent on November 23, 2013, as an Administrative Manager. I was given a promotion after being discriminated against. When I complained to the Regional Manager that individuals with no knowledge or seniority were given positions that I had applied for and I was never given an interview, the Regional Manager "offered" me the position. While I was in training and had fully trained someone else in my old position, I found out that I was pregnant. My supervisor, (Terminal Manager) demoted me without telling me and brought in a family member to occupy my position for no reason other than the fact that I was pregnant. I went out on maternity leave and my supervisor asked me if I was going to come back to work in my old position. I told him "no" and I felt I had no other choice but to quit my job. Parsec’s Structure Aside from Petitioner’s administrative position, the duties of which she performed inside the office, Parsec’s Miami Terminal also employed Gate Inspectors and Load Out Clerks, which were also categorized as office positions. Parsec’s operations also required a number of outdoor, or "yard" positions, including Ground Person/Tie-Down, Hitch Verifier, Driver, and Crane Operator. Finally, Parsec’s Miami Terminal had the following supervisory positions: Lead Man, Yard Supervisor, and Terminal Manager. The Terminal Manager position was the highest-level position at Parsec’s Miami Terminal. Mr. Bladen was Parsec’s General Manager. Mr. Fardales was the Regional Manager for Parsec’s Florida locations. Mr. Fardales had also worked as Parsec’s Terminal Manager in the Miami Terminal. At Parsec, it was not uncommon for employees to train for other positions in addition to their present job duties. If an employee voiced an interest in a different position or a promotion within the company, additional training was commonly accommodated. Petitioner’s Desired Promotion and Training In her role as Administrative Manager, Petitioner was the highest-level administrative employee in Parsec’s Miami terminal. However, because it was an administrative position inside the office, the Administrative Manager position was not eligible for promotion to higher-level supervisory positions at Parsec, which required training outdoors, or "in the yard." The Terminal Manager position at the Miami Terminal required overseeing all of the operations and personnel in the terminal, including office, gate, and yard operations. Additionally, the Terminal Manager had to have the necessary training, skill, and ability to physically perform the duties of all other positions in the yard. In order to sufficiently master all of the duties that were supervised and performed by the Terminal Manager, at least two years of experience in the yard was necessary. Around April of 2017, Petitioner went to lunch with Mr. Bladen and Mr. Fardales. During that lunch, Petitioner expressed her desire to become the Terminal Manager. Mr. Bladen and Mr. Fardales agreed to allow Petitioner to train in the yard to give her the opportunity to acquire the yard experience she would need to move up within the company. At that time, there was an open Yard Supervisor position at the Miami Terminal. Mr. Fardales intended to consider Petitioner for the Yard Supervisor position if she completed the requisite training. Petitioner was not promoted to, or offered, the Terminal Manager position. Her job classification of Administrative Manager at Parsec never changed. Petitioner was, however, allowed to train in the yard to give her the opportunity to earn a promotion in the future. In August of 2017, Parsec hired Ms. Ochoa, whom Petitioner recommended for the position, to assist Petitioner with her job duties in the office, thereby allowing Petitioner to train in the yard. Petitioner’s Pregnancy and Cessation of Training In September of 2017, Ms. Lopez Garcia learned that she was pregnant. Her testimony as to when she informed Mr. Fardales of her pregnancy was inconsistent. During the hearing, Petitioner first testified that she informed Mr. Fardales of her pregnancy in November, then she testified that she told him in the beginning of December, or a few days before he allegedly removed her from the training program. On October 6, 2017, an email was sent from Petitioner’s email account to Mr. Fardales, wherein Petitioner informed Mr. Fardales that she was changing her shift because she had an appointment for an ultrasound. Mr. Fardales testified credibly that he knew by that time that Petitioner was pregnant and assumed that the ultrasound was related to her pregnancy. Ms. Lopez Garcia testified that she may not have been the sender of the email, although it was from her account. Ms. Lopez Garcia also suggested that the ultrasound referenced in the email may not have been related to her pregnancy, but instead related to a completely different medical issue affecting her leg. Petitioner’s obstetrician, Dr. Aldabbagh, however, testified that Petitioner had an appointment with him on the date of the email, which included an abdominal ultrasound. Petitioner’s testimony on this topic was not persuasive when balanced with other, more credible, contradictory evidence. Ms. Lopez Garcia testified that Mr. Fardales called her into his office and told her that she would no longer be training in the yard, but would instead return to her duties inside the office. Petitioner further testified that Ms. Ochoa overheard the conversation, and when Petitioner left Mr. Fardales’s office, Petitioner and Ms. Ochoa both cried. Ms. Ochoa, however, testified that this event never took place and that she would have recalled it if it had. Ms. Lopez Garcia’s testimony on this topic is rejected to the extent that it conflicts with the testimony of Ms. Ochoa. Although Petitioner claims that Mr. Fardales removed her from the training program against her will because of her pregnancy, she testified that she never asked him for an explanation. Additionally, Petitioner never notified Parsec’s human resources department to complain about her removal from training. Parsec had anti-discrimination policies in place, which included a reporting procedure for employees. There is no evidence in the record that Petitioner mentioned alleged discriminated to anyone prior to filing her complaint with the Commission. Mr. Fardales testified that Petitioner left the training program voluntarily, but he did not remember her specific reasons. Parsec’s Corporate Representative testified that Petitioner asked to stop training in the yard because of complications with her pregnancy. The evidence did not conclusively establish why Petitioner stopped training. The evidence also did not establish exactly when Petitioner stopped training in the yard, but the evidence did establish that she had ceased training by December 2017. After she stopped training in the yard, Petitioner continued performing her duties in the office. In February of 2018, Petitioner went on maternity leave due to complications with her pregnancy. Parsec approved Petitioner’s request for leave under the Family and Medical Leave Act ("FMLA"), from February 26, 2018, through May 20, 2018. Parsec approved Petitioner’s request for non-FMLA medical leave from May 21, 2018, through June 20, 2018. Hiring of New Terminal Manager In December of 2017, Mr. Fardales hired Mr. Garcia as the Terminal Manager at Parsec’s Miami Terminal. Mr. Garcia first began working for Parsec, in a yard position, in 1997. Subsequently, Mr. Garcia spent years in other yard positions at Parsec, including six months as a Tie-Down Person and four years as a Crane Operator. He also drove tractors and held the position of Lead Man for Parsec. Mr. Garcia performed similar duties for another intermodal company for ten years, between 2002 and 2012; again at Parsec from 2012-2013; and at a different company as a railcar inspector from 2013-2017. Mr. Fardales hired Mr. Garcia for the Terminal Manager position, having determined that he was the most qualified for the position based on his experience. Mr. Fardales testified credibly that he is not related to Mr. Garcia. Petitioner did not present any evidence that Mr. Garcia was related to Mr. Fardales, although a familial relationship was alleged in her complaint to the Commission. Several other individuals applied for the Terminal Manager position, including Ms. Lopez Garcia. Ms. Lopez Garcia was not selected for the position because she did not have the requisite qualifications. The other individuals whom Mr. Fardales interviewed for the Terminal Manager position, but were not selected, include: Jorge Fernandez, Raciel Crespo, Lazaro Paredes, Ariel Peraza, and Jorge Torres. All of the other applicants for the Terminal Manager position were non-pregnant and male. Jorge Fernandez worked at Parsec for approximately ten years and had experience as a Gate Inspector, Load Out Clerk, Ground Person, and Driver. Mr. Fardales did not select him for the Terminal Manager position. Raciel Crespo had over ten years of experience working for Parsec, including working as a Gate Inspector, Ground Person, Driver, and Crane Operator. Mr. Fardales did not select him for the Terminal Manager position. Lazaro Paredes had over twenty years of experience in Parsec’s industry. He had experience in load-out, grounding, driving, and supervisory duties in the yard. Mr. Fardales did not select him for the Terminal Manager position. Ariel Peraza had between eight and ten years of experience in Parsec’s industry. He had worked as a Gate Inspector, Ground Man, Driver, And Crane Operator. Mr. Fardales did not select him for the Terminal Manager position. Jorge Torres had between three and five years of experience in Parsec’s industry. He had worked as a Ground Man, Driver, Lead Man, and Supervisor. Mr. Fardales did not select him for the Terminal Manager position. Alleged Discriminatory Comments Ms. Lopez Garcia testified that Mr. Fardales made comments to her or in her presence on a number of occasions that were generally disparaging to women in the workplace; and specifically with respect to pregnancy, motherhood, and sexual orientation. Petitioner did not identify other witnesses to Mr. Fardales’s alleged discriminatory comments, nor did any witness in this case corroborate her testimony on the comments. Mr. Fardales denied ever making any of the alleged disparaging comments about women in the workplace. Given the totality of the evidence, or lack thereof, about the negative comments about women, Petitioner’s testimony on the subject lacks credibility and is rejected. Petitioner’s Resignation Ms. Ochoa testified that she knew Petitioner planned to leave Parsec prior to Petitioner’s resignation. Ms. Ochoa declined to pursue another job opportunity to remain at Parsec based on her belief that Petitioner would not be returning, thereby allowing Ms. Ochoa to remain in Petitioner’s previous position permanently. Ms. Ochoa believed that Petitioner resigned because she had a daughter; she had her whole life in front of her; she had another business to take care of, specifically, a beauty salon; and Parsec was no longer important to her. On her 2019 tax return, Petitioner listed herself as the proprietor of a beauty salon. Petitioner testified, however, that the tax return was inaccurate in this respect and she did not know how such a mistake could have been made, because her taxes were done by an accountant. Ms. Lopez Garcia’s denial of any accountability for, or knowledge of, the information contained in her tax return was not believable, and therefore undermined her credibility. On May 30, 2018, while she was still out on maternity leave, Ms. Lopez Garcia called Mr. Fardales. Although Ms. Lopez Garcia and Mr. Fardales recalled different accounts of their phone conversation, both agreed that Petitioner resigned from Parsec during the call. Ms. Lopez Garcia testified that she resigned because Mr. Fardales refused to let her resume training in the yard when she returned from maternity leave. Mr. Fardales, however, denies that they discussed Petitioner’s training status at all during the conversation. Further, Petitioner testified that although she resigned, she told Mr. Fardales that she would reconsider contingent on him changing his mind about removing her from training in the yard. The details of the content of the conversation were not conclusively established. Mr. Fardales documented Petitioner’s verbal resignation in an email dated May 30, 2018. On the same day, Ms. Ochoa drafted a separation letter regarding Petitioner’s employment to send to Parsec’s corporate office in Cincinnati. She did so at the direction of Mr. Fardales. When Petitioner resigned, Parsec’s human resources department did not record the resignation as being effective immediately in order to afford Petitioner the continued coverage of her short-term disability benefits for the remainder of her maternity leave. Petitioner’s medical certification from her physician indicated that Petitioner could return to work on Wednesday, June 20, 2018. Human Resources made the decision to deem Petitioner’s resignation effective on Friday, June 22, 2018, so that she would receive short-term disability benefits for a full week.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 29th day of January, 2021, in Tallahassee, Leon County, Florida. S BRITTANY O. FINKBEINER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Jamie Goetz-Anderson, Esquire Jackson Lewis, P.C. PNC Center 26th Floor 201 East Fifth Street Cincinnati, Ohio 45202 Naveen Paul, Esquire Jackson Lewis, PC Suite 3500 2 South Biscayne Boulevard Miami, Florida 33131 Javier A. Basnuevo, Esquire Roberts, P.A. Suite 300 2665 South Bayshore Drive Coconut Grove, Florida 33133 Jennifer A. Schwartz, Esquire Jackson Lewis PC One Biscayne Tower, Suite 3500 2 South Biscayne Boulevard Miami, Florida 33131 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
Findings Of Fact Port Largo Airport, Key Largo, Monroe County, Florida has been operated as a public airport under DOT license (p-1) and a zoning variance (R-2) since 1973. A recent rezoning of the R-2U (residential two-family) area of the airport to private airport (P-10) has not been finalized. The most recent lease of the property was executed July, 1977 for a period of five years (P-4) The Port Largo Airport has one asphalt runway oriented nearly north/south that is more than 65 feet wide and 2,100 feet long (P-1 and 3). Between the west side of the runway edge and an airplane parking area there is 30 feet of unpaved area; on the east side at least 20 feet of unpaved area exists between the runway and the ocean. The full length of the paved and unpaved area appears to he on a long, narrow breakwater or strip of land 150 feet wide and 2,400 feet long with the Atlantic Ocean on the east and a wide canal on the west (P-9) The south end of the runway is approached over the water, while the north end has a clump of mangroves 15 feet high a distance of 360 feet from Runway 19's displaced threshold. The height and location of the mangroves from the displaced threshold is such that there is an elevation angle of 2 degrees 17 feet 19 inches and an offset angle of 5 degrees 42 feet 28 inches (P-1).
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the renewal license application of Port Largo Aero and Marine, Inc. for the Port Largo Airport be granted and License No. 3778 continued in effect to its termination date of January 31, 1981. DONE and ORDERED this 4th day of December, 1980, in Tallahassee, Leon County, Florida. HAROLD E. SMITHERS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Joseph B. Allen, III, Esquire 604 Whitehead Street Key West, Florida 33040 Joe L. Sharit, Jr., Esquire 255 Magnolia Avenue Post Office Box 2295 Winter Haven, Florida 33880
Findings Of Fact There is created within the Division of Professions of the Department of Professional Regulation a board known as the Board of Pilot Commissioners. See Section 310.011; Florida Statutes. That board, in conformance with Section 310.061, Florida Statutes, has authority to license state pilots for ports in Florida. This includes pilots for the St. Johns River, to include the Port of Jacksonville. In furtherance of this arrangement; the Department of Professional Regulation examines candidates for the positions of pilot and deputy pilot as a prerequisite to appointment and licensure or certification, depending on whether the position sought is that of pilot or deputy pilot. Out of this examination process; the Board; within its discretion, may decide how many pilots or deputy pilots it wishes to appoint and license or certify for a given port within the state. See Section 310.051, Florida Statutes. Petitioners and Intervenor, Captain Shiras M. Walker, and others stood examination for appointment and certification as deputy pilot for the port of Jacksonville in an examination given on August 26 and 27, 1985. All told, eleven candidates stood the examination for the position of deputy pilot in the Port of Jacksonville as held in August 1985. (There was one other candidate who was being examined for an unrelated port pilot position.) It was the intention of the Board to appoint and certify only one deputy pilot from this group of candidates. The candidates who stood the examination in August 1985 were required to be mariners who held a Master's License. This is a requirement of the Port of Jacksonville and is unique to that port. Petitioners and Captain Walker were qualified candidates in that sense. The candidates for examination in the August 1985 sitting, including Petitioners and Captain Walker, had been provided certain test information from the Department of Professional Regulation, Office of Examination Services, prior to being examined. Among those items was a document described as a "NOTICE TO APPEAR." Within those materials was found the admission slip to the examination, a description of the format of the examination and a suggested reading list which the candidates were encouraged to utilize in preparing for the examination session. The facets of the subject examination were as required by Rule 2155- 5.13, Florida Administrative Code which sets forth the seven test areas. They were: International Rules of the Road. Inland Rules of the Road and the Pilot Rules. Seamanship, Shiphandling and other subjects relating to piloting. Aids to Navigation. Local or specific knowledge of the port area for which the candidates are being examined. Chartwork for the port area for which the candidates are being examined. Knowledge of the federal and state pilotage laws. In carrying forward the examination process, the Department of Professional Regulation, in accordance with Section 455.217.(1), Florida Statutes, through the Office of Examination Services, is charged with the responsibility to ensure that the examination for deputy bar pilot in the Port of Jacksonville as given in August 1985, "adequately and reliability measures an applicant's ability to practice the profession" of deputy pilot. Further, this office must insure that the examination questions are a reliable measurement of the general areas of competence specified in the aforementioned rule. Those responsibilities as imposed upon the Department of Professional Regulation were adequately addressed in the examination process pertaining to deputy bar pilot for the Port of Jacksonville, August 1955 examination session. This examination as given in August 1985 was one related to placement of the top candidate in the one available position for a deputy pilot in the Port of Jacksonville. In order to gain that position, the candidates had to be successful in passing the various sections within the examination instrument. However, only the candidate who had passed the various sections within the examination process and attained the highest score would be selected. Rule 2155-5.13(3), Florida Administrative Code, mandates that a candidate correctly answer 90 percent of the subject matter set forth in the first two sections to the examination, described previously as (a) and (b) and 75 percent of the material in the five remaining subject areas. Failure in any one of these seven sections means that the candidate was unsuccessful, notwithstanding his overall percentage score as an average of the several sections within the examination instrument. The deputy pilot examination for the Port of Jacksonville administered in August 1955 was designed and written by the consultant to the Board of Pilot Commissioners, Captain John C. Hanson, with the assistance of Marty Persanpieri of the Office of Examination Services. These two individuals had the necessary expertise to design and ensure the fairness of the examination document. Captain Hanson is experienced and has gained expertise in the field of nautical science and seamanship and has sufficient appreciation of the circumstances in the Port of Jacksonville to test the candidates on matters of local knowledge of that port. Captain Hanson and Persanpieri graded the examination in question and carried out the review of protests to the examination scores. Based upon the examination and review of the test papers of Captains Dull and Walker, they were found to have successfully completed all portions of the examination. Captain Walker received an overall score of 90.71 percent, and Captain Dull received an overall score of 90.47 percent. Although Captain Flint achieved an overall score of 91.17 percent, the highest overall average, he was deemed by the graders to have failed the examination in that he scored only 86 percent on the Inland Rules portion of the examination, short of the required 90 percent score. On October 4; 1985, Captain Walker was informed by Fred Roche, Secretary of the Department of Professional Regulation, that Walker was the successful candidate in the examination for appointment and certification as deputy pilot for the Port of Jacksonville. Upon receipt of this notification, and following confirmation of this communication through a letter from Secretary Roche Walker left his position as captain of a ship operating out of Valdez Alaska and took the position as deputy pilot for the Port of Jacksonville. In doing ; he sold his home in Merritt Island, Florida, and relocated his family to Jacksonville; Florida. He then executed a contract with the St. Johns Bar Pilots Association, through which that association obligated itself to afford Walker the necessary training to become a licensed state Pilot. Following the signing of that contract; Walker has performed the duties associated with deputy piloting in the St. Johns River related to the Port of Jacksonville. Around the time Walker had been notified of his success; the Petitioners were made aware of their examination results and followed the necessary procedures for review of their examination responses. They then offered timely written objections to certain questions within the examination, which should have been considered prior to the appointment and certification of Captain Walker as deputy pilot. Through his protest, Captain Flint objected to the following questions: Inland Rules No. 52; Inland Rules No. 54; Inland Rules No. 63; State and Federal Laws No. 154; Local Knowledge No. 2; Local Knowledge No. 19; Chartwork No. 15; Chartwork No. 27; Chartwork No. 9; the overall point total assigned for Chartwork; the Chartwork in general; and Chartwork sample questions. Captain Dull objected to the following questions: International Rules No. 20; Inland Rules No. 67; Inland Rules No. 65; Inland Rules No. 76; Navigational Aids No. 106; Navigational Aids No. 125; Federal Laws No. 165; Federal Laws No. 166; Local Knowledge No. 19; Chartwork No. 1; Chartwork No. 7; Chartwork No. 14; Chartwork No. 29; Chartwork No. 52; Chartwork light list reference; Chartwork No. 595; Chartwork No. 5300; and the Chartwork in general. These specific objections were considered by the Office of Examination Services and Captain Hanson. The protests were found to be without merit based upon an adequate analysis of the questions, an assessment of the recommended answers and the responses made by the candidates in answering the examination questions. Through this process, all candidates were given credit for answers for two examination questions unrelated to the challenges by the Petitioners. Having been unsuccessful in an attempt to gain adjustments to their examination scores; Petitioners individually petitioned for formal Section 120.57(1), Florida Statutes, hearings. Those petitions were timely submitted. The cases were then referred to the Division of Administrative Hearings leading to the formal hearing of May 5 and 9, 1956. Prior to the date of formal hearing, Captain Walker and the St. Johns Bar Pilots Association offered a timely motion to intervene in these actions and intervention was allowed. Those Intervenors have demonstrated their standing in the record developed at the final hearing. In the course of the final hearing, Captain Flint abandoned his objection to the questions: Inland Rules No. 54; Local Knowledge No. 2; Local Knowledge No. 19; Chartwork No. 27; and the chart sample questions. This left for consideration these matters: Inland Rules No. 52; Inland Rules No. 63; State and Federal Laws No. 154; Chartwork No. 9; Chartwork No. 15; the Chartwork in general; and the chartwork point total. Captain Dull also abandoned objections pertaining to questions: International Rules No. 20; Inland Rules No. 68; Inland Rules No. 76; Navigational Aids No. 106; Federal Laws No. 166; Local Knowledge No. 19; Chartwork No. 29; Chartwork No. 895; and Chartwork 5300. He continued to protest the Questions: Inland Rules No. 67; Navigational Aids No. 125; Federal Laws No. 165; Chartwork No. 1; Chartwork No. 7; Chartwork No. 14; Chartwork No. 52; Chartwork in general; and the Chartwork light list reference. In the NOTICE TO APPEAR which the Petitioners and Captain Walker received, reference is made to the seven sections within the examination instrument. This notification gave the following information about the chartwork that was to be done in the Chartwork and Local Knowledge portions of the examination. It stated: Chartwork and local knowledge will be admin- istered in the afternoon. Chartwork requires you to draw on a tracing of the chart of the port, all channels aids to navigation and their characteristics (type, color, shape, number, light/sound characteristic, elevation when appropriate as listed in the 1985 C.O. Light List for more recent information see note at end of No. 3), shoaling areas, precautionary signs, anchorage areas, obstructions, COLRBGS demarcation lines, danger areas, pipelines and cable crossings and any other inclusions on the chart relevant to navigation. Indicate true course to be steered on ranges and straightaways as appropriate. You may also be responsible for indication of direction of tide flow as indicated in the Tidal Current Tables. Local knowledge requires you to recall, from memory, information contained in the Coast Pilot relevant to the chart. Included is information concerning controlling widths lengths and depths of channels. Four (4) hours will be allowed to complete this portion of the examination. By the NOTICE TO APPEAR the candidates were also referred to the examination study sources as follows: Listed below are some general sources that may aid you in your study for some of the examination areas. This list of sources is not exhaustive. Questions may appear from other sources. Abbreviations used: CG = Coast Guard Publication USC = U.S. Code FS = Florida Statutes BPC = Board of Pilot Commission Rules Area Source International CG: Navigation Rules: Inter- Rules and national-Inland (COMDTINST Inland Rules M16672.2)(including all rules, appendices and colregs) Federal Pilot- 46 USC 11; 211-215; 232. age Laws Coast Pilot Chapter 2; Parts 162 and 164. 14 USC 51-59, 642, etc. Knowledge of U.S. Coast Pilot for the Local Port particular port (State Pilots and Deputy Pilots) Aids to CG 193, Chart No. 1: Nautical Navigation Chart symbols and abbrevi- ations, 14 USC 51-59, 33 CFR 64.01. State Pilotage Chap. 310 FS, BPC 21-55 Laws Chartwork St. Johns River from the sea buoy to the fixed bridge at Red Bay Point above Green Cove Springs and the ICW from its junction with the St. Johns River South to the Atlantic Boulevard Bridge Chart Nos. 11491 7 July 1954 11459 1 Sept 1954 11492 5 Sept 1954 Seamanship Various seamanship textbooks (for example; Basic Ship- handling for Masters, Mates and Pilots by Willerton; Practical Ship Handling by Armstrong; Ship Handling in Narrow Channels by Plummer, Knights Modern Seamanship) NOTE: Basic publications utilized in developing Jacksonville exam; in addition to the charts listed above were: 1985 CGT Light List 1985 Coast Pilot Vol. 4 If more recent information is used from CO notice to Mariners or Corps of Engineers reports, please indicate source and date so proper credit may be given. Flint Challenge Question No. 52 in the Inland Rules portion of the examination, among the choices of answers, indicated that the "lookout," "shall not be assigned other duties." Petitioner Flint did not feel that this choice was a correct answer. Six of the twelve candidates gave the prescribed answer, to include Captains Walker and Dull. The prescribed answer contemplated the proposition that lookouts shall not be assigned other duties. The prescribed answer is found to be correct, and Petitioner in his suggestion that it is appropriate for a lookout to have other duties in an inland water situation is not credited. Having considered the presentation at hearing, it is determined that the lookout in that setting must give full attention to those duties. Question No. 63 in the Inland Rules portion of the examination states that: "Rule 2(b); known as the General Prudential Rule; could be properly applied in which of the following situations?" Seven of the twelve candidates correctly answered that examination question, to include Captains Walker and Dull in that they indicated that the only correct answer to the question was the choice "action contrary to the rules as proposed by one vessel and accepted by another." Petitioner Flint felt that this answer; as well as the answer which said, "When the stand-on vessel first has doubts as to the intentions of the give-way vessel," should be considered correct. Flint also believes that it is unreasonable to require that the candidates know rules by number reference and contends that this particular rule is not known as the "General Prudential Rule." This concern about the need to know the rule by number and the reference to the term "General Prudential Rule" is a reasonable requirement given that one of the source materials which the candidates were encouraged to study was that source Farnsworth & Young, Nautical Rules of the Road, wherein it is stated that Rule 2(b) is known as the "General Prudential Rule." On the merits of the protest, as to the answer given, Captain Flint is wrong to apply the ideas expressed in the "General Prudential Rule" to a situation in which the stand-on vessel first has doubts as to the intentions of the give-way vessel. Other steps must he taken before resorting to the subject rule. An example of those initial steps would be the sounding of a signal. In the section dealing with state and federal laws, in Question No. 154, it is indicated that the number of state pilots in the various ports is: (1) determined by the supply and demand for pilots and services, (2) determined by investigation conducted by the Department of Professional Regulation. The answer prescribed by the examination was the first choice only. Captain Flint did not feel that either of the choices of answer was correct. He is struck by the language of Section 310.061(2), Florida Statutes, which says, The Board shall determine the number of pilots in conformance with Subsection (1) based upon the supply and demand for piloting services and the public interest in maintaining efficient and safe piloting services. Therefore, according to Captain Flint, since there are fixed limits set forth in Subsection (1) on the number of pilots that may be available in a given port, in order to determine the number of pilots, one must not only be mindful of supply and demand, but also recognition of the finite number of available pilots as set forth in Subsection (1) should be taken into account. This interpretation by Captain Flint is sufficiently legitimate that he should be afforded credit for the answer to the examination question in which he selected the answer that indicated that neither of the two choices was correct. In the Chartwork referred to as No. 9, Petitioner Flint argues that the instructions were, "The chart drawing is to cover up the St. Johns River to the highway bridge at Red Bay Point," meaning that only the features within the system before the point of the bridge needed to be indicated. This would preclude necessity to set forth any of the characteristics of the Red Bay Point Bridge, per Flint. Those characteristics are matters which a pilot should reasonably be expected to be examined on as to horizontal and vertical clearances of the bridge. This is a more persuasive interpretation of the examination instruction than the literal reading which Captain Flint gave in determining to cut short his chartwork before describing the characteristics of the bridge and points should have been deducted from his score. Another challenge described as Chartwork No. 15 dealt with Captain Flint's belief that the area of the St. Johns River described as St. Johns Bluff Reach is not a range or straightaway. Consequently, he did not believe that it was necessary to set out a true course through that portion of the river in keeping with instructions which indicated that the candidates should establish courses in ranges and straightaways in the chartwork. St. Johns Bluff Reach is of sufficient dimension in length that the candidate should have identified a course. For failure to set forth the course; it was appropriate to deduct points from Petitioner Flint's score in the chartwork. Generally speaking, Captain Flint believed that no points should have been deducted from his examination for his failure to relate items set forth on the Coast Guard Light List 1985, in setting up his chart drawing. He premises his argument on the fact that the instructions allowed the candidate to use either the chart information from the various charts which the candidate was referred to or to set forth on the chart examination that information reflected in the Coast Guard Light List 1985. It is not possible to set out complete characteristics of the navigational aids without reference to both the charts and the Coast Guard Light List 1985. Taking this into account, and in view of the basic instructions given the candidates prior to and at the point of examination, it was an unreasonable interpretation to suggest that it was unnecessary to refer to the Coast Guard Light List 1995 and offer information from that source on the examination chart, and points should have been deducted for this oversight. Petitioner Flint had initially contended that the total score related to his points in the chartwork was incorrectly computed in that he was entitled to 577 Points when the examination was graded as contrasted with the 575 points which he was awarded. In his fact proposal this position is abandoned in that he concedes that 575 points was the correct total to be awarded when the examination was graded. No adjustment has been made to that score, and 575 points remain his entitlement. Although some slight adjustment is indicated in the overall score for Captain Flint, the critical matter of the point total for the Inland Rules questions has not been overcome, and having failed to pass that portion of the examination, Captain Flint has failed the entire examination. Dull's Challenge In the Inland Rules portion of the examination at Question No. 67; it is stated that "A vessel proceeding with a following current in a narrow channel or fairway shall have the right of way over a vessel proceeding against the current in/on, and the choices were (1) western rivers, (2) all inland waters; (3) Great Lakes. The correct answer is (1) and (3). The answer is taken from reference material which the candidates were referred to, Farnsworth & Young, Nautical Rules of the Road, which points out that these vessels are given the right of way in operating on the Great Lakes, western rivers, and waters specified by the Secretary. Captain Dull was incorrect when he indicated that the answer should have been "all inland waters." Captain Dull objected to Question No. 125 in the portion of the examination related to navigational aids. That question states, "A preferred channel buoy indicating the preferred channel will be followed by leaving it on your port hand could:" (1) show red and black horizontal bands, (2) show a composite group flashing light; (3) show red or white light. Captain Dull rightly asserts that all three of those items would be correct in the instance in which a ship was proceeding to sea; however, the available answers for the question did not include the possibility that all three items were correct. If the ship were to be proceeding inbound, away from the sea, (1) and (2) are correct and (3) is incorrect in that the buoy could not show a red or white light. Therefore, the correct answer to the question is (1) and (2) only, and that answer was available to the candidates. The question asked was a legitimate question which was missed by Captain Dull. In that portion of the examination dealing with knowledge of federal and state pilotage laws there is Question No. 165. That item states, "To legally provide pilot service to a foreign flag vessel arriving at a Florida Port, a person must hold a valid" (1) state license or certificate, (2) federal license. The prescribed answer was that it is only necessary to hold a state license or certificate. Captain Dull felt that the answer which pertained to choices (1) and (2) was the correct answer in that in order to gain a license or certificate in Florida one must have a federal license. Nonetheless, once the Florida license has been obtained; it is no longer necessary for the federal license to be in force and effect in order to legally provide pilotage service to the foreign flag vessel arriving at a Florida Port. Under these circumstances; Captain Dull is not entitled to receive credit for his answer. In chartwork under Question No. 1 Captain Dull contends that the four anchorage positions which he failed to indicate on his chart were set forth on chart sheets not described in the instructions given to the candidates prior to examination or at the point of examination. He states that those four anchorage Positions are areas which the candidates were not alerted to study for. One of the charts which is referenced as a study source, No. 11491; has a Note A making reference to the anchorages in question by referring the reader to the Coast Pilot No. 4 which provides the information as to location of the four anchorages at issue. Moreover, the anchorages at issue are within the approaches to the St. Johns River which the candidates were instructed to depict in the chart which they prepared in response to the chartwork requirement in the examination. By failing to note these anchorages on his chart, he was subject to have points deducted from his examination, which deductions were made. In the Chartwork Questions No. 7 and 14, Captain Dull failed to set forth true courses from various locations at issue by not giving response in degrees and minutes. This relates to May Point Cut Range and White Shells Cut Range in which it was possible to give the answer in degrees and minutes. Captain Dull did not do his, although the instructions required that he give the answers in degrees and minutes. It was appropriate to deduct points from his score for failure to give the more exact responses to the requirements. Captain Dull in Question No. 52 related to chartwork also believed, as did Captain Flint, that the alternative was presented to the candidates to use either the charts or Coast Guard List 1985 in preparing the chartwork. For reasons discussed in the challenge to this matter fostered by Captain Flint Captain Dull is also incorrect in his assertions. Therefore he is not entitled to any adjustment in points for this matter. Captain Dull has not established the entitlement to further points; and Captain Walker remains the high scorer of all candidates who passed the deputy pilot examination at issue.
Findings Of Fact By application dated May 10, 1987, and subscribed to on December 18, 1987, the Petitioner applied to the Department for approval and licensing of a seaplane airport site for his own private usage (P-2) . The Petitioner is appropriately licensed as a seaplane pilot. The location of the proposed airport is Pate Lake, located near Caryville, in Washington County, Florida. Pate Lake is approximately one mile by three-quarters of one mile in size, large enough to accommodate the Petitioner's proposed airport. The Petitioner's seaplane is currently and would remain based on the west side of the lake, where the Petitioner owns a parcel of land. The Petitioner has utilized Pate Lake as a base of operation for the seaplane on an irregular basis for several years. The seaplane is a single-engine Balanca Citaba, similar in size to a Piper Cub. The plane carries a maximum of two persons, including the pilot. The engine produces 150 horsepower and has a muffled exhaust. There was no reliable evidence which would indicate the decibel level or amount of noise that is generated by the seaplane on takeoff, however the noise at landing is minimal because landings are accomplished with the engine thrust significantly reduced. Pate Lake is relatively remote with limited population, however the population residing near the water is generally concentrated on the western side of the lake. The lake is used primarily for fishing and other recreational activities. A public boat ramp is also located on the west side of Pate Lake, approximately 400 to 500 feet from the Petitioner's property, according to a map prepared by the Department and introduced by the Petitioner (P-12). The number and type of recreational users of the lake depend on the weather and time of year, with an estimated 15 to 20 fishing boats on the lake simultaneously when conditions warrant. In December, 1987, an on-site inspection of the proposed airport area was performed by Larry Parker, an aviation specialist with the Department. Parker determined that the site was feasible for use as proposed by the Petitioner and "can meet the requirements set forth in Airport Licensing and Zoning Rule Chapter 14-60" (P-4). By letter dated December 30, 1987, the administrator for the Washington County Commission advised the Department that there were no restrictions which would prohibit the establishment of the seaplane base (P-5). There is no relevant zoning ordinance applicable to Washington County. By letter dated March 2, 1988, the Petitioner was advised by the Federal Aviation Administration that the proposed airport would "not adversely affect the safe and efficient use of airspace by aircraft" provided that operations were limited to VFR (visual flight rules) weather conditions, and that the airport were limited to private use. The F.A.A. specifically "did not consider the interaction of sea plane operations with surface craft traffic..." (P-6). On May 2, 1988, the department issued a "Notice of Intent" to approve the airport and issue the license (P-3). A public meeting was subsequently held on June 8, 1988, at which time an unknown number of persons apparently objected to the Department's intended approval of the license application. On June 16, 1988, a resolution was adopted by the Washington County Board of County Commissioners at which time the Board expressed opposition "to the permitting of a Seaplane operation on Pate Pond" (P-8). The resolution clearly indicates that the Board acted, at least in part, in the belief that "a commercial Seaplane operation is contemplated on the lake..." and that property owners in the area objected to the proposal. By memo dated July 11, 1988, Larry Parker, the district aviation specialist for the Department forwarded materials from the public meeting to his supervisor, Bobby Grice (P-9). At that time, Parker reiterated his opinion that the proposed airport site met "the safety standards as outlined in Rule 14-60", and that the Petitioner could operate in a safe manner from Pate Lake. By letter dated July, 27, 1988, the Petitioner received notice from the Department that it intended to deny his application for approval of his Pate Lake seaplane base (P-10). The Department stated that the denial was based on the County Commission resolution of June 16th, which "the department accepts...as equivalent to zoning refusal by the Washington County Commission." Further the Department cited comments "submitted by many of the nearby landowners and they are opposed to a seaplane base on Pate Lake on the basis of noise and safety." The Department's action followed the recommendation of Mr. Grice to deny the application. Mr. Grice based his recommendation on safety concerns related to utilization of the recreational lake as a seaplane base. Mr. Grice has visited the Pate Lake area, but has not viewed the Petitioner's seaplane in operation. At the administrative hearing the Department presented the testimony of several persons who reside on or near Pate Lake. The property owners had on infrequent occasions heard or seen a seaplane, allegedly the Petitioner's, flying over their homes at an altitude they believed to be unreasonably low or in a manner which caused what they felt was excessive noise. 1/ No one recalled more than two such incidents over the several years that the Petitioner has utilized the lake as a seaplane base. Other complaints were directed towards the maintenance of the Petitioner's property, which was identified by one witness as an "eyesore". Concerns were voiced related to the witnesses fear of property value depreciation, but there were no facts to support the theoretical depreciation. One witness, a helicopter instruction pilot who visits the area on occasion, observed the seaplane, approximately seven or eight months prior to the hearing, take off and land twice on the same day. The witness testified that the pilot on both occasions flew at an excessively low altitude over the houses on the west side of the lake. The witness estimated the altitude over the houses to be less than 500 feet, an altitude which he believed was a "major judgement error" of the pilot, because an emergency maneuver at that altitude, if necessary, would have been difficult to accomplish. However, the witness, who has no experience with seaplane operations, did not register the incident with any regulatory agency, although he believed it to be a violation of minimum safe altitude regulations. He has not otherwise viewed the seaplane in operation. One witness, a seasonal resident of the lake area who utilizes the lake for fishing, recalled an incident in January or February, 1988, where the Petitioner's plane landed on the lake while the witness was fishing from a small boat in the same vicinity as where the Petitioner was attempting to land. The witness had not heard the plane's approach due to the lack of engine noise until the plane began landing. Although uninjured, he was fearful for his safety during the incident. The witness explained that he was concerned about the personal safety of boaters in the water during the times the seaplane was landing, because the noise level is minimal, and boaters may not be aware of the aircraft's approach. There was no explanation or response offered by the Petitioner to the allegations of the Department's witnesses other than assertions that a seaplane could be operated in such a manner as to prevent low flight over residences and minimize risk to users of the lake. Although there was testimony related to lakes, similar or smaller than Pate Lake, which are allegedly licensed as private seaplane airports, the testimony did not provide evidence sufficient to provide for an accurate comparison between other lakes and Pate Lake.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Petitioner's application for licensure of Pate Lake as a seaplane base be DENIED. DONE and ORDERED this 20th day of December, 1988, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1988.
The Issue The issue is whether AHG Hotels, LLC's application for a Type B site plan and deviation should be approved.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact are determined: Background On September 11, 2002, the Development Review Committee (DRC) of Respondent, City of Tallahassee (City), approved a Type B site review application authorizing the construction of a Hampton Inn & Suites by Respondent, AHG Hotels, LLC (AHG). The DRC also granted AHG's request for a deviation from development standards contained in Section 10.6RR of the City's Zoning Code by allowing AHG to exceed the four-story height limitation and to add a fifth floor to the structure. Two other deviation requests by AHG were determined to be either inapplicable or exempt from Zoning Code requirements because of vesting, and thus they are not at issue here. On October 10, 2002, Petitioner, Capital City Hotels, Inc. (Petitioner), which owns and operates a Hilton Garden Inn near the proposed construction, timely filed a Petition for Formal Proceedings to contest the approval of the deviation request. On October 15, 2002, a determination of standing as to Petitioner was issued by the Tallahassee-Leon County Planning Commission (Commission), which will issue a final order in this matter. As stipulated by the parties at hearing, the only issue is whether AHG failed to satisfy three of the seven criteria that must be met in order for the DRC to grant a deviation. Those disputed criteria are found in paragraphs (iii)-(v) of Section 23.3 of the City's Code of Ordinances (Code) and provide as follows: The deviation requested is the minimum deviation that will make possible the reasonable use of the land, building, or structure; and The strict application of the requirements of this chapter will constitute a substantial hardship to the applicant, which hardship is not self- created or imposed; and There are exceptional topographic, soil, or other environmental conditions unique to the property; The parties agree that all other criteria for the site plan and deviation have been satisfied by AHG. In addition, a related request by AHG for a technical amendment to the boundaries of the parcel will be granted by the DRC, assuming that AHG obtains a favorable ruling in this case. History of the Property The property which is the subject of this case is identified as lot of record 454 and fronts on the west side of Lonnbladh Road, lies south of Raymond Diehl Road and several hundred feet east of Thomasville Road, and is just southeast of the major intersection of Interstate 10 and Thomasville Road in Tallahassee. The zoning for the property is Commercial Parkway (CP), a mixed-use zoning district which applies to areas exhibiting an existing development pattern of office, general commercial, community facilities, and intensive automotive commercial development abutting urban area arterial roadways with high traffic volumes. Among the numerous permitted uses in that land use category are hotels and motels. The property is part of a 7.1-acre site originally owned by Kingswood Land Partners, Ltd. (Kingswood). In January 1990, Kingswood obtained from the City a minor subdivision approval, dividing the 7.1 acres into three lots of record, including lot of record 454. The three lots consisted of a 2.44-acre lot running along most of the western portion of the property with the exception of a small area on the southern end, a 1.68-acre lot on the northeast portion of the property, and a 2.98-acre lot on the southeast portion of the property (lot of record 454). In November 1990, Kingswood received from the City a verification of vested status (vested rights certificate) for the 7.1-acre site. The vested rights certificate provided that the 7.1-acre site was exempt from the consistency and concurrency provisions of the Tallahassee-Leon County Comprehensive Plan (Plan) and was vested for an 89,887 gross square foot commercial non-medical office building and a 135- unit hotel/motel. In 1991, Kingswood utilized the vesting for a 135- unit, five-story hotel and constructed what is now known as the Cabot Lodge on the 2.44-acre lot. It also constructed on part of the southeastern 2.98-acre lot a paved area with parking places. In 1992, Kingswood conveyed to Twin Action Hotels, Inc. (Twin Action) the 2.44-acre lot which included the Cabot Lodge Hotel, but not the paved parking area on the 2.98-acre lot. The same year, Kingswood also conveyed to New Horizons Unlimited, Ltd. (New Horizons) the remaining two lots, which two lots were vested for a commercial non-medical office six- story building of 89,887 gross square feet. At the time of the conveyances of the New Horizons property and the Cabot Lodge property to New Horizons and Twin Action, respectively, these parties entered into a Grants of Reciprocal Easements dated June 23, 1992, recorded in Official Records Book 1570, at page 1072 of the Public Records of Leon County, Florida. Around 1994, the Florida Department of Transportation acquired .333 acres of the northernmost lot owned by New Horizons for a project which included realigning and four-laning Raymond Diehl Road and relocating the eastbound entrance ramp to Interstate 10, immediately in front of the Cabot Lodge lot. This acquisition reduced the New Horizons 1.68-acre lot to 1.347 acres. On October 14, 1998, the City approved a vested rights transfer request submitted by New Horizons, which provided that the New Horizons property could be used for a 107-room, four-story business hotel and 59,162 gross square feet of commercial non-medical offices, instead of the vested 89,887 gross square feet of commercial non-medical offices. Since the acquisition by New Horizons of the two remaining lots, that property has remained vacant and unimproved with the exception of the westernmost portion immediately south of the Cabot Lodge building, on which is located pavement and parking spaces. The parking spaces are not legally available to Cabot Lodge for use. The property located immediately west of the Cabot Lodge 2.44-acre lot is property which is referred to as the Thomasville Road Executive Park (Executive Park) property. On an undisclosed date, this property was divided into three separate lots by a minor subdivision approval consisting of Parcel A on which was constructed the Unisys Building and parking spaces, Parcel B which is now improved with a Hilton Garden Inn owed by Petitioner, and Parcel C which remains undeveloped. In 1996, Petitioner filed its site plan application to develop Parcel B. Included in the site plan application was a request for a technical amendment to adjust the boundary lines between Parcels A and B of the Executive Park property. Like AHG has done here, Petitioner also requested a deviation to the then height limitation of 45 feet, requesting that the City allow it to build the building 50 feet high, rather than the required 45 feet. Although the property on which the Hilton Garden Inn is now located was vested for a three-story commercial office building, subject to CP zoning, the City agreed that the vesting could also be used for a hotel use consisting of four stories rather than three stories. The City granted Petitioner's request to allow it to build a four-story hotel on Parcel B. It also granted Petitioner a height deviation so that the midpoint or peak of the roof would be not higher than 50 feet. However, the top of the roof is 59 feet, 6 inches. The facility has 99 rooms. No objection was made by Cabot Lodge, Unisys, or New Horizons to Petitioner's application for approval of its site plan, the technical amendment adjustment to boundary parcels, the use of the property for a four-story hotel instead of a three-story office building, or the granting of a height deviation. In April 2002, AHG entered into a contract with New Horizons for the purchase of 2.23 acres of the southeastern property owned by New Horizons for approximately $1.5 million. The 2.23 acres is part of the 2.98-acre lot of record known as lot 454. The application On July 5, 2002, AHG filed with the DRC its site plan application to construct a 122-room, five-story hotel on the 2.98-acre lot. On the same day, it filed a Deviation from Development Standard Request asking that it be allowed to construct a five-story hotel on the parcel rather than being limited to a four-story hotel, as required by the development standards for the CP zoning district in which the property is located. New Horizons has also requested a technical amendment to the boundaries of the 1.68-acre lot and the 2.98- acre lot that would result in the 2.98-acre lot on which the hotel will be built being reduced to 2.23 acres. The DRC intends to approve that request, assuming that AHG prevails in this proceeding. AHG's site plan uses the largest footprint for construction of the hotel building that is allowed under current applicable Code restrictions relating to the amount of impervious surface allowed to be constructed on a 2.23-acre lot, as well as the required amount of green space which must be maintained. If current zoning rules and regulations are strictly applied, AHG would be unable to have more than approximately 107 rooms in the hotel, utilizing the maximum footprint and only four stories on the 2.23 acres. The only way to accommodate the construction of 122 rooms is to obtain a deviation from the current restriction of four floors and allow a fifth floor to be built. The proposed height of construction of the five- story hotel will be 53 feet, 10 inches, except for several small areas of parapet walls which will be no higher than 58 feet, 4 inches. The subject site is relatively flat, with no excessive slopes, and it has no remarkable features from an environmental standpoint. It is unique in the sense that it is flat, barren land. It does not have wetlands, pristine water bodies, or other protected conditions. Also, it has no endangered plant species requiring special protection, no patriarch trees, no protected trees, and no native forests. Should the Deviation be Approved? A deviation under Section 23.3 is an amendment to a "set requirement" in the Code, such as a setback or height restriction. Between 60 and 75 percent of all applications filed with the DRC for a site plan approval are accompanied by a request for a deviation from a development standard, which are standards prescribed for each zoning district in the Code. One such development standard for the CP District is a four- story height limitation on structures found in Section 10.6RR of the Zoning Code. The DRC is a four-person committee comprised of representatives from the City's Utility Department, Public Works Department, Growth Management Department, and Planning Department; it is charged with the responsibility of deciding whether to grant or deny a deviation request. For at least the last six years, and probably much longer, the DRC has consistently applied and interpreted the deviation standards in Section 23.3 in the same manner. Although Section 23.3 provides that "the granting of deviations from the development standards in this chapter is not favored," they are not discouraged since more than half of all applicants cannot meet development standards due to site characteristics or other factors. Rather, the intent of the provision is to prevent wholesale deviations being submitted, project after project. Requests for a deviation are always approved, when justified, in order to give both the City and the applicant more flexibility in the development process. Here, AHG's application was treated the same as any other applicant. This case represents the first occasion that an approval of a deviation has been appealed. After an application for a deviation is filed, it is forwarded to all appropriate City departments as well as members of the DRC. Each reviewing agency is requested to provide information to the DRC members on whether or not the request should be recommended for approval. In this case, no adverse comments or recommendations were made by any City Department. After reviewing the Department comments, and the justification submitted by AHG, the DRC approved the deviation. Under Section 5.1 of the Code, the City's land use administrator, Mr. Pitts, has the specific responsibility to interpret all zoning and development approval regulations, including Section 23.3, which provides the criteria for granting a deviation. That provision has an apparent inconsistency between the first two sentences: the first sentence includes a phrase that all criteria set forth thereafter must be met to approve a deviation while the second sentence appears to provide that only the conditions necessary to granting a particular deviation must be met. In resolving this apparent inconsistency, Mr. Pitts does not construe the Section as requiring that all seven criteria must be met in every case. Instead, even though all criteria are reviewed by the DRC, only those that are applicable must be satisfied. If this were not true, the DRC "would grant very few deviations as part of [its] site plan or subdivision regulation [process]," and the intent of the Section would be undermined. For example, in order to justify a deviation, the DRC does not require that an applicant show that there are exceptional topographical soil features if, as here, there are no exceptional environmental features on the property. This interpretation has been consistently followed over the years, is a reasonable and logical construction of the language, and is hereby accepted. As a part of its application, AHG submitted a narrative justifying the granting of a deviation under each of the seven criteria. To satisfy the first disputed criterion, AHG indicated in its application that "[t]his deviation is the minimum allowed to make reasonable use of the property and to compete with adjacent hotels who enjoy the same height opportunity." AHG's use of the property is consistent with adjoining developments, including the neighboring Cabot Lodge, which is five stories high and has 135 rooms, and the Hilton Garden Inn, which was originally vested for an office building, but was allowed by the DRC to construct a four-story hotel. There is no other property available to AHG at this site on which to construct a hotel. The evidence shows that New Horizons initially offered to sell AHG only 2.05 acres; when AHG advised that anything less than 2.23 acres would render the project financially unfeasible, New Horizons "very reluctantly" agreed to sell an additional .18 acres. Because New Horizons intends to build a restaurant on its remaining 2.097 acres, any further reduction in the acreage would reduce its highest and best use of the property. Thus, AHG does not have the option of purchasing more property to expand its hotel laterally, as Petitioner suggests, rather than by adding a fifth floor. In addition, AHG does not have the ability to reduce the size of its hotel rooms in order to squeeze more rooms out of a four-story structure. This is because Hampton Inn (the franchisor) will not grant a franchise for a new hotel unless the franchisee agrees to build a hotel with prototypical room sizes. The present design of the hotel meets the minimum size required. There is no evidence that there is any other minimum deviation that could be granted which would make possible the use of the property for construction of 122 rooms under the standards set forth by Hampton Inn, the franchisor. Thus, the only practical adjustment that can be made is to obtain a height deviation. Accordingly, the criterion has been satisfied. To satisfy the second disputed criterion, AHG stated in its narrative that "[t]he strict application of this requirement would place this property and proposed hotel at a competitive disadvantage by a lower number of available rooms." Through testimony of an AHG principal, it was established that in order for AHG to make reasonable use of its property, the addition of a fifth floor is necessary. The evidence shows that as a general rule, a developer can only afford to pay approximately $10,000.00 per room for land cost. In this case, based on the 2.23 acres, at a purchase price of $1,500,000.00 and a hotel with 122 rooms, the projected land cost is $12,000.00 per room. This is the maximum that can be paid for land and still make AHG's project economically feasible. The strict application of the Zoning Code will make the project financially unfeasible, which will create a substantial hardship to AHG. The hardship is not self-created or imposed. At hearing, Petitioner's representative contended that "there are some companies who would find it financially feasible" to construct a four-story hotel with fewer rooms on the same site. However, the more persuasive evidence on this issue was presented by the AHG principal and shows the contrary to be true. The evidence further shows that the granting of the deviation will result in an almost equal efficiency factor of the total square footage of building versus the total square footage of the site when comparing AHG's proposed project to the neighboring Cabot Lodge. On the other hand, strict application of the Zoning Code could result in a substantially less and disproportionate efficiency factor of AHG's property as compared to the adjoining Cabot Lodge. This is because the highest point of the proposed Hampton Inn and Suites is 58 feet, 6 inches, with the majority of the hotel being 51 feet high. The adjoining five-story, 135-room Cabot Lodge has its highest point at 55 feet, 6 inches, with the majority of the building at 46 feet high. The Hilton Garden Inn has the highest roof with its maximum height at 59 feet, 6 inches, which runs across the entire peak of the roofline. 40. To satisfy the final disputed criterion, AHG indicated in its application that "[t]he absence of any environmental features on this property, or any adjacent environmental features that might be impacted[,] help support the deviation." As noted above, the property in question is unique in the sense that it is flat, treeless, and has no remarkable environmental features. If a site is devoid of environmental features, as it is here, the DRC has consistently interpreted this provision as having no application in the deviation process. This is the same interpretation used by the DRC when it approved Petitioner's application for a height deviation in 1996 to construct the Hilton Garden Inn. Like AHG's property, Petitioner's property was also devoid of environmental features. Therefore, this criterion does not apply. Even assuming arguendo that this provision applies, the addition of a fifth story to a four-story building has no impact whatsoever on the environmental characteristics of the site. Finally, there is no evidence that the deviation request is inconsistent with the Plan, or that the deviation will have any adverse impact to the general health, safety, and welfare of the public. Indeed, as to any Plan implications that might arise through the construction of a hotel, the evidence shows that the project is wholly consistent with the purpose and intent of the CP land use category, which is to promote higher intensity and density in CP-zoned land and to discourage urban sprawl.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Tallahassee-Leon County Planning Commission enter a final order granting AHG's Type B site plan review application and its application for a deviation from the height restriction for the CP land use category. DONE AND ENTERED this 22nd day of January, 2003, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2003. COPIES FURNISHED: Charles R. Gardner, Esquire Gardner, Wadsworth, Shelfer, Duggar & Bist, P.A. 1300 Thomaswood Drive Tallahassee, Florida 32308-7914 Linda R. Hurst, Esquire City Hall, Second Floor 300 South Adams Street Tallahassee, Florida 32301-1731 John Marshall Conrad, Esquire Ausley & McMullen Post Office Box 391 Tallahassee, Florida 32302-0391 Jean Gregory, Clerk Tallahassee-Leon County Planning Commission City Hall 300 South Adams Street Tallahassee, Florida 32301-1731
The Issue The issue in the case is whether Albert E. Warner's application for an Airspace Obstruction Permit should be granted.
Findings Of Fact Charles W. Brammer owns the Tampa North Aero Park, Inc., a Florida-licensed public use landing strip located in Pasco County. The Tampa North Aero Park is surrounded by platted lots intended for use as private homesites. Albert E. Warner owns one of the lots, (Lot 123, Quail Hollow Village Subdivision) which adjoins the Tampa North Aero Park, Inc. Mr. Warner intends to construct and live in a single family home on his lot. Because the location of the proposed Warner construction exceeds certain standards, regulatory review is required and Mr. Warner’s proposed structure must be obtain a permit from the DOT. On June 18, 1997, the Mr. Warner filed his application for an Airspace Obstruction Permit with the DOT. According to Mr. Warner, the proposed structure will be concrete block with a wood frame roof, with a roof peak no more than 98 feet above mean sea level One of the requirements is that the Federal Aviation Administration (FAA) review the proposal and issue a "Determination of No Hazard to Air Navigation." The FAA has issued a "Determination of No Hazard to Air Navigation." Because the initial FAA document included incorrect site information, the FAA subsequently issued a "Correction to the Determination of No Hazard to Air Navigation." The "Determination of No Hazard to Air Navigation" sets forth the factors considered by the FAA and concludes as follows: Therefore, it is determined that the proposed structure would have no substantial adverse effect on the safe and efficient utilization of the navigable airspace by aircraft or on the operation of air navigation facilities and would not be a hazard to air navigation. The FAA’s document of correction states as follows: This corrects a minor change in the latitude and longitude based on survey data provided regarding actual runway location and which moves proposal 2 feet closer to runway. Because this minor move will not change the results of the determination, a new circularization and determination was not considered necessary. All else remains same as on original determination. The Petitioner challenges the reliability of the FAA’s review of the Warner project and the determination that the proposed construction will create no hazard to airspace navigation. The Petitioner offered no credible evidence to support the assertion that the FAA study was incomplete or unreliable. Given the minor change in the relative location of the runway to the proposed Warner construction, the FAA’s correction of the initial determination without conducting an entirely new review is inconsequential. As set forth in the FAA determination, a condition of the permit requires the structure to be marked as an obstruction and lighted with a red beacon. There is no evidence that Mr. Warner is unwilling or unable to comply with this requirement. The Department reviewed the FAA determination and subsequent correction. The Department determined that the corrected location information was correct and that the FAA review included a valid aeronautical evaluation. The evidence establishes that the Department considered the required factors set forth in the applicable statute. The evidence establishes that the DOT completed the review and made the determination within the appropriate timeframes. The Department considered the nature of the terrain and height of existing structures. The land surrounding the airfield is relatively flat. Existing structures include houses across the residential street from the Warner lot, and other houses to be constructed along the airfield. Numerous trees, some located closer to the airstrip than the proposed Warner house, are as tall or taller than the proposed Warner home, except where such trees were recently cut by Mr. Brammer for reasons unknown. The Department considered public and private interests and investments in the area of the proposed construction. No public investments will be impacted. There is no credible evidence that public aviation interests will be impacted. Private investments, specifically that of the Petitioner and his airport, will not be adversely impacted by construction of the home. One witness asserted that the private investments of the other homeowners would be adversely impacted by the Warner construction, but offered no credible evidence to support the assertion. The Department considered the character of flying operations and planned development of airports. The proposed construction will have no adverse impact on the character of flying operations and planned development of airports. The Department considered federal airways as designated by the FAA and determined there would be no adverse impact because the proposed structure is below the airspace height of the federal aviation system. The Department considered whether the construction of the proposed structure would cause an increase in the minimum descent altitude or the decision height at the affected airport, and determined there would be no increase. The Department considered technological advances and determined that there are none which would be adversely impacted by issuance of this permit. The Department reviewed concerns related to the safety of persons on the ground and in the air and determined that there would be no adverse impact created by issuance of the permit. The Department considered land use density. There is no adverse impact to land use density related to this permit. The Department considered the safe and efficient use of navigable airspace. There is no adverse impact created by issuance of the subject permit. Existing objects of similar height and distance have posed no hazard to operation of the airport. Considering the airport’s characteristics, runway capability, and the types of aircraft using the facility, the proposed structure will not adversely impact the facility or any aircraft using the facility. The Department considered the cumulative effects on navigable airspace of all existing structures, proposed structures identified in the applicable jurisdictions comprehensive plans, and all other known proposed structures in the area. There is no adverse impact caused by the cumulative effects of this structure, and other proposed or existing structures. The evidence establishes that Mr. Warner has met the criteria set forth by statute for the issuance of an Airspace Obstruction Permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order granting the Warner application for Airspace Obstruction Permit. The permit shall include the requirements related to lighting as set forth by the FAA. DONE AND ENTERED this 19th day of October, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1998. COPIES FURNISHED: Kelly A. Bennett, Assistant General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Albert E. Warner, III Post Office Box 7084 Wesley Chapel, Florida 33543-7084 Charles W. Brammer, General Manager Tampa North Aero Park, Inc. 4241 Birdsong Boulevard Lutz, Florida 33549 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Attention: James C. Myers, Clerk Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
