Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the parties' factual stipulations, the following relevant facts are found: Respondent Sheldon West, Inc. was the developer of Sheldon West Mobile Home Community, a "condominium," as those terms are used and defined in Chapter 718, Florida Statutes. The Declaration of Condominium was recorded in the official records of Hillsborough County on September 27, 1978. The respondent transferred control of the Sheldon West Condominium Owner's Association, Inc. to the unit owners on June 30, 1986. In the Declaration of Condominium, respondent provided a guarantee of common expenses pursuant to Section 718.116(8)(a)2, Florida Statutes. Under the guarantee, respondent was excused from the payment of common expense assessments on developer-owned units for a period of five years. During that period, respondent guaranteed to unit owners that assessments would not exceed a certain stated level, and respondent obligated itself to pay any amount of common expenses incurred during the period and not produced by the assessments at the guaranteed level receivable from other unit owners. Common expenses during the guarantee period amounted to $57,895.00. Assessments collected from unit owners during the guarantee period amounted to $49,190.00. Thus, respondent's liability for common expenses during the guarantee period was $8,705.00. Respondent's guarantee of common expenses ended September 26, 1983. From September 27, 1983, through June 30, 1986, the date of the turnover, respondent paid no assessments on the lots it still owned. The Declaration of Condominium provides that assessments not paid within five days of the due date shall bear interest at the rate of ten percent per annum from the due date until paid. Respondent's liability for assessments from September 27, 1983, through June 30, 1986, amounted to $40,870.00, and the interest on the overdue assessments amounted to $7,032.35. The Homeowners Association over-reimbursed respondent for expenses incurred during the guarantee period in the amount of $12,968.00. In addition, respondent received two payments from Association funds in June, 1986 of $7,000.00 and $8, 000.00. In January of 1986, the respondent and the Department of Business Regulation entered into a Final Consent Order, which called for a $500.00 civil penalty. The respondent paid the civil penalty, and, in March of 1986, he was reimbursed from the Association funds for payment of said penalty. The payables due from the respondent to the Homeowners Association, amounting to almost $70,000.00, were not paid to the Association at turnover. Instead, they were applied and offset against what were represented to be advances and receivables payable to the respondent from the Association in the amount of $77,142.00. This amount represents the cost of construction by the respondent of a pool and a clubhouse on the common property, interest charged on the advance of funds from respondent to the Association, and management fees due on uncollected assessments. Construction on the pool and clubhouse began in November of 1980 and ended in February of 1981. Neither the Prospectus nor the Declaration of Condominium mention the construction of a pool or clubhouse. No vote on construction of the pool and clubhouse was ever taken of unit owners other than the Board of Directors. No approval in writing was ever given by unit owners. The Declaration of Condominium was never amended to reflect the addition of a pool or clubhouse. The minutes of a special meeting of the Directors of the Association held on October 21, 1980, reflect that one of the three Directors gave a report that "residents wanted a Pool and Rec. Building" located on the common property and "were willing to pay for the same from the assessments on the residents." The minutes further reflect that a motion was made and adopted that the developer construct the pool and building and that, in return, the Association agreed to repay the developer the cost of same, estimated at $60,000.00, on or before turnover to the resident unit owners. The minutes further state "copy sent to Residents and Directors." These minutes are unsigned, but typewritten are the names of Tom F. Brown, the President of Sheldon West, Inc.; Anna K. Laughridge, Mr. Brown's daughter; and Ken Lord, who apparently was a unit owner. As reflected in a document received into evidence as petitioner's Exhibit 11, the members of the Board of Directors of the Association on January 2, 1981, consisted of Ora Katherine Brown, apparently Tom Brown's wife; and Anna K. Laughridge. The minutes of a "special joint meeting of Board of Directors" of the Association held on January 2, 1981, reflect that the resignation of Ora Katherine Brown as an officer and director was accepted, and that Tom Fairfield Brown and Anna K. Laughridge were named as Directors. The minutes of a "special meeting of directors" of Sheldon West, Inc., held at 10:00 A.M. on February 24, 1981, reflect the adoption of a motion that Sheldon West, Inc. would advance the funds for payment of the cost of construction of the pool and recreation building with the understanding that it would be repaid for the funds so advanced, and that it would receive credit therefore by the Association for any sums which might be due, owing or claimed by the Association. The minutes make reference to a promissory note evidencing the agreement. The promissory note, respondent's Exhibit 4, states that at a special meeting of the Association held on February 24, 1981, the Association agreed to repay and credit Sheldon West, Inc. for all sums advanced for the construction of the pool and recreation building. This promissory note is dated February 24, 1981, and is signed by Tom F. Brown as the President of the Association. The minutes of the "special meeting of directors" of the Association held on February 24, 1981, at 4:00 P.M. reflect that Directors Tom F. Brown, Anna K. Laughridge and Ken Lord were present. The minutes further make reference to an agreement that the costs of the pool and recreation building were to be advanced by Sheldon West, Inc. with the understanding that it would receive credit for such funds and be reimbursed for any balance on the date of turnover to the unit owners. These minutes state "copy posted outside clubhouse and del. to residents."
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that: Respondent be found guilty of violating Section 718.116(8)(a)2, Florida Statutes, for its failure to fund the deficit during the guarantee period; and that a civil penalty in the amount of $5,000.00 be imposed for this violation; Respondent be found guilty of violating Section 718.116(1)(a) and (8)(a), Florida Statutes, for its failure to pay assessments on developer-owned units after expiration of the guarantee period; and that a civil penalty in the amount of $5,000.00 be imposed for this violation; and Respondent be found guilty of violating Rule 7D- 23.003(3), Florida Administrative Code, for utilizing Association funds for the payment of a civil penalty; and that a civil penalty in the amount of $1,000.00 be imposed for this violation. Respectfully submitted and entered this 2nd day of December, 1988, in Tallahassee, Florida. DIANE D. TREMOR 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 2nd day of December, 1988. APPENDIX The proposed findings of fact submitted by the parties have been carefully considered and are accepted, incorporated and/or summarized in this Recommended Order, with the following exceptions: Petitioner 24 and 25. Accepted as factually correct, but not included as irrelevant and immaterial to the issues in dispute. Respondent 4 and 5. Partially rejected and discussed in the Conclusions of Law. 7 and 9. Rejected as irrelevant to the issues in dispute. 10. Amount stated rejected as contrary to the greater weight of the evidence. COPIES FURNISHED: Scott Charlton, Esquire Peavyhouse, Grant, Clark Charlton, Opp & Martino 1715 N. Westshore Post Office Box 24268 Tampa, Florida 33623 David L. Swanson, Esquire Sandra E. Feinzig, Esquire Assts. General Counsel Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32399-1007 James Kearney, Director Department of Business Regulation Division of Florida Land Sales, Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32399-1007 =================================================================
The Issue The issue is whether Ordinance 02-06, as adopted by the City of Key West and approved by the Department of Community Affairs, is consistent with the Principles for Guiding Development for the City of Key West Area of Critical State Concern, as provided in Rule 28-36.003(1), Florida Administrative Code.
Findings Of Fact All Petitioners, except John Abbe, and all Intervenors are substantially affected persons. After the commencement of this proceeding, Petitioner John Abbe sold his property and voluntarily dismissed his claim. The parties agreed that, for mutual convenience, the style of this case would remain unchanged, but references to "Petitioners" or the "parties" below do not include John Abbe. At all material times, each Petitioner owned or managed for rental residential real property in the City of Key West (as an area, Key West). Each Petitioner rented these properties for tourists for terms of less than 30 days or one calendar month. None of these properties was the primary residence of any Petitioner who is a natural person. Petitioners have transient occupational licenses issued by the State of Florida and Monroe County. Petitioners Hein and Klein do not have occupational licenses from Intervenor City of Key West (as a municipality, City) for transient rentals, but five of the 30 properties managed by Petitioner Property Management of Key West, Inc. are properly licensed with City transient occupational licenses. Intervenor Martha DuPont (DuPont) owns a residence in the Truman Annex development in Key West. Members of Intervenor Truman Annex Residents, Inc., (TAR) also own residences in the Truman Annex. Properties adjacent to the Truman Annex are devoted to transient rentals, and DuPont and TAR's members have been disturbed in the enjoyment of their residences by transient renters occupying the properties that they have rented. On February 20, 2002, the City adopted Key West Ordinance 02-06. Ordinance 02-06 amends Section 5-21.2 of the City land development regulations by amending the definition of "Transient Living Accommodations" and adds a new regulation governing transient living accommodations in residential dwellings. The amendment to the definition of "Transient Living Accommodations" adds that advertising or holding out a property as available for rent to transients satisfies the definition, even if no rental occurs, and that "a short-term rental use of or within a single family dwelling, a two family dwelling or a multi-family dwelling . . . shall be deemed a transient living accommodation." The new land use regulation is Section 2-7.21, which is entitled, "Transient Living Accommodations in Residential Dwellings--Regulations." Section 2-7.21 accomplishes the restrictions to which Petitioner object and provides, in part: Intent. These regulations apply only to the transient use of residential dwellings. In 1986, the City enacted former zoning code Section 35.24(44) which provided the following definition of a transient living accommodation: "Commercially operated housing principally available to short-term visitors for less than twenty-eight (28) days." (This definition shall hereinafter be referred to as the "Former Transient Definition.") Some property owners and developers interpreted the Former Transient Definition to mean that an owner could rent his or her residential dwelling for less than half the year without the dwelling losing its residential status, and therefore without the need for a City-issued transient license (so long as State of Florida licensing requirements were met). This interpretation went unchallenged by the City. Three categories of transient use of residential dwellings resulted: (1) some owners obtained a residential license allowing unrestricted transient use; (2) some owners followed the Former Transient Definition and, accordingly, rented their properties less than half the year; and (3) some owners put their residences to a transient use without City or State license and without regard to existing regulations. In addition, many residential dwelling owners never put their properties to a transient use and they no longer have the opportunity to do so under the City's current Rate of Growth Ordinance. The City Commission finds that short-term or transient rentals affect the character and stability of a residential neighborhood. The home and its intrinsic influences are the foundation of good citizenship; although short-term tenants no doubt are good citizens generally, they do not ordinarily contribute to activities that strengthen a community. Therefore, the City of Key West intends by these regulations to establish a uniform definition of transient living accommodations, and to halt the use of residences for transient purposes in order to preserve the residential character of neighborhoods. The City has provided only a brief phase-out period in recognition that in many instances investment expectations have already been met either through rental income or rising market value. * * * Key West is a designated area of critical state concern (ACSC). Therefore, on February 22, 2002, the City submitted Ordinance 02-06 to Respondent, which is legally obligated to review proposed land development regulations in ACSC. By Final Order issued April 2, 2002, Respondent found that Ordinance 02-06 is consistent with the Principles for Guiding Development of the City of Key West Area of Critical State Concern, as set forth in Rule 28-36.003(1), Florida Administrative Code (Principles). (All references to Rules are to the Florida Administrative Code.) Specifically, Respondent found that Ordinance 02-06 is consistent with all of the Principles and "promotes and furthers" Principles a and h. The Principles, which were adopted by the Administration Commission on February 28, 1984, consist of the following objectives: Strengthen local government capabilities for managing land use and development. Protection of tidal mangroves and associated shoreline and marine resources and wildlife; Minimize the adverse impacts of development of the quality of water in and around the City of Key West and throughout the Florida Keys; Protection of scenic resources of the City of Key West and promotion of the management of unique, tropical vegetation; Protection of the historical heritage of Key West and the Key West Historical Preservation District; Protection of the value, efficiency, cost-effectiveness and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities, Sewage collection and disposal facilities, Solid waste collection and disposal facilities, Key West Naval Air Station, The maintenance and expansion of transportation facilities, and Other utilities, as appropriate; Minimize the adverse impacts of proposed public investments on the natural and environmental resources of the City of Key West; and Protection of the public health, safety, welfare and economy of the City of Key West and the maintenance of Key West as a unique Florida Resource. Unlike the other Principles, Principle a derives its importance from the remedial process implicit in the ACSC rules. Pursuant to Rule 28-36.001(3), the necessity of the ACSC designation is obviated, if the City implements the Principles through the adoption and enforcement of a compliant comprehensive plan and land development regulations. The City's comprehensive plan prohibits transient rentals in the following districts: Coastal Low Density Residential Development, the Single Family Residential Development, Medium Density Residential Development, High Density Residential Development, Mixed Use Residential/Office, Limited Commercial Development, Historic High Density Residential Development, Historic Medium Density Residential Development, Historic Residential/Office, Conservation, Military, Public Services, and Historic Residential/Office (as to residential properties not already licensed for transient use prior to the effective date of the comprehensive plan). The City's comprehensive plan allows transient rentals in the following districts: Salt Pond Commercial Tourist, General Commercial Development, and Historic Commercial Tourist. The City's comprehensive plan defers the land-use decision concerning transient rentals to the land development regulations in the following districts: Mixed Use Planned Redevelopment and Development and Historic Planned Redevelopment and Development (Truman Annex is the only area bearing this designation). The City's comprehensive plan allows and prohibits transient rentals in different parts of the following districts: Historic Residential Commercial Core (allowed in subdistricts 1 and 3, but prohibited in subdistrict 2) and Historic Neighborhood Commercial (allowed in subdistricts 1 and 3, but prohibited in subdistrict 2). Ordinance 02-06 is consistent with Principle a because the ordinance implements plan designations that prohibit transient rentals and executes plan designations that defer the land-use decision regarding transient rentals to the land development regulations. Petitioner's contentions to the contrary are unpersuasive. Provisions of the City's comprehensive plan stress the importance of tourism, but the City's decision to restrict transient rentals does not necessarily conflict with the presentation of Key West as an appealing tourist destination. The record does not suggest that the loss of rental homes, many located in established residential neighborhoods, would diminish Key West's tourist appeal. Analysis of Principle a does not require the resolution of such longstanding disputes between the parties, such as whether the prohibition of transient rentals accomplished by Ordinance 02-06 maintains and enhances Key West's charm and tourist appeal, as ordinance proponents contend, or substantially reduces the inventory of rental properties for a particular segment of the tourist market, as ordinance opponents contend. As is more apparent in the discussion below of Principle h, the relevant inquiry is that of consistency, which encompasses a broader range of permissible land use regulations relative to the Principles--not promotion, which, unwisely used by Respondent in its final order, encompasses a narrower range of permissible land use regulations relative to the Principles. Ordinance 02-06 is consistent with the City's comprehensive plan's restrictions on transient rentals and identifies those districts for which the plan defers to the regulations with respect to land use regulation. Therefore, the passage of Ordinance 02-06 clearly demonstrates the City's emerging capability for managing land use and development. As is relevant to this case, Principle h is to protect the welfare and economy and maintain Key West's role as a unique Florida resource. By implication, Petitioners contend that the Principles require the City not to restrict the availability of transient rentals in Key West. Resisting Petitioners' claims, Respondent, the City, and Intervenors contend that the Principles require the City to restrict the availability of transient rentals in Key West. Principle h illustrates the problem with Respondent's finding that Ordinance 02-06 "promotes and furthers" a Principle, when only consistency is required. The concept of consistency contemplates a range of permissible planning solutions, some of which may even be contradictory. The concept of promotion is less amenable to contradictory planning solutions, such as, in this case, the restriction or extension of transient rentals. The protection of the public welfare or economy and maintenance of Key West as a unique Florida resource are concepts that will accommodate a considerably wider range of planning decisions than will the protection of mangroves and water quality. On this record, the City could, consistent with these salutary exhortations imbedded in Principle h, restrict or extend transient rentals. Respondent's finding that Ordinance 02-06 promotes Principle h is an unfortunate departure from the statutory standard of consistency because the erroneous corollary of this finding is that Principle h impliedly discourages, if not prohibits, a later ordinance extending the availability of transient rentals. Principles requiring the protection of natural and historic resources and governing infrastructure are sufficiently demanding, and the range of responsive planning solutions sufficiently narrow, that a specific planning strategy may be mandated or prohibited, even though the standard is only consistency. However, the treatment of transient rentals does not impact these Principles in any meaningful way, so the range of planning solutions available to the City is not significantly restricted. In preempting the rights and responsibilities traditionally accorded local governments in Florida, the Administration Commission explicitly limited itself to matters involving natural and historic resources and infrastructure. Rule 28-36.004(1) states: "The [Principles] are oriented towards [sic] protection of natural and historic resources and public investments of regional and State importance." Obviously, Rule 28-36.004(1) omits any mention of the subjects of Principles a and h, which are the two Principles that Respondent found were promoted by Ordinance 02-06. Among all the Principles, these two have the broadest application, because they are not limited to natural and historic resources and infrastructure, but impose the least restrictions upon the City, because they are not limited to natural and historic resources and infrastructure. Respondent cites these two Principles in defense of Ordinance 02-06, not because Respondent has a weak case, but because a transient rental ordinance has little, if anything, to do with the Principles and their purposes. However annoying the presence of transient rentals may be to some residents or costly the absence of transient rentals may be to some landowners and rental agents, the status of transient rentals immediately prior to this ordinance or immediately after it has no significant impact upon Key West's status as an ACSC. The record does not support a claim that the presence or absence of transient rentals forms a distinctive historical feature in Key West, has any bearing on the natural resources of Key West, or ultimately involves the public welfare or economy of Key West in any measurable way. Thus, Ordinance 02-06 is consistent with Principle h, just as would be an ordinance repealing Ordinance 02-06 and restoring transient rentals to their status just prior to the adoption of Ordinance 02-06. For similar reasons, Ordinance 02-06 is consistent with the remaining Principles.
Recommendation It is RECOMMENDED that the Department of Community Affairs enter a final order finding Ordinance 02-06 consistent with the Principles for Guiding Development in the City of Key West, as set forth in Rule 28-36.003(1), Florida Administrative Code. DONE AND ENTERED this 4th day of August, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 4th day of August, 2003. COPIES FURNISHED: David J. Audlin, Jr. 415 Eaton Street Key West, Florida 33040 Jeffrey M. Bell Ritter, Chusid, Bivona and Cohen, LLP 7000 West Palmetto Park Road, Suite 400 Boca Raton, Florida 33433 Timothy E. Dennis Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Lee R. Rohe Post Office Box 420259 Summerland Key, Florida 33042 Colleen M. Castillo, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 David L. Jordan, Deputy General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
The Issue The issue in this case is whether Respondent committed a housing discriminatory practice against Petitioner based on Petitioner’s race and gender, in violation of Section 760.23, Florida Statutes (2008).1
Findings Of Fact Ms. Martindale is an African-American female. Westgate sells timeshare units and vacations. Westgate is the largest privately-owned timeshare developer in the world. It currently has 27 resorts around the United States. There are over 250,000 owners of timeshares sold by Westgate. Westgate has developed a strategy to market its timeshare units. It leases locations in the Orlando area, including space in hotels, and outdoor locations at gas stations and convenience stores. Marketing coordinators are placed in the locations to solicit families and individuals to come and tour Westgate properties in hopes that they will purchase vacations or timeshares. One of the enticements Westgate uses to get people to tour its properties is a free gift, if the potential customer meets certain qualifications. On July 1, 2008, Ms. Martindale was approached by a Westgate marketing coordinator at a convenience store. The marketing coordinator asked to see Ms. Martindale’s driver’s license and a credit card. The marketing coordinator also asked her the amount of her annual income. Ms. Martindale was presented with an invitation by the marketing coordinator, who went over the details of the invitation with Ms. Martindale. The invitation was to be used to secure Ms. Martindale’s admission to a tour of the Westgate resort at Kissimmee, Florida. Ms. Martindale signed the invitation and initialed the invitation acknowledging that she met the qualifications listed in the invitation for a $100 cash gift. The invitation states: Provisions of offer: There is no cost or obligation to purchase anything. No one is excluded from our tour or resort ownership; however, the following requirements must be met in order to receive a gift. After meal, you must attend a 90 minute sales presentation. If married, husband and wife must attend together. If cohabitating, both parties must be present. You must speak fluent English or Spanish. If married, husband or wife must be between the ages of 23-65 with a valid photo I.D. or passport to qualify with a combined gross annual household income of $50,000. Single persons (single constitutes never married, divorced, widowed; single does not constitute separated) must be between the ages of 23-65 with a valid photo I.D. or passport and a $50,000 gross annual income. Florida residents of Brevard, Volusia, Lake, Orange, Polk, or Seminole Counties do not qualify for this offer. Must have spent prior night in a motel, hotel, resort, condo or vacation rental in the Orlando area and are not staying in a campground, driving an R.V. or with family/friends. Subject to the above qualifications, this offer is available to all permanent residents and citizens of the United States. This offer may not be available to citizens and residents of some countries. I/we have confirmed our eligibility for the gift with the Marketing Representative prior to arranging for my/our tour. When Ms. Martindale received the invitation, she understood that she would not receive the free gift if she did not meet the qualifications listed in the invitation. She also understood that she did not have to meet the qualifications in order to take the tour and that she could purchase a timeshare unit without meeting the qualifications. Ms. Martindale took the invitation and went to the Westgate property for a tour and her free gift. At the time that Ms. Martindale signed the invitation and presented herself for the tour and free gift, she was a resident of Orlando, Orange County, Florida. When Ms. Martindale arrived at the Westgate property, she stopped at the tour check-in desk. Again she was asked to present her driver’s license and a major credit card. She was asked the amount of her annual income. The employee at the check-in desk told Ms. Martindale to proceed to the reception area where she would be greeted by another employee and taken on a tour. Ms. Martindale stayed in the reception area for about ten minutes when she was greeted by a salesperson who took her to a larger reception area in which there were hundreds of people of varying nationalities and gender, including African- American women. The reception area contained a buffet, and the salesperson told Ms. Martindale that she could enjoy the buffet. The man then began to ask her questions about her annual income. He told her that he did not believe her and left to get Lissette Roman, who was the assistant manager resort liaison. He returned with Ms. Roman. When a potential customer does not appear to meet the financial qualifications for the free gift, Ms. Roman is asked to assist in determining if there is any way in which the potential customer may qualify for the free gift. Ms. Roman’s duties include asking questions concerning the amount and sources of income the potential customer has. Ms. Roman receives a commission for each timeshare unit that is sold. Many times potential customers who do not qualify for the free gift become upset, and it is Ms. Roman’s job to calm the potential customer and to avoid a confrontation. If the potential customer becomes antagonistic, Ms. Roman will call security. Ms. Roman asked Ms. Martindale questions about Ms. Martindale’s income. Ms. Martindale felt that Ms. Roman was rude to her, and she felt humiliated by Ms. Roman’s questions regarding her income. According to Ms. Martindale, Ms. Roman called her a liar, wrote cancelled on the invitation, and asked Ms. Martindale to leave the premises. Ms. Roman does not recall the incident involving Ms. Martindale; however, she does not believe that she called Ms. Martindale a liar because such conduct could result in her being terminated from her job. Based on the evidence presented, it is found that Ms. Roman did not call Ms. Martindale a liar, but that, based on the questions that Ms. Roman was asking relating to Ms. Martindale’s income, Ms. Martindale felt that the veracity of her response regarding the amount of her annual income was being impugned. Ms. Roman did write “cancel tour” on the invitation and asked Ms. Martindale to leave. Ms. Roman’s actions had nothing to do with Ms. Martindale’s gender or race. Based on the evidence presented, the conversation between Ms. Martindale and staff from Westgate was escalating into a confrontational situation in a room with hundreds of potential customers. The removal of Ms. Martindale from the premises was a means of avoiding a scene in front of other potential customers. Ms. Martindale wrote a letter to Westgate complaining about the incident. She did receive a telephone call from a representative of Westgate concerning the letter, and she may have been offered a tour of the resort. She was not interested in touring the resort at that time and does not want to tour the resort now. Ms. Martindale never made an offer to purchase a timeshare unit from Westgate. Westgate gives free gifts to males and females of varying nationalities, including African-Americans, if the potential customers meet the qualifications listed on the invitation. Westgate gives tours and sells to males and females of varying nationalities, including African-Americans, regardless of whether the potential customers meet the qualifications for the free gifts. Usually, if the potential customer does not qualify for the free gift, the potential customer does not care to take the tour. However, there have been potential customers who have not met the free-gift qualifications, have taken the tour, and have purchased timeshare units.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Ms. Martindale’s Petition for Relief. DONE AND ENTERED this 30th day of April, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2009.
The Issue The issues are as follows: (a) whether Respondent took "agency action" when it certified the Okaloosa-Walton College Foundation, Inc. as its direct support organization and endorsed the Foundation's decision to sell the Mattie Kelly property; and whether Petitioners have standing to request an administrative hearing on those issues.
Findings Of Fact The Foundation was incorporated and first certified as a direct support organization in 1988. The Mattie Kelly property is approximately 13 acres of waterfront property on Choctawhatchee Bay in Destin, Okaloosa County, Florida. It includes the former residence of Mattie Kelly and the real property surrounding the residence. Destin, Okaloosa County, Florida, is a municipality, bounded on the north and west by Choctawhatchee Bay, on the south by the Gulf of Mexico, and on the east by Walton County, Florida. On August 17, 1992, Mattie Kelly executed her Last Will and Testament (will). Article VIII of the will states as follows: I give, devise and bequeath my personal residence located a 1200 Indian Trail Road, Destin, Florida 32541, including all real property surrounding the residence and the sum of Five Hundred Thousand Dollars ($500,000,000) to Okaloosa-Walton Community College for the establishment of the "Mattie Kelly Cultural and Environmental Institute of Okaloosa-Walton Community College." The purpose of the "Mattie M. Kelly Cultural and Environmental Institute of Okaloosa-Walton Community College" shall be: To provide a meeting place for literary societies, fine arts groups, and small performing groups. To provide a location for conferences and seminars offered through Okaloosa-Walton Community College. To provide a location for biology studies and marine science studies associated with Choctawhatchee Bay and the Gulf of Mexico. To provide a location for displaying the coastal heritage of Northwest Florida. The Five Hundred Thousand Dollars ($500,000,000) endowment which forms part of this gift shall be used only for maintenance and operating costs in furtherance of the above purposes, including the perpetual care, maintenance and upkeep of my mausoleum. A Personal Representative's Warranty Deed dated March 6, 1997, conveyed the property to the Foundation. At some point in time, the Foundation decided to sell the property to a real estate developer and entered into a contract to do so. On March 15, 2004, Petitioner Hammet filed a Petition for Administrative Hearing with the Board. The petition questioned whether the Board should support, endorse, and/or not oppose the sale of the property for private real estate development purposes, accept the college president's recommendation about the sale, and certify the Foundation to be operating in the best interest of the state. The Board's March 16, 2004, minutes state as follows in relevant part: ACTION AGENDA DSO Certification/IRS 990 The District Board of Trustees certified that requirements of Direct Support Organization under FS 1004.70 have been met and that the OWCC Foundation is in compliance with the procedures as herein described and accepts Form IRS 990 as submitted. Further, the District Board of Trustees supports and endorses the Foundation Board of Directors in its endeavor to sell the Mattie Kelly Property (Motion: Henderson; Second Rainer. Vote: 6 yes; 2 no (Smith, Wells). Motion carried. On April 22, 2004, the Board referred Petitioner Hammet's petition to DOAH, together with the Board's Motion to Dismiss. DOAH assigned this case DOAH Case No. 04-2049. On June 15, 2004, the Board referred the following to DOAH: (a) Petitioner Coastkeepers' Petition for Administrative Hearing; (b) Petitioner's Motion and Suggestion for Disqualification of Joseph Henderson and James R. Richburg; and the Board's Motion to Dismiss Petition for Administrative Hearing. DOAH assigned the case DOAH Case No. 04-2141. On July 8, 2004, some of Ms. Kelly's relatives filed a suit against the Foundation in Circuit Court. In Count I of the complaint, the relatives sought a declaratory judgment that the Foundation's proposed sale violates Ms. Kelly's will and that the relatives had reversionary rights to the property. In Count II of the complaint, the relatives sought injunctive relief to restrain the Foundation from selling the property to a third party in accordance with a written contract of sale. On April 20, 2005, the Florida Attorney General issued an Advisory Legal Opinion, stating that the Foundation is subject to Florida's Sunshine Law. On May 5, 2005, the Foundation voted to ratify the contract to sell the property and to confirm the prior decision to sell the property. On June 3, 2005, the First Circuit Court entered a "Final Judgment for Defendant" in L. Bernarr Kelly, Carol Kelly and Lowell B. Kelly v. The Okaloosa-Walton Community College Foundation, Inc., No. 2004-CA-405 (Fla. 1st Cir. Ct. June 3, 2005), which states as follows in pertinent part: . . . The Court is convinced by the nature of the Will, and the testimony and evidence that Mattie Kelly had legal advice in her estate planning, that if Mattie Kelly intended for the subject property to be placed in a trust, and if she desired to put restrictions on the subject property to prevent Defendant Foundation from selling it, that she knew how to accomplish this, and that she chose not to do so. The Court finds . . . that Mattie Kelly did not intend to limit or restrict the sale of the subject property in the future to fulfill her desires for the creation of a cultural and environmental institute. . . . The Court finds that the deed dated March 6, 1997, . . . does not contain a reverter clause or language creating any right of reversion. . . . The Court finds that the deed conveyed a fee simple title to the OWCC Foundation with no right of reversion. The Court further finds that this deed was in accordance with the intent of Mattie Kelly at the time she executed her will. The Court finds that Article VIII of the Will which devised the subject property contains no language of trust and no language of reverter, and did not create a charitable trust . . . . The Court further finds that Defendant's proposed sale of the subject property does not include the "mausoleum property." . . . Since the mausoleum property is not being conveyed, the Court finds that the Plaintiffs no longer have standing as to the remaining property, and would deny Plaintiffs relief on this basis, in addition to the foregoing reasons. Therefore, the Court finds for the Defendant, The Okaloosa-Walton Community College Foundation, Inc. and against the Plaintiffs, and ORDERS and ADJUDGES as follows: Defendant Foundation's proposed sale of the subject property is not in derogation of Article VIII of the Last Will and Testament of Mattie Kelly, or the deed which conveyed the subject property to Defendant Foundation. Therefore, Defendant Foundation is not prohibited from selling the subject property, excluding the mausoleum property as described in Addendum #4 to the Contract for Sale and Purchase, in order to fulfill the intent of Mattie Kelly in creating the "Mattie M. Kelly Cultural and Environmental Institute;" however, all monies received from the sale of the subject property, including any matching funds, are to be used in the establishment and operation of the Mattie M. Kelly Cultural and Environmental Institute. [Emphasis added.] On June 8, 2005, Petitioners filed a Joint First Amended Petition for Administrative Hearing, stating as follows regarding standing: Petitioner Hammet's substantial interests will be affected by Respondent's determination because she and her family live within close proximity to the Mattie Kelly property and have often used and enjoyed the property for viewing the coastal heritage of Northwest Florida, and she wishes to continue to use and enjoy the property in the future. The Mattie Kelly property is a special place for Hammet and her family, where they have many pleasant memories and regularly have benefited from this public property being in their neighborhood. Hammet and her family will no longer be able to use and enjoy this accessible public resource if it is sold for private development. Petitioner Coastkeepers' substantial interest will be affected by Respondent's determination because it is a Florida non-profit corporation dedicated to protection of the environment in an area of the Gulf of Mexico Coast that includes Okaloosa and Walton Counties and Choctawhatchee Bay. Preservation of environmentally sensitive lands such as the Mattie Kelly property, and having the Mattie Kelly property as a location for biological studies, marine science studies, and studies of the coastal heritage of Northwest Florida, are vitally important to protecting Choctawhatchee Bay and the interest of Petitioner and its members, who include a substantial number of members who reside in Okaloosa and Walton Counties and have the present intention to use, visit, enjoy, and study biological, marine science and cultural heritage issues associated with Choctawhatchee Bay, the Gulf of Mexico, and the Mattie Kelly property at the Mattie Kelly property. The Mattie Kelly property is ideally suited to provide waterfront environmental education in an otherwise highly urbanized environment, including education of local residents, which is vital to controlling urban runoff, and for highlighting, encouraging, and educating the public of the need to protect Choctawhatchee Bay and the Gulf of Mexico. The Mattie Kelly property would no longer be available for such intended pursuits were the proposed sale of the Mattie Kelly property to private development interest go forward. Moreover, the proposed development of the very property set aside by Mattie Kelly would itself directly contribute to the urban runoff known to be causing problems in Choctawhatchee Bay. Choctawhatchee Bay has many examples of waterfront subdivision development and very little opportunity for environmental protection education in a local setting near where waterfront residential owners already live. These purposes will not be as well-served by educational efforts at OWC's main campus in Niceville, which is not waterfront and miles away from Choctawhatchee Bay. If properly managed, the Mattie Kelly property should be the field trip every school-age child in Okaloosa and Walton County takes, which would be a lasting legacy to Mattie Kelly that would truly be consistent with her express purposes. This opportunity will be forever destroyed if the property is developed as proposed. On June 24, 2005, Respondent filed a Motion to Dismiss Joint First Amended Petition for Administrative Hearing. On July 5, 2005, Petitioners filed a Response to Respondent's Motion to Dismiss Joint First Amended Petition for Administrative Hearing. Neither of the Petitioners holds any title interest in the property.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board enter a final order dismissing the Petitions for Administrative Hearing. DONE AND ENTERED this 22nd day of August, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 August, 2005. COPIES FURNISHED: James R. Richburg, President Okaloosa-Walton Community College 100 College Boulevard Niceville, Florida 32578-1295 Joseph D. Lorenz, Esquire 1270 North Elgin Parkway, Suite C-12 Shalimar, Florida 32579 Steven A. Medina, Esquire Levin, Papantonio, Thomas, Mitchell, Echsner & Proctor, P.A. 316 South Baylen Street Post Office Box 12308 Pensacola, Florida 32581
