Findings Of Fact On or about March 13, 1986, Petitioner applied to Respondent for a conditional use permit to allow the package sale of alcoholic beverages in a convenience store at 410 through 422 North Belcher Road, Clearwater, Florida. The property is located in a general commercial district. On or about April 15, 1986, the Planning and Zoning Board of the City of Clearwater denied Petitioner's application and on April 28, 1986, Petitioner timely appealed that decision. Petitioner's property is immediately adjacent to Faith Bible Church which operates Suncoast Christian School with approximately 120 students through the sixth grade, and the property is across the street from Trinity Baptist Church which operates a school with approximately 200 preschool through first grade students. The subject property is within 500 feet of the property of both of these churches, and there are two additional churches in the neighborhood. Richard Tobias, property appraiser, testified that convenience stores such as the one Petitioner proposes do not enhance the properties in their immediate vicinity, although they are generally an asset to the neighborhood as a whole due to the convenience of local shopping. Public witnesses expressed concern about the proximity of the proposed convenience store to churches and schools because of litter problems which they feel could develops as well as public drinking in the store parking lot. The use and enjoyment of such church and school properties will be adversely affected if the conditional use is approved, accordingly to the testimony and evidence presented by public witnesses. Petitioner, as property owner, plans to lease the subject property to Carlos Yepes, President of Clay Oil Enterprises, for the operation of the convenience store. Yepes operates seven other stores which sell beer and wine, and according to Denise Williams, leasing agent, there have been no neighborhood or police complaints concerning Yepes' operations.
The Issue The issue is whether Respondent, Agency for Persons with Disabilities (Agency), had a reasonable basis in law and fact to initially deny Petitioner's application for a license to operate a group home, or whether other circumstances were present that would make an award of attorney's fees and costs unjust within the meaning of section 57.111(1)(e), Florida Statutes (2015).
Findings Of Fact Respondent is the state agency that licenses group homes pursuant to section 393.067. On June 13, 2014, Petitioner's corporate agent, Lavonda Hargrove, filed with the Agency an application for licensure to operate a group home facility in Wesley Chapel, Florida. Relevant to this dispute is a requirement by the Agency that if the applicant does not own the property on which the facility will be located, it must submit a copy of a fully-executed landlord/tenant lease agreement with the application packet. Petitioner did not own the property on which the facility would be operated and was required to comply with this requirement. The initial application packet filed with the Agency was missing a number of required items and some questions on the application were left blank. However, as found by Judge Crapps, a copy of an undated and partially signed residential lease agreement was submitted with the application. As noted below, its whereabouts are unknown. On July 29, 2014, or more than 30 days after the application was filed,1/ Myra Leitold, a Residential Program Supervisor in Tampa who reviewed the application, emailed Hargrove and informed her that the application had "to be completed in its entirety" and described areas of the application that required additional information. Leitold also attached to the email a generic checklist of 36 required documents for an initial license application, one of which was a "Landlord Agreement/Lease." While she identified some, but not all, of the items on the checklist that were missing, she did not specifically mention that a landlord agreement/lease had not been filed. In response to the email, on September 12, 2014, Hargrove submitted a second application with the supplemental information requested in Leitold's email. Because a lease agreement had already been submitted with the first application, and no mention of one was made in Leitold's email, it is reasonable to assume that this was the reason why Hargrove did not submit another copy with her second application. To make sure that her application was complete, on September 17, 2014, Hargrove emailed Leitold and stated the following: This is a follow up email to confirm your receipt of requested items for licensure of the Wesley Chapel home at 31733 Baymont Loop. Please advise if additional information is needed. Also, do you have any idea when you will be available to inspect the home? In response to Hargrove's email, Leitold promptly sent an email stating as follows: I did receive the documents forwarded last week however, have not had an opportunity to review them. I should be able to get to them in the next week or two. After her review of the second application was completed, Leitold believed it was still incomplete because there was no lease agreement in the packet. At the underlying hearing, Leitold acknowledged that it was possible the lease agreement had been filed with the initial application on June 13, 2014, but thought it unlikely the Agency had lost the document. As found by Judge Crapps, however, an agreement was filed but its whereabouts are unknown. In any event, Leitold did not advise Hargrove that her application was still incomplete. Instead, she forwarded the second application, without a lease agreement, to the Central Office in Tallahassee for final disposition. Applications are sent to Tallahassee only if they are incomplete or involve pending violations by the applicant; otherwise, action on the application is made at the local level. Incomplete applications are always denied, and Leitold knew that when the application was forwarded to Tallahassee, this would be the final disposition of the matter. After the application packet was reviewed by the Central Office in Tallahassee, with no executed lease agreement, on October 6, 2014, the Agency issued its Notice of License Application Denial for Group Home (Notice) based upon the ground that it did not include a lease agreement. (Presumably, the application satisfied all other licensing requirements.) Two Agency employees in Tallahassee who reviewed the application, Kim Walsh and Tom Rice, testified without dispute that a lease agreement is an essential part of an application, and without the document, they had no choice under the law except to deny the application. Neither Walsh nor Rice had knowledge that a partially executed and unsigned lease agreement had been submitted with the first application but was apparently lost or misplaced, or that Lietold had failed to notify Hargrove that this specific item was missing before the packet was sent to Tallahassee. On October 23, 2014, Hargrove requested a hearing to contest the decision. Although she was knew why the application was denied, in her request for a hearing, Hargrove did not indicate any specific material facts in the Notice that were in dispute. Moreover, she never indicated that a lease agreement had been filed with her initial application. According to Mr. Rice, the Agency's Program Administrator, had Hargrove disclosed this fact in her request for a hearing or brought it to the attention of Agency personnel in a timely manner, the matter could have been resolved without a hearing. A formal hearing was conducted by Judge Crapps on February 24, 2015. Just prior to the hearing, a lease agreement was provided to the Agency in the form of a proposed exhibit. Because it was not fully executed, the case was not settled, and an evidentiary hearing was conducted. At the hearing, Hargrove testified that the fully executed lease agreement was at her home. In his Recommended Order, Judge Crapps accepted Hargrove's testimony that a lease agreement had been filed with the initial application but made no finding as to what happened to the document. Even if the agreement was lost by the Tampa office, or was not fully executed, he observed that the Agency did not notify Hargrove within 30 days after the application was filed of any apparent errors or omissions, as required by section 120.60(1). For this reason, he deemed the application complete by operation of law. He also criticized the Agency for failing to specifically identify the missing lease agreement in its email sent on July 29, 2014. He recommended that the Agency reconsider the application and make a decision to approve or deny. The Agency's Final Order adopted the Recommended Order without change and approved the application.
The Issue Whether the Planning Commission deviated from essential requirements of law in denying Appellant's application for a special use permit to operate a car rental agency at 2576 Harn Boulevard, Clearwater, Florida.
Findings Of Fact Manual Kastrenakes, d/b/a Pinellas Rent-A-Car, Appellant, purchased the property which is the subject of this appeal in 1989. Prior to this purchase, the property was the site of a Farm Store, which has been vacated. Appellant also owns a filling station in the vicinity of this property which is legally operated and is in compliance with all zoning requirements. The property is zoned CH (highway commercial). Within Highway Commercial Districts, outdoor retail sales, displays and/or storage are permitted as conditional uses. Section 135.129(11), City of Clearwater Land Development Code. Objections to the granting of this conditional use permit come from residents of multifamily residential buildings adjacent to and west of the property in issue. Many of those residents are retired and/or infirm and contend they will be disturbed by the operation of a rental car business "in their back yard." To counter some of these objections, Appellant agreed to conditions being imposed on this permit limiting hours of operation, lighting, paving, buffer zones, and parking. Protestants also contend that operating the business would depreciate the value of their property, but no credible evidence was presented to support this position. Appellant has further agreed that disabled or wrecked vehicles will not be stored on this property, and only fully operable rental automobiles will be stored and/or displayed on this property.
The Issue Whether Respondents Adams Group Home, Inc., and Joyce Adams' ("Respondents") group home licensure renewal applications should be denied.
Findings Of Fact Parties and Background APD is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, and residential centers, pursuant to sections 20.197 and 393.067, Florida Statutes. Under section 393.063(19), a group home facility means a residential facility "which provides a family living environment including supervision and care necessary to meet the physical, emotional, and social needs of its residents." The capacity of such a facility must be at least four but not more than 15 residents. Respondents are licensees of two group home facilities, known as Adams Group Home #1, located at 2400 Oleander Drive, Miramar, Florida 33023, and Adams Group Home #2, located at 7131 Southwest 16th Street, Pembroke Pines, Florida 33023. Respondents' group homes provide a family living environment within a residential, single-family structure with a combined total of not more than 12 adult residents with developmental disabilities. Joyce Adams is Adams Group Homes' corporate officer. Ms. Adams has been licensed through APD to provide group home services for 18 years. Group homes licensed by APD are required to apply for a renewal license every year. The renewal process involves a review of the applications to make sure they are accurate and complete and an observation by a licensing specialist at the facilities to ensure the facilities are in compliance with the applicable statutes and administrative rules. Every year prior to 2018, including 2014 through 2017, Respondents' group home licensure renewal applications for Adams Group Home #1 and Adams Group Home #2 were approved by APD. No evidence was presented at hearing demonstrating that Respondents have ever been the subject of any corrective action plan or proposed disciplinary agency action in the form of an administrative fine, suspension or revocation of a license, or moratorium on admissions, prior to APD's March 13, 2018, denial letter. The March 13, 2018, Denial Letter Against this backdrop, on December 20, 2017, Respondents submitted applications to APD for renewal of the licenses of Adams Group Home #1 and Adams Group Home #2, which were set to expire in March 2018. By letter dated March 13, 2018, APD notified Respondents of the denial of their group home licensure renewal applications. APD's grounds for the denial of the license applications are set forth in the denial letter in four counts. In Counts I and II, APD alleges the Department of Children and Families ("DCF") commenced investigations which resulted in DCF's verified findings of abuse, neglect or exploitation against Ms. Adams in February 2014 and December 2015, respectively. APD further alleges that based on section 393.0673(2), it "may" deny an application for licensure based solely on DCF's verified findings. In Count III, APD alleges Respondents used video cameras in the common areas in 2016 and 2017 without written consents for the common areas in violation of Florida Administrative Code Rule 65G-2.009(7), which constitutes a Class II violation. In "Count IIII," APD alleges that after Hurricane Irma struck south Florida on September 10, 2017, Respondents had "no power at the group home," Respondents utilized a "makeshift grill" less than ten feet from the structure, and failed to care for its residents. APD specifically alleges that on September 19, 2017, a resident of Adams Group Home #2 "was taken to the emergency room at Memorial Regional Hospital for confusion and fever." APD further alleges that Respondents' conduct described in "Count IIII" constitutes Class I violations, and that the conduct violates rule 65G-2.009(1)(d) with regard to the minimum standards of facilities to ensure the health and safety of the residents and address the provision of appropriate physical care and supervision; adhering to and protecting resident rights and freedoms in accordance with the Bill of Rights of Persons with Developmental Disabilities, as provided in section 393.13; and section 393.13(3)(a) and (g), relating to humane care, abuse, neglect, or exploitation. Count I The parties stipulated that on December 29, 2013, DCF commenced an investigation of Respondents' group homes, and that on February 25, 2014, DCF closed its investigation with verified findings of abuse, neglect, or exploitation on the part of Ms. Adams. APD was aware of DCF's verified findings upon completion of DCF's investigation. At hearing, APD provided no witnesses with first-hand knowledge of the specific facts involved in the violation. Instead, APD presented unsigned DCF investigative reports and a DCF supervisor's testimony regarding the general investigative process. At hearing, Ms. Adams explained the facts and circumstances surrounding the violation. Ms. Adams testified the incident involved M.K., a 41-year-old female resident of Respondents' group home since 2006, who is developmentally disabled. According to Ms. Adams, on Sunday, December 29, 2013, M.K. was taken by personal car to the emergency room at Memorial Hospital, Pembroke Pines, where she was admitted. Ms. Adams testified that M.K. had been coughing for a few days, and she had consulted with a nurse practitioner about M.K.'s condition on Thursday, December 26, 2013. However, M.K.'s condition had not improved by Sunday, she looked weak, and Ms. Adams did not want to wait until Monday for M.K. to be seen by a doctor. M.K. was transported to the hospital on Sunday, December 29, 2013, by a facility employee. Emergency (911) had been called for M.K. on approximately eight occasions prior to December 29, 2013. Ms. Adams persuasively and credibly testified she would not have hesitated to call 911 for M.K. if she felt it was necessary. On Monday, December 30, 2013, the next business day, Ms. Adams provided an incident report to APD. Ms. Adams also immediately notified M.K.'s waiver support coordinator. M.K. returned to Respondents' group home after her release from the hospital where she has continued to reside since then. Count II The parties stipulated that on November 4, 2015, DCF commenced an investigation of Respondents' group homes, and that on December 12, 2015, DCF closed its investigation with verified findings of abuse, neglect, or exploitation on the part of Ms. Adams. APD was aware of DCF's verified findings upon completion of DCF's investigation. At hearing, Ashley Cole, regional program supervisor for the southeast region of APD, testified about the facts and circumstances surrounding the violation. The violation involved the use of residents' funds to request a new support coordinator.1/ Specifically, in November 2015, Ms. Cole conducted a review of client files at one of Respondents' group homes, including a review of financial ledgers, and saw disbursements of money from three residents to an attorney, totaling $1,300.00. When asked about this by Ms. Cole, Ms. Adams explained that the funds were used to pay an attorney to write letters on behalf of the three residents requesting new support coordinators. The funds were used to benefit the three residents and the letters were written by Respondents' attorney on behalf of the three residents. At hearing, Ms. Cole testified that it is typical for an APD client or the client's guardian to request a new support coordinator, not the group home owner, and that it is not required that a request for a new support coordinator be in writing. Although it may not be typical for the group home owner to request a new support coordinator in writing on behalf of the residents, it is not prohibited by law. None of the three residents had guardians or family members to assist in the handling of their affairs. Ms. Adams testified that she had attempted to obtain assistance from the current support coordinator to act on the residents' behalf, but to no avail. Two of the residents still resided at Respondents' group home as of the beginning of 2018; the other resident died about a year after the incident for reasons unrelated to the written requests for a new support coordinator. Count III Delmarva Foundation, n/k/a Qlarant, has contracted with the State of Florida to evaluate the performance of group home providers such as those operated by Respondents. On May 31, 2016, Delmarva Foundation Quality Assurance Reviewer Martina Pocaterra performed an unannounced observation visit at one of Respondents' group homes. Ms. Pocaterra observed video cameras in the common areas of the group home. The next morning, Respondents provided consent forms from residents for use of cameras in the bedrooms, but not for use in the common areas of the group home. Because there were no consent forms signed by residents allowing the use of video cameras in the common areas, an alert notification form was submitted to APD. On October 3, 2017, Delmarva Foundation Quality Assurance Reviewer Michelle Ceville performed a provider discovery review at one of Respondents' group homes. On this occasion, Ms. Ceville observed video cameras in the common areas of the group home. Respondents again provided consent forms from residents for use of cameras in the bedrooms, but not for use in the common areas. Because there were no consent forms signed by residents allowing the use of video cameras in the common areas, an alert notification form was submitted to APD. The clear and convincing evidence adduced at hearing demonstrates that Respondents violated rule 65G-2.009(7)(a) and (b) by failing to obtain written consent of residents for the use of video monitoring equipment in the common areas. "Count IIII" On September 10, 2017, Hurricane Irma struck Florida. After the hurricane, APD contacted group homes to ensure that the homes had electricity, lights, and air conditioning, and that the homes were safe. On September 15, 2017, Adams Group Home, Inc., informed APD that Adams Group Home #2 had electricity and running water, and that Adams Group Home #2 residents had not been evacuated. On September 19, 2017, Kimberly Robinson, an APD human services program analyst, conducted a wellness check at one of Respondents' group homes. It is unclear from Ms. Robinson's testimony which group home she actually visited. However, Ms. Robinson observed that the home had air conditioning, and that "everything in the home was fine." On September 19, 2017, Pembroke Pines Assistant Fire Marshal Shawn Hallich visited Adams Group Home #2 and conducted an inspection. He testified that he "did a walk around real quick," and that on the enclosed outdoor patio on the back porch of the home, he noticed "a pot on two blocks with two pieces of wood and an open flame with charcoal, and something . . . being cooked on it." According to Mr. Hallich, the cooking device was located on the back patio "approximately, probably 10 feet from the sliding glass door, maybe a little bit less than that." Mr. Hallich did not use any device to measure the distance of the cooking device from the structure of the home. Mr. Hallich testified that the cooking device was a safety hazard because there was an open flame and there was nothing to prevent the cooking device from being tipped over or falling over on its own. During his inspection, Mr. Hallich also observed that there was no air conditioning inside the home. There was some electricity inside the home, but not enough voltage necessary for the air conditioning system to operate. However, there were fans located and operating in every room of the home, and the windows were open. Mr. Hallich testified it was hot, but he did not use any device to measure the temperature inside the home. Mr. Hallich also acknowledged that if the fans were on inside the home, the circulation would have made it feel cooler inside the home. On September 19, 2017, Mr. Hallich issued a Notice of Violation, stating the nature of the violation as: "No air conditioning and unsafe cooking practices being conducted." Mr. Hallich recommended the following action be taken: (1) "Must relocate all residence [sic] until all power has been restored[; (2)] All cooking must be conducted at least 10 feet away from the structure using a commercial cooking appliance." As to the violation found by Mr. Hallich with respect to the outside cooking device, Ms. Adams asked Mr. Hallich whether she could use it outside, and he told her that "it had to be 10 feet away from the structure for cooking." In issuing the Notice of Violation with respect to the cooking device, Mr. Hallich specifically relied on section 10.10.6.1 of the Florida Fire Prevention Code which provides as follows: For other than one- and two-family dwellings, no hibachi, grill, or other similar devices used for cooking, heating, or any other purpose shall be used or kindled on any Balcony, under any overhanging portion, or within 10 ft (3 m) of any structure. Mr. Hallich's reliance on section 10.10.6.1 of the Florida Fire Prevention Code is misplaced because Adams Group Home #2 is a single-family dwelling. As a single- family dwelling, Respondents' group home is exempt from section 10.10.6.1. In any event, APD failed to present clear and convincing evidence that the cooking device was located within ten feet of the single-family dwelling. In addition, APD failed to present clear and convincing evidence that any residents of the group home were taken to the hospital or were not properly cared for by Respondents because of the lack of air conditioning. In sum, APD failed to present clear and convincing evidence at hearing to demonstrate a violation of rule 65G- 2.009(1)(d) and section 393.13.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Agency for Persons with Disability enter a final order granting Respondents' applications for licensure renewal.3/ DONE AND ENTERED this 22nd day of August, 2018, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 22nd day of August, 2018.
The Issue Whether Respondent's license as a real estate broker should be suspended or revoked, or the licensee otherwise disciplined for alleged violation of Chapter 475, Florida Statutes, as set forth in the Administrative Complaint, dated March 22, 1982. This proceeding commenced with the filing of an Administrative Complaint by Petitioner alleging that Respondent had acted as a broker in three separate real estate transactions in 1981 at a time when his real estate license had lapsed, and that he also had failed to place and maintain earnest money deposits in a trust account with reference to the same transactions. Respondent requested an administrative hearing under Section 120.57(1)(a), Florida Statutes, and the case was thereafter referred to the Division of Administrative Hearings for appointment of a Hearing Officer. Petitioner appeared at the hearing unaccompanied by legal counsel. He was thereupon advised by the Hearing Officer as to his right to counsel and as to his rights in an administrative proceeding under Chapter 120, Florida Statutes. Respondent indicated that he understood his rights and elected to represent himself. At the hearing, the parties submitted a Prehearing Stipulation of facts and exhibits. (Exhibit 1) In addition, the deposition of Respondent was received in evidence (Exhibit 2), and Respondent testified in his own behalf. Petitioner's Proposed Recommended Order has been fully considered and those portions not adopted herein are considered to be either unnecessary or irrelevant, or unwarranted in fact or law.
Findings Of Fact The following findings of fact are contained in the Prehearing Stipulation: The Respondent, WILLIAM McCOY, was a real estate broker licensed by the Florida Board of Real Estate prior to October 1, 1980. On or about October 1 1980, the Respondent's real estate license lapsed due to the fact that Respondent failed to apply for a renewal of such license. The Respondent did not renew such license until November 9, 1981. The Respondent acted as a real estate broker on behalf of Clinton and Elizabeth Johnson in their efforts to purchase the property located at 3015 East Fern, Tampa, Florida. Such efforts led to the Johnsons' purchasing the property of [sic] July 29, 1981. A true and correct copy of the contract for sale which was executed by the parties to the sale is attached hereto and identified as Exhibit A. The signature which appears to be the signature of the Respondent is, in fact, the Respondent's signature. The Respondent received payment of a commission for brokerage services on the sale of the East Fern Street property in the amount of One Thousand Dollars ($1,000.00) at closing on July 21, 1981. The Respondent acted as broker on behalf of George B. Wilds and Jetie B. Wilds in their efforts to purchase a residence located on West Palm Street in Hillsborough County, Florida. A true and correct copy of the contract for sale executed by the parties to the Palm Street transaction is attached hereto and identified as Exhibit B. The signature which appears to be the Respondent's signature is in fact the Respondent's. The Respondent received a commission for his efforts on behalf of Mr. and Mrs. Wilds in the above referenced real estate transaction at the closing which occurred on November 6, 1981. The Respondent received an earnest money deposit check on the Palm Street property from the Wilds, a true and correct copy of which is attached hereto and identified as Exhibit C. The copies of checks and checking account statements which are attached and identified as Exhibit D are true and correct copies of such records. The trust account from which the records which constitute Exhibit D were the Respondent's only trust account during the relevant period. The following additional facts are found from the evidence presented at the hearing: Respondent maintained both personal and escrow accounts at the Seminole Bank of Tampa. He admitted at the hearing that checks for personal purposes were drawn on his escrow account at various times, although the money expended was money belonging to him after the closing of real estate transactions. (Testimony of Respondent, Exhibits 1-2) In the Wilds transaction, Respondent received a $100.00 binder which he placed in his escrow account. (Testimony of Respondent) On September 28, 1981, Respondent executed an exclusive listing contract with Herbert H. Holley. However, he did not perform services under this agreement, or consider it binding because Holley did not obtain his wife's signature on the contract as had been requested by the Respondent. (Testimony of Respondent, Exhibit 2) Respondent maintained at the hearing that he was unaware of the fact that his broker's license had lapsed because he had been in the process of obtaining a divorce from his wife and that she had taken his credentials at the time they had separated. He had not received a notice from Petitioner to renew his license because his wife was living at home at the time and there was a lot of mail that he had never received prior to their separation. He was aware of the need for periodic renewal of his license, but had not been aware that it had lapsed in 1980. (Testimony of Respondent, Exhibit 2)
Recommendation That Petitioner impose an administrative fine of $250 on Respondent, William McCoy, pursuant to subsection 475.25(1)(a), Florida Statutes, for violation of subsection 475.42(1)(a), Florida Statutes. DONE and ENTERED this 14 day of September, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 14th day of September, 1982. COPIES FURNISHED: David P. Rankin, Esquire Freeman & Lopez, P.A. 4600 West Cypress (Suite 410) Tampa, Florida 33607 William McCoy 5725 North 40th Street Tampa, Florida 33610 Mr. C. B. Stafford Executive Director Florida Real Estate Commission P. O. Box 1900 Orlando, Florida 32801 Fred Wilsen, Esquire Department of Professional Regulation, Legal Services 400 W. Robinson Street P. O. Box 1900 Orlando, Florida 32801
The Issue Whether Petitioner, Villas Social Club, Inc. ("Villas"), properly revived its expired restrictive covenants and other governing documents in accordance with sections 720.403-720.407, Florida Statutes (2017).
Findings Of Fact Villas is a homeowners' association established pursuant to restrictive covenants recorded in 1967, 1968, and 1969. Originally created as a retirement community, Villas elected to become a "55 and over" community pursuant to the 1995 federal Housing for Older Persons Act. The community consists of 309 parcels upon which single family homes are located. By operation of the Marketable Record Title Act ("MRTA"), chapter 712, Florida Statutes, the restrictive covenants of Villas expired during the period of 1997 to 1999. However, Villas has continued to operate since then as a functioning "55 and over" homeowners' association without challenge from anyone. Sections 720.403-720.407 provide the mechanism by which a homeowners' association, such as Villas, may revitalize its restrictive covenants because they expired by operation of MRTA. DEO is a state agency statutorily obligated to review and determine whether an association has satisfied the requirements of sections 720.403-720.407 in order to revitalize expired restrictive covenants. In an effort to revitalize the expired restrictive covenants pursuant to the requirements of sections 720.403- 720.407, Villas submitted a revitalization package to DEO on March 9, 2016. On May 10, 2016, DEO denied the proposed revitalization for the following three reasons. First, Villas failed to timely submit the revitalization package to DEO pursuant to section 720.406(1)—the package was submitted to DEO more than 60 days after the last verified vote approving the revived covenants was signed. Second, Villas failed to provide DEO with the original bylaws pursuant to section 720.406(1)(b), which states that "a verified copy of the previous declaration of covenants and other previous governing documents for the community . . ." must be included in the submission to DEO. Third, the 2002 and 2004 bylaws submitted to DEO were more restrictive on the parcel owners in violation of section 720.405(4)(d). DEO's denial letter provided Villas a clear point of entry to challenge DEO's proposed decision and request a formal administrative hearing by filing a petition with the agency clerk of DEO within 21 days of receipt of the denial letter. However, Villas did not file a petition to challenge the proposed decision and request a hearing. Instead, Villas re-submitted another revitalization package to the parcel owners and DEO in 2017 in an effort to revitalize the expired restrictive covenants. The agency action subject to review in this proceeding is DEO's letter dated September 5, 2017, denying approval of Villas' request for revitalization. The revitalization package sent to the parcel owners in 2017 failed to include the address and telephone number of each member of the revitalization organizing committee. Nyoka Stewart, one of the members of the organizing committee for the revitalization, has owned her home at Villas located at 5140 Northwest 43rd Court, Lauderdale Lakes, Florida 33319, at all pertinent times. The "5410" Northwest 43rd Court, Lauderdale Lakes, Florida 33319, address listed for her in the revitalization package was a typographical error. Eslyn Williams, one of the members of the organizing committee for the revitalization, has owned her home at Villas located at 4051 Northwest 43rd Court, Lauderdale Lakes, Florida 33319, at all pertinent times. The "5041" Northwest 43rd Court, Lauderdale Lakes, Florida 33319, address listed for her in the revitalization package was a typographical error. The revitalization package sent to the parcel owners in 2017 included the telephone number (954-473-4733) of the management company for Villas, Alliance Property Systems. Alliance Property Systems does not own a parcel in the community, and it is not a member of the organization committee. One of the organizing committee members identified in the package, Renee Dichren, was not an owner at Villas on July 5, 2017, when the revitalization package was submitted to the parcel owners and DEO, because she was deceased. By failing to provide the address and telephone number of each revitalization member, Villas failed to comply with section 720.405(1). The revitalization package sent to DEO in 2017 included the full text of the proposed revived declaration of covenants and articles of incorporation and bylaws of Villas. However, Villas failed to include the original bylaws. The original bylaws of Villas have been lost. The most recent version of Villas' bylaws from 1990 were included in the revitalization package sent to DEO. By failing to include the original bylaws in the revitalization package sent to DEO, Villas failed to comply with section 720.406(1)(b). A majority of the parcel owners did not vote to approve the proposed revived declaration and other governing documents submitted by Villas in 2017. Not all of the 162 votes were to approve the proposed revived declaration and other governing documents submitted by Villas in 2017. In fact, there was only one vote from a parcel owner on the proposed revised governing documents. All of the other votes were dated 2015 and 2016, prior to Villas' submission of its initial revitalization package to DEO in 2016. By failing to obtain a majority vote of the parcel owners to approve the proposed revived declaration and other governing documents submitted in 2017, Villas failed to comply with section 720.405(6).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order disapproving the revitalization of Villas' expired restrictive covenants and other governing documents. DONE AND ENTERED this 23rd day of March, 2018, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 23rd day of March, 2018. COPIES FURNISHED: Stephanie Chatham, Agency Clerk Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Thomas Tighe, Esquire Tucker & Tighe, P.A. 800 East Broward Boulevard, Suite 710 Fort Lauderdale, Florida 33301 (eServed) Jon F. Morris, Esquire Ross Marshman, Esquire Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Cissy Proctor, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Peter Penrod, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: On or about March 6, 1986, a conditional use application was submitted by Dijan Development Company and Robert J. Wegiener to the City of Clearwater seeking to utilize the property at the above location specifically 2198 Coachman Road, alcoholic beverages, specifically liquor. The Petitioner already has an approved use for consumption of beer and wine on premises. The Petitioner will sell no alcohol for off-premises consumption. In essence, it seeks to change its present beverage license issued by the State of Florida from a "2-COP" to a "4-COP" which is the type of license which would authorize on-premises consumption of liquor in addition to beer and wine. It seeks the appropriate conditional use zoning approva1 so as to operate that state beverage license. The application was transmitted to the City clerk, the planning director, the City attorney, traffic engineer, the building director and to the police department for review and comment prior to the originally scheduled public hearing before the Planning and Zoning Board. Prior to that hearing, both the police department and the traffic engineer reviewed the application and noted that they had no objections and no reason to recommend a denial of the conditional use application on the basis of any traffic or law enforcement problems. At the public hearing of April 1, 1986, the Planning and Zoning Board was informed that the traffic engineer and the police department had no objection to approval of the application and that the Planning and Zoning Board staff, through its director, also recommended approval of the application. Mr. Wegienor appeared and testified on behalf of the Applicant/Petitioner and assured the board that the Petitioner would not engage in package store sales for off- premises consumption. After hearing from Mr. Wegiener, there being no opposition to the application, the board unanimously voted to approve the conditional use application for on-premises consumption of liquor only. It developed, however, that the notice of this April 1, 1986, hearing was faulty, such that the board elected to convene another public hearing on the subject of the application. At that public hearing, Mr. Wegiener appeared for the Applicant/Petitioner once again, reiterating his stipulation that no sales of alcoholic beverages for off- premises consumption would occur, and establishing that the alcoholic content of liquor drinks to be sold, if the conditional use is approved, would be no more than that of a glass of wine or a can of beer, which he is presently authorized to sell. He also demonstrated that his establishment had no history of fights or other forms of disorderly conduct by patrons, no traffic problems nor excessive vehicular noise or light glare emanating from the bar's parking lot or approaches. After hearing the vociferous complaints of the church representatives and several other citizens from the neighborhood, however, the board voted to deny the application and this appeal ensued. The Petitioner, at the instant hearing, established that his tavern is more than 500 feet from the nearest church. Five hundred feet from a church was the former standard for physical location of such establishments for zoning purposes. The current provision in Section 136.025 of the Land Development Code provides merely that such an establishment must be a reasonable distance from a church. In any event, the Applicant established that his "pub" is small, being only 750 square feet in area and is hidden from view of anyone not entering the plaza where it is located, in the shopping center. The Applicant can only seat a maximum of fifty people. His insurance coverage expense and risk rating will not increase merely because he would sell liquor by the drink rather than only beer and wine, which fact is indicative of the unlikelihood of any additional law enforcement or personal injury incidents occasioned by the change of use. He does not cater to a loud, raucous clientele. Rather, twenty-five percent of his business involves serving lunches and he sponsors a ladies' softball team in the Clearwater Recreation League. He sponsors and encourages husband and wife dart teams. It seems obvious that he and his wife run a small, fairly sedate, "neighborhood bar." He is merely trying to increase his profit by serving liquor, for which he can obtain more revenue, than by serving only beer and wine. No law enforcement problems have occurred in the history of the tavern's operation nor has it generated any traffic problems. The Petitioner will not expand its physical size so no additional traffic problems will likely be created by any increase in numbers of patrons. Since the on-premises consumption of liquor does not involve any more alcohol per drink than the consumption of beer and wine, the proposed change of use will not likely result in any increase in the number of drivers exiting the bar in an impaired condition, as that relates to the fears expressed by the members of the clergy who testified. The Petitioner will conduct no "double drink" or "happy hour" sales promotions. Several citizens living in the neighborhood and the pastors of two churches in the vicinity of the Petitioner's establishment appeared and voiced opposition to the grant of the conditional use. The church representatives primarily objected on moral grounds, that is, they based their opposition on their Christian belief that allowing the consumption of "hard liquor," especially in the near vicinity of their churches and church- related schools is morally wrong and will pose an adverse influence on young people attending their church programs and church schools. They also expressed their opposition in terms of traffic problems and resultant dangers to young people caused by customers leaving the tavern while under the influence of alcohol. The opposition of the several citizens of the neighborhood was predicated on their personal conviction that any consumption of alcohol is morally wrong and harmful. None demonstrated, however, that any of the feared harmful effects had already been occasioned their various interests by the fact that the Petitioner already sells beer and wine for on-premises consumption, which has about the same alcohol content as will the proposed liquor sales "by the drink." The Petitioner has stipulated that it will not expand the size or customer capacity of its establishment and will not conduct any "happy hour" sales promotions and the like. The property in question is located within the commercial zoning of the City of Clearwater (zoned CG). The sale of alcoholic beverages within that zoning is not one of the seven permitted uses enumerated in Section 135.122 of the Land Development Code. However, alcoholic beverage sales for consumption on the premises, as well as package sales, may be permitted as conditional uses if the use otherwise complies with Chapter 136 of the Code. See Section 135.123 and 135.124. Any change of location or change of designation of an alcoholic beverage sales conditional use, such as the change from beer and wine sales to liquor sales, must also obtain approval as a conditional use. Section 136.024(b), Land Development Code. Only those conditional uses which comply with the "general standards" and the "supplementary standards," by category of use, embodied in Section 136.025(b) and (c), may be authorized by the Planning and Zoning Board. Among the supplementary standards for a conditional use, such as that at bar, is that the use be a sufficient distance from churches, schools, hospitals, residences and like land uses so as to not adversely affect the use, enjoyment or value of such properties. Section 136.025(c)(1) and (2), Land Development Code. The general standards applicable to a conditional use encompass such factors as traffic, noise, parking, landscaping, screening, compatibility with surrounding uses and compliance with the land use plan. Section 136.025(b) (1-7). Since no expansion of the subject business is involved in this application, the considerations of acceptable ingress and egress from the site, the direction and glare of lights from motor vehicles and such considerations as landscaping and screening for purposes of diminishing noise and reducing glare and objectionable views are not truly at issue. The bar is already established and the traffic routes to and from the bar, its parking facilities, and the number of motor vehicles going to and from this establishment will essentially not change. Thus the "traffic" criterion is not really germane and will be met. Only the standards involving ."compatibility" and proximity to churches, etc. were truly at issue before the undersigned. The "hours of operation" consideration as to general standard number seven, (concerning "compatibility"), is the only portion of the seven general standards at issue. The additional supplementary standards for conditional uses involving consumption of alcohol require, in addition to compliance with the seven general standards contained in paragraph (b), that the use be sufficiently distant from churches, schools, and like land uses so as to not adversely affect the use, enjoyment or value of such properties. In this connection, the hours of operation will not change. The Petitioner has experienced no complaints from the churches and surrounding citizens regarding traffic, intoxicated patrons or other problems attendant to the operation of the bar in the present mode nor has the Clearwater Police Department. Further, in view of the stipulated conditions against "happy hour" sales, extended hours of operation, expansion of customer capacity, etc. the tavern's impact on its neighbors, including the churches, in the above particulars, will not increase. In essence, the tavern operation will not change in terms of its compatibility with the interests of the churches and other neighboring residents. Its operations will engender no additional traffic, noise or other nuisances or dangers on surrounding property owners or church goers. Although the former 500 foot standard governing location of taverns from the vicinity of churches and schools is no longer applicable, it is noteworthy in terms of the "reasonable distance" standard, that the location of the Petitioner's establishment is more than 500 feet from the churches who testified in opposition to the petition. The Roman Catholic Church, which owns property and conducts church activities immediately adjacent to the Petitioner's shopping center location, as well as the nearby Episcopal Church, expressed no opposition. These factors, taken with the above factors involving the lack of any additional elements of nuisance or risk which would be experienced by the churches and other opponents, demonstrates that the use proposed would still be sufficiently distant from churches, schools, hospitals, residences and like land uses so as not to affect their use, enjoyment or values. Thus, both general standard number seven and the supplemental standard at issue have been met.
Findings Of Fact Nancy Boles owns and has operated Happy Days Guest Ranch for some 14 years. This facility is licensed as an ACLF and has no record of complaints other than those contested at this proceeding. On or about March 4, 1987, DHRS received a report from an undisclosed source that a resident at the Happy Days Guest Ranch ACLF had been abused by the proprietor, Nancy Boles, and an investigator was sent to the ACLF. Apparently the allegation was that Respondent had slapped a resident. At this time there were approximately 6 residents at the ACLF. After talking to these residents and with Respondent, the investigator, Katherine Massaro, concluded that a substantiated report of abuse had occurred. The HRS Division of License and Certification was notified and a decision was made to relocate the six residents and place a moratorium on further admissions to the ACLF. Additionally, Respondent's application to renew her ACLF license was denied. No evidence was presented that the HRS Division of Adult Services, filed a notification of a confirmed report of abuse against Respondent and placed her on the abuse register. Accordingly, this is not a proceeding challenging a confirmed report of abuse of the aged but is a license revocation proceeding. It is apparent that HRS notified the State Attorney's Office of the alleged abuse and the charges disposed of in Exhibit 1 were preferred. No adjudication of guilt was made in that case. Petitioner's eye witnesses to the alleged abuse were two elderly women. The younger, Mardell Surrency, whose deposition is Exhibit 2, was 75, and the other, Alice Beasley, whose deposition is Exhibit 3, was 86. Both of these women testified that they saw Respondent slap Fowler Simmons, another resident of the ACLF who is senile or has other mental impairment that led these witnesses to conclude that mentally Simmons was "real bad" with the mind of a child who had to be told everything to do. Both witnesses gave an indication (pantomined) of how Respondent slapped Simmons. Unfortunately, a verbal description of this act is not contained in their deposition. Surrency testified that Beasley "was 86 years old so she didn't pay much attention to anything." Beasley, on the other hand, testified that she and "Modelle" were sitting alongside each other when the incident occurred and she and "Modelle" had often talked about how mean Respondent talked to Simmons. Neither ever saw any bruise on Simmons' face or body or ever saw Respondent strike Simmons other than this one time. Both testified Respondent told Simmons to not sit there "like a damn fool." Respondent's version of the incident was that she did indeed slap Simmons, but gently on the mouth, to get him to eat the meal she had prepared. She demonstrated a very light slap with the palm of her hand on the lips. This evidence is deemed more credible than the often rambling and disjointed testimony of the two female residents of the ACLF.
Findings Of Fact Respondent Frank Lamb has been a mortgage broker licensed in the State of Florida for approximately nine years. Respondent Next Step Brokerage, Inc., a Florida corporation, was incorporated on June 20, 1989. As stated in its Articles of Incorporation, the corporation was organized for the purpose of operating a mortgage brokerage business. Respondent Lamb was the only incorporator of the corporation, and he and his wife were the only directors of the corporation. A bank account was opened in the name of Respondent Next Step Brokerage, Inc. Respondent Next Step Brokerage, Inc., has never been registered with the Department as a mortgage brokerage business. At the time that Respondent Lamb incorporated Respondent Next Step, and until December of 1989, Respondent Lamb was a Senior Vice President in charge of lending at Bay Savings Bank, a savings and loan association. Earlier in 1989, a Reginald McNaughton entered into a contract with the bank's chairman to purchase the bank. As part of the contractual arrangement, McNaughton would bring loan applications to the bank. If the bank could fund those loans, part of the points received by the bank would be credited to McNaughton toward the purchase price of the bank. If the bank did not fund the loans, but another lender did, then the bank would take a brokerage commission and credit part of it to McNaughton. Although no mortgage broker's license is required for the bank to fund loans, a mortgage broker's license is required for a bank to broker loans to another lender. McNaughton brought in a large number of loans to be funded by the bank and to be brokered to other lenders. He entered into an agreement with Respondent Lamb whereby he would pay Lamb additional compensation for his services in reviewing and processing the volume of loan applications which McNaughton engendered. One of the loan applications brought in by McNaughton was the Fourth Executive loan. Bay Savings Bank funded that loan. Points, amounting to approximately $40,000, were received by the bank on the transaction. Part of this "points" money was credited to McNaughton's purchase. Sometime after the Fourth Executive loan, it was discovered that McNaughton was a disreputable character with a criminal history, and his purchase agreement with the chairman was terminated. Prior to that time, however, McNaughton had given Respondent Lamb two payments pursuant to their agreement. The first payment was made on June 19, 1989, in the amount of $5,000 and was payable to Respondent Lamb. The second check, in the amount of $14,000, was dated July 7, 1989, and was paid to Next Step Brokerage's account. On February 22, 1991, the Department of Banking and Finance, Division of Banking, issued an Administrative Complaint for Prohibition and Notice of Rights against Respondent Lamb seeking to prohibit him from serving as an officer, director, committee member, employee, or other person participating in the affairs of a financial institution in the State of Florida. Respondent Lamb, who was no longer employed in the banking industry, entered into a stipulation with the Department expressly stating that he neither admitted nor denied the Department's allegations, but was permitting an order of prohibition to be entered barring him from future services as an officer, director, committee member, or employee of any financial institution. Such an order was entered in April of 1991. Accordingly, no judicial or administrative determination has ever been made that Respondent Lamb was guilty of the allegations contained in the Department's Administrative Complaint for Prohibition and Notice of Rights. The allegations in the Department's prohibition action arose out of the Fourth Executive loan and involved two matters. The first was not requiring a written "take out" commitment for permanent financing prior to closing since the loan from Bay Savings Bank was only a temporary loan. The second was Respondents' receipt of the $5,000 and $14,000 payments, alleged to be a conflict of interest unless there was written authority from the bank's board of directors. As to the first matter, a $30,000 "take out" commitment fee was sent to Holliday Fenoglio Co. from the closing proceeds, which fee was never returned to the bank. Further, the commitment letter from Bay Savings Bank to Fourth Executive which requires the "take out" commitment for permanent financing does not specify that the commitment be in written form. In June of 1990, the Department of Banking and Finance, Division of Finance, conducted an examination of Respondent Lamb's activities from July 1, 1989, through May 30, 1990. During the first part of the audit, Respondent Lamb was employed by Bay Savings Bank. During the remainder of the examination period, Respondent Lamb was, for the most part, unemployed. He was primarily trying to work out an arrangement with a Jacksonville bank, Community Savings. He was working out of a room in his home while looking for office space and employees in furtherance of that arrangement whereby he would set up a loan production office for Community Savings in South Florida. He was to produce SBA loans for Community Savings and began receiving funds as a draw against future commissions in order to set up the office and begin operations. Also in furtherance of that arrangement, Respondent Lamb printed business cards and ran an ad in the newspaper. The business card contained the names of Respondent Lamb and Respondent Next Step Brokerage, Inc., and contained the words "Licensed Mortgage Broker." One ad which ran one time in The Palm Beach Post contained the names of Respondent Lamb and Next Step Brokerage. Under Respondent Lamb's name appeared the words "a Licensed Mortgage Broker." The Department employee conducting the examination found a second ad in Respondent's files containing the names of Respondent Next Step Brokerage and Respondent Lamb. No evidence was offered that the second ad ever appeared in any publication. No loans were closed through Community Savings. Since any loans would have been SBA loans, no commission would have been due from the borrower. During the time that Respondents were temporarily operating out of Respondent Lamb's home, Respondents did not have a sign or an occupational license posted at the home. During the examination period, Respondents received $1,000 from a Mr. Deckman to cover Respondents' expenses in attempting to find funding for a loan for an adult congregate living facility. No loan was ever made. There was no brokerage agreement signed by Mr. Deckman in Respondents' file. During the examination period, Respondents received a $200 payment from Ted Graham, a friend of Respondent Lamb. Respondents obtained an $8,000 loan for Mr. Graham without expectation of any commission. After the closing Graham appeared at Respondent Lamb's home and gave him a check for $200 made payable to Next Step Brokerage, in appreciation for his assistance. Respondents did not have a brokerage agreement or closing statement regarding this transaction in their file. During the examination period, Respondents also received $2,000 from Pinnacle Financial for introducing Pinnacle to NCNB, thereby introducing two lenders. Pinnacle, a finance company, was seeking a source of funding for mobile home financing. Respondents did not negotiate any specific transactions between Pinnacle or Pinnacle's borrowers and NCNB. Respondent Lamb received a telephone call from a Department employee who had seen the newspaper ad which had the name Next Step Brokerage in it. Although the ad also had Respondent Lamb's name in it with the words "a Licensed Mortgage Broker" under Respondent Lamb's name, Respondent Lamb discontinued the ad in accordance with the instructions of the Department's employee to do so. Next Step's name and its bank account are no longer used, and the corporation has presumably been dissolved.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered placing Respondent Lamb on probation for a period of two years and requiring Respondent Lamb to pay a fine in the amount of $1,000 by a date certain. DONE and ENTERED this 17th day of January, 1992, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1, 8, 9, 24, 25, 27, and 30 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Petitioner's proposed findings of fact numbered 2-4, 6, 12-14, 18, 28, and 29 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 5, 7, 16, 17, 19-23, and 31 have been rejected as being unnecessary for determination of the issues involved herein. Petitioner's proposed findings of fact numbered 10, 11, and 15 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed findings of fact numbered 26, 32, and 33 have been rejected as being irrelevant to the issues involved in this proceeding. Respondents' proposed finding of fact numbered 1 has been rejected as being irrelevant to the issues involved in this proceeding. Respondents' proposed findings of fact numbered 2-13 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: Honorable Gerald Lewis Comptroller, State of Florida Department of Banking and Finance The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves, General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350 Jodi R. Marvet Assistant General Counsel Office of Comptroller 201 West Broward Boulevard Suite 302 Fort Lauderdale, Florida 33301 Richard W. Glenn, Esquire 2001 Palm Beach Lakes Boulevard Suite 200 West Palm Beach, Florida 33409
