The Issue The issue in this case is whether state use tax is due and payable on transactions wherein the taxpayer rented mobile homes to persons for use as private residences (which the lessees were required to maintain, repair, and insure), pursuant to leases under which the lessee would acquire title to his home upon payment in full of the total rent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order withdrawing the tax assessment against Park Place. DONE AND ENTERED this 25th day of June, 2004, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 25th day of June, 2004.
The Issue The issues are whether the respondents engaged in a discriminatory housing practice, in violation of the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2007),1 by discriminating against Petitioner, on the basis of her alleged disability, and by harassing Petitioner and retaliating against her.
Findings Of Fact Petitioner is a former resident of Broadview Mobile Home Park (Broadview), located at 1701 Post Road, Melbourne, Florida. Petitioner resided in Broadview for approximately six years from an undisclosed date in 2002 through September 8, 2008. Mr. Lamont Garber holds an ownership interest in Broadview. The record does not quantify the ownership interest of Mr. Garber. Mr. Garber manages Broadview with his brother, Mr. Wayne Garber. Broadview rents sites within the mobile home park to residents who own mobile homes. Each site has access to water and electric service. Each resident arranges his or her water and electric service directly with the respective utility provider. Sometime in 2005, Petitioner purchased a mobile home for approximately $6,500.00 and moved within Broadview to Lot 24. The rental agreement for Lot 24 required rent to be paid on the first day of each month. The rent for July 2008 was due on July 1, 2008. Petitioner failed to pay the rent payment that was due on July 1, 2008. On July 9, 2008, Broadview served Petitioner, by certified mail, with a notice that she had five business days in which to pay the rent due (the five-day notice). Petitioner received the five-day notice on July 10, 2008. The five-day period expired on July 17, 2008, with no rent payment from Petitioner. Petitioner had paid rent late in the past, but Petitioner had never been more than four or five days late. After July 17, 2008, Broadview initiated eviction proceedings. Petitioner tendered the rent payment on July 20, 2008, but Broadview proceeded with the eviction. Petitioner did not appear and defend the eviction proceeding. On August 26, 2008, the County Court for Brevard County, Florida, issued a Final Default Judgment of Eviction awarding possession of Lot 24 to Broadview. Law enforcement officers thereafter executed the Court's order and evicted Petitioner from Broadview on or about September 8, 2008. After Petitioner received the notice of eviction, she filed a complaint with the Florida Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes (DBPR). DBPR is the state agency responsible for regulating mobile home parks, including Broadview. The allegations in the complaint that Petitioner filed with DBPR were substantially similar to the claims of discrimination, retaliation, harassment, and unlawful rent increases Petitioner asserts in this proceeding. DBPR rejected Petitioner's allegations and found that Broadview lawfully evicted Petitioner for non-payment of rent. The final agency action of DBPR is substantially similar to that of HUD and the Commission's proposed agency action in this proceeding. Each agency found that Broadview lawfully evicted Petitioner for non-payment of rent and rejected the allegations of discrimination, harassment, and retaliation. The DOAH proceeding is a de novo consideration of the proceeding before the Commission. A preponderance of the evidence does not establish a prima facie showing that Petitioner is disabled or handicapped. Petitioner has cancer and is receiving chemotherapy and radiation treatment. A preponderance of evidence does not show that the medical condition substantially limits one or more major life activities of Petitioner. Petitioner also alleges that she is disabled and handicapped by a mental condition. Petitioner submitted no medical evidence of the alleged disability or handicap. A preponderance of evidence does not establish a prima facie showing that, if such a mental condition exists, the condition substantially limits one or more major life activities of Petitioner. Assuming arguendo that a preponderance of the evidence showed that Petitioner were disabled or handicapped, a preponderance of evidence does not establish a prima facie showing that either of the respondents discriminated against Petitioner, harassed her, or evicted her in retaliation for Petitioner's disability or handicap. It is undisputed that Petitioner conducted neighborhood organization efforts to protest a rent increase at Broadview and repeatedly called law enforcement officials to report alleged drug and prostitution activity in Broadview.2 However, Broadview did not evict Petitioner for those activities, and Petitioner's testimony to the contrary is neither credible nor persuasive. Rather, Petitioner engaged in other activities that the respondents found objectionable. Petitioner baby sat for one or more dogs in violation of Broadview's prohibition against pets. Some of the dogs were dangerous to other residents. Petitioner also verbally abused Mr. Wayne Garber when he attempted to mediate with Petitioner concerning the presence of dogs and Petitioner's conduct toward management at Broadview. On July 1, 2008, Broadview served Petitioner with a seven-day notice concerning Petitioner's compliance with lease requirements. The notice, in relevant part, alleged that Petitioner harassed management and impaired the ability of management to perform its duties. The testimony of respondents describing the activities of Petitioner that precipitated the seven-day notice is credible and persuasive. A preponderance of the evidence shows that the respondents had legitimate non-discriminatory reasons for requiring Petitioner to comply with the terms of the seven-day notice and for requiring Petitioner to comply with the requirement for rent to be paid on July 1, 2008. Petitioner failed to comply with either requirement, and Broadview evicted Petitioner for legitimate, non-discriminatory reasons. The respondents did not harass or retaliate against Petitioner.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that the respondents did not engage in an unlawful housing practice and dismissing the Petition for Relief. DONE AND ENTERED this 20th day of May, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 20th day of May, 2009.
The Issue Whether Respondent Homes-R-Us, Inc.'s license as a corporate real estate broker, Respondent Vera McWeeney's license as a real estate broker, and Respondent Anthony Cutrona's license as a real estate salesman should be suspended or revoked, or the licensees otherwise disciplined for alleged violations of Chapter 475, Florida Statutes, as set forth in the Administrative Complaint dated September 3, 1981. The Administrative Complaint herein alleges that the Respondents utilized a contract form in their business of negotiating rentals and furnishing information to prospective tenants which did not conform to Rule 2IV-10.30, Florida Administrative Code, therefore being in violation of various provisions of Chapter 475, Florida Statutes. The Complaint also alleges that Respondents employed various persons to conduct the business who were not licensed by Petitioner, and who were paid compensation, in violation of various provisions of Chapter 475, Florida Statutes. At the commencement of the hearing, the parties stipulated to the facts set forth in Paragraphs 2-4 of the Administrative Complaint, and that Respondents, in their business of furnishing rental information to prospective tenants for a fee, utilized a contract form which did not conform to Rule 2IV-10.30, Florida Administrative Code. As to Count II, the parties stipulated that during the times alleged in the Administrative Complaint, the corporate Respondent employed unlicensed personnel who performed certain activities, to include (1) acceptance of a rental fee provided in the contract, (2) receipting of the rental contract, delivery to the prospective customer of the "vacancy book" containing available rental properties, and (4) verifying the availability of various rental properties after selection by the customer by telephoning the prospective lessor of the property. Respondents Anthony R. Cutrona and Vera McWeeney testified at the hearing, and Petitioner called its investigator, Francis A. Maye, and a former investigator, Debbie J. Minutoli, as witnesses. Petitioner submitted eight exhibits in evidence and Respondent submitted one exhibit.
Findings Of Fact Respondent Homes-R-Us, Inc. is now, and was at all times relevant to the matters alleged in the Administrative Complaint, licensed as a corporate real estate broker, License No. 0212520, at 9000A North Florida Avenue, Tampa, Florida. (Stipulation) Respondent Vera McWeeney is now, and was at all times alleged in the Administrative Complaint, licensed as a real estate broker, License Nos. MI4 0058950 and MI4 021252, and the active firm member and officer of Homes-R-Us, Inc. (Stipulation) Respondent Anthony R. Cutrona is now, and was at all times alleged in the Administrative Complaint, licensed as a real estate salesman for Homes-R-Us, Inc., with License No. MI4 0328427. (Stipulation) Homes-R-Us, Inc. is a firm that solicits or otherwise receives from prospective lessors of residential property, information about such rentals which is then placed in a book and provided to prospective tenants who pay a fee to the firm in order to locate appropriate rental property. The firm advertises such available rentals in newspapers and secures customers in this manner. No fee is charged to the owner or prospective lessor of the property. The normal procedure employed by the firm is to receive payment of the fee from a customer, permit the customer to select any suitable properties from the descriptive information, and then seek telephonic confirmation of the continuing availability of the selected properties. The customer then proceeds to visit the property or otherwise contact the owner and negotiate a rental, if desired. If unsuccessful or unsatisfied with the properties, the customer can continue to avail himself of the "listings" maintained by Homes-R-Us, Inc. for a period of three months on a daily basis. (Testimony of Cutrona, Stipulation, Petitioner's Exhibits 2-3, 8) Respondent Cutrona has been the general manager of Homes-R-Us, Inc. since it was established in November, 1979. Respondent McWeeney was obtained as the firm broker on a gratuitous basis to supervise the activities of the firm. A form contract is used between Homes-R-Us, Inc. and the customer at the time the fee is paid by the customer to obtain rental information. The form was designed by Cutrona when the firm commenced business and was approved by McWeeney. The contract contained a provision that purportedly was included pursuant to law that read in part "If you do not obtain a rental, you are entitled to receive a return of 26 percent of the fee paid, if you make demand within 30 days of this contract date". Respondents used the figure of 26 percent for refund purposes based upon their interpretations of the requirements of Subsection 475.453(1), Florida Statutes. They were not aware of the fact that Petitioner's Rule 21V-10.30, Florida Administrative Code, (formerly Rule 21V-10.15) provided that such contracts should provide for a refund of 75 percent of the fee. Accordingly, the contract form was in violation of the applicable rule. (Testimony of Cutrona, McWeeney, Petitioner's Exhibits 2-3, Respondents' Exhibit 1) At the time Homes-R-Us, Inc. commenced business, in November, 1979, Respondent McWeeney was the only licensed employee in the firm. Cutrona received his license as a salesman in January, 1980. During the period February to August, 1980, the firm employed another licensed real estate salesman, but during the period from August to November 21, 1980, Respondents were the only licensed personnel. On the latter date, an employee, Brenda Serino, received her license as a real estate salesman. A branch office in Tampa had been opened in the spring of 1980, and Cutrona spent one day a week in that office. He was at the original Largo office during the other six days of the week. Respondent McWeeney periodically visited the office and kept in touch with activities by telephone communications. (Testimony of Cutrona) On November 10, 1980, Deborah Minutoli, an investigator for Petitioner, visited Respondents' office in an "undercover" capacity. Her investigation was prompted by several complaints that had been filed against the firm. She posed as a customer, signed the contract and paid a $45 fee to look through their listing book. She dealt with Brenda Serino, who was at that time an unlicensed employee of Homes-R-Us, Inc. Ms. Serino signed the contract on behalf of the Respondent firm. Ms. Minutoli told the employee that she was looking for a one- bedroom or efficiency-type, apartment and could pay about $180 rent per month. Ms. Serino explained a sample listing in the book and the type of information included in the listings. Ms. Minutoli then looked through the book and found five listings which she wrote on a piece of paper and gave to Ms. Serino. Several persons in the office, including Respondent Cutrona, made telephone calls to verify the listings, but only one person was able to be contacted at that time. An employee, Jackie Mourey, then presented Ms. Minutoli with a form showing the five rentals with addresses, telephone numbers, and rental prices, which both signed. The form also included a sixth rental which Ms. Mourey said was a new listing that had just come in and had not been placed in the book as yet, but since it was within the requested price range and location, it was placed on the form. Ms. Minutoli departed from the office and several days later examined one of the rental properties, drove past the other ones and returned to Respondents' office the following day. At this time, she requested that her fee be returned because the properties were unsatisfactory. Respondent Cutrona urged her to continue using the service, but gave her an "adjustment form" to fill out and told her that they would decide whether or not a refund was in order. She subsequently attempted to reach Cutrona by telephone, but was unsuccessful on several occasions. On November 21st, she spoke to him over the phone and he suggested that she fill out the "adjustment form". On November 24th, she, together with investigator Greg Clift, went to Respondents' office and gave the "adjustment form" to Cutrona, but he declined to make the refund. Subsequently, during the same month, Ms. Minutoli, together with another of Petitioner's investigators, Francis Maye, went back to Respondents' office. Maye posed as her uncle and again they sought a refund of the fee which had previously been paid, but again were unsuccessful. (Testimony of Minutoli, Maye, Petitioner's Exhibits 2-7) Investigator Maye had previously talked to Respondent Cutrona's wife at one of the offices concerning a refund complaint from another customer. At that time a refund was made in full. Maye had a conversation with Respondent Cutrona on November 25, 1980 concerning the percentage of fees payable to a customer on a refund. According to Cutrona, Maye questioned the use of a 26 percent refund amount, and told Cutrona he would get back to him later and verify the correct percentage of any refund, but never did so. Cutrona's testimony in this respect is considered credible. During the conversation, Maye did not advise Cutrona to cease using the 26 percent figure or to revise the contract form. Cutrona later talked to another employee of Petitioner who convinced him that Petitioner's regulations required a 75 percent refund and the firm thereupon revised its form to reflect the correct percentage. Investigator Maye also spoke to Respondent McWeeney in November, 1980 concerning the "seven services of real estate" and what services could be performed by unlicensed personnel in the rental office, but did not inform her concerning any suspected irregularities in the operation of Homes-R-Us, Inc. (Testimony of Maye, Cutrona, McWeeney) Respondents' employees were mostly part-time help who were compensated on an hourly basis, and it was therefore difficult to obtain licensed personnel who would remain with the firm. The clerical personnel do not provide any information to customers regarding leasing arrangements, but do receive listings called in to the office by landlords. Only licensed personnel solicit listings from prospective lessors, or owners of property. Additionally, unlicensed clerical personnel accept rental fees, prepare rental contracts, deliver the "vacancy book" to customers, and verify rental availabilities by telephone to the prospective lessors. (Testimony of Cutrona, Stipulation)
Recommendation That an administrative fine of $250.00 be imposed against Respondent Homes- R-Us, Inc., and that a public reprimand be issued to Respondent Vera McWeeney and Anthony Cutrona for violation of Subsection 475.25(1)(e), Florida Statutes. DONE and ENTERED this 25th day of February, 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 25th day of February, 1982. COPIES FURNISHED: Salvatore A. Carpino, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Joseph R. Park, Esquire 33 North Ft. Harrison Avenue Clearwater, Florida 33515 Mr. C. B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32801 Frederick H. Wilsen Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether Petitioner has a disability (handicap), and, if so, was denied a reasonable accommodation for his disability by Respondents, in violation of the Florida Fair Housing Act (FFHA), as amended.
Findings Of Fact The record in this discrimination case is extremely brief and consists only of a few comments by Mr. Homer, cross- examination by Respondents' counsel, and Respondents' exhibits. Petitioner resides at Golfside Villas, a condominium complex located in Winter Park, Florida. At hearing, Petitioner asserted that he suffers from a disability, narcolepsy, but he offered no competent evidence to support this claim. Thus, he does not fall within the class of persons protected against discrimination under the FFHA. Golfside is the condominium association comprised of unit owners that is responsible for the operation of the common elements of the property. Hara is the corporate entity that administers the association, while Mr. Michaud, a Hara employee, is the community manager. In September 2016, Mr. Homer became involved in a dispute with Golfside over late fees being charged to his association account and issues concerning ongoing repairs for water damage to his unit that were caused by flooding several years earlier. Because some of his telephone calls were not answered by "Lorie" (presumably a member of management staff), on September 23, 2016, Mr. Homer sent an email to Mr. Michaud, the community manager, expressing his displeasure with how his complaints were being handled. He also pointed out that "I have a disability." The email did not identify the nature of the disability, and it did not identify or request an accommodation for his alleged disability. There is no evidence that Respondents knew or should have known that Mr. Homer had a disability or the nature of the disability. Also, there is no evidence that narcolepsy is a physical impairment "which substantially limits one or more major life activities" so as to fall within the definition of a handicap under the FFHA. See § 760.22(7)(a), Fla. Stat. Here, Petitioner only contends that at times it causes him to speak loudly or yell at other persons. As a follow-up to his email, on September 26, 2016, Mr. Homer spoke by telephone with Mr. Michaud and reminded him to look into the complaints identified in his email. If a request for an accommodation ("work with me") was ever made, it must have occurred at that time, but no proof to support this allegation was presented. Mr. Homer acknowledged that he was told by Mr. Michaud that in the future, he must communicate by email with staff and board members rather than personally confronting them in a loud and argumentative manner. On September 26, 2016, Mr. Michaud sent a follow-up email to Mr. Homer informing him that he must "work with my staff, without getting loud or upset, no matter how frustrated you may be at the time." The email also directed staff to answer Mr. Homer's questions regarding repairs for water damage to his unit, to "look into some late charges on his account," and to "work with Mr. Homer to help him get both his unit and his account in order." On November 15, 2016, Mr. Homer filed his Complaint with the FCHR alleging that on September 26, 2016, Golfside, Hara, and Mr. Michaud had violated the FFHA by "collectively" denying his reasonable accommodation request. Later, a Petition for Relief was filed, which alleges that Gulfside and Hara (but not Mr. Michaud) committed the alleged housing violation. However, the findings and conclusions in this Recommended Order apply to all Respondents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief, with prejudice. DONE AND ENTERED this 14th day of December, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 14th day of December, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) John Homer Unit 609 1000 South Semoran Boulevard Winter Park, Florida 32792-5503 Candace W. Padgett, Esquire Vernis & Bowling of North Florida, P.A. 4309 Salisbury Road Jacksonville, Florida 32216-6123 (eServed) Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Suite 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue Are the corporate names, Dunes of Panama Rental Association, Inc. and Dunes of Panama Rental Management Association, Inc. deceptively similar to each other? If the names are deceptively similar to each other, may the Department of State require the later chartered corporation to amend its Articles of Incorporation and registration to reflect a new name?
Findings Of Fact At 7205 Thomas Drive, Panama City Beach, Florida, there is a cluster of condominiums known colloquially as the Dunes of Panama. The Dunes is a phased condominium development constructed and sold by A. W. Hirshberg, Inc. At the time of hearing there were three units of the development completed and a fourth under construction. Each unit, known respectively as Phase I, Phase II, Phase III and Phase IV, is contained in a freestanding building approximately 100 feet apart from the next unit. Construction of Phase 1 began in 1974. It was completed and sold by 1977. In that year the Dunes of Panama Phase I Association, Inc. was incorporated and chartered by the Department of State. As each succeeding unit was completed and sold a new owner's association was chartered until there are now Dunes of Panama Phase I Association, Inc., Dunes of Panama Phase II Association, Inc., and Dunes of Panama Phase III Association, Inc. Phase IV will be incorporated upon the completion of its building. To provide a service to the condominium owners in Phase I the developer established a rental office to assist in renting the condominiums to third parties. On July 1, 1977, this service was incorporated and received a corporate charter from the Department of State in the name of Dunes of Panama Rental Association, Inc. In September of 1977, when the developer Hirshberg conveyed all condominium assets of Phase I to the new owner's association, Dunes of Panama Phase 1 Association, Inc., he also transferred to the association all the assets of Dunes of Panama Rental Association, Inc. As each new phase of the development has been completed Rental has offered its rental management services to the new condominium owners in that phase. During December, 1980, a rival rental office was established by some condominium owners (primarily those in Phase III) to offer rental services to all condominium owners in each phase of the Dunes of Panama. This office was later, incorporated on February 4, 1980, as Dunes of Panama Rental Management Association, Inc. The services it offers its clients are exactly the same as those offered by Rental. All three existing units at the Dunes of Panama have the same street address, 7205 Thomas Drive. Each of the three buildings containing condominiums are designated by the letters "A," "B," and "C." The office of Rental is located in Building A. The office of Management is located in Building C. If the building letter is left off the address of mail to either Rental or Management, as frequently happens, there is considerable confusion among the postmen as to where the mail should be delivered. Frequently Management receives telephone calls for Rental and vice-versa. There is ample evidence that members of the public do not distinguish between the names of Rental and Management. Because the offices genrally cooperate with each other, the confusion from the similarity of their names is not always harmful but it does mean that, for instance, a person who made a rental agreement with Rental might send his deposit to Management, who may not be sure if that deposit is from one of its own customers or should be forwarded over to Rental. Both Rental and Management presently represent owners in Buildings A (Phase I), B (Phase II), and C (Phase III). The name Dunes of Panama Rental Management Association, Inc. is deceptively similar to the name Dunes of Panama Rental Association, Inc.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Secretary of State enter a final order requiring Intervenor- Respondent Dunes of Panama Rental Mangement Association, Inc. to amend its Articles of Incorporation and registration with the Department of State to reflect a name other than Dunes of Panama Rental Management Association, Inc. DONE and RECOMMENDED this 14th day of August, 1981, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 1981.
The Issue The issue is whether Respondent discriminated against Petitioner based on her sex or an alleged handicap contrary to Sections 760.20 through 760.37, Florida Statutes (2008), Fair Housing Act, as amended (the Act).
Findings Of Fact During the audit period in question, i.e., December 1, 1975 through March 31, 1979, Petitioner Ormond Hotel Corporation operated the Ormond Hotel, Ormond Beach, Florida. It was licensed during the audit period by the Division of Hotels and Restaurants, Department of Business Regulation, and classified as a retirement establishment. (Interrogatories) The Ormond Hotel is an old wooden structure containing 350 rooms with 258 rooms available for rental. The remaining rooms are not in proper condition for rental. Most of the hotel guests are over 65 years of age and reside there either permanently or on a seasonal basis, usually from December through March of each year. A few married couples have accommodations at the hotel, but most of the residents are single individuals occupying one room. Prior to 1978, Petitioner advertised the hotel in a national magazine called "Retirement Living" and conducted advertising on billboards, brochures, and in the classified section of the local telephone book under the hearing "Retirement Homes." The latter advertisement states that the facility is "a residential hotel," but also includes the words "DAY-WK-MO-YR." Similarly, the hotel's brochure recites that accommodations are available by day, month, or year. All units are available for rental to permanent tenants, but short-term occupancy is accepted if there are available rooms. The hotel does not have a swimming pool, but does have restaurant facilities and recreation areas. The hotel does not primarily cater to transient guests. (Testimony of Salveson, interrogatories) Respondent's auditor conducted an audit of Petitioner's business operations for the period December 1, 1975, through March 31, 1979. In arriving at whether or not the Ormond Hotel was subject to tax imposed by Section 212.03, Florida Statutes, on its rentals, he examined the Petitioner's books to ascertain the number of total available rental units and the status of tenants at the hotel during the months of April, May, and June of each year. If he found that 50 percent or more of the total units had been rented to persons residing there continuously for the specific three-month period, those tenants were considered to be permanent rather than transient tenants and the hotel was deemed exempt from tax pursuant to Rule 12A-1.61(1), F.A.C. In arriving at his determination of exempt status, the auditor did not deduct unoccupied rooms from the total number of units in arriving at his "fifty percent" determination. Although the auditor analyzed the advertising brochures of Petitioner, and was aware that the hotel was listed in the telephone directory under retirement homes, and concluded that such advertising was directed primarily to the acquisition of permanent guests, he predicted his audit findings solely on the "fifty percent" test concerning occupancy of total units. In this manner, he determined that Petitioner was exempt from taxation in 1975 based on the fact that for the April through June period for that year, 135 of the 264 total units had been occupied continuously by "permanent" tenants. In a similar manner he found that the hotel did not qualify for exemption during the succeeding years of the audit period. In this respect, he found that for 1976, there were only 119 such guests during the three-month period out of the 263 total units, which was less than 50 percent. In 1977, there were 102 such tenants out of 261 total units, which was less than 50 percent. In 1978, there were 98 such tenants and 259 total units, which was less than 50 percent. The auditor's worksheet reflects that there were 124 vacant rooms during the three-month period in 1975, 140 in 1976, 153 in 1977, and 153 in 1978. He concedes that if he had applied the "fifty percent" rule by comparing the number of three-month or "permanent" tenants with the number of occupied rooms for the three-month period each year, the number of rooms occupied by "permanent" guests would have been over fifty percent for each year of the audit period. (Testimony of Boerner, Exhibits 1-2, 4) Based on the audit, Respondent issued two separate "Second Revised Notices of Proposed Assessment" on January 15, 1980. The first assessment covered the period December 1, 1975 through November 30, 1978. It asserted tax due on room rentals in the amount of $21, 362.91 plus a delinquent penalty, and interest through January 15, 1980, for a total sum of $28,062.45. The assessment also asserted tax, penalty and interest for purchases unrelated to room rentals in the amount of $984.92, for a total assessment of $29,047.37. The assessment reflected that a partial payment had been made on October 2, 1979, in the amount of $2,590.62, leaving a balance due of $26,456.75. The other assessment showed tax on room rentals in the amount of $6,001.75, plus delinquent penalty of $300.10, and interest through January 15, 1980 in the amount of $611.76 for a total of $6,913.61. It also asserted tax, penalty, and interest on purchases in the amount of $23.39 for a total assessment of $6,937.00. This assessment also showed partial payment on October 2, 1979, in the amount of $132.08, leaving a balance due of $6,804.92. In a letter transmitting the assessments, dated January 16, 1980, Respondent advised Petitioner that the hotel did not qualify as an exempt facility under Rule 12A- 1.61(1)(a), F.A.C., during the audit period, because less than fifty percent of the facility's units were occupied by guests who had resided there three or more months as of July 1 each year. The letter further stated that "an analysis" of the rental of units submitted by Petitioner as to its exempt status did not conform to the requirements of the rule because the facility advertised to guests on a daily, weekly and monthly basis in addition to long-term leasing, the analysis used an annual rather than a three-month period prior to July as a basis, and the number of tenants at the facility rather than total units. (Exhibit 2) Petitioner's accountant prepared an analysis of the room status at the Ormond Hotel during the period July 1, 1977 to June 30, 1978. It reflects that 165 rooms, or 64.5 percent of the total of 256 units rented during the year, were occupied by tenants for a continuous period of over three months. On March 31 of that year, 157 rooms, or 61 percent of the total of 258 room available for occupancy, were occupied by guests for more than three months. Sixty-nine of the rooms were occupied by transient tenants or those with less than three- months occupancy (17 percent) and 32 rooms were unoccupied (12 percent). As of June 30, 1978, the hotel had 110 guests who had resided there for more than three months, and 18 guests with residency of less than three months. (Testimony of Salveson, Exhibit 3)
Recommendation That the proposed tax assessments against Petitioner Ormond Hotel Corporation arising out of the rental of living accommodations at the Ormond Hotel during the period December 1, 1975 through March 1, 1979, be vacated, and that the remainder of the proposed assessments be enforced. DONE and ORDERED this 10th day of June, 1980, in Tallahassee, Florida. THOMAS C. OLDHAM, 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 10th day of June, 1980. COPIES FURNISHED: J. Lester Kaney, Esquire Post Office Box 191 Daytona Beach, Florida 32015 Linda C. Procta, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 John D. Moriarty, Esquire Department of Revenue Room 104 Carlton Building Tallahassee, Florida 32301
The Issue Whether Petitioner is entitled to reimbursement for expenses incurred in relocating and reestablishment of his small business pursuant to section 421.55, Florida Statutes (2009),1/ as implemented by Florida Administrative Code Rule 14-66.007, which, in turn, incorporates by reference the provisions of 49 Code of Federal Regulations Part 24, Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally-Assisted Programs (effective October 1, 2006),2/ and the Florida Department of Transportation Right of Way Manual 9.3.15, and, if Petitioner is entitled to reimbursement, the amount owed to him.
Findings Of Fact Based on the evidence and witnesses' testimony, the undersigned found the following facts: The Department is the state agency that has responsibility for paying certain relocation and reestablishment expenses of businesses that have been displaced because of a public transportation project. See § 421.55, Fla. Stat. Sometime in 1999 to 2000, Mr. Carey purchased eight rental units in Hillsborough County, Florida, as an investment property. Mr. Carey managed the rental property and testified that he would advertise vacancies through "word of mouth." The record shows that these rental units were rented weekly and included written and verbal leases. In 2005, the Department informed Mr. Carey that his rental property would be subject of an eminent domain taking and informed Mr. Carey about the law authorizing the Department to pay certain expenses in relocating and reestablishing a small business. On December 6, 2005, Mr. Carey filled out a Business Survey Questionnaire for the Department, stating his desire to relocate his rental business. The Department acquired Mr. Carey's property on April 18, 2009. By mid July 2009, Mr. Carey contacted Mr. Nappi to determine whether or not he was still eligible to receive relocation and reestablishment reimbursement for his small business. Mr. Nappi determined that Mr. Carey remained eligible to apply for reimbursement and informed him of that fact. On August 28, 2009, Mr. Carey purchased a replacement property located at 19002 Apian Way, Lutz, Florida, for $300,000.00. The replacement property contained a house that had been the homestead property of the prior owner. Mr. Carey credibly testified that the purpose of purchasing this replacement property was "to get back into the rental business" and that he advertised the replacement property for rent by "word of mouth." Receipts introduced into evidence show that Mr. Carey began making repairs and purchasing materials as early as the first week in September. Mr. Carey testified, on cross-examination, that he could not remember the exact date when he listed the replacement property for sale, or the exact date when he entered into a contract for the sale of the replacement property. Mr. Carey testified that he would speculate that the contract for sale of the replacement property occurred in early October 2009. On October 15, 2009, Mr. Nappi went to the replacement property with Mr. Carey to review the work that Mr. Carey had already begun on the replacement property and to discuss the expenses eligible for reimbursement. In reviewing Mr. Carey's claimed expenses, Mr. Nappi found that the following expenses would be eligible for reimbursement: (1) the drywall work detailed in Exhibit A; (2) $561.00 worth of the receipts of materials purchased from Home Depot; and (3) the painting expenses detailed in Exhibit C. Mr. Nappi also testified that in reviewing the claimed expenses that Mr. Carey would be eligible for reimbursement of a portion of the replacement property's ad valorem taxes. According to Mr. Nappi, Mr. Carey would have been eligible to receive the difference of the amount of the property taxes between the acquired property and the replacement property in the amount of $849.56. The only expenses that Mr. Nappi identified as not being reasonable were for hauling away yard waste contained in Exhibit D. According to Mr. Nappi, the Department questioned the amount of the charges and determined that an appropriate amount would be $1,200.00 as opposed to the $2,450.00 sought by Mr. Carey. Consequently, the majority of the expenses claimed by Mr. Carey were eligible items for reimbursement. On November 4, 2009, the Department sent Mr. Carey a letter denying his eligibility to receive reimbursement for expenses in relocating and reestablishing his small rental business. The Department denied Mr. Carey's eligibility because the updated TRIM notice for the property tax, that Mr. Carey provided the Department, showed the replacement property was homestead property. Because the replacement property was homestead, the Department reasoned that Mr. Carey had not reestablished a small business. Mr. Carey informed Mr. Nappi that the replacement property was not homestead property and that the TRIM notice was wrong. In response, on November 9, 2009, Mr. Nappi wrote the Hillsborough County Tax Collector to determine whether or not Mr. Carey's replacement property was homestead property. On November 23, 2009, while the Department waited for a response from the Hillsborough County Tax Collector, Mr. Carey closed on the sale of the replacement property for $332,500.00. Mr. Carey did not inform the Department that the replacement property had been sold. In February 2010, the Hillsborough County Tax Collector informed the Department that the replacement property was not homestead. Also, the Department learned for the first time that Mr. Carey had sold the replacement property. After learning that Mr. Carey had sold the replacement property, Mr. Nappi contacted his supervisor Elbert Johnson (Mr. Johnson). Mr. Nappi informed Mr. Johnson that "it did not appear that the reestablishment status of the landlord had been in fact established[,]" and the claim would be denied. Mr. Nappi testified the Department attempted to determine whether or not Mr. Carey had reestablished his rental business by examining Mr. Carey's efforts to rent the replacement property. Mr. Nappi directed a right-of-way specialist for the Department to contact realtors, who were associated with the property, to determine if Mr. Carey had listed the property for rent; to contact the local newspaper to learn if the property had been advertised for rent; and to conduct an internet search of the property. According to Mr. Nappi, the realtor indicated that she was not aware of whether or not Mr. Carey listed the property for rent and learned nothing from the newspaper or internet search. Mr. Nappi admitted that the Department did not contact Mr. Carey to ask him about his efforts to rent the property. The Department did not contact Mr. Carey or ask him to provide any information about his efforts to rent the property. Consequently, the Department did not have before it any information concerning Mr. Carey's efforts as to "word of mouth" advertising of the property. Mr. Knight, the state administrator of Relocation Assistance, testified that asking Mr. Carey about his efforts to rent the property would have been helpful information to have in considering the reimbursement. However, Mr. Knight acknowledged that Mr. Carey's selling of the home prior to determination of whether or not he was entitled to reimbursement made the issue moot. In the Department's estimation, Mr. Carey had simply "flipped a house" and had not reestablished his business. On March 25, 2010, the Department informed Mr. Carey that it was denying his application for reimbursement because he was not eligible because he had not reestablished his small rental business at the replacement property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order affirming its denial of Mr. Carey's application for reimbursement of reestablishment expenses. DONE AND ENTERED this 28th day of February, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 28th day of February, 2011.
The Issue The issue in this case is whether Monroe County Ordinance 004-1997, approved by a Final Order of the Department of Community Affairs, DCA Docket No. DCA97-280-FOI-GM, is consistent with the Principles for Guiding Development set forth in Section 380.0552, Florida Statutes (1997)?
Findings Of Fact The Parties. Petitioners are all involved in the rental of real property in unincorporated Monroe County, Florida. Petitioner John H. Rathkamp is a resident of the State of Georgia. (Admitted fact). Mr. Rathkamp is the owner of real property located in unincorporated Monroe County described as Lost 6, Block 9, Redfish Lane, Cudjoe Ocean Shores Subdivision, Cudjoe Key (RE #188684000800). At the time of purchase, the property was improved. At all times material to this proceeding, Mr. Rathkamp's property was located in an Improved Subdivision land use district. (Admitted facts). Petitioner Monroe County Vacation Rental Managers, Inc., is a Florida not-for-profit corporation doing business in Monroe County. Its principal place of business is located at 701 Caroline Street, Key West, Florida. (Admitted facts). Petitioner Lower Keys Chamber of Commerce is a Florida not-for-profit corporation which conducts business in Monroe County. Its principal place of business is Post Office Box 4330511, Mile Maker 31, Big Pine Key, Florida. (Admitted facts). Petitioner Marathon Chamber of Commerce is a Florida not-for-profit corporation which conducts business in Monroe County. Its principal place of business is 12222 Overseas Highway, Marathon, Florida. (Admitted facts). Respondent, the Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with responsibility for, among other things, the approval or rejection of comprehensive plan amendments and land development regulations adopted by the Monroe County Board of County Commissioners. Chapter 163, Florida Statutes, and Sections 380.05 and 380.0552, Florida Statutes (1997). Intervenor, the Board of County Commissioners of Monroe County (hereinafter referred to as the "County"), is the governing body of Monroe County, Florida, a political subdivision of the State of Florida. Among other things, the County is responsible for adopting a comprehensive plan and land development regulations for unincorporated Monroe County. Unincorporated Monroe County has been designated as the Florida Keys Area of Critical State Concern (hereinafter referred to as the "Florida Keys ACSC"), pursuant to Sections 380.05 and 380.0552, Florida Statutes, since 1979. As an area of critical state concern, all comprehensive plan amendments and land development regulations adopted by the County must be reviewed by the Department for consistency with the Principles for Guiding Development (hereinafter referred to as the "Principles"), set out in Section 380.0552(7), Florida Statutes. Standing. The parties stipulated that Petitioners are all substantially affected persons as those terms are used in Section 120.569, Florida Statutes (1997). The evidence in this case proved that Petitioners' substantial interests have been determined by the Department's Final Order approving the land development regulation at issue in this case. Petitioners have standing to initiate, and participate in, this proceeding. The evidence also proved that the County's substantial interests were determined by the Department's Final Order. The County has standing to participate in this proceeding. The County's Adoption of Ordinance No. 004-1997. During 1995 the County directed that public hearings be held on the issue of the rental of real estate for short periods of time for vacation purposes in Monroe County. Public hearings were held before the County's Development Review Committee in Marathon, Monroe County, Florida, on July 25, 1995, and December 2, 1995. Public hearings were also held before the County's Planning Commission on the following dates and at the following locations in Monroe County: Date Location March 7, 1996 Marathon March 21, 1996 Key West April 3, 1996 Key Largo April 18, 1996 Marathon April 22, 1996 Duck Key July 15, 1996 Duck Key September 5, 1996 Marathon On November 5, 1996, a referendum was placed on the ballot in Monroe County. The referendum asked the following question: "Should transient rentals of less than 28 days be allowed in (IS) Improved Subdivisions?" This question was answered "yes" by 51% of the citizens who voted on the referendum. Public hearings to consider an ordinance prohibiting certain vacation rentals were held before the County on December 18, 1996 in Marathon and on February 8, 1997, in Key West. On February 3, 1997, the County passed and adopted Ordinance No. 004-1997 (hereinafter referred to as the "Ordinance"). The Ordinance applies to lands located in unincorporated Monroe County. (Admitted facts). The Department's Review of the Ordinance. On February 25, 1997, the County transmitted a copy of the Ordinance to the Department for approval or rejection pursuant to Section 380.05, Florida Statutes. (Admitted fact). On April 25, 1997, the Department caused notice of Proposed Rule 9J-14.006(11), approving the Ordinance, to be published in the Florida Administrative Weekly. (Admitted fact). A challenge pursuant to Section 120.56, Florida Statutes, to the proposed rule was filed by Petitioners on May 16, 1997. The Department held public hearings in Monroe County on the proposed rule on May 21 and 22, 1997, and June 26, 1997. On May 31, 1997, an amendment to Section 380.05(6), Florida Statutes, became effective. The amendment changed the procedure for approving or rejecting comprehensive plan amendments and land development regulations in areas of critical state concern. Pursuant to the new procedure the Department was required to approve or reject comprehensive plan amendments and land development regulations in areas of critical state concern by final order instead of by rule. (Admitted facts). Petitioners in the rule challenge proceeding stipulated that they would not object, procedurally, if the Department elected to withdraw the proposed rule and issue a final order approving or rejecting the Ordinance. (Admitted fact). On November 26, 1997, the Department caused a Final Order entered November 5, 1997, to be published in the Florida Administrative Weekly, Vol. 23, No. 48. The Final Order was accepted into evidence as Joint Exhibit 5. The Final Order contains Findings of Fact and Conclusions of Law. Those Findings of Fact and Conclusions of Law are hereby incorporated by reference into this Recommended Order. A copy of the Final Order is attached to this Recommended Order. Pursuant to the Department's Final Order, the Department approved the Ordinance as being consistent with the Principles. (Admitted facts). Studies and Reports. One thing that was made abundantly clear during the formal hearing was that no formal studies were conducted by the County during its consideration and adoption of the Ordinance. Instead, the County relied upon information provided to it during the hearings conducted prior to, and during, the adoption of the Ordinance and the County's knowledge about Monroe County. Another fact made abundantly clear was that the Department also did not undertake any formal studies during its review of the Ordinance. The Department relied upon the its knowledge of Monroe County and information that had been provided to the County, summarized in memorandums. The Principles. Section 380.0552(7), Florida Statutes, creates the Principles: To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. To limit the adverse impacts of development on the quality of water throughout the Florida Keys. To enhance natural scenic resources, promote the aesthetic benefits of the natural environment, and ensure that development is compatible with the unique historic character of the Florida Keys. To protect the historical heritage of the Florida Keys. To protect 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 and other military facilities; Transportation facilities; Federal parks, wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and Florida Keys Electric Co-op; and Other utilities, as appropriate. To limit adverse impacts of public investments on the environmental resources of the Florida Keys. To make available adequate affordable housing for all sectors of the population of the Florida Keys. To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or man-made disaster and for a post-disaster reconstruction plan. To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. In determining whether the Ordinance is consistent with the Principles, the Principles must be considered as a whole and no specific provision is to be construed or applied in isolation from the other provisions. Section 380.0552(7), Florida Statutes. The Principles must also be construed and applied with due consideration to the legislative intent. The legislative intent in promulgating Section 380.0552, Florida Statutes, is set out in Section 380.0552(2), Florida Statutes: LEGISLATIVE INTENT.—It is hereby declared that the intent of the Legislature is: To establish a land use management system that protects the natural environment of the Florida Keys. To establish a land use management system that conserves and promotes the community character of the Florida Keys. To establish a land use management system that promotes orderly and balanced growth in accordance with the capacity of available and planned public facilities and services. To provide for affordable housing in close proximity to places of employment in the Florida Keys. To establish a land use management system that promotes and supports a diverse and sound economic base. To protect the constitutional rights of property owners to own, use, and dispose of their real property. To promote coordination and efficiency among governmental agencies with permitting jurisdiction over land use activities in the Florida Keys. In order for the Ordinance to be consistent with the legislative intent of Section 380.0552(2), Florida Statutes, it must be consistent with the Principles. The Ordinance. The Monroe County 2010 Comprehensive Plan (hereinafter referred to as the "Plan"), establishes the land uses which are allowed and prohibited in Monroe County. The Ordinance provides the following "Purpose": The purpose of this ordinance is to further and expressly clarify the existing prohibition on short-term transient rental of dwelling units for less than twenty-eight (28) days in duration in Improved Subdivisions, mobile home districts (which provide affordable housing) and native areas, and to allow tourist housing uses in all other districts and in improved subdivision districts with a newly-created tourist housing subindicator. The Ordinance defines the terms "vacation rentals" as the rental for tenancies of a dwelling unit for less than twenty- eight days. Hotels, motels, and recreational vehicle spaces are specifically excluded from the definition of "vacation rentals." The Ordinance addresses the following land use districts and prohibits vacation rentals within those district: Sparsely Settled Residential District; Native Area District; Mainland Native Area District; and Commercial Fishing Residential District. The Ordinance addresses the following land use districts and provides that vacation rentals are allowable "if a special vacation rental permit is obtained under the regulations established in Code s9.5-534": Urban Commercial District. Vacation rentals are not allowed, however, in commercial apartments with more than six units located in conjunction with a permitted commercial use; Urban Residential District; Sub Urban Commercial District. Vacation rentals are not allowed, however, in commercial apartments with more than six units located in conjunction with a permitted commercial use; Sub Urban Residential District; Sub Urban Residential District (Limited); Destination Resort District; Maritime Industries District. Vacation rentals are not allowed, however, in commercial apartments with more than six units; and Mixed Use Districts. Vacation rentals are not allowed, however, in commercial apartments with more than six units located in conjunction with a permitted commercial use. The Ordinance addresses the following land use districts and provides that vacation rentals are prohibited except "in gated communities which have (a) controlled access and (b) a homeowner's or property owners' association that expressly regulates or manages vacation rental uses": Urban Residential-Mobile Home District; URM-L District; and Improved Subdivision Districts. Improved Subdivision Districts (hereinafter referred to as "IS Districts"), are the primary, residential districts in Monroe County. 40 The Ordinance establishes a new district, the Improved Subdivision-Tourist Housing District (hereinafter referred to as the "IS-T District"). Vacation rentals are allowed in IS-T Districts under certain conditions: A map amendment designating a contiguous parcel as IS-T may be approved, provided that the map amendment application (and subsequent building permit applications and special vacation rental permit applications) meet the following standards, criteria and conditions: The IS-T designation is consistent with the 2010 Comprehensive Plan and there is no legitimate public purpose for maintaining the existing designation. The IS-T designation allowing vacation rental use does not create additional trips or other adverse traffic impacts within the remainder of the subdivision or within any adjacent IS district: The parcel to be designated IS-T must contain sufficient area to prevent spot zoning of individual parcels (i.e., rezonings should not result in spot-zoned IS-T districts or result in spot-zoned IS districts that are surrounded by IS-T districts). Unless the parcel to be rezoned contains the entire subdivision, there will be a rebuttable presumption that spot-zoning exists, but the Board of County Commissioners may rebut this presumption by making specific findings supported by competent, substantial evidence that: the designation preserves, promotes and maintains the integrity of surrounding residential districts and overall zoning scheme or comprehensive plan for the future use of surrounding lands; does not result in a small area of IS-T within a district that prohibits vacation rentals; the lots or parcels to be designated IS-T are all physically contiguous and adjacent to one another and do not result in a narrow strip or isolate pockets or spots of land that are not designated IS-T, or which prohibit vacation rentals; and the IS-T designation is not placed in a vacuum or a spot on a lot-by-lot basis without regard to neighboring properties, but is a part of an overall area that allows vacation rentals or similar compatible uses. In addition to the requirements contained in Code s.9.5-377 (District Boundaries), an IS-T district shall be separated from any established residential district that does not allow tourist housing or vacation rental uses by no less than a class C bufferyard: Vacation rental use is compatible with established land uses in the immediate vicinity of the parcel to be designated IS- T: and Unless a map amendment is staff-generated (i.e., initiated by Monroe County), an application for a map amendment to IS-T shall be authorized by the property owner(s) of all lots (or parcels) included within the area of the proposed map amendment. The Ordinance provides that vacation rentals are prohibited in Offshore Island Districts unless they "were established (and held valid state public lodging establishment licenses) prior to January 1, 1969." Finally, the Ordinance provides, in part, that the following uses are permitted in Recreational Vehicle Districts: Recreational vehicle spaces. RV spaces are intended for use by traveling recreational vehicles. RV spaces may be leased, rented or occupied by a specific, individual recreational vehicle, for a term of less than twenty-eight days, but placement of a specific, individual Recreational Vehicle (regardless of vehicle type or size) within a particular RV park for occupancies or tenancies of 6 months or more is prohibited. Recreational Vehicles may be stored, but not occupied, for periods of 6 months or greater only in an approved RV storage area (Designated on a site plan approved by the Director of Planning) or in another appropriate district that allows storage of recreational vehicles. . . . Code s9-534 of the Ordinance requires a permit for vacation rentals, except for vacation rentals located within a controlled access, gated-community or within a multifamily building which has 24-hour on-site management or 24-hour on-site supervision. This Code section also provides certain conditions which must be met by vacation rentals, requires that a copy of any permit be provided to surrounding property owners, provides for the circumstances under which a permit may be revoked, provides for certain penalties, and deals with other miscellaneous matters. Code s9-534 is hereby incorporated into this Recommended Order. The Ordinance is a "land development regulation" as defined in Section 380.031(8), Florida Statutes. (Admitted fact). Petitioners' Challenge to the Ordinance. On December 16, 1997, Petitioners timely filed a challenge pursuant to Sections 120.569 and 120.57, Florida Statutes, to the Department's Final Order approving the Ordinance. (Admitted facts). In addition to alleging that the Ordinance is not consistent with the Principles, Petitioners also challenged some of the specific findings of fact contained in the Final Order entered by the Department. While the Department has agreed that it has the burden of proving the "validity of the final order," for purposes of Sections 380.05 and 380.0552, Florida Statutes, the only "final order" which the Department entered in this matter is the final line of the order: "WHEREFORE, IT IS ORDERED that Monroe County Ordinance No. 004-1997 is consistent with Section 380.0552(7), F.S., and is hereby approved." Because this is a de novo proceeding, the "facts" and "conclusions of law" the Department reached in taking the "proposed agency action" at issue in this case, are not controlling. Petitioners also alleged that the Ordinance is not "consistent with the legislative intent for designation of unincorporated Monroe County as the Florida Keys ACSC expressed in Section 380.0552(2), F.S." Chapter 380, Florida Statutes, does not specifically require the Department to independently determine whether a land development regulation is consistent with the legislative intent. The Department is only required to determine consistency with the Principles. If a land development regulation is consistent with the Principles, it will also be consistent with the legislative intent. Finally, Petitioners alleged in their Petition that the Ordinance is not consistent with the Plan. This allegation was not included in the Prehearing Stipulation. This issue was, therefore, waived by Petitioners. Even if not considered waived, the issue of whether the Ordinance is consistent with the Plan is not an issue which has been properly brought before this forum. The challenge in this case was instituted pursuant to Chapter 380, Florida Statutes. Nowhere in Chapter 380, Florida Statutes, is the Department required or authorized to review a land development regulation for consistency with a growth management plan. The Department's authority to review a land development regulation for consistency with a growth management plan comes from Chapter 163, Florida Statutes. Challenges to Department's decisions under Chapter 163, Florida Statutes, must be instituted pursuant to Section 163.3213, Florida Statutes. No such proceeding has been instituted by Petitioners. Petitioners, although not specifically alleged in their petition or the Prehearing Stipulation, presented evidence at hearing and argument in their proposed order concerning what the County and Department knew or did not know, and what they did or did not do, at the time of their respective actions. Because this is a de novo proceeding, such knowledge or actions, do not support a finding that the Ordinance is not consistent with the Principles unless, in the case of required information, the information is not provided at hearing and, in the case of an action that was not taken, the action was required by rule or statute. The evidence presented at hearing in this case was sufficient to determine consistency of the Ordinance with the Principles. The evidence also failed to prove that the County or the Department failed to take any action required by rule or statute with regard to their respective roles in this matter. Sound Economic Development of Monroe County. Section 380.0552(7)(d), Florida Statutes, includes the following principle: "To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development." This principle is consistent with the legislative intent set out in Section 380.0552(2)(e), Florida Statutes, that a local government establish a land use management system that promotes and supports a diverse and sound economic base. Undoubtedly, the evidence in this case proved that the Ordinance will cause a negative impact to the economy of Monroe County. No economic impact study was necessary to prove this fact. Although neither the County nor the Department conducted an economic impact study prior to the County's adoption and the Department's review of the Ordinance, the County and the Department were aware of the fact that there would be a negative economic impact as a result of the Ordinance and took that fact into consideration in carrying out their respective roles. More importantly, there is no requirement in Chapters 120 or 380, Florida Statutes, that an economic impact study be performed prior to adoption of a land development regulation or during the Department's review. Nor is the Department authorized as part of its review pursuant to Chapter 380, Florida Statutes, to require such a study be conducted by the County. This is a de novo proceeding. Therefore, it was incumbent upon the Department in order to meet its burden of proof to present sufficient competent substantial evidence concerning the economic impact of the Ordinance during the formal hearing. Much of the proof was presented by Petitioners. The combined proof of the parties in this case concerning the economic impact of the Ordinance is sufficient to make a determination as to whether the Ordinance is consistent with Principle "d." The economy of Monroe County is primarily dependent upon the tourist industry. The tourist industry in turn is largely dependent on the natural resources of Monroe County. As a consequence, the majority of the Principles provide for a consideration of impacts on the environment of Monroe County. Ultimately, the economic viability of Monroe County depends on its environmental resources. Tourists who vacation in Monroe County generally require lodging while on vacation. Lodging in Monroe County is diverse and includes hotels, motels, camp grounds, RV parks, and rentals of dwellings, including rentals for periods of less than 28 days (rentals of dwellings of less than 28 days are hereinafter referred to as a "Short-Term Rental Property"). There are some tourists who prefer to stay in Short- Term Rental Property over other types of accommodations available in Monroe County. There are even some tourists who may go elsewhere if they are unable to find Short-Term Rental Property in Monroe County. A reduction in available Short-Term Rental Property may also cause some tourists to come to Monroe County during periods during the year when tourism is lower. The evidence, however, failed to prove the extent of the loss of tourists or the extent to which tourists may come to Monroe County during the off-season if there is a reduction in the available number of Short-Term Rentals Property as a result of the Ordinance. Short-Term Rental Property makes up a significant portion of tourist lodging available throughout Monroe County. Short-Term Rental Property has been a part of the tourist economy of Monroe County for the past twenty to thirty years. Short-Term Rental Property, however, has increased significantly recently as the number of dwellings in Monroe County has increased. The use of properties as Short-Term Rental Property adds to the economy of Monroe County by providing work for a number of businesses in Monroe County. Those businesses include real estate brokers, pool maintenance, lawn maintenance, home repairs, maid/cleaning services, and many of the businesses associated with the tourist industry. Occupancy rates for Short-Term Rental Properties in Monroe County have been averaging approximately 30% annually. Occupancy occurs primarily during the peak tourist season from December or January through April. To a lesser extent, occupancy is higher in August also. Occupancy rates in Monroe County hotels and motels during the peak season have been approximately 80% to 100%. There is currently a moratorium in the Florida Keys on the construction of hotels and motels. The moratorium is only effective through 2006. The construction of new transient rentals and the conversion of single-family residences to transient rentals are prohibited by the Plan. These measures represent an effort of the County to regulate the influx of tourists into Monroe County and very likely result in an increase of properties used for Short-Term Rental Property to meet the demand for tourist lodging. As a result of the Ordinance's restriction on where Short-Term Rental Property will be allowable in Monroe County, there will be some reduction in the number of Short-Term Rental Properties available to tourist in Monroe County. Petitioners have estimated that there will be a reduction of in excess of 3,000 Short-Term Rental Properties as a result of the Ordinance. This number is based upon the assumption that there are 4,100 Short-Term Rental Properties in Monroe County, that 76% of those rentals are located in IS districts, and that all 76% of the rentals in IS districts will be lost. The evidence failed to support a finding that such a reduction will occur. First, the Ordinance does not prohibit all Short-Term Rental Property in Monroe County. The use of properties for Short-Term Rental Property is not prohibited in several land use districts listed, supra. Short-Term Rental Property located in the cities of Key West, Key Colony Beach, and Village of Islamorada are also not subject to the Ordinance. There are approximately 12,000 seasonal rental units in incorporated and unincorporated Monroe County. To the extent that the demand for Short-Term Rental Property is not met by properties which are no longer available for use as a Short-Term Rental Property under the Ordinance, some part of that demand will be met by seasonal units not impacted by the Ordinance: those units located in land use districts in which Short-Term Rental Properties are not prohibited and in incorporated areas. The market will react to the market conditions as they change under the Ordinance. Petitioners' expert witness, Charles Ilvento, provided estimates of the losses in revenue and sales tax collections in Monroe County (at a rate of 11.55 per cent) as a result of the Ordinance. Those estimates were that Monroe County would experience $400,235,747.00 to $500,294,683.00 per year in economic losses and $6,262,444.00 per year in sales tax losses. The Department's and County's expert, Dr. Nicholas, estimated that the economic loss from the Ordinance to Monroe County would only be approximately 20 per cent of the loss projected by Mr. Ilvento and would last only two years. Mr. Ilvento also suggested that the losses would be continuing losses. The weight of the evidence failed to support the extent of losses suggested by Mr. Ilvento. First, in making his estimates, Mr. Ilvento relied upon the number of Short-Term Rental Properties Petitioners had estimated would be lost as a result of the Ordinance. Those estimates are too high. See Findings of Fact 68 and 69. Secondly, Mr. Ilvento did not take into account the economic benefit of keeping residential uses of property and the more commercial activities of Short-Term Rental Properties separate as required by the Ordinance. Because of the value of Short-Term Rental Properties, finding property for permanent residents is more difficult. In some areas, the use of residential property for Short-Term Rental Properties can dominate the residential nature of an area to a great enough extent that the residential sector will decline and withdraw. Thirdly, Mr. Ilvento did not take into account the increase in income that would be likely to occur from the sales of properties formerly used as Short-Term Rental Property which Petitioners assert will have to be sold. Fourthly, Petitioners' estimate of the number of properties that will be sold (50%), which Mr. Ilvento relied upon in reaching his estimates, is not reasonable. Petitioners' estimate of the number of Short-Term Rental Properties that will be sold assumes that the owners of those properties will no longer be able to afford them without the rental income they had previously enjoyed from the properties. This assumption is not realistic. It is not realistic to assume that half the owners of Short-Term Rental Properties acquired their property without taking into account the possibility that they would not be able to rent the property. Additionally, it is not reasonable to assume that an owner who is faced with the inability to carry the debt on a property will necessarily elect to sell it rather than rent it on a long-term basis. The evidence also proved that the economy of Monroe County will be benefited to the extent that the Ordinance enhances the availability of affordable housing and reduces adverse impacts to the environment of Monroe County, as discussed, infra. The benefits to the economy as a result of the increase in affordable housing and the reduction of adverse impacts to the environment will not be substantial, however. The weight of the evidence in this case proved that there will be an overall economic loss in Monroe County as a result of the Ordinance. That loss should last approximately two to three years. The amount of the loss projected by Dr. Nicholas is a more reasonable estimate of the loss which will occur. That loss, however, will be substantial. Protection of the Public Health, Safety, and Welfare. Section 380.0552(7)(l), Florida Statues, includes the following principle: "To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource." The County, in adopting the Ordinance, was primarily exercising its police power to protect the public health, safety, and welfare of the citizens of Monroe County. The County decided to exercise its power by limiting the types of activities allowable in areas designated for residential use. The County's decision was based upon extensive testimony on the negative impacts of Short-Term Rental Property in neighborhoods given at the public hearings conducted by the County. Additionally, the County was aware of the results of the November 5, 1996, referendum vote in which residents of the County voted in favor of prohibiting Short-Term Rental Property in IS districts. Although the testimony concerning the negative impacts of Short-Term Rental Property and the results of the referendum vote relied upon by the County constitutes hearsay, it does corroborate and explain the testimony of Denise Werling, a permanent resident of Monroe County. It is difficult to characterize the rental of Short- Term Rental Property as purely commercial or residential. While Short-Term Rental Property is being used by the people who rent the property as housing, which is in the nature of a residential use, the services they are provided in conjunction with the rental is more in the nature of a commercial enterprise. Therefore, Short-Term Rental Property use is more like the rental of a hotel or motel rental, rather than the a long-term lease of property. Additionally, although there are always exceptions, occupants of Short-Term Rental Properties use the properties for reasons that are different from the uses that occupants of long- term rentals or permanent residents put their properties. As a result of the differences between the uses to which occupants of Short-Term Rental Property and permanent residents put their property, conflicts arise where the two land uses exist side by side. Although Short-Term Rental Properties have been a part of Monroe County for many years, there has been an increase in the number of properties available for use as Short-Term Rental Property in areas which have also increasingly been used as neighborhoods for permanent residents during the past ten years. As a result, the conflicts between occupants of Short-Term Rental Properties and permanent residents have increased. Denise Werling testified as to the types of conflicts she has experienced with a Short-Term Rental Property located next door to her home. Ms. Werling's testimony was illustrative of the types of conflicts which can exist if Short-Term Rental Properties are allowed to exist in areas designated for purely residential uses. The following are the types of problems which are not uncommonly associated with the use of properties as Short-Term Rental Property in residential areas: Short-Term Rental Property may be occupied with excessive numbers of tenants. Occupants of Short-Term Rental Property usually do not have to work because they are on vacation. As a consequence, they usually want to maximize the time they spend enjoying their vacation. As a result, they may stay up later at night and/or get up earlier in the morning than permanent residents. Late- night parties are not limited to weekends. Occupants often have excessive numbers of vehicles, boats, jet skies, RV's, and boat trailers, which they park on residential streets or all over the Short-Term Rental Property. RV's are parked in the driveway, yard, or the street in front of the rental property. When occupied, these RV's can be noisy if they are powered by self-contained generators. Multiple boats may be docked along seawalls behind Short-Term Rental Properties. Ms. Werling has seen as many as six boats parked at one time against the seawall of the Short- Term Rental Property located next to her residence. Occupants of Short-Term Rental Property are unfamiliar with garbage and recycling schedules. As a result, full trash containers and recycle containers, if they are used, are left outside when the occupants leave, even though it may be several days before pickup is scheduled. Pets that are unfamiliar to the neighborhood are left to roam free. Ms. Werling has had dogs from the property next to hers on her property. Occupants of Short-Term Rental Property are strangers to the neighborhood. As a result, they can create a sense on uneasiness to permanent residents. This sense of uneasiness is not only a result of concern for the safety of the permanent residents and their families, but is also caused by the fact that occupants of Short-Term Rental Properties are less likely to adhere to accepted neighborhood practices. They may leave outdoor security lights on all the time. They are less concerned about trespassing onto seawalls and yards of the permanent residents. They are only in the area for a relatively short period of time and, consequently, they are likely to be less considerate of the neighboring permanent residents. Short-Term Rental Property occupants are often less familiar with the waters that surround their Short-Term Rental Property. As a result, they tend to run aground, causing damage to seagrass beds. While they could cause such damage elsewhere if they were staying at a hotel or motel, they at least have hotel and motel personnel that are familiar with the surrounding waters that they can consult before venturing out. Such information is not as readily available at Short-Term Rental Properties. 86 Most of the difficulties associated with Short-Term Rental Properties are not limited to occupants of Short-Term Rental Properties. Many are also caused by some permanent residents. Just as there are some Short-Term Rental Property occupants that are inconsiderate to permanent residents, there are permanent residents that are inconsiderate to their neighbors. The degree to which the problems are caused is much higher, however, for occupants of Short-Term Rental Properties than it is for permanent residents. Additionally, it is more likely that permanent residents that cause problems can be effectively dealt with through the enforcement of regulations than occupants of Short- Term Rental Property. Finally, some of the problems are only associated with occupants of Short-Term Rental Properties. Efforts to enforce regulations intended to deal with the problems associated with inconsiderate neighbors, such as anti-noise ordinances, have not been successful in eliminating the problems associated with Short-Term Rental Property. Short- Term Rental Property occupants have less reason to be concerned about regulations because they know they will be leaving the community in a short time. Whether they get along with their "neighbors" is not something they are concerned with. Ms. Werling has reported the problems she has experienced with the Short-Term Rental Property located next door to her. The problems, however, persist. Efforts of managers of Short-Term Rental Properties have not eliminated the difficulties associated with Short-Term Rental Property for the same reason that regulations are not effective and because not all owners of Short-Term Rental Property use local managers. Some absentee owners rent the properties themselves and they are not available to handle complaints as they arise. The County, in adopting the Ordinance, was exercising its police power to eliminate the incompatible use of Short-Term Rental Properties in districts intended for use as residential communities. In exercising its police power, the County prohibited Short-Term Rental Property in the most sensitive residential areas and placed restrictions intended to reduce the impacts of Short-Term Rental Properties in areas where Short-Term Rental Properties are allowed under the Ordinance. The County also restricted Short-Term Rental Properties in districts intended to protect the sensitive natural resources of the Florida Keys ACSC. Petitioners' have suggested that, while additional regulation of Short-Term Rental Property may be appropriate and beneficial, to prohibit Short-Term Rental Property in IS districts, given the negative economic impact of such a prohibition, would be detrimental to the overall welfare of Monroe County. Therefore, Petitioners have argued that the Ordinance is not consistent with Principle "l." Petitioners' suggestion does not support a finding that the Ordinance is not consistent with Principle (l), however. Petitioners' suggestion relates to the issue of the balancing of all the Principles, discussed infra. The County's Ability to Manage Land Use and Development. Section 380.0552(7)(a), Florida Statutes, includes the following principle: "To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation." Short-Term Rental Properties have existed throughout the Florida Keys for many years. Many owners of Short-Term Rental Property have obtained an occupational license for their rental business. Prior to the adoption of the Ordinance, the County Attorney and the Monroe County Code Enforcement Board, began to question whether the use of property as Short-Term Rental Property was an allowable land use in certain land districts in Monroe County under existing laws. The fact that some owners of Short-Term Rental Properties obtained occupational licenses from the Monroe County Tax Collector and licenses pursuant to Chapter 509, Florida Statutes, from the Department of Business and Professional Regulation does not, as Petitioners have argued, support a finding that the use of Short-Term Rental Properties have been an allowable use. An occupational license is, in essence, a method of collecting a tax pursuant to Chapter 205, Florida Statutes, for the operation of a business in a local jurisdiction. The issuance of such a license is not in the nature of a land use decision. Although there was a requirement in the County prior to the adoption of the Ordinance that occupational licenses issued by the Tax Collector be reviewed by the County for consistency with land use requirements, the evidence failed to support a finding that licenses were actually reviewed. Even if they had been, the evidence in this case only proved that the County simply did not give any consideration to whether existing comprehensive plans and land development regulations allow or prohibit the use of property as Short-Term Rental Property in all land use districts of Monroe County. Licenses from the Department of Business and Professional Regulation also do not constitute land use decisions. By taking the actions necessary to consider the problem of Short-Term Rental Properties and in adopting the Ordinance, the County has evidenced the willingness to take responsibility for the issue of whether the use of property for Short-Term Rental Property is allowable, and, if so, in which districts. By adopting the Ordinance, the County has resolved any ambiguity concerning the legality of Short-Term Rental Property. Even if it were clear that the use of Short-Term Rental Property has been allowable throughout Monroe County, the County has still taken steps to strengthen its capability for managing land use and development. The County took on a highly controversial issue, with vocal proponents and opponents, and made a decision as to the future direction of neighborhoods in Monroe County. In so doing, the County also took the actions necessary to actually "manage" Short-Term Rental Properties. The Environmental Issues. 100. Sections 380.0552(7)(b), (c), (e), (f), and (i), Florida Statutes, are Principles which require a consideration of the impacts on the environment of the Florida Keys: Principle "b": "To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat." Principle "c": "To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat." Principle "e": "To limit the adverse impacts of development on the quality of water throughout the Florida Keys." Principle "f": "To enhance natural scenic resources, promote the aesthetic benefits of the natural environment, and ensure that development is compatible with the unique historic character of the Florida Keys." Principle "i": "To limit the adverse impacts of public investments on the environmental resources of the Florida Keys." (This Principle could also be grouped with Section 380.0552(7)(h), Florida Statutes). These Principles are consistent with the legislative intent set out in Section 380.0552(2)(a), Florida Statutes, that a local government establish a land use management system that protects the natural environment of the Florida Keys. Part I of Chapter 380, Florida Statutes, is titled "The Florida Environmental Land and Water Management Act of 1972." Section 380.012, Florida Statutes. The legislative purpose for establishing Part I and designating areas of critical state concern was primarily to provide State protection from adverse development impacts on environmentally sensitive areas of the State: Big Cypress Swamp, Green Swamp, Apalachicola Bay, and Monroe County's Florida Keys. All of these areas include environmentally sensitive lands and water bodies. The Ordinance does not specifically deal with environmental issues. The Ordinance involves primarily a balancing of a local government's police power with the economic impact of the exercise of that power. The Ordinance does, however, have some small positive impacts on the environment of Monroe County. Most importantly, the Ordinance does nothing contrary to the legislative intent to protect the Florida Keys ACSC. Monroe County's economic viability depends on the preservation and protection of its natural resources, including the quality of its surrounding waters. Tourism, which is the largest industry in Monroe County, is dependent on Monroe County's natural resources. The tourists who come to Monroe County are, in large part, attracted to Monroe County by its environmental qualities. Unfortunately, tourists are generally the worst abusers of the natural environment of Monroe County. This is true whether a tourist is staying in a motel or a Short-Term Rental Property. Tourists have more free time and, as a consequence, tend to participate in the recreational activities available in Monroe County more frequently and intensely than permanent residents. They simply use the resources more than a permanent resident. For example, in addition to spending more time on the water during good weather, tourists tend to engage in water activities even during inclement weather. Unlike a permanent resident who can wait until the next clear weekend, a vacationer will not necessarily be in Monroe County when the weather clears and therefore, is likely to be on the water at every opportunity. Tourists use the resources of the Florida Keys ACSC throughout their vacation. Unlike permanent residents, who are limited primarily to enjoying the natural environment of the Florida Keys ACSC on weekends and holidays, tourists are free to enjoy the environment everyday they are in Monroe County. In addition to the more frequent and intense use of the resources of Monroe County, tourists also cause harm to the environment because of their lack of knowledge about the Florida Keys ACSC or because they simply don't care. Monroe County's nearshore waters consist of numerous unmarked channels that leave many areas of Monroe County, including many canals of IS Districts. The unmarked channels can be difficult to navigate because of shallow waters typical of the Florida Keys. Navigation through these channels is learned largely from experience. The shallow nearshore waters contain beds of seagrasses that provide an important part of the ecosystem of the Florida Keys. They support juvenile fish and shellfish, which in turn provide feeding stock for birds and larger fish species. Grounding on these seagrass beds causes propeller scaring damage to the seagrasses. Tourists are also not familiar or do not care about limits on the numbers of fish and other marine life that can be caught, the sensitively of coral reefs and other natural resources of the Florida Keys ACSC, or the need to minimize human contact with the Key Deer. As a result, tourist tend to create more harm to most of the environmental features of the Florida Keys ACSC. Tourists that stay in Short-Term Rental Properties located in IS Districts and other land use districts are not significantly different from tourists that stay in other transient rentals available in Monroe County such as hotels or motels in terms of their impacts on the environment. The adverse impacts on the environment from tourists described, supra, are caused by tourists regardless of where they may be staying. Tourists that stay in Short-Term Rental Properties, however, do cause slightly more harm to the environment than other tourists for several reasons. First, a large number of tourists bring their own boats and ski jets with them to Monroe County. Those who stay in Short-Term Rental Properties generally do not operate or store their boats out of commercial marinas or use public boat ramps. As a consequence, it is more difficult to educate them about the adverse impacts they may cause on the environment. Marinas and other commercial locations where boats may be docked provide greater information about the waters of the Florida Keys and are more likely to have adequately marked access channels than Short- Term Rental Properties. Marinas, hotels, and motels also have knowledgeable individuals available to answer questions concerning the surrounding waters, a service not available to Short-Term Rental Property occupants. Prohibiting Short-Term Rental Properties in IS Districts will reduce the number of inexperienced boaters using the numerous canals of IS Districts to access the waters of Monroe County. Secondly, tourists that occupy Short-Term Rental Properties are more likely to cause harm to the Key Deer and other sensitive natural resources due to the proximity of their Short-Term Rental Property to the Key Deer and other resources. Key Deer inhabit the Florida Keys primarily on Big Pine Key. The Key Deer is an endangered species. Properties located on Big Pine Key and in other areas where Key Deer are found are used for Short-Term Vacation Rental Properties. Adverse impacts on the Key Deer result from their interaction with humans, through feeding, automobile deaths, and dogs that chase the Key Deer. While all tourists have impacts on the Key Deer due to their interaction with the them, the location of Short-Term Rental Property within the Key Deer habitat, especially areas located away from the main highway corridor of the Florida Keys, U.S. Highway 1, increases the amount of interaction between those tourists who occupy those Short-Term Rental Properties and the Key Deer. Tourists staying in IS Districts on Big Pine Key, especially those in Port Pine Heights at the north end of the Key, feed the Deer more because they are there more often, and cause more traffic problems because of the drive required to get to their rental property. Principle "e" requires that land development regulations limit the adverse impacts of development on water quality. There are public health concerns associated with untreated or improperly treated sewage, including viruses, bacteria, and parasites. Throughout most of the Florida Keys ACSC, septic tanks are used to dispose of sewage. Many of the septic tanks were installed years ago and do not meet today's standards for septic tanks. The size of a septic tank that must be installed depends on what the property will be used for. For single family residences, it is assumed that 100 gallons per day of sewage will be disposed of. Hotels are also assumed to create the same amount per room, while resorts, camps, and cottages are assumed to produce 200 gallons per day. Establishments with self-service laundries are assumed to produce 750 gallons per day. The use of Short-Term Rental Properties is somewhere between the use of single-family residence, hotels, resorts, and establishments with self-service laundries because of the similarity in how tourists in Short-Term Rental Properties and occupants of other transient locations live. Additionally, Short-Term Rental Properties are often occupied with more persons than would normally be found in a single-family residence. Although some septic tanks are designed with even more capacity than may be required by rules, not all septic tanks are designed to handle the increased use that occupants of Short-Term Rental Properties can cause. As a consequence, there is at least the potential for adverse consequences to the water of the Florida Keys ACSC to the extent that Short-Term Rental Properties are not better regulated by the County. Through the Ordinance, the County is attempting to ensure that the potential harm from the over use of septic tanks in Monroe County is regulated. The Ordinance limits the number of occupants of Short-Term Rental Properties. The Ordinance also requires that applicants for vacation rental permits submit a report from the Department of Health verifying compliance with existing septic tank or on-site sewage disposal system regulations. The Ordinance has no direct impact on Principle (i) and some parts of the other environmental Principles. The Ordinance is not, however, inconsistent with any of the Principles which deal with the environment. Community Character and Historical Heritage of the Florida Keys. Section 380.0552(7)(f), Florida Statutes, provides for a consideration of the "community character" of the Florida Keys, in addition to environmental considerations. This principle is consistent with the legislative intent set out in Section 380.0552(2)(b), Florida Statutes, that a local government establish a land use management system that promotes the community character of the Florida Keys. Section 380.0552(7)(g), Florida Statutes, includes the following Principle: "To protect the historical heritage of the Florida Keys." Although the evidence proved that the vacation rental of single-family residences has been a part of the character and historical heritage of the Florida Keys for many years, the problem being dealt with by the County through the Ordinance has not. The Ordinance does nothing to harm the community character or historical heritage of Monroe County. Public Investments. Section 380.0552(7)(h), Florida Statutes, requires that "the value, efficiency, cost-effectiveness, and amortized life of existing and proposed major public investments be protected, including the following investments: The Florida Keys Aqueduct and water supply facilities; Sewage collection and disposal facilities; Solid waste collection and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks, wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Electric Co-op; and Other utilities, as appropriate. This principle is consistent with the legislative intent set out in Section 380.0552(2)(c), Florida Statutes, that a local government establish a land use management system that promotes orderly and balanced growth in accordance with the capacity of available and planned public facilities and services. The evidence in this case failed to prove that the Ordinance has any impact, positive or negative, on "existing and proposed major public investments " Affordable Housing. Section 380.0552(7)(j), Florida Statutes, provides the following Principle: "To make available adequate affordable housing for all sectors of the population of the Florida Keys." This Principle is consistent with the legislative intent set out in Section 380.0552(2)(d), Florida Statutes, that a local government provide affordable housing in close proximity to places of employment in the Florida Keys. There is a significant problem finding housing in Monroe County. It is especially difficult finding housing affordable to lower income residents. The shortage of housing has been caused by the lack of available developable land and restrictions on development, including those imposed by the Rate of Growth Ordinance (hereinafter referred to as "ROGO"). ROGO limits the number of new permanent residential units which may be constructed in the Florida Keys to 255 per year. Because of the restrictions on available new housing in Monroe County, prices for residential property have increased over the years. Currently, most 2 to 3 bedroom properties used as Short-Term Rental Properties are selling for $200,000.00 to $300,000.00. These properties do not come under the definition of "affordable housing" for lower income residents. "Affordable housing" is defined in terms of housing which can be afforded by very-low income, low-income, and moderate-income persons. Homes that costs over $200,000.00 do not constitute "affordable housing" as defined in the County's Land Development Regulations. The market for homes selling for over $200,000.00 in Monroe County is not high. Therefore, to the extent that properties located in IS Districts that are currently used as Short-Term Rental Properties are placed on the market, there will not be a direct increase in housing for very-low income, low- income, or moderate-income persons. Many of the Short-Term Rental Properties in Monroe County are second homes that are used only part of the year by the owners and are used as Short-Term Rental Properties the rest of the year. Some Short-Term Rental Properties are properties that have been purchased for investment purposes and/or with the intent of using the properties as the owners' permanent residence upon retirement. As a result, these properties are not available for use by permanent residents. Regardless of their costs, with a limited number of new residential properties allowed under ROGO, the use of new properties as Short-Term Rental Properties necessarily reduces the overall availability of housing in Monroe County. The restriction caused in the overall housing market in Monroe County can reasonably be expected to also negatively impact the availability of affordable housing. Potential revenues to property owners from Short-Term Rental Properties in IS Districts are higher then the potential revenues from long-term rentals to permanent residents. Consequently, as more property owners in IS Districts are attracted to using their properties as Short-Term Rental Properties, there is a reduction in the amount of housing available for long-term rentals. Therefore, the use of properties in IS Districts as Short-Term Rental Properties decreases the supply of long-term rentals available for residents of Monroe County. By prohibiting the use of properties in IS Districts as Short-Term Rental Properties, the total properties in Monroe County available for housing, including for long-term rentals, for permanent residents, will increase. As supply increases demand for all housing, including an affordable housing to some small extent, will be better met. There is a demand for long-term rentals in Monroe County. Two to three bedroom homes located in IS Districts can easily be rented for $1,000.00 to $1,500.00 per month. Some segment of the permanent population of Monroe County could afford such rentals if they were available, freeing up less expensive housing. Additionally, some absentee owners are able to purchase more expensive property because of their ability to rent the property as Short-Term Rental Property and apply the rental income to meet a higher mortgage payment. As a result, the real estate market in Monroe County builds more expensive homes to meet the demand. To the extent that this market for higher priced homes is reduced by the Ordinance, the allocation of ROGO residential units may be used for less expensive housing. The overall impact on the increase in available housing for permanent residents of Monroe County as a result of prohibiting Short-Term Rental Properties in IS Districts will generally "trickle" down throughout the entire housing market and benefit the availability of affordable housing. Natural or Manmade Disaster and Post-Disaster Relief. Section 380.0552(7)(k), Florida Statutes, provides the following Principle: "To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or manmade disaster and for a postdisaster reconstruction plan." Hurricane evacuation in Monroe County is a difficult problem because of the low elevations in the Florida Keys and the lack of evacuation routes. Through most of the Florida Keys, there is only one evacuation road: U.S. Highway 1. The County has adopted, and put in place, hurricane evacuation plans for Monroe County. Estimated hurricane evacuation times for Monroe County determine the extent to which growth can be allowed in the future. The estimated hurricane evacuation time for Monroe County is determined by a ROGO hurricane evacuation model. The model takes into account seasonal residents, hotel/motel residents, transient rental occupants, and permanent residents. Petitioners presented evidence in an effort to show that the reduction in Short-Term Rental Properties will cause the calculation under the ROGO hurricane evacuation model to be inaccurate. The evidence failed to support such a finding. The evidence failed to prove how occupants of Short- Term Rental Properties are treated for purposes of the hurricane evacuation model. Testimony that they are included as seasonal occupants was not credible. Even if occupants of Short-Term Rental Properties are considered seasonal occupants for hurricane evacuation purposes, it does not necessarily mean that the Ordinance is inconsistent with Principle "k." It would only mean that the results of the hurricane evacuation model need to be revised. Rather than hampering hurricane evacuation efforts in Monroe County, the Ordinance should have a beneficial impact by giving the County more accurate information about the actual number of Short-Term Rental Properties in Monroe County. Consideration of the Principles as a Whole. Section 380.0552(7), Florida Statues, specifically provides that the Principles are to be "construed as a whole and no specific provision shall be construed or applied in isolation from the other provisions." The evidence in this case supports a conclusion that the Ordinance has no or little impact on most of the Principles, except Principles "d" and "l." To the extent that there is any impact on the other Principles, the evidence proved that the Ordinance is consistent. This finding, however, is not dispositive of this case. Ultimately, the question of whether the Ordinance is consistent with the Principles is dependent upon an evaluation of the consistency of the Ordinance with Principles "d" and "l." Clearly, the Ordinance will have a short-term negative impact on the economy of Monroe County. Just as clearly, the Ordinance will enhance the safety, health, and welfare of the residents of Monroe County. When the legislative intent of Chapter 380, Florida Statutes, is taken into account, it is clear that this is not the type of land use decision the State is most concerned with. Because the Ordinance does essentially no harm to the natural environment and waters of the Florida Keys ACSC, the State's interest in the Florida Keys ACSC is protected. The issue is essentially a local one. Consequently, some deference should be afforded the County to make this difficult choice. Given the purpose of the Department's involvement in this matter, the legislative intent of Chapter 380, Florida Statutes, the County's effort in considering the issues, and the evidence presented in this proceeding, it is concluded that the County's effort to protect the public safety, health, and welfare is sufficient to overcome any harm to the economy. Therefore, the Ordinance is consistent with the Principles, considered as a whole.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order approving Monroe County Ordinance 004-1997 as consistent with the Principles for Guiding Development of Section 380.0552(7), Florida Statutes. DONE AND ENTERED this 30th day of September, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1998. COPIES FURNISHED: Kelly B. Plante, Esquire Kenneth J. Plante, Esquire Wilbur E. Brewton, Esquire Gray, Harris and Robinson, P.A. 225 South Adams, Suite 250 Tallahassee, Florida 32301 Jeffrey Bell, Esquire Herzfeld & Rubin 5310 North West 33rd Avenue, Suite 102 Ft. Lauderdale, Florida 33309 Kathleen R. Fowler, Assistant General Counsel Sherry Spiers, Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Ralf G. Brookes, Esquire Hugh J. Morgan, Esquire Karen K. Cabanas, Esquire Morgan & Brookes 317 Whitehead Street Key West, Florida 33040 James T. Hendrick Monroe County Attorney 310 Fleming Street Key West, Florida 33040 James F. Murley, Secretary Department of Community Affairs Suite 100 2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100 Stephanie Gehres Kruer, General Counsel Department of Community Affairs Suite 325-A 2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100
The Issue Whether Respondent is guilty of failure to account for and deliver funds to the person entitled thereto and/or guilty of fraud, misrepresentation, breach of trust, or dishonest dealing in a business transaction.
Findings Of Fact At all times relevant hereto, Irving Halsey Brain, Jr., was licensed as a real estate broker, and, with his wife, owned the stock of Jay Hearin, Inc. On October 10, 1983, Respondent negotiated a lease of property between Emily R. Hammer, lessor, and Suncoast Heat Treatment, Inc., lessee, (Exhibit 1) for a period of three years, beginning November 1, 1983, at an initial rental of $2,225 per month plus sales tax with annual adjustments for changes in the consumer price index, and the option to renew the lease for an additional three years at the expiration of the initial lease period upon the same terms and conditions. This lease was renewed November 1, 1986, to expire October 31, 1989. On May 22, 1986, Respondent negotiated the lease agreement between Emily R. Hammer, lessor, and Whitaker Roofing, Inc., lessee, for a building for a period of one year from June 1, 1986 to May 31, 1987, at a monthly rental of $1,250 per month plus sales tax, with options to renew the lease in 1987 and 1988 on similar terms and conditions with adjustment to the rent based upon the consumer price index. Both of these leases provided in clause 21 that the lease was procured through the efforts of Jay Hearin, Inc., who was to collect all rentals coming due from which, as compensation for procuring the lease, the lessor authorized Jay Hearin, Inc., to deduct 8 percent on the Suncoast Lease and 7 percent on the Whitaker lease and remit balance to lessor. Jay Hearin, Inc., was also authorized to pay any invoices applicable to the leased premises which had been approved by the lessor and to deduct the amount so paid. In February and March, 1987, Whitaker roofing did not remit rent payments to Hearin Realty, and the monthly computer printout Owner's Statements to Mrs. Hammer show only rental payments from Suncoast. However, the monthly statement for April 1987 shows Whitaker made the February, March and April payments, and these payments were remitted to Mrs. Hammer. The May and June statements do not show payments from Whitaker and, due to an office error, the June payment from Suncoast was not remitted to Mrs. Hammer. The July statement shows receipt of rent from Whitaker for May and June and for Suncoast for July. No rental payments were received from either tenant in August, and the September statement reflects payments from Suncoast for August and September. During this period of sporadic collections, Mrs. Hammer became upset at not getting her full rental payments, and attempted several times to contact Respondent Brain without success. Brain testified he also tried to contact Mrs. Hammer without success. Mrs. Hammer telephoned the tenants about their rental payments, and they told her they had paid Respondent. In August 1987, Mrs. Hammer engaged another real estate agency to manage the property for her and unilaterally terminated her contract with Respondent contained in Exhibit 1. The new agent advised the tenants to submit rentals to him. On the September 1987 Owner's Statement, Respondent listed the Suncoast rental payments for August and September, deducted his commission, added the June payment which had not been remitted, deducted the rental commission for the balance of the lease for both Suncoast and Whitaker and submitted to Mrs. Hammer a check for the balance of $463.63. This was not accepted by Mrs. Hammer, and she engaged the services of an attorney who filed suit against respondent and Jay Hearin, Inc. The suit alleged failure to remit rents for the months of June, August and September 1987, from Suncoast in the total amount of $6,955.14 and converting these payments to his own use; and for converting rental payments from Whitaker Roofing for the months of July and August 1987, in the total amount of $2,486.06 to his own use. This complaint alleged these conversions of funds constituted civil theft and demanded triple damages (Exhibit 3). Instead of filing an answer to the complaint, Respondent submitted a letter (Exhibit 5) to Mrs. Hammer's attorney, Stephen Evans, on February 18, 1988, contending Mrs. Hammer had failed to comply with the terms of the lease agreement. The attorney for Mrs. Hammer obtained a default judgment against Respondent for triple the sums alleged to have been converted in the total amount of $28,353.60 plus costs of $105.00 and attorney's fee of $680.00 (Exhibit 2). Respondent then obtained the services of an attorney but was unable to get the judgment set aside (Exhibit 7). In 1989 Respondent submitted, through his attorney, $7,200.00 to Mrs. Hammer which apparently represents the figures shown on the September 1987 Owner's Statement without a deduction for future commissions plus interest and attorney's fees. Prior to the filing of this administrative complaint Jay Hearin, Inc., filed for bankruptcy and has been declared bankrupt. In his proposed recommended order, Respondent indicated he has also filed personal bankruptcy, but no evidence in this regard was presented at the hearing.
Recommendation It is recommended that the charges contained in the administrative complaint filed April 26, 1990 against Irving Halsey Brain, Jr. be dismissed. DONE and ENTERED this 17th day of December, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1990. Appendix Accepted Rejected. Respondent was licensed as a broker Accepted Accepted, however, the provision quoted from the lease is Rejected as not being an accurate quote. Rejected. See Exhibit 4. Accepted only insofar as included in HO's #6,7, and 8 Accepted Accepted Treatment accorded Respondent's proposed findings: 1, 2, 3, and 4 Rejected as unsupported by evidence presented at this hearing. Accepted Accepted but for last sentence which is a legal conclusion, not as a fact. Accepted Accepted Accepted only insofar as included in HO's #6,7, and 8 (?) Accepted Accepted Accepted to the extent Respondent submitted $7,200 to Mrs. Hammer. Rejected. Evidence was presented that Jay Hearin, Inc. filed for bankruptcy, but the record does not indicate Respondent filed personal bankruptcy. Rejected as legal argument. COPIES FURNISHED: Steven W. Johnson, Esquire Division of Real Estate 400 W. Robinson Street Post Office Box 1900 Orlando, FL 32802 Irving Halsey Brain, Jr. 334 State Street Commerce, GA 30529 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Kenneth Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
