99-000666GM John Abbey; Michael Alison; Linda E. Allen; Russell L. Allen; John Alway, M.D.; Patricia Antich; Robert Bacon; Mark Bernett; Hellmut Bauer; Jaime M. Benavides, Jr., And Joyce Benavides; Nela Benavides; Et Al. vs. Department Of Community Affairs Status: Closed Recommended Order on Thursday, January 18, 2001.

Summary: Petitioners failed to prove ordinance prohibiting use of residential property for short-term tourist rentals inconsistent with principles for guiding development applicable to the Key West area of critical concern.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN ABBE, et al., JERRY )

COLEMAN, and JOHN F. ROONEY, )

)

Petitioners, )

)

vs. ) Case Nos. 99 - 0666GM

) 99 - 0667GM

DEPARTMENT OF COMMUNITY AFFAIRS, ) 99 - 1081DRI

)

Respondent, )

)

and )

)

CITY OF KEY WEST and HENRY and )

MARTHA DUPONT, )

)

Intervenors. )

______________ ___________________)

SUPPLEMENTAL RECOMMENDED ORDER

A Recommended Order was entered in these cases on

August 30, 2000. In the Preliminary Statement of the

Recommended Order it was indicated that Coleman Exhibit 32,

which had been accepted into evidence at hearing, had not been

provided to the undersigned following the hearing. In fact,

Coleman Exhibit 32, a copy of the Land Development Regulations

adopted by the City of Key West (hereinafter referred to as the

"Land Development Regulations"), had been provided. The Land

Development Regulations were found by the Department of

Community Affairs in a large box containing the exhibits offered

at the hearing of these case which had been forwarded to the

Department of Community Affairs with the Recommended O rder. By

Order of Remand, the Department of Community Affairs remanded

these cases to the Division of Administrative Hearings with a

request that Coleman Exhibit 32 be examined by the undersigned

and, to the extent deemed necessary, that the Recommended O rder

be modified.

On December 7, 2000, an Order Accepting Order of Remand and

Opening Files was entered. In the December 7, 2000 Order, the

Order of Remand was accepted and the files of the Division of

Administrative Hearings were reopened for proceedings consistent

with the Order of Remand. The parties were given to

December 29, 2000, to file pleadings addressing the Order of

Remand and suggesting any action the undersigned should take in

complying with the Order of Remand. The parties were also

inform ed that this Order would be entered.

Responses to the Order of December 7, 2000, were timely

filed by the Petitioner, Jerry Coleman, Intervenors, Henry and

Martha DuPont, and Respondent, the Department of Community

Affairs. Those responses have been fully considered in entering

this Order.

Based upon a review of the record of these cases, including

the Recommended Order and proposed recommended orders submitted

by the parties, and the submittals of the parties on remand, it

is concluded that no modificatio n to the Recommended Order is

necessary other than to strike the following sentence found on

page 8 of the Recommended Order: "Coleman Exhibit 32 was not

provided to the undersigned." This conclusion has been reached

based upon the reasons discussed, infr a .

First, it is more likely than not that the undersigned did

in fact review Coleman Exhibit 32 and fully considered the

portions of the Land Development Regulations of relevance to

these cases while preparing the Recommended Order. The

statement that "Co leman Exhibit 32 was not provided to the

undersigned" was added to the Recommended Order only because,

upon review of all the exhibits filed in these cases immediately

before entering the Recommended Order, the undersigned did not

find Coleman Exhibit 32 a nd, therefore, erroneously added the

stricken sentence to the Recommended Order.

Secondly, even if the document had not been reviewed, the

testimony of witnesses at the final hearing of these cases and

the post - hearing submittals of the parties adequately addressed

and referred to the portions of Land Development Regulations of

relevance to this matter. The transcript of that testimony and

the post - hearing submittals of the parties were fully reviewed

and considered by the undersigned in preparing and ente ring the

Recommended Order.

Finally, in an abundance of caution, all references to the

Land Development Regulations contained in the post - hearing

submittals of the parties and the Recommended Order entered in

this matter have been reviewed on remand, along with the

pleadings of the parties submitted in response to the

December 7, 2000, Order accepting the remand of these cases.

Based upon this review, no other changes in the Recommended

Order entered in these cases are deemed necessary.

DONE AND ENTERED t his 18th day of January, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

T allahassee, 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 18th day of January, 2001.

COPIES FURNISHE D:

Jeffrey Bell, Esquire

Ritter, Chusid, Bivona & Cohen, LLP

7000 West Palmetto Park Road, Suite 400

Boca Raton, Florida 33433

Jerry Coleman, Esquire

201 Front Street, Suite 204

Key West, Florida 33040

John F. Rooney, Esquire

208 - 10 Southard Street

Ke y West, Florida 33040

Andrew Grayson, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Robert Tischenkel, City Attorney

City of Key West

Post Office Box 1409

Key West, Florida 33041

David J. Audlin, Jr ., Esquire

Eaton Street Professional Center

524 Eaton Street, Suite 110

Key West, Florida 33040

Lee R. Rohe, Esquire

Post Office Box 500252

Marathon, Florida 33050

Jerrell Phillips, Esquire

Post Office Box 14463

Tallahassee, Florida 32317 - 4463

Paula Ford, Agency Clerk

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Steven M. Seibert, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399 - 2100

Cari L. Rot h, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399 - 2100

NOTICE OF RIGHT TO S UBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

10 days from the date of this r ecommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case. See Section

163.3184(9)(b), Florida Statutes (2000).