Findings Of Fact Lamar submitted a permit application for a location 120 feet west of Hickory Avenue, in Bay County, Florida, on the south side of U.S. 98, on November 25, 1985, and resubmitted that application on December 16, 1985. On January 8, 1986, DOT denied the application solely because of spacing conflicts with permit Nos. AD089-10 and AD090-10 held by Headrick. That denial was made in a Memorandum of Returned Application. The Memorandum of Returned Application contained the following statement: PLEASE BE ADVISED THAT IF YOU BELIEVE YOUR APPLICATION HAS BEEN INAPPROPRIATELY DENIED, YOU HAVE THE RIGHT TO REQUEST AN ADMINISTRATIVE HEARING UNDER SECTION 120.57, FLORIDA STATUTES, WITHIN THIRTY (30) DAYS OF THE DATE OF THIS NOTICE. THE SUBMITTED HEARING REQUEST SHALL GIVE A BRIEF STATEMENT SETTING FORTH THE REASON(S) FOR REVIEW. SUCH HEARING REQUEST MUST BE FURNISHED TO: THE CLERK OF AGENCY PROCEEDINGS FLORIDA DEPARTMENT OF TRANSPORTATION, 605 SUWANNEE STREET, TALLAHASSEE, FLORIDA 32301 Lamar requested an administrative hearing by letter dated March 13, 1986. On March 12, 1986, Headrick applied for a permit for a sign to be located on the south side of U.S. 98, 285 east of Hickory Avenue, in Bay County, Florida. By letter dated March 31, 1986, the Headrick application was returned unapproved because of a pending administrative hearing requested by Lamar concerning the location of permits AD089-10 and AD090-10. This letter did not advise Headrick of its rights to an administrative hearing. Headrick did not request a hearing for these applications. Lamar applied for a permit for a sign location on the south side of U.S. 98, 120 feet west of Hickory Avenue, in Bay County, Florida, again on March 13, 1986. A Memorandum of Returned Application, dated April 3, 1986, was sent to Lamar, denying the application because of a spacing conflict with Permits AD089-10 and AD090-10 located 100 feet westerly of Hickory Avenue on the eastbound (south) side of U.S. 98. This Memorandum contained the same language as that set forth above and, by letter dated April 18, 1986, Lamar requested an administrative hearing. This request resulted in Case No. 86-1707T herein. Another case, with DOT as Petitioner, Headrick as Respondent, and Lamar as Intervenor, Case No. 85-4165T, resulted in a Final Order dated September 2, 1986, revoking Permits AD089-10 and AD090-10. The Final Order was based upon findings that Headrick was advised on August 9, 1985, by the property owner, that the property was being sold and that Headrick had thirty (30) days to remove its sign. Further, by letter dated October 17, 1985, the property owner advised DOT that Headrick no longer had a valid lease for the signs and the signs had been removed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the December 16, 1985, application filed by Lamar Advertising company for a location on the south side of U.S 98, 120 feet west of Hickory Avenue, in Bay County, Florida, be GRANTED. DONE AND ENTERED this 5th day of May, 1987, in Tallahassee Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1043T The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Lamar Advertising Company Each of the following proposed findings are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(1); 3(2); 4(2); 5(2); 6(1); 7(3); 8(3); 9(1 and 3); and 10(4). Proposed finding of fact 11 is rejected as unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Transportation 1. Each of the following proposed findings are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3(3); and 4(4). Specific Rulings on Proposed Findings of Fact Submitted by Intervenor, Headricks Outdoor Advertising 1. Each of the following proposed findings are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(2); 2(2); 3(2); 4(1); 5(1); and 6(4). COPIES FURNISHED: Barbara W. Palmer, Esquire Beggs & Lane 700 Blount Building Post Office Box 12950 Pensacola, Florida 32576 Vernon L. Whittier, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301 William G. Warner, Esquire 565 Harrison Avenue Post Office Drawer 335 Panama City, Florida 32402 Kaye N. Henderson, Secretary Haydon Burns Building 605 Suwanne Street Tallahassee, Florida 32301 =================================================================
The Issue The primary issue in this disciplinary proceeding is whether Respondent, which operates a restaurant where alcoholic beverages are served pursuant to a license issued by Petitioner, continued to sell alcohol after the service of full course meals had stopped, in violation of the statutes governing holders of beverage licenses. If Petitioner proves the alleged violation, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact At all relevant times, Respondent Barrett Enterprises, Inc. ("Barrett"), d/b/a Stuart Grill & Ale ("Stuart Grill"), has held a Special Restaurant License (an "SRX license"), which authorizes the licensee to sell alcoholic beverages secondary to the service of food and non-alcoholic beverages. Consequently, Barrett is subject to the regulatory and disciplinary jurisdiction of Petitioner Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (the "Division"). Barrett employs approximately 50 people to work at Stuart Grill, which is an establishment located in Martin County, Florida. Stuart Grill grosses nearly $2 million annually on food sales. In 2007, Barrett collected and remitted roughly $100,000 in sales tax on revenue from its food service operation. It sells 60,000 pounds, more or less, of chicken wings each year. In short, Stuart Grill is a bona fide restaurant.2 On two occasions——once on September 20, 2007, and again on October 19, 2007——four agents of the Division visited Stuart Grill late in the evening, around 11:00 p.m. They were conducting an investigation to determine whether "full course meals" (a term of art that will be discussed below) were available at all times when the restaurant was serving alcoholic beverages. (One of the conditions of holding an SRX license is that the licensee must make full course meals available while selling alcohol.) The two investigative visits followed the same pattern. Each time, the agents seated themselves at a booth in the main dining room, which was not crowded. The waitress (a different one each time) informed the agents that the kitchen was closed and, therefore, that they would need to order from the "Late Nite Menu," which was provided. The Late Nite Menu contained a limited number of items, namely: mozzarella sticks, beer battered "veggies" (mushrooms or onion rings), chicken strips, dolphin bites, conch fritters, fried critters (clam strips or grouper strips), fried calamari, smoked fish dip, and chicken wings. Each time, an agent tried to order a hamburger and was told that hamburgers were not available. Both times, the agents ordered (and were served) chicken wings, a couple of sodas, and beer.3 Neither visit lasted more than roughly half an hour. Dean Barrett, one of the restaurant's owners, testified credibly that the Late Nite Menu which was given to the agents was actually a bar menu; patrons in the main dining room should not have been instructed that they could order only from the Late Nite Menu, as apparently happened when the Division's agents went to Stuart Grill in September and October 2007. The undersigned accepts Mr. Barrett's testimony in this regard as truthful and finds that the waitresses (neither of whom was identified) who served the agents did not act in accordance with their employer's directives on those occasions. Regardless of that, however, the evidence fails to establish that "full course meals" were not available. As will be seen below, the term "full course meal" is defined for this purpose as a meal consisting of a salad or vegetable, an entrée, a beverage, and bread. When the Late Nite Menu is reviewed with this definition in mind, the factual determination is inescapable that the agents could have ordered such entrées as chicken strips, chicken wings, or fried calamari. They also could have ordered a vegetable ("beer battered veggies") from the Late Nite Menu. Half of the items (entrée and vegetable) constituting a "full course meal," in other words, appeared on the face of the Late Nite Menu. No beverages were listed in the Late Nite Menu. The agents, however, ordered (and were served) sodas and beer. The evidence thus establishes that non-menu items were, in fact, available when the agents visited. Moreover, it is found, the "beverage" requirement for a "full course meal" plainly was met. The only item needed to complete a "full course meal" is bread.4 There is no direct evidence that bread was not available. Perhaps it might be inferred, based on the absence of an obvious bread item on the Late Nite Menu, that no bread could be had. The undersigned declines to draw such an inference, however, because (as found above) other non-menu items were available upon request. Nor would the "fact" that the "kitchen was closed" (which it was not) be a sufficient basis for the undersigned to infer that bread was unavailable. Without more evidence than was adduced in this case, there is not a sufficiently convincing reason for the undersigned to infer that some slices of bread or a few rolls, for example, could not have been found in the restaurant, were a patron to have requested bread with his order of, say, chicken strips (entrée), onion rings (vegetable), and a soda (beverage). The problem with the Division's case, at bottom, is that the agents did not do enough to establish, affirmatively, the negative proposition that the Division must prove, i.e. that a full course meal was not available.5 Because it was (or should have been) clear to the agents that a vegetable, entrée, and beverage were available, they should have asked, specifically, for bread. They did not. The only off-menu item which the agents requested (other than drinks) was a hamburger. The evidence being insufficient to prove that a "full course meal" could not be had on the occasions in question, it must be concluded, as a matter of ultimate fact, that Barrett is not guilty of serving alcohol without simultaneously making full course meals available, as charged in the Administrative Action [Complaint].
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order finding Barrett not guilty of the instant charge. DONE AND ENTERED this 13th day of May, 2008, in Tallahassee, Leon County, Florida. 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.stae.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 2008.
Findings Of Fact Bay Colony Property Owner's Association, Respondent, is the owner of the sign depicted in Exhibit 1 located on the west side of U.S. 19, 15 feet north of Eighth Avenue Boulevard West, Palmetto, Florida. No permit has ever been issued for this sign. DOT is the state agency charged with the responsibility of enforcing statutes and rules regulating outdoor advertising signs. U.S. 19 is a federal aid primary highway. The sign in issue is an outdoor advertising sign as that term is defined in Section 479.01(14), Florida Statutes (1989). On April 4, 1975, Palmetto County issued Respondent a building permit to erect a sign in the same general location as the existing sign. Bay Colony had maintained a large billboard at this approximate location sometime before 1969. By 1975, the lumber and timbers in the billboard had rotted and required replacement. No evidence was presented that a state permit was ever issued for the original billboard. The existing sign was removed by county officials when a drain line was placed under U.S. 19 and replaced with a strengthened base when the work was completed. On one occasion during the last few years, the sign was demolished by vandals and replaced at a slightly different location. The sign is on private property owned by a Van Hoogen who lives in New Hampshire. The property owner's permission for the use of this site is not an issue in these proceedings. There exists a permitted sign some 570 feet from Respondent's sign located on the same side of U.S. 19 and visible from the same direction as Respondent's sign.
Recommendation It is recommended that a final order be entered requiring Respondent to remove its sign along U.S. 19, 15 feet north of Eighth Avenue Boulevard West, Palmetto, Florida. DONE and ENTERED this 4th day of May, 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 4th day of May, 1990. COPIES FURNISHED: Frank J. Seiz 481 Palmetto Point Road Palmetto, FL 34221-9721 Rivers Buford, Esquire Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458 John Stein Bay Colony Property Owners Association 5007 Beacon Road Palmetto, FL 34221 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, FL 32399-0458 Robert Scanlon, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
The Issue The issue to be resolved is whether Petitioners were the victims of a discriminatory housing practice, by allegedly being denied the opportunity to renew the lease of an apartment from Respondents, based upon their race.
Findings Of Fact Petitioners Vernon and Glenda Shaw are husband and wife. They and their children are African-Americans. Respondent EPI Townsend, LLC owns an apartment community located in Gainesville, Florida, known as Uptown Village. Respondent Epoch Management, Inc. (Epoch) manages Uptown Village on behalf of EPI Townsend, LLC. On June 25, 2010, Ms. Shaw submitted an application to lease an apartment at Uptown Village. She listed herself, her husband, and her two children as the proposed occupants. Ms. Shaw noted the family had a dog. She provided her email address on the application, as requested. At the time of application, prospective tenants of Uptown Village are given a document entitled ?Epoch Management, Inc. Rental Application Approval Criteria.? It contains an ?Equal Housing Opportunity? statement and displays the ?Equal Housing? logo approved by the U.S. Department of Housing and Urban Development (?HUD?). When she submitted her application, Ms. Shaw acknowledged receipt of the Rental Application Approval Criteria form. The Shaws’ application was approved, and Ms. Shaw subsequently signed a one-year lease (?the Lease?) agreement on June 26, 2010. Soon thereafter Ms. Shaw moved into Apartment 2- 201 of Uptown Village with her children and their dog. Mr. Shaw was living in Alabama at the time and planned on moving to Gainesville at a later date to join his family.1/ At the time the Shaws began their tenancy at Uptown Village, Rhonda Hayden served as the property manager and Stacy Brown as the assistant property manager for Epoch. Both were experienced property managers and both had received Fair Housing training. Ms. Hayden and Ms. Brown testified that Epoch tries to create a sense of community among its tenants. Its efforts include hosting monthly breakfasts and other events for tenants. Information about upcoming community events is sent to all tenants with email addresses on file via Constant Contact, an on-line social and business networking platform. The email address provided on Ms. Shaw's rental application was entered into Epoch’s Constant Contact list. The Uptown Village Lease The Lease contained several provisions intended to ensure a safe and peaceful living environment for tenants. For example, paragraph 4 of the Lease provided that a resident shall ?. . . not permit any disturbance, noises or annoyance whatsoever detrimental to the comfort and peace of any of the inhabitants of the community or its Landlord.? Similarly, paragraph 30(G) provided that the ?Resident shall ensure that the pet(s) does not, at any time, disturb any other Resident of the apartment community.? The Lease reserved to Epoch the right to determine, in its sole discretion, whether a pet was disturbing residents. The Lease also incorporated a code of community rules (?the Rules?) for Uptown Village, which provided in pertinent part, ?all garbage, refuse and other types of waste shall be placed in garbage receptacles? and that ?loud and boisterous noise or any other objectionable behavior by any Resident or guests is not permitted.? The Rules also noted that the "quiet time" hours of the complex were from 10:00 p.m. to 8:00 a.m. Paragraph 12 of the Lease provided that a tenant must give 60 days’ advance notice of his or her intent not to renew the Lease. If notice was not given, then the Lease would renew on a month-to-month basis at the then current market rate, plus $50.00. The Shaws' Neighbors The Alcubilla family, who are Hispanic, lived across from Petitioners’ apartment, in Apartment 2-202. The Alcubilla family included a husband and wife, as well as the wife’s mother (Mrs. Alcubilla), who spoke little English. A Caucasian graduate student, Amanda Watson, lived on the third floor of the building directly above the Shaws in Apartment 3-201. A Hispanic tenant, Angelo Caruso, lived with his girlfriend on the same floor as Ms. Watson. In October 2010, four months after the Shaws became residents, the Kohl family moved into Apartment 2-101, the first floor apartment directly beneath the Shaws’ apartment. Trouble in Paradise The Shaws' first rent check, dated July 9, 2010, was returned for insufficient funds. This was a Lease violation. On July 14, 2010, Epoch issued a reminder to Ms. Shaw advising her that a neighbor had complained about her dog barking all hours of the day. This was a violation of the Lease and the Community Rules. Mr. Shaw joined his family at Uptown Village on or about August 8, 2010. On the day he moved in, Epoch leasing agent Breanne Parks was conducting a survey of the community grounds and noticed empty boxes outside the Shaws’ apartment on the walkway, as well as trash outside another tenant’s apartment. She issued a warning notice to the Shaws and the other tenant in the building. Leaving trash outside of an apartment is a violation of the Lease and Community Rules. On August 20, 2010, the Shaws’ rent check was returned for insufficient funds. This was a Lease Violation. On October 8, 2010, the Shaws were notified by Epoch that they were being assessed a late fee for failure to pay their rent on time. One week later, on October 15, 2010, Epoch sent the Shaws notification about an outstanding balance on their account. The notices concerned Lease violations. On October 21, 2010, Ms. Watson complained to the office about loud arguments and sounds emanating from the Shaws’ apartment the night before. One of the noises sounded like someone or something had been thrown against a wall. Though she feared that someone was being physically abused due to the intensity of the impact, she decided not call the police. In response to Ms. Watson's complaint, Epoch posted a notice on the Shaws’ door for a second time warning them about noise and asking them to be considerate of their neighbors. The noise violation was considered a violation of the Lease and Community Rules. The same day Epoch posted the noise violation notice on the Shaws' door, Ms. Shaw called the management office and lodged a retaliatory noise complaint against Ms. Watson. As a consequence of this complaint, a warning notice was sent by Epoch to Ms. Watson. The noise violation was considered a violation of the Lease and Community Rules. On November 4, 2010, the Shaws’ rent check was returned for insufficient funds. This was a Lease violation. Epoch allows sworn officers from the Gainesville Police Department to reside on the premises in exchange for services to the community as a Courtesy Officer. At some point during the Shaws' tenancy, Courtesy Officer Farah Lormil, an African-American female police detective, noticed a car belonging to the Shaws parked in an area that was not a designated parking space. This was a violation of Community Rules. Detective Lormil testified that she left a note on the car asking the owner to move the vehicle because "your car doesn't belong here." Detective Lormil also included her name and badge number on the note. At hearing, Ms. Shaw testified that the note read "you don't belong here." Inasmuch as Petitioners did not offer the note in evidence, and given the context in which the note was written (a parking violation), the testimony of Detective Lormil as to the actual wording of the note is the more credible. On December 27, 2010, leasing agent Erin Napolitano wrote a memo to Ms. Parks reporting that Mrs. Alcubilla’s daughter, Mater Alcubilla, had come to the management office the prior weekend to complain about an incident involving Ms. Shaw. Consistent with her memo, Ms. Napolitano testified that Mater Alcubilla had told her that Ms. Shaw had screamed at her family, followed them up and down the stairs to their apartment, and loudly knocked on their door. Mater Alcubilla also accused Ms. Shaw of stating that she knew what type of vehicles the Alcubillas drove and dared them to call the police. The memo recorded Ms. Alcubilla’s daughter as stating the police were called but when they arrived at Building 2, Ms. Shaw already was gone and therefore, no enforcement action was taken. Ms. Napolitano ended her memo to Ms. Parks with a personal observation: ?I just don’t know what to do about all of this but it certainly seems to be escalating.? Whatever the source of the friction between the two families, Ms. Napolitano testified that she had no reason to believe there was any racial animus on the part of the Alcubillas. On December 30, 2010, Ms. Hayden invited Mater Alcubilla to the office to discuss the incident with Ms. Shaw. Following their meeting, Ms. Hayden notated the date of the meeting and substance of their discussion in the Alcubilla’s resident conversation log. Ms. Hayden recorded in her own handwriting: ?Resident very frightened, Resident plans on moving at the end of her lease-Resident claimed Ms. Shaw yelled at her and threatened her and told her she needed to return to her country.? Ms. Hayden considered this to be an interpersonal dispute between the Alcubillas and Ms. Shaw. Also on December 30, 2010, Ms. Hayden and Ms. Parks invited Ms. Shaw to the management office to discuss the Alcubillas’ complaints. Ms. Hayden recorded in the Alcubilla’s resident log that Ms. Shaw denied the Alcubillas’ accusations, became upset and told Ms. Hayden and Ms. Parks that her neighbors needed to mind their own business. Ms. Hayden also noted that the meeting ended when Ms. Shaw got up, stated, ?you wait? and left the office. Based on what she perceived as a threat by Ms. Shaw of continuing trouble with the Alcubillas, Ms. Hayden recorded her intent to notify a Courtesy Officer of the situation. On February 15, 2011, the Shaws received a three-day notice from Epoch for failure to pay rent, and a notice of an outstanding balance due. This was a Lease violation. Three weeks later, on March 4, 2011, the Shaws were issued another three-day notice for failure to pay rent. This concerned a Lease violation. Ms. Watson continued to hear the Shaws' dog barking and loud voices and other noises, included stomping and footsteps, emanating from the Shaws' apartment. On one occasion, the Shaws left Gainesville for the weekend and placed their dog out on the balcony because it barked continuously. The noise and barking interfered with Ms. Watson’s ability to study and to enjoy her residence. On March 5, 2011, Epoch posted a letter on the Shaws' door regarding complaints received from the Shaws' neighbors about the dog barking for hours at a time, often late at night and in particular on March 3, 2011. This concerned a Lease violation. The loud barking, stomping, and talking within the Shaws' apartment did not abate, and on March 9, 2011, Epoch sent the Shaws a "Seven Day Notice to Cure Lease Violation" which cited their violation of Lease Provision 30 and Community Rule Y. On March 17, 2011, Epoch send the Shaws an ?Urgent Outstanding Balance Due? notice regarding their outstanding unpaid utility bill. This concerned a Lease violation. Also on March 17, 2011, an email was generated by Epoch’s answering service which reported that Tara Kohl of Apt. 2-101 had called. The generated message stated Ms. Kohl’s complaint as, ?Apt. Above Very Noisy/Heavy Walking Again.? On March 19, 2011, Ms. Napolitano printed off the email note and called Ms. Kohl to get more information about the complaint. Ms. Napolitano recorded hand-written notes about the conversation on a printed copy of the email which read: ?Last couple nights—beating down on floor–jumping/walking. 3-4 am can hear them all the time.? The email with Ms. Napitano’s hand- written notes was placed in the Kohl’s tenant file. Immediately following Ms. Kohl’s complaint, Ms. Shaw wrote the following note and faxed it to the management office: To Uptown Village On Saturday night, March 19, 2011, I noted a very loud bumping noise coming from my floor. I was home alone and very afraid. I even feared calling the office or security in fear of retaliation. From past experiences when I have voiced a complaint, I receive notes on my door alleging that my dog was barking, that I had trash beside my door, we were stomping, we were too loud and have even found handwritten notes on my car. My family and I can no longer live in such turmoil. Please accept this letter as a formal complaint regarding harassment. If these occurrences continue, I will have no other choice than to contact HUD. Thank you in advance for your help. Glenda Shaw Prior to the date of the faxed letter neither Petitioner had ever complained about discrimination of any kind to anyone at Epoch. Ms. Hayden and Ms. Brown discussed the content of Ms. Shaw's fax and how to handle its allegations. They viewed Ms. Shaw’s complaint against the Kohls as retaliation against the Kohls for making a complaint about noise from the Shaws’ apartment the day before, and therefore a personal dispute. They also considered whether to respond to Ms. Shaw’s allegation of harassment by Epoch, and decided that any response would just be viewed by Ms. Shaw as evidence of further harassment. They decided to place the faxed letter in the Shaw’s tenant file and take no other action. It was a normal business practice of Epoch to generate a list of tenants whose leases were due to expire within the following 90 days. The list was used to create flyers reminding those tenants to contact the management office regarding renewal. Flyers were sent to each tenant on the list regardless of whether the tenant was in default of the lease or potentially a candidate for non-renewal. A renewal flyer was placed on the Shaws’ door in late March and a second renewal flyer was posted on the Shaws' door the following month. Neither renewal notice elicited a response from the Shaws. On March 25, 2011, Epoch sent the Shaws an ?Urgent Outstanding Balance Due Notice? regarding their overdue utility bill. This concerned a Lease violation. Just prior to Easter, 2011, an Uptown Village tenant asked the management office for permission to hold a private Easter egg hunt for their friends on the community’s volleyball court. Epoch approved the request. Uptown Village residents were not notified of the event through Constant Contact because the Easter egg hunt was not an Epoch-sponsored event. The individual who organized the event made the decision whom to invite. On May 10, 2011, Ms. Shaw came to the management office and was assisted by Ms. Brown. Ms. Shaw accused Brian Kohl of confronting her daughter and calling her ?two-faced.? Ms. Shaw demanded that Epoch take action against Mr. Kohl and stated that if Epoch would not do anything about the situation, she was going to call the police or the Florida Department of Children and Families. Before Ms. Shaw left, Ms. Brown asked about the Shaws' intentions to remain residents upon the expiration of their Lease. Ms. Shaw did not give a definitive answer. Ms. Brown then told Ms. Shaw that if the Shaws decided not to renew, Epoch would not hold them to the 60-day advance notice required by the Lease. Three days after this meeting, Ms. Brown notified Ms. Shaw that Epoch could not send a notice of violation to Mr. Kohl because the accusations against him were not Lease violations. However, Ms. Brown offered to discuss the allegations with Mr. Kohl, a truck-driver who was often on the road. On May 18, 2011, Ms. Brown met with Brian Kohl to discuss Ms. Shaw’s complaint. Mr. Kohl gave his side of the story. After he left, Ms. Brown entered the following note in the Kohl’s resident conversation log: Brian came in wanting to break lease b/c [because] daughter is being harassed by girls in 2-111 and 2-1012/ so badly that she won’t go outside. Told him that one 2-111 should be finish soon (they are on NTV [Notice to Vacate] and the other may too, (2-101) lease expires 6/25. Otherwise would do what I can and to give us the opportunity to help before he moves. Ms. Brown also made an entry in the Shaws' resident conversation log regarding Mr. Kohl’s allegation that the Shaws' daughter was bullying the Kohl’s daughter. The following day, May 19, 2011, Ms. Watson came to the management office and gave notice that she was moving out of Uptown Village when her lease expired in August 2011. She was asked to complete a form entitled ?Notice to Vacate from Resident.? In her own handwriting, she wrote the reason for vacating as ?loud tenants.? The Notice to Vacate from Resident was placed in Ms. Watson’s tenant file as part of Epoch’s regular business practices. At hearing, Ms. Watson testified that she and her fiancé had considered living in her apartment after they married and decided they could not live there due to the continued noise and disturbances emanating from the apartment below. With Ms. Watson’s notice to vacate, Ms. Hayden and Ms. Brown came to the realization that three tenants in Building 2 had levied complaints against the Shaws and two had made decisions to move out in whole or in part due to the Shaws’ conduct. Ms. Hayden and Ms. Brown then conducted a more thorough review of the Shaws’ tenant history, and discussed whether the Shaws should continue to reside at Uptown Village. They called Epoch’s attorneys to get legal advice and left a message. On May 29, 2011, Epoch received a handwritten letter from Tara Kohl making numerous complaints against the Shaws, including loud noises late at night, and the Shaws parking one of their cars in a handicapped parking space. On June 8, 2011, the management office received a hand-written letter from Brian Kohl giving notice of his family’s intent to break their lease and move out. The reasons given all centered on the noise being generated in the Shaws' apartment, and alleged threats that had been made by Ms. Shaw against Ms. Kohl. On June 17, 2011, Ms. Shaw called the management office and spoke with Ms. Brown. Ms. Shaw asked for a copy of her lease, inquired about the shortest lease term possible, and the amount of any rent increase. Ms. Brown did not commit that the Shaws' lease would be renewed nor did she quote a renewal rate. Ms. Shaw continued to press the issue and Ms. Brown finally stated that a normal rent increase on renewal was $100 a month. On June 20, 2011, Ms. Hayden and Ms. Brown spoke to Epoch’s attorneys regarding options for ending the Shaws' tenancy. A decision was made to non-renew their lease as that would cause the least disruption to the Shaws. Ms. Hayden prepared a non-renewal letter, and it was posted on the Shaws' door the same day. Later that afternoon, Mr. and Ms. Shaw came to the management office, met with Ms. Brown, and demanded to know the reason why their Lease would not be renewed. Ms. Shaw insisted that Ms. Brown had told her their Lease would be renewed at a rate of $937.00. Ms. Brown denied she made this statement. Ms. Brown asked Ms. Hayden to intervene in the dispute. Ms. Hayden explained that Epoch had a right to issue a non-renewal notice and that the decision was based on the numerous complaints received about the Shaws. Ms. Shaw insisted that if there were grounds to terminate the Lease for cause, Epoch should issue them a seven-day notice to vacate. Ms. Hayden explained that they had decided to issue a non- renewal notice rather than a notice to vacate to allow the Shaws more time to make arrangements and to foster an amicable parting. Epoch has sent non-African-American, White and Hispanic tenants notices of violation regarding excessive noise and non-payment of rent and fees, and also has terminated leases (through eviction) on these bases. There is no competent substantial evidence in this record to even suggest that the decision to non-renew the Shaws' lease was in any way related to their status as African-Americans. On June 23, 2011, Mr. Caruso’s girlfriend was walking their dog outside Building 2 off leash (in violation of the Rules) when it began to chase the Shaws' son. The dog nipped at their son’s leg but did not draw blood or break his skin. When Mr. Caruso learned of the incident, he came to the Shaws' apartment to apologize. He later returned and asked to take a photo of their son’s leg because he feared Ms. Shaw might bring legal action against him, given her hostility after he had offered her a bag to clean up her dog’s waste on a previous occasion. Ms. Shaw refused to allow Mr. Caruso to photograph her son’s leg. Instead, she told him if he did not leave she would call the police, and if his dog ever attacked again she would report him and have the dog put to sleep. On June 27, 2011, a second non-renewal letter was posted on the Shaws' door to ensure that Petitioner’s understood their lease would not be renewed. The following day the Shaws returned to the management office and insisted that at the end of the June 20th meeting, they had been told their lease would be renewed. Ms. Hayden denied this and reiterated that their lease was being non-renewed based on complaints from neighbors. As the meeting continued, Ms. Shaw became increasingly agitated; she turned to Ms. Brown and asked if Ms. Brown found her to be confrontational. Ms. Brown responded that she thought Ms. Shaw had a ?strong personality.? To that, Ms. Shaw replied, ?It’s my culture.? As the meeting continued, Ms. Shaw began to inject the issue of race into the conversation. For example, in response to Ms. Hayden’s remark that the decision to non-renew was not personal, since she would not even recognize Ms. Shaw if she saw her at a mall, Ms. Shaw stated that ?white people think we all look alike.? As the conversation was taking an uncomfortable turn, Ms. Hayden ended the meeting and referred the Shaws to Epoch’s attorneys if they had any further questions or concerns. In early July 2011, Mr. Caruso was returning to Building 2 after walking his dog on leash and encountered Mr. Shaw. Mr. Shaw told Mr. Caruso to keep his dog away or he would kick it. On July 11, 2011, Ms. Shaw complained to the management office about Mr. Caruso’s dog charging at her while it was on a leash. She noted this was the second incident involving the dog. Ms. Brown told Ms. Shaw she would look into the matter, since this would be considered a violation of the Lease and Community Rules. On July 12, 2011, Ms. Brown spoke with Mr. Caruso’s girlfriend and cautioned her to keep the dog under control. Ms. Brown noted their conversation in both the Shaws’ and Mr. Caruso's resident conversation log. On August 4, 2011, Ms. Watson completed a "Move Out Survey" and in response to a question about what could have been done by management to encourage her to stay, wrote in her own hand-writing: ?Dealt with loud neighbors more consistently and effectively . . .? She added that her reason for leaving was ?loud, inconsiderate tenants.? The Shaws refused to move out by the date given in their non-renewal notice and stopped paying rent. On August 3, 2011, the Shaws dual-filed a charge of housing discrimination (race and color) with the Commission and the Federal Department of Housing and Urban Development. The charge alleged that Epoch had refused to rent to them, made discriminatory statements, and had offered them less favorable terms, conditions, privileges, services or facilities than other non-African-American tenants. The facts supporting their charge were that they were not invited to the Easter egg hunt; that they had been told their lease would be renewed yet it was not; and that Ms. Hayden had made racist statements. The Shaws did not pay rent for July 2011,3/ and on August 4, 2011, were sent a "Notice to Pay Rent" by Epoch. The Commission investigated the Shaws' charge of housing discrimination and issued a determination on August 31, 2011, finding there was no probable cause to support the claims. On September 29, 2011, the Shaws filed a Petition for Relief from an alleged discriminatory housing practice, giving rise to the instant proceeding. During the pendency of this matter, the Shaws were evicted from Uptown Village for non- payment of rent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations, determining that Respondents did not commit a discriminatory housing practice based upon Petitioners’ race and that the Petition be dismissed in its entirety. DONE AND ENTERED this 3rd day of October, 2012, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 3rd day of October, 2012.
The Issue Whether Respondent unlawfully discriminated against Petitioner.
Findings Of Fact For many years Mark Dunning Industries, Inc. (MDI), held the contract for trash removal and processing for Naval Air Station, Pensacola, Florida (NAS Pensacola). In the summer of 1995, the contract for these services, for a period beginning January 1996, were the subject of a bid solicitation. The apparent winner of the bid was Ohio Disposal Systems, Inc (ODSI). This bid was contested by MDI. Ultimately, ODSI prevailed in the bid contest and was selected to perform the contract. Performance was to begin on January 1, 1996, however, ODSI was not informed that it was to be the contractor until early December 1995. Petitioner was born on July 12, 1922. He is a U.S. citizen from Puerto Rico, and of Hispanic origin. Petitioner first came to be employed by MDI in the summer of 1994. Petitioner worked on the "hill," which is an elevated portion of the trash dump on board NAS Pensacola. It was his job to weld broken equipment. He also operated two kinds of equipment: a Bobcat, which is a small front-end loader, and a backhoe with a dozer blade mounted on the front. Petitioner was paid about $16.00 per hour as a welder. Victor Cantrel, Petitioner's friend, commenced employment with MDI in July 1995. He worked on the "hill" and also drove the Bobcat and the back-hoe. He would utilize this equipment to push trash into a compactor. In trash-handling parlance, he was known as a "hill man." He was not a welder. He worked closely with Petitioner. Mr. Cantrel was born on June 25, 1972, and is Anglo- American. He was paid about $9.00 per hour. The supervisor of Petitioner and Mr. Cantrel, during the latter months of 1995 while they were working for MDI, was Thomas Lucky. The principal of ODSI was Vince Crawford. On or about December 28, 1995, at the end of the workday, Mr. Lucky informed the employees, including Petitioner, Mr. Cantrel, and a number of trash truck drivers, that there was to be a meeting in the company office near the "hill." Present at the meeting in the office, which commenced around 6:30 p.m., was Petitioner, Mr. Cantrel, Mr. Lucky, several truck drivers, Mr. Crawford, and his wife Cathy. Mr. Crawford informed the assembled employees that he was bringing in all new equipment; that because there would be new equipment, the new employees of ODSI would be able to work 40 hours per week; and that due to the requirement to get his company in shape in time to meet the January 1, 1996, deadline, many of the employees of MDI would be offered jobs with ODSI. After revealing these preliminary matters, Mr. Crawford asked a man named Lee what he did at MDI; this man said that he was a truck driver. Mr. Crawford told him that he was hired with the new company. Then he asked Mr. Cantrel what he did; he said he drove the Bobcat. Mr. Crawford said, "Recycle, huh. You are hired." Mr. Cantrel subsequently filed an employment application. However, he knew that after the announcement at the meeting, he was going to work for ODSI. When Mr. Crawford inquired of two more people, they both responded, "truck driver," and Mr. Crawford informed them that they were hired. When he asked Petitioner, Petitioner said, "Welder." Mr. Crawford then said, "We don't need no welders here." This was the first and last encounter Petitioner had with Mr. Crawford. The next day Petitioner arrived at work at the usual time and was informed that he no longer was employed at that facility. On January 2, 1996, Petitioner presented an employment application to the office at ODSI seeking employment as a "Welder and/or Heavy Equip. Opr." He never received a response. No evidence was adduced that at that time there were job openings for a "welder and/or heavy equipment operator." Additionally, according to Petitioner, no one from ODSI informed Petitioner that he was not qualified. No evidence was adduced at the hearing which indicated that Mr. Crawford noticed that Petitioner was 73 years of age, or that he was a Puerto Rican, or that he was of Hispanic origin. The unrebutted evidence demonstrated that Petitioner was not hired, at the time jobs were available, because Mr. Crawford was bringing in new equipment. New equipment does not require frequent welding and, therefore, Mr. Crawford did not need a welder.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered finding Respondent committed no unlawful employment practice. DONE AND ENTERED this 28th day of March, 2002, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 28th day of March, 2002. COPIES FURNISHED: Bruce Committe, Esquire 17 South Palafox Place, Suite 322 Pensacola, Florida 32501 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 H. William Wasden, Esquire Pierce, Ledyard, Latta, Wasden & Bowron, P.C. Post Office Box 16046 Mobile, Alabama 36616 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact In August of 1995 Champion International Corporation gave Petitioner permission to place a sign advertising The Outpost on property that Champion owned in Walton County. The sign was to be located at the corner of the south side of State Road 20 and Black Creek Boulevard. State Road 20 is a federal-aid primary road. Black Creek Boulevard is a county maintained road. Petitioner subsequently erected a 4' X 8' outdoor advertising sign on Champion's property. The sign was located on the south side of State Road 20, two miles east of U. S. 331 and twenty (20) feet west of the intersection of State Road 20 and Black Creek Boulevard. The sign was double-sided with east and west faces. On September 1, 1995, Petitioner filed an application with Respondent requesting a permit for the 4' X 8' sign already erected on the south side of State Road 20 and twenty (20) feet west of the intersection of State Road 20 and Black Creek Boulevard. On September 22, 1995 Respondent issued a Notice of Denied Application informing Petitioner that it could not have a permit for a sign on the south side of State Road 20 and twenty (20) feet west of the intersection of State Road 20 and Black Creek Boulevard. Respondent denied this permit for two reasons: (a) the location was zoned "agricultural" which was an un-permittable land use designation; and (b) the proposed sign was located on the state's right-of-way. After receiving the Notice of Denied Application, Petitioner removed the 4' X 8' sign. On or about January 29, 1996 Petitioner filed a sign permit application with the Walton County Building Department. The application was for an off- premises sign to be located fifty (50) feet south of State Road 20 along Black Creek Boulevard. The application states that: If the proposed sign is located along a federal aid primary road, a permit from the Florida Department of Transportation (904/638-0250) must be obtained before a Walton County building permit is issued. The applicant must obtain a letter from Walton County to submit to the Department of Transportation to submit with the application. Petitioner did not apply for a permit from Respondent for this proposed sign. The Walton County Building Department issued Petitioner a permit to erect the proposed sign on January 29, 1996. Petitioner subsequently erected a second sign on the south side of State Road 20, one foot off of the right-of-way, and about fifty (50) feet from the intersection of State Road 20 and Black Creek Boulevard. It was 8' X 8', two-sided, mounted in concrete, with red, black and white copy advertising The Outpost on both sides. The sign was placed so that it could be read by east and west bound traffic along State Road 20. Only the east face of the sign could be read from Black Creek Boulevard. The subject sign was located within 660 feet of the right-of-way of State Road 20. It did not qualify as an on-premise sign because the Outpost RV Park was located two miles away. Respondent never received a permit application from Petitioner for the 8' X 8' sign. There was no material difference in the location of Petitioner's previously removed 4' X 8' sign and the new 8' X 8' sign. On May 13, 1996 Respondent issued Notice of Violation No. 10BME1996110 to Petitioner for the west facing of the 8' X 8' sign. Respondent also issued Notice of Violation No. 10BME1996111 to Petitioner for the east facing of the same sign. Each Notice of Violation contained a location description for a sign which was the same as the location description contained in Petitioner's previously denied sign permit application. The basis for both violations was that neither sign had the permit required by Section 479.07(1), Florida Statutes. The notices directed Petitioner to remove the sign structure within thirty (30) days. Respondent subsequently removed the 8' X 8' sign because Petitioner failed to do so within the prescribed time. Respondent's right-of-way on the north and south side of State Road 20 is the area that Respondent maintains which is approximately fifty (50) feet. Respondent's right-of-way map showing the maintained area is available to the public at Respondent's Right-Of-Way Office. In the past, Petitioner erected other signs along U. S. Highway 331 without obtaining a permit. Respondent issued a permit for at least one of these signs after Petitioner filed the appropriate application. Respondent required Petitioner to remove any sign that was not eligible for a permit. Respondent's inspector issued more than ten (10) notices of violation to owners of other outdoor advertising signs in the same general vicinity as Petitioner's 8' X 8' sign on May 13, 1996. These signs have been removed. There is a Reddick Fish Camp sign located on the south side of State Road 20 and west of the intersection of State Road 20 and County Road 3280. That sign is located six miles from the sign at issue here. Another sign has been nailed to a tree three-quarters of a mile west of the subject sign. There is insufficient evidence to determine whether these signs are illegal because they do not have a permit. There is no persuasive evidence that Respondent issues violations to Petitioner when it erects an off-premises sign without a permit but allows illegal signs of other property owners to exist without issuing similar notices of violation. Even if Petitioner had filed a permit application for the sign structure at issue here, it would have been ineligible for issuance of a permit because the location's land use designation was agricultural. If the property had been zoned commercial or industrial, Petitioner would have been required to have a permit because the sign did not qualify for any exceptions to Chapter 479, Florida Statutes.
Recommendation Based upon the findings of fact and the conclusions of law, it is recommended that Respondent enter a Final Order finding that Petitioner erected a sign with two faces in violation of Section 479.07(1), Florida Statutes. DONE and ENTERED this 17th day of December, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1996. COPIES FURNISHED: Paul T. Davis 4576 Highway 3280 Freeport, Florida 32439 Andrea V. Smart, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transporation 605 Suwannee Street Tallahassee, Florida 32399-0450 Thornton J. Williams, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
