Findings Of Fact Lawrence Morehouse is employed as a full time faculty member by the University of South Florida (USF). At all times material to this case, parking of vehicles on the campus is regulated by USF authorities. USF parking regulations are enforced by personnel of the USF Division of Parking Services from 8:00 a.m. to 8:30 p.m. on Monday through Thursday, and from 8:00 a.m. to 5:00 p.m. on Friday. At all other times, USF parking regulations are enforced by campus police. A campus parking regulation violation is documented by a handheld electronic ticketing device which records the information and prints a notice of the violation. The printed notice is left at the vehicle for the driver to discover. A driver who believes a citation to be unfair may immediately bring the ticket to the counter clerk at the offices of the USF Division of Parking Services. The clerk is authorized to waive the fine if the individual circumstances of the case warrant waiver. The clerk records the waiver in the Division of Parking Services database. A written notice of the waiver is provided by the clerk upon the driver's request. In addition to appeal via the counter clerk, an aggrieved driver may also meet with a University Parking Appeals Mediator to discuss the matter. The driver may also file a written appeal of the ticket. If a driver remains unsatisfied after the matter is adjudicated by the mediator or by the committee which reviews written appeals, the driver may appeal the ticket to the USF Final Appeals Committee. The committee is made up of students, faculty and staff. A late fee of $13 is added to each fine imposed if the ticket remains unpaid more than ten days after adjudication is final. On June 14, 1993, Mr. Morehouse received a ticket for parking facing the direction of the traffic, a violation of campus parking restrictions. The fine for this violation is $10. Mr. Morehouse asserts that he immediately spoke to the counter clerk about the June 14 ticket and the fine was waived. There is no documentation to support his assertion. The testimony is not persuasive. On June 20, 1993, October 6, 1993, December 8, 1993, June 2, 1994 and June 7, 1994, notices of violation were provided to Mr. Morehouse for parking without a current university tag on his car. Mr. Morehouse testified that on one of these occasions, he filed a written notice of appeal. Although a hearing was convened, Mr. Morehouse did not attend the hearing because of a scheduling conflict. He did not inform appeals committee members of the conflict or advised them that he would not attend the hearing. There is no evidence that Mr. Morehouse made any attempt to appeal the four other tickets he received for parking without a current USF tag. The six tickets remain unpaid. An additional $13 late fee has been imposed on each ticket. Delinquency notices on all the tickets were sent to Mr. Morehouse. He made no apparent effort to respond to the notices. Toward the end of 1994, the matter was referred by USF Parking Services division to the USF Division of Finance and Accounting collections manager. The collections office issued monthly bills for the sum of the fines to Mr. Morehouse for approximately six months. There is no evidence that Mr. Morehouse responded to the billing. At the close of the six month billing period, a certified letter was sent to Mr. Morehouse, stating that the amount could be deducted from his paycheck and advising of his right to a hearing. Mr. Morehouse requested a hearing.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the University of South Florida enter a Final Order deducting the lump sum of $188 from the next salary warrant issued to Lawrence Morehouse. DONE and RECOMMENDED this 26th day of September, 1995 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 26th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2718 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. Respondent The Respondent did not file a Proposed Recommended Order. COPIES FURNISHED: Betty Castor, President Office of the President University of South Florida 4202 East Fowler Avenue, ADM 241 Tampa, Florida 33620 Noreen Segrest, Esquire Acting General Counsel University of South Florida 4202 East Fowler Avenue, ADM 250 Tampa, Florida 33620 Debra A. King, Esquire University of South Florida 4202 East Fowler Avenue, ADM 250 Tampa, Florida 33620 Lawrence Morehouse 2610 Drumwood Place Valrico, Florida 33594
Findings Of Fact Petitioner, within the past year, purchased two tracts of property 50 feet by 100 feet located at 614-620 Mandalay Avenue on Clearwater Beach. This property is zoned "CG" or "General Business" and there are four buildings on this property comprising five dwelling units. The land use plan for this location is commercial/tourist facilities. Petitioner submitted an artist's drawing of what the site could look like if the variance requested was granted. No building permits have been requested; accordingly, no specific plans have been submitted to establish the use to which the property would be put if the variance requested is granted. The proposal of Petitioner (such as it is) contemplates converting the ground floors of the existing structures to commercial use. If the existing buildings were so converted, with the upper floors remaining residential, the zoning code requires provision be made for twenty-eight off-street parking spaces. Since the existing five dwelling units would be credited (grandfathered) for having eight such parking spaces due to the construction having occurred before the zoning code was enacted, Petitioner is requesting a variance for the remaining twenty off-street parking spaces that would be required. Actually, there are no off-street parking spaces on this property but five or six parking spaces exist in the right-of-way for Mandalay Avenue. There are no off-street parking spaces on Mandalay Avenue in the vicinity of Petitioner's property and none are proposed to be provided by Petitioner. Mandalay Avenue is the main north-south artery on Clearwater Beach and is four-laned in the vicinity of Petitioner's property, which lies near the northern terminus of "CG" zoning. At the hearing before the Board one witness spoke in favor of the variance requested because the proposal by Petitioner was better than if the property was used for the construction of a high-rise residential unit, which the zoning would permit. Since no specific proposal is before the Respondent for the issuance of a permit, there is no assurance that granting the requested variance would preclude the construction of high-rise residential units. The dwellings occupying this property were constructed some thirty years ago and are expensive to maintain and are not a very attractive investment. Petitioner referred to several other businesses where variances in parking requirements have been granted when bars and restaurants on Mandalay Avenue were rebuilt or expanded; however, little evidence was presented that parking variances have been granted when a new use for the property was proposed.
Findings Of Fact Appellant owns the property located at 1430 Palmetto Street, Clearwater, Florida. The area is zoned RS-50, a zoning for single family residents. The house located thereon is a three-bedroom, two-bath home with a garage and carport. Appellant proposes to enclose the garage to provide two additional bedrooms and a bath. The lot on which this house is sited contains 13,000 square feet. The minimum lot size for RS-50 zoning is 5,000 square feet. The structure exceeds all setback requirements of the Code. Most of the homes in this neighborhood have driveways to the garages while Appellant's property has a circular drive in front of the house. The structure meets the City of Clearwater's fire code and to be licensed as an Adult Congregate Living Facility (ACLF) must meet all requirements of the Department of Health and Rehabilitative Services. Appellant has a housekeeper on the premises at all times to prepare the meals and take care of the residents. Appellant's son manages the property and the son's wife visits the premises daily to do the necessary shopping, take the residents to doctor appointments, shopping, or for outings. Only one automobile remains at the premises on a 24-hour basis. Some residents do not have any family locally and visitors average one every two weeks per resident. Use of this property as an ACLF is reasonably compatible with the neighborhood. Excessive traffic will not be generated by use of this property as requested and the requirements for on-site parking is satisfied. Although an ACLF is a business, it is operated similar to a home in that business hours are not such that any disturbance of the neighborhood will occur and insignificant additional traffic will be generated as a result of granting this special exception. Neighbors generally have no complaints regarding the operation of the existing ACLF with a total of five residents but strongly oppose any increase in the number of residents. As grounds for opposing the increase these witnesses cited expected decrease in property values, anticipated increase in traffic and traffic hazards to the elderly residents of the ACLF who may walk along the street, excessive numbers of vehicles at the premises for which off-street parking is not available, a general dislike for any business activity conducted in the neighborhood, their opinion that an ACLF is incompatible with the neighborhood, and that Appellant will reap a financial bonanza if the special exception is granted. No statistical evidence was presented to support any of these contentions.
The Issue Whether Petitioner, Hassan Habibi, was subject to an unlawful employment practice by Respondent, Auto Club Group, based on his race, religion, or national origin in violation of the Florida Civil Rights Act.
Findings Of Fact The Auto Club is affiliated with the American Automobile Association (“AAA”), a national not-for-profit organization that provides its members with benefits relating to travel, emergency roadside assistance, and insurance coverage. Petitioner initiated this matter alleging that the Auto Club discriminated against him based on his race, religion, or national origin. Petitioner was born in Pakistan. He is a Muslim. On April 21, 2015, the Auto Club hired Petitioner as a temporary employee through Randstad, a third-party employee staffing firm. The Auto Club placed Petitioner in the position of a Membership Service Representative at its membership services call center in Heathrow, Florida. Generally, a Membership Service Representative is responsible for handling, processing, and resolving incoming calls from Auto Club members. Petitioner’s last day of work for the Auto Club was May 14, 2015, three and a half weeks after he began his job. Petitioner spent his first two weeks with the Auto Club in a training class learning how to properly handle and respond to service calls from Auto Club members. Petitioner’s training class consisted of approximately 15 people. His instructor was Amy Thornhill. Petitioner reported to Jeanette Wieland, Manager of the Membership Service Customer Interaction Center. At first, Petitioner sat in the back of his training classroom. However, he soon requested to relocate after he became increasingly distracted by the clicking of a pen by another trainee. Ms. Thornhill facilitated Petitioner’s request and moved him to the front of the room. She also advised the class to be respectful of the other trainees. On May 13, 2015, Petitioner was scheduled to leave the training class and begin handling live calls on the services call center floor. However, Petitioner called in sick that day and did not report to work. While he was out, Petitioner composed an e-mail for Ms. Wieland. Petitioner wrote that he believed problems that he had experienced at a job he recently held at Aon Hewitt had followed him to the Auto Club. In an attachment to his e-mail, Petitioner listed several “bizarre things” and objectionable behavior he was experiencing at the Auto Club. Petitioner believed that on either April 21 or 22, 2015, someone from Aon Hewitt had appeared at the Auto Club office and was “brainwashing” people to harass and intimidate him (the same way he was harassed at Aon Hewitt). Petitioner advised that this person might have been seeking revenge against him. Petitioner proposed that he be allowed to review the Auto Club video surveillance footage of the parking lot on April 21 and 22, 2015, with the Lake Mary Police Department, the Seminole County Sheriff’s Office, and/or Auto Club security. Petitioner believed that the video would lead to the arrest and prosecution of the perpetrators who were brainwashing Auto Club employees and had damaged his car in the Auto Club parking lot. Finally, Petitioner complained about how he was treated by several trainees in his training class including Sherry Latour, “Edgardo,” and “Judith.” Petitioner returned to work the next day on May 14, 2015. He reported to the call center floor for his first day taking live customer service calls. Unfortunately, Petitioner found his work shift extremely disconcerting. After he began handling phone calls, a man named “Terrance” sat next to him. Petitioner recounted that Terrance began loudly conversing with a nearby friend in such a disruptive and distracting manner that Petitioner could not hear the customers speaking over the telephone. Petitioner became very concerned that his quality assurance scores would decrease. Petitioner recounted that Terrence never spoke directly to him. However, Petitioner was alarmed to hear Terrance mention the e-mail that he had sent to Ms. Wieland the previous day. Terrance ignored Petitioner’s pleas for quiet. At the final hearing, Petitioner proclaimed that Terrance was intentionally placed next to him to prevent him from doing his job. Petitioner accused Ms. Wieland of deliberately using Terrance in retaliation for the complaints he raised in his May 13, 2015, e-mail. Petitioner alleged that Ms. Wieland directed Terrance to be so disruptive that Petitioner would be too scared to return to work the next day. Petitioner met with Ms. Wieland on May 14, 2015, around 5:00 p.m. during his mid-shift break. During their meeting, Petitioner repeated that he strongly believed that someone from Aon Hewitt had been brainwashing Auto Club employees to harass and intimidate him. Petitioner also complained that this person had damaged his car in the Auto Club parking lot. Petitioner again requested that he be allowed to review the Auto Club surveillance video of the parking lot to try and identify the individual. Petitioner also complained that on several occasions while he was in the Auto Club cafeteria, Edgardo and Judith threw plastic knives at his feet. Petitioner emphasized that this behavior occurred so much that Edgardo and Judith must have been acting out on purpose. Petitioner stressed that someone from Aon Hewitt was putting them up to it. Ms. Wieland advised Petitioner to go the Lake Mary Police Department if he felt threatened. In the meantime, she would check with Auto Club security regarding the surveillance videos. Ms. Wieland also requested that he let her know immediately if anything else occurred while he was working at the Auto Club. The next day, May 15, 2015, Petitioner called Randstad and explained that he had encountered several problems at the Auto Club. Consequently, he did not believe it was worth continuing his employment there. Shortly thereafter, a Randstad representative called Ms. Wieland and relayed that Petitioner did not feel safe at the Auto Club. Therefore, he would not be returning to work. On May 21, 2015, Petitioner e-mailed Ms. Wieland again. Petitioner expressed that the people who committed the “egregious acts” against him needed to be punished. Petitioner beseeched Ms. Wieland to provide him Ms. Latour’s last name so that he could file civil charges against her. Petitioner further contended that a former Randstad employee named “Victoria” may have been involved in Ms. Latour’s objectionable actions. Petitioner also indicated that two other male employees threw plastic knives and forks at his feet in the cafeteria in addition to Edgardo and Judith. Petitioner wanted these people to be punished. Finally, Petitioner declared that when he used the restroom at the Auto Club, two male employees would come into the restroom and do exactly the same thing an employee at Aon Hewitt would do. At the final hearing, Petitioner summarized the alleged discriminatory incidents that he endured during his tenure with the Auto Club to include the following: On several occasions, Petitioner encountered Ms. Latour outside the men’s restroom. Petitioner believed that she intentionally positioned herself to block his exit. Petitioner surmised that Ms. Latour was attempting to have him commit unwanted physical contact with her. On several occasions, Ms. Latour, Edgardo, and Judith stared at Petitioner while he was in the parking lot and watched him enter the office building. Ms. Latour once asked Petitioner where Edgardo and Judith were sitting on the call center floor. Ms. Latour and Ms. Thornhill held a secretive conversation of which Petitioner believed he was the subject. Edgardo did not shut the bathroom stall while he was using the restroom (just like the people at Aon Hewitt). In the Auto Club cafeteria, Edgardo and Judith dropped plastic forks and knives in front of Petitioner as he walked by. Petitioner believed that they intentionally threw the utensils at his feet to intimidate and provoke him. Petitioner believed that someone from Aon Hewitt put them up to it. An extremely noisy fan was placed next to Petitioner on the call center floor which distracted him from his customer service calls. On several occasions, a sports utility vehicle parked too close to his car in the parking lot which made opening his car door difficult. (A similar incident occurred while Petitioner worked at Aon Hewitt.) Someone scratched the bumper of his car while he was parked in the parking lot, perhaps to provoke him. Finally, Petitioner asserted that the Auto Club engaged in a “massive and elaborate effort” to cover up and conceal the discriminatory acts of Ms. Latour. Petitioner claimed that Ms. Latour was trying to blackmail or provoke him so that the Auto Club would fire him. Petitioner was also frustrated that the Auto Club would not produce video surveillance from the restroom hallway which he asserted would support his claim. Although Petitioner objected to the conduct of several individuals who worked at the Auto Club, at the final hearing, he specifically identified Ms. Latour as the only person who discriminated against him. However, Petitioner acknowledged that he never specifically complained to anyone that he was being harassed based on his race, religion, or national origin during the time he worked at the Auto Club. Neither did Petitioner ever accuse Ms. Latour, Edgardo, or Judith of discriminating against him. Petitioner never informed anyone working for the Auto Club that he was born in Pakistan. On the other hand, Petitioner did recall a conversation with one co-worker (not Ms. Latour, or Edgardo, or Judith) during which he mentioned that he was Muslim. At the final hearing, Petitioner explained that he did not realize that he was being illegally harassed until after he left the Auto Club. Petitioner asserted that Ms. Latour’s objectionable behavior must have been based on his race because he was the only person in his training class who was of Asian and Pakistani origin or a Muslim. Petitioner explained that Ms. Latour did not harass anyone else in their training class. Amy Thornhill testified at the final hearing. Ms. Thornhill stated that she had no knowledge of Petitioner’s race, religion, or national origin during the time he worked for the Auto Club. Ms. Thornhill further claimed that she never heard anyone make any comments about Petitioner’s race, religion, or national origin. Ms. Thornhill recalled that Petitioner complained about a fellow trainee who was tapping a pen during his training class. She believed that she properly addressed the situation when she allowed Petitioner to move to the front of the classroom. She also cautioned the class to be mindful of their classmates. Ms. Thornhill was aware that Ms. Latour was also in Petitioner’s training class. Ms. Thornhill testified that she never observed Ms. Latour behave inappropriately towards Petitioner. Neither did she and Ms. Latour ever discuss Petitioner’s race, religion, or national origin. Ms. Thornhill did not remember Petitioner complaining to her about discrimination or harassment. Ms. Latour, who is still employed with the Auto Club, testified at the final hearing. Ms. Latour first met Petitioner in their 2015 training class. Ms. Latour denied ever making any improper or offensive actions or comments to Petitioner. Ms. Latour denied that Edgardo or Judith encouraged her to provoke him. Ms. Latour also asserted that she did not know Petitioner’s race, religion, or national origin while he worked at the Auto Club. Ms. Latour further declared that she never blocked Petitioner’s exit from the men’s restroom. She reported that the women’s restroom is directly across the hallway from the men’s restroom and surmised that perhaps that was the reason Petitioner encountered her in the hallway. Ms. Latour also relayed that Auto Club employees routinely congregate in the hallway near the training area and the elevators. Ms. Latour denied that she participated in a conversation with Ms. Thornhill about Petitioner. Ms. Latour also rejected Petitioner’s allegation that she purposefully watched him in the parking lot. Despite the fact that Petitioner did not return to work after May 14, 2015, the Auto Club continued to investigate his complaints. Jami Mieser, a Senior Employee Relations Specialist for the Auto Club, testified at the final hearing. Ms. Mieser looked into the concerns Petitioner raised in his e-mails to Ms. Wieland in May 2015. Ms. Mieser did not find any evidence substantiating Petitioner’s claims that Auto Club and Aon Hewitt employees were intentionally provoking or discriminating against him. Ms. Mieser did not notify Petitioner of the results of her investigation in 2015. Petitioner had left the Auto Club by the time she had completed her investigation. Ms. Mieser also testified regarding the video surveillance of the Auto Club parking lot. She explained that Auto Club security only maintained the video for approximately 90 days. Therefore, the videos are no longer available to help determine whether an individual purposefully damaged Petitioner’s car in April 2015. Ms. Wieland testified at the final hearing and acknowledged that she did ask a man named Terrance to sit next to Petitioner on his first day on the call center floor. Ms. Wieland explained that she routinely places an experienced Membership Service Representative next to a trainee to assist the new employee with any issues. However, she denied instructing Terrance to disrupt Petitioner from doing his job or scare him away from the Auto Club. Ms. Wieland also stated that Petitioner never complained about Terrence during their May 14, 2015, meeting. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that the Auto Club discriminated against Petitioner based on his race, religion, or national origin. Accordingly, Petitioner failed to meet his burden of proving that the Auto Club discriminated against him in violation of the Florida Civil Rights Act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Auto Club Service Group, did not commit an unlawful employment practice against Petitioner, Hassan Habibi, and dismiss his Petition for Relief. DONE AND ENTERED this 31st day of May, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 31st day of May, 2017.
The Issue Whether Respondent violated Sections 112.3143(3)(a), 112.3143(4), and 112.313(7)(a), Florida Statutes (1993), by committing the acts alleged in the Order Finding Probable Cause and, if so, what penalty is appropriate.
Findings Of Fact All times pertinent to this proceeding, Respondent served as a member of the Mexico Beach Planning and Zoning Board (Zoning Board). Respondent began his service on the Board in mid-April, 1994. In that public position, Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees. In late 1993, Respondent contracted with the owners of Toucans Restaurant (Toucans) to build an additional story on the existing building. Toucans is a bar/restaurant located on Highway 98 in Mexico Beach, Florida. The Zoning Board is empowered to make decisions relative to zoning and rezoning matters, including the granting of parking variances. In furtherance of his work for Toucans, Respondent sought a parking variance from the Zoning Board. To this end, Respondent appeared before the Zoning Board on three separate occasions. The last time Respondent appeared before the Zoning Board regarding the parking variance for Toucans was April 19, 1994, shortly after his appointment to the Zoning Board. At that meeting, Respondent was representing Toucans before the Zoning Board and attempting to secure a parking variance for Toucans. At the April 19, 1994 meeting, when Respondent presented the Toucans parking variance issue before the Zoning Board, he participated in the Zoning Board's discussion of the matter. Prior to his participating in the Zoning Board's discussion of the Toucans matter on April 19, 1994, Respondent failed to formally announce his interest in the Toucan project. Respondent failed to file a written memorandum disclosing his interest in the matter prior to the April 19, 1994 meeting. Respondent failed to orally disclose the nature of his interest in the Toucans project at the April 19, 1994 Zoning Board meeting. At its April 19, 1994 meeting, the Zoning Board voted on the Toucans project. Respondent abstained from voting on the Toucans parking variance request at that meeting, but did not file a written memorandum disclosing his interest in the project within fifteen days of the vote. Respondent filed a Memorandum of Voting Conflict with respect to the Toucans parking variance request on May 27, 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Final Order and Public Report be entered by the Florida Commission on Ethics finding that Respondent, Jim McCoullough, violated Sections 112.3143(3)(a), 112.3143(4) and 112.313(7)(a), Florida Statutes (1993), and imposing a civil penalty of $300.00. DONE and ENTERED this 30th day of April 1997, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April 1997. COPIES FURNISHED: Eric Scott, Esquire Department of Legal Affairs The Capitol PL-01 Tallahassee, Florida 32399-1050 Kerrie Stillman Complaint Coordinator Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Mr. James Naus 115 Fifth Street Mexico Beach, Florida 32410 Bonnie Williams Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact The Petition herein was filed by the Petitioner with PERC on March 18, 1976. (Hearing Officer's Exhibit 1). The hearing in this case was scheduled by Notice dated May 2, 1976. (Hearing Officer's Exhibit 2). The City of Cocoa, Florida, is a Public Employer within the meaning of Florida Statutes, Section 447.002(2). (Stipulation, Transcript of Record, Page 5, 6). 1/ The Petitioner is an Employee Organization within the meaning of Florida Statutes, Section 447.002(10). (Stipulation, TR 6). The Petitioner has requested recognition as the bargaining agent of the persons described in the petition. (Stipulation, TR 6, 7). There is no contractual bar to holding an election in this case, and there is no collective bargaining history which would effect the issues in this case. (Stipulation, TR 7). PERC has previously determined that the Petitioner is a duly registered Employee Organization. (See: Hearing Officer's Exhibit 3). At the hearing the parties stipulated that the Petitioner is so registered. (TR 7). PERC has previously determined that the Petitioner filed the requisite showing of interest with its petition. (Hearing Officer's Exhibit 4). No evidence was presented at the hearing to rebut the administrative determination previously made by PERC. Petitioner and the Public Employer stipulated and agreed that employees within the Public Employer's Police Department who hold the positions of Communications Officers; Secretary, Detective Bureau; and Records and Identification Clerk should be included in the collective bargaining unit previously certified by PERC in Case No. 766-2030. The job descriptions of employees who hold the positions of Communications Officer; Secretary, Detective Bureau; and Identification Clerk were received in evidence as Joint Exhibits 1, 2, and 3. The job descriptions accurately describe the duties, responsibilities, and day-to-day activities of the employees who hold those positions. ENTERED this 12 day of July, 1976, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
The Issue Whether Respondent violated the Fair Housing Amendments Act of 1988, as alleged in the Housing Charge of Discrimination filed by Petitioner on or about October 9, 2015.
Findings Of Fact Petitioner, since March 2015, has been a resident at Respondent’s facility. Respondent is a private residential condominium association, which operates and maintains three condominiums in Osprey, Florida. Each condominium unit has its own designated parking space. Petitioner’s assigned parking space, number 364, lies between parking spaces 362 and 366. The respective parking spaces are next to each other, with parallel lines dividing the same. Each parking space has a concrete tire-stop that has painted on it the corresponding condominium unit number so that when a vehicle turns into a space the driver is able to discern the corresponding unit number. All parking spaces and road surfaces relevant to this dispute are paved. If one is positioned such that the painted numbers on the tire-stops are visible, then to the left of space 362 is an unassigned space (unassigned space #1) and to the right of space 366 is an area containing shrubbery. From the photographs admitted into evidence, the dimensions of unassigned space #1 appear to be essentially the same as parking spaces 362, 364, and 366. However, unassigned space #1 differs from the others in that on either side of the parallel lines that demark the interior boundaries of the parking space, there are pathways which provide more space for pedestrian traffic. Although neither party offered evidence of the dimensions of the parking spaces, photographs of the area demonstrate that unassigned space #1, when considering the usable pathways, is wide enough to allow for reasonable entry to and exit from a mid-sized sedan while the vehicle’s occupant is being assisted by a walker or wheelchair. In order to access the parking spaces discussed in the preceding paragraph, motorists must use a one-way road which requires them to turn to the right when they are parking their vehicles such that the front tires are closest to the concrete tire-stops. Approximately 20 feet from unassigned space #1, on the other side of the one-way road used to access the parking area, is another unassigned parking space (unassigned space #2). Unassigned space #2 is perpendicular to unassigned space #1 and spaces 362, 364, and 366. Accordingly, motorists parking in unassigned space #2 enter the space by veering to the left off of the one-way road and driving head-on into the parking space (essentially a parallel parking space). There is no evidence of record as to the exact dimensions of unassigned space #2, but in comparing the photographic evidence, this space is comparable in size to the handicapped parking space near the condominium complex clubhouse. Additionally, unassigned space #2 is situated such that no other vehicles can park in front of, behind, or on either side of a vehicle parked in the space, and there is no curbing that would serve as barrier to accessing one’s vehicle while parked in the space. Although each unit is assigned one designated parking space, Petitioner recalls that when she initially moved in, she parked her vehicle by straddling the line between parking spaces 364 and 366. According to Petitioner, she was able to use both spaces because the respective tire-stops for the spaces were each marked “364.” Petitioner stopped parking her vehicle in this manner after the association re-painted all of the tire- stops; which included refreshing the unit numbers painted on the same so as to make it clear that there were not two parking spaces for unit 364. Also, Petitioner testified that her vehicle was vandalized once while parking her car in spot 364. After Petitioner’s car was vandalized and Respondent re-painted the tire-stops, Petitioner, during the weeks leading to June 2015, began occasionally parking her vehicle in the designated handicapped parking space located at the condominium clubhouse parking lot. Petitioner asserts that because of issues related to her physical disability, it is necessary that she be able to park her car, without restriction, in the handicapped parking space designated by Respondent for use by visitors and residents at the condominium complex clubhouse. The handicap parking space is several hundred feet from Petitioner’s condominium unit, and in order to access the handicap parking space, Petitioner utilizes a pathway constructed of dirt and crushed seashells. There is no record evidence indicating that Petitioner has difficulty traversing the seashell pathway or walking from her condominium unit to her car, and vice versa. Petitioner’s designated parking space is considerably closer to her unit (less than one hundred feet) than the handicapped parking space, but, according to Petitioner, her designated parking space is inadequate because it does not provide her with sufficient space to enter and exit her vehicle. Respondent does not dispute this fact. Petitioner suffers from a physical disability which requires her to ambulate with the occasional assistance of either a walker or wheelchair. Petitioner drives a late model, mid-size four-door Mercedes Benz. Petitioner’s vehicle is not equipped with any special assistive devices, such as a ramp, which would add to the amount of space needed for vehicle ingress and egress. When Petitioner is either entering or exiting her vehicle while using her walker or wheelchair, she requires additional space beyond the swing path of her car doors. Petitioner did not offer evidence of the amount of space required for her to enter or exit her vehicle when using either her walker or wheelchair. Petitioner also did not offer evidence regarding the dimensions of her vehicle, or the dimensions of either her designated parking space or any of the other parking spaces at issue. Nevertheless, Respondent concedes that Petitioner’s designated parking space, when cars are parked on either side of her in spaces 362 and 366, does not afford Petitioner adequate space to reasonably access her walker or wheelchair when entering and exiting her vehicle. In June 2015, Petitioner, as she often did, parked her car overnight in the handicapped parking space at the clubhouse. When Petitioner arrived at her vehicle, she noticed that a note from Respondent had been placed on the car, which reads as follows: Overnight parking in this clubhouse lot must have approval of the Pine Run Board of Directors. Approval is normally awarded for stays of no more than one week. In addition, this handicapped space is reserved for residents or visitors to the pool or clubhouse, not for general resident parking. We discourage resident parking in this lot if not for these reasons. However, if on rare occasion, you wish to park a car in this lot during the day when you are not using the pool or clubhouse, please use an unassigned space on the pond side. This minimizes the chance that you will interfere with our maintenance crew, or the delivery of a large quantity of materials. Within a few days of receiving the note, Petitioner explained to Respondent that she has a handicapped parking decal and should therefore be able to park in the handicapped parking space without restriction. Under the circumstances, Petitioner’s statement is reasonably interpreted as a request to Respondent that her physical disability should be accommodated by allowing her to park in the handicapped space. Respondent took no immediate action regarding Petitioner’s request for accommodation. Respondent did, however, allow Petitioner to continue to park in the handicapped space whenever Petitioner desired to do so. On August 27, 2015, Petitioner sent an email to Respondent and stated therein the following: We are formally informing you again, since our encounters with Mrs. and Mr. Foley, that we do indeed, have a disabled tag, and need and expect accommodations for ours and others, disabled individuals, owners, lessees and visitors, with any parking accommodations, walkers, chairs, etc., and their vehicles and equipment and with regards to any and all entrances to, and any and common areas, we should have easy access to. The circumstances leading up to, and including, Petitioner’s correspondence of August 27, 2015, make clear that Petitioner continues to seek a parking accommodation. At 4:51 p.m. on October 5, 2015, a letter from Petitioner’s attorney, Ms. Jennifer Daly, was sent to Respondent’s representative Jim Kraut. The missive from Ms. Daly states: As you are aware, this firm represents Ms. Valerie Collier [Walters] and I am contacting you to notify you and the Association that she will be parking in the handicapped parking spot tomorrow due to a surgery she is having. Please notify the Board of Directors to ensure no threats of towing are made and no notes are left on her car during her recovery. Upon receipt of the email from Ms. Daly, Mr. Kraut immediately conveyed the request to Mrs. Foley, who at the time was president of Respondent’s board of directors. In response to Petitioner’s request, Mrs. Foley, at 5:02 p.m. on October 5, 2015, sent the following email message to Mr. Kraut: Jim, Since the handicapped spot by the Club House is a considerable distance from her unit could you suggest that she just pick a spot in front of her unit that is much closer? We would have no problem identifying a handicapped spot closer to her unit. Mr. Kraut conveyed Mrs. Foley’s suggestion to Petitioner’s attorney Ms. Daly, who at 5:21 p.m. on October 5, 2015, responded via email as follows: Jim, Thank you for your rapid response and Ms. Foley’s suggestion; however, please let her know that choosing a different spot near her unit will not address our client’s needs. Rather, the problem is when the Association repainted the parking lot, the parking spots were made too small. From what we have been advised, all the spaces in close proximity to our client’s unit are only slightly bigger than the width of a sedan and offer no additional space for the opening of doors, much less the further space needed for someone who requires the assistance of a walker or wheelchair in addition to other equipment. Mrs. Foley, in response to Ms. Daly’s email, stated the following: I note your reply concerning Mrs. Valerie Collier [Walters]. Please be advised that the Association has not changed either the size or assignment of any parking spaces in the even 300’s on Pine Run Drive. All of the spaces have been repainted if the numbers were not visible or the curbs required repair in the entire Association. The size of the spaces ha[s] never changed. We would be very willing to accommodate Mrs. Collier’s [Walters] need for a handicapped space closer to her unit if she requested such. My suggestion was the quite large parallel space next to the grass island [unassigned space #2]. There is no curb there and no vehicle could park beside her. Another suggestion would be to swap her space for the adjacent space for #366. This is the same size but an end space, however I think she would have more room with the parallel space just behind her assigned space. Petitioner’s reaction to Respondent’s suggested parking accommodations was to file, on or about October 9, 2015, a charge of housing discrimination. Additionally, Petitioner parked her car in the handicap space without incident following her surgery. As noted in Ms. Daly’s email of October 5, 2015, Petitioner rejected the parking spaces offered by Respondent because the spaces are “too small.” Petitioner offered no standard by which to determine the appropriateness of the offered parking spaces other than her own subjective opinion. Additionally, Petitioner testified that both unassigned spaces are unacceptable because they are too close to the condominium unit of a neighbor she dislikes. Petitioner testified that what she now wants is to park in space 366, if Respondent widens the space by removing the hedges to the immediate right and paving the newly-cleared area. Petitioner offered no credible evidence establishing that this proposed accommodation is equal to, or more reasonable than the accommodations offered by Respondent.
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 finding that Respondent, Pine Run Association, Inc., did not commit unlawful housing discrimination as alleged by Petitioner, Valerie Walters, and denying Petitioner’s Housing Charge of Discrimination. DONE AND ENTERED this 17th day of June, 2016, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 17th day of June, 2016. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Cindy Hill, Esquire Hill Law Firm, P.A. 456 South Tamiami Trail Osprey, Florida 34229 (eServed) Gary Parker, Esquire Legal Aid of Manasota 1900 Main Street, Suite 302 Sarasota, Florida 34236 Sharon S. Vander Wulp, Esquire Sharon S. Vander Wulp, P.A. 712 Shamrock Boulevard Venice, Florida 34293 (eServed) Scott H. Jackman, Esquire Cole, Scott and Kissane, P.A. Suite 400 4301 West Boy Scout Boulevard Tampa, Florida 33607 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue : The issue in this proceeding concerns whether the Petitioner has been the victim of a discriminatory housing practice, in alleged violation of Sections 760.20 through 760.37, Florida Statutes (2007).
Findings Of Fact The Petitioner is a physically handicapped person. He resides in a residential unit (Unit 11C) in the Sea Cabins residential complex. The Petitioner is a full-time resident at Sea Cabins and is the owner of unit 11C. The Respondent is a Florida Corporation (not for profit) and is a homeowners association, as defined by Section 720.303, Florida Statutes (2008). Sometime in early May 2007, Nancy Maconi, the Petitioner's wife, placed a number of signs around the Sea Cabins property. The Respondent purports that there were approximately 13 signs. One of the signs was a designated handicap parking space sign for unit 11C. It was erected in close proximity to the Petitioner's Sea Cabins unit 11C. Thereafter, the Petitioner sought reimbursement for the cost of the signs from the homeowners association board of directors, the Respondent. The request was denied at a meeting of the board of May 11, 2007, with the minutes reflecting that the Petitioner had not requested nor been granted permission to install any signs, hence the denial at that point. Ms. Maconi testified at the hearing that she had asked the Respondent's manager for permission to install the signs, which the manager, Willa Merriott, denied. The action of the board at the May 11, 2000 meeting, however, is not in dispute. Thereafter, on approximately June 22, 2007, the attorney for the Respondent wrote the Petitioner requesting that the designated handicap parking sign be removed since it had not been authorized by the board, nor had any formal request for the installation of the sign been made. On June 23, 2007, the Petitioner responded to that letter by requesting that the board formally authorize the handicap parking sign. A letter from the Veterans Administration was attached to that letter to the effect that the Petitioner had a service-connected disability. The specific nature of the disability was not specified, however. In any event, the Respondent association acquiesced in the handicap parking sign at issue remaining in place and use while it investigated whether the Petitioner was actually entitled to a handicap parking space. The Petitioner was advised by letter of October 11, 2007, by the Respondent, that the handicap parking sign could remain in place while his application was pending. A series of letters then passed between the parties or their representatives in October through December 2007. Pursuant to its policy concerning the granting of handicapped parking spaces and the like, the association sought information on the nature of the Petitioner's disability or handicap. The Petitioner countered by taking the position that the association already had enough information upon which to make its decision. In any event, however, through this period, the Petitioner's designated handicapped parking space and sign remained in place in the original location where Ms. Maconi had placed it. The Respondent acquiesced in its presence and in the Petitioner's use of the handicapped space. Counsel for the Respondent received a letter dated January 3, 2008, from Paul E. Brooks, a Podiatrist, revealing for the first time the specifics of the Petitioner's disability. That is, he has an orthopedic condition which limits his ability to walk. This letter was received on January 8, 2008, and considered by the board of directors at a special meeting held January 28, 2008. At that meeting the board formally granted the Petitioner's application for a designated handicap parking space and voted to allow the sign already erected by Ms. Maconi to remain permanently in place. Due to a misunderstanding between the board and its counsel as to who should notify the Petitioner of the decision, the Petitioner was not actually notified of the decision until March. By letter of March 17, 2008, counsel for the homeowners' association wrote the Petitioner of the actions of the board regarding the sign.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the subject Petition for Relief in its entirety. DONE AND ENTERED this 27th day of January, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 27th day of January, 2009.
The Issue The issue to be resolved in this proceeding concerns whether the Respondent Department acted fraudulently, arbitrarily, illegally or dishonestly in making a decision to award Central Florida Legal Services, Inc., the Intervenor, a bid concerning a proposed contract to enter into Lease No. 800:0045. Embodied within that general issue are questions involving whether the Petitioner, Robert Allan Weinberg's (Weinberg) response to the Department's Invitation to Bid (ITB) was responsive, was the lowest and best bid and whether the Intervenor's bid was responsive to the ITB and was the lowest and best bid. Finally, it must be determined whether the Department properly evaluated the bid proposals in accordance with legally-acceptable, competitive bidding principles, in an honest and non-arbitrary fashion.
Findings Of Fact This dispute arose upon the Department electing to seek office space for personnel of its District 12, in Daytona Beach, Florida. After considering the type and nature of the facilities it needed, the Department ultimately published a set of specifications for the desired facility in an ITB. The ITB included detailed instructions for preparation and submittal of bids and a relevant form. A pre-bid conference was conducted and thereafter, three vendors submitted bids. One proposal was determined by the Department to be non- responsive because the amount of space contained in the bid proposed by that vendor did not meet the Department's specifications contained in the ITB. That agency decision was not contested. The bid submitted by the Intervenor, as well as the Petitioner, were both determined to be responsive by the Department. After evaluating the proposals based upon criteria contained in the ITB, the Department ultimately determined that the lowest, best and most responsive bid was that submitted by the Intervenor. It notified the bidders of its decision to award the subject bid to the Intervenor, and the Petitioner filed a protest. A formal written protest was timely filed, initiating this proceeding. The issues raised by the parties, concerning the relative responsiveness of the two bids, revolve around the question of adequate parking, the status of existing tenants in the buildings, a consideration required by the terms of the ITB, the question of adequacy of "dry and measurable" space, the question of "location" (including building appearance, appearance of the property, the character of the neighborhood, security issues, design or layout of the proposed space, and provision for future expansion). Petitioner's Responsiveness The Petitioner's response to the ITB is deficient in terms of provisions for parking, as well as concerning the disclosure of the status of existing tenants in the Petitioner's building. The parking facilities offered by the Petitioner do not meet the requirements of the ITB. The ITB requires that 60 parking spaces be available for the exclusive use of the Department. Petitioner's Exhibit 1, Item 21 in evidence (the ITB) provides: For this facility, the Department has determined that a minimum of 60 parking spaces are required to meet its needs. Its parking is to be provided as part of a lease cost to the department. The lessor will grant to the lessee an exclusive right to use 60 parking spaces. Lessor shall submit with this bid submittal a letter certifying that the lessor agrees to the requested number of parking spaces on site, states the number of parking spaces per square foot of space as required by the local zoning jurisdiction and provides a site plan of the parking lot identifying the number of parking spaces assigned to specific other tenants. The purpose of this submittal is to assure parking spaces conform to local jurisdiction requirements of number and size, and that the number of parking spaces requested in this invitation can be achieved without infringing on or combining with the parking requirement of other tenants (emphasis contained in original document). The Petitioner's bid submittal does not show spaces assigned to specific other tenants, as required by the ITB, and does not state the number of parking spaces per square foot of space required by the local zoning jurisdiction, which is the City of Daytona Beach, Florida. The Petitioner proposes to house the Department in two sections of an existing building. Those sections are presently occupied by other tenants. Other space within the building is also presently occupied and will continue to be occupied, even if the Department decides to lease the Petitioner's space at issue. The Petitioner's site plan shows that it has 92 spaces available to serve tenants in that building located on the building site. In addition to those spaces, the Petitioner proposes to use eight (8) additional spaces located off-site. Certain space in the Petitioner's proposed building is presently leased to the Florida Department of Health and Rehabilitative Services (HRS). That lease will remain in effect even if the Petitioner leases the space at issue to the Department. Under that HRS lease, 29 spaces are committed to HRS on an exclusive basis, with six (6) other spaces on a non-exclusive basis. There is additional office space in the building presently occupied by private businesses, which totals 4,470 square feet. Under the City of Daytona Beach Code, the parking requirement for 4,470 square feet of commercial office space, in a building the size of the Petitioner's is 16 spaces. The eight (8) parking spaces off the building site, proposed to be used by the Petitioner, are adjacent to and serve an existing building that also houses a private business. That building has 16 total parking spaces, including the eight (8) which the Petitioner is proposing to allocate to the agency, if the bid is awarded. The building contains 3,900 square feet. Under the City of Daytona Beach Code, it must have a minimum of 14 parking spaces for that square footage. If the Petitioner leased space to the Respondent, its total parking space requirement to serve all of its tenants, including the proposed office space, under the City of Daytona Beach Code, would be 125 spaces. Eighty-nine (89) of those spaces would be for the exclusive use of the Respondent and HRS. The Petitioner's site plan, however, reveals that only 108 spaces are available, including the spaces at the off-site location. Additionally, the existing parking spaces of the Petitioner, designed to serve handicapped persons, do not conform to the current City of Daytona Beach Code. Handicapped parking spaces are required by that Code to be 12 feet wide, with an additional five feet provided for access of handicapped persons. In order to meet this dimensional requirement, the Petitioner's need for parking spaces to accommodate all tenants, will increase by four (4) spaces. He will need a total of 129 spaces to accommodate all tenants, including the Department, should the bid be awarded. He has only 108 spaces available. Mr. Weinberg testified on behalf of the Petitioner, to the effect that the parking lot could be re-configured in order to gain 13 more spaces. This did not include the four additional spaces that would be needed to properly accommodate the handicapped parking spaces to the requirements of the City of Daytona Beach Code. The Petitioner's bid submittal plan, however, does not reflect any site plan involving re-configuration of the parking area. Moreover, it was not established that the reconfiguration proposed by the Petitioner can be accomplished under the mandates of the City of Daytona Beach Code. If it could, the Petitioner would still not have sufficient spaces to meet the requirements in the ITB, as well as the requirements of existing tenant leases and code requirements, concerning parking spaces for relevant amounts of building square footage allocated to the various tenants. The Petitioner's bid also does not meet the criteria of the ITB containing the status of existing tenants. The ITB requires that vendors provide information regarding the rights of existing tenants, including written documentation regarding their status, as that relates to the availability and the time of availability of the space proposed in the bid. The ITB provides, in pertinent part: Existing tenants: If the offered space or any portion thereof (including parking areas) is at present occupied or will be covered by an active lease(s) at the stated availability date, written documentation by the tenant indicating acknowledg- ment of the lessor's bid and ability to vacate premises by the proposed date or earlier to allow lessor's renovation work to be completed must be included with the bid submittal. If the existing tenants are on a month-to-month lease, the bidder must provide a letter of explanation of this condition. There are two existing tenants in the space which the Petitioner has proposed to lease to the Department. The Petitioner offered no written documentation from either tenant indicating acknowledgment of the bid and lessee's ability to vacate the premises. The only information which the Petitioner provided was for one of those tenants and that was not signed nor acknowledged by the tenant. No information was provided, as required by the ITB, as to the other tenant. Intervenor's Responsiveness The Petitioner maintains that the Intervenor's proposed office space was not "dry and measurable" at the time the bid was submitted by the Intervenor. The Petitioner also contends that the Intervenor's bid does not meet the parking facility requirements of the ITB. The criteria in the ITB require a definition of "dry and measurable" space available and also contain provisions allowing the vendor time to complete the facility through renovation, etc., subsequent to the bid submittal, but prior to the occupancy time specified in the ITB. The ITB provides, on page 2 in the second paragraph: Space to be made available: 07-01-95 or within 182 days after notification of bid award, whichever occurs last. Under the heading, "Handicap Standards and Alterations", at page 4 of the ITB, the ITB provides: Lessor agrees that the demised premises now conform, or that, prior to lessee's occupancy, said premises shall, at the lessor's expense, be brought into conformance with the require- ments of Section 553.48, F.S., providing requirements for the physical handicapped and the requirement of public law 101-336, July 26, 1990, known as the "American With Disabil- ities Act of 1990.". . . The proposed space must be in an existing building or a building which is to be complete by July 1, 1995, and is 50 percent complete on the bid deadline submission. To be considered as existing, the entire space must be dry, fully enclosed, and capable of being physically measured, to determine net rentable square footage, at the time of bid submittal. Reno- vations to bring the facility into compliance with all applicable federal, state, and local codes and regulations and/or to meet with desired arrangements are permitted, if carried out in accordance with prescribed procedures: Bids offering multi-story or multi-level buildings must have all stories serviced by an elevator which meets the requirements of DCA accessibility manual . . . (emphasis in original). The Intervenor's proposal meets these requirements. The facility proposed by the intervenor is in an existing building. "Dry and measurable" means that the facility has exterior walls and a roof and is at least enclosed enough as to not to become wet or to be wide open to the elements. The Intervenor's proposed building has exterior walls and a roof and is enclosed with windows and doors secured so that it would not get wet or be open. There is ample space within the Intervenor's existing building to determine the net rentable square footage and to ensure that the square footage being offered meets the bid specifications. In fact, measurement was undertaken by the Intervenor's representative, including its architect, and the space and site plans were made available to representatives of the Department, who were in a position to make the same measurements when they conducted a site visit of the premises. The only part of the facility that was not dry and measurable at the time of bid submission was a proposed new elevator, and entrance space related to the elevator, which the Petitioner has proposed to construct in order to meet the "Americans with Disabilities Act" requirements. The elevator and related space needed to accommodate entrances into the second floor of the building by the elevator were not dry and measurable at the time of bid submission and were not required to be by the terms of the ITB. The express provisions of the ITB allow vendors to renovate facilities in order to meet government regulations "prior to lessee's occupancy." The vendor is not required to have the space ready for occupancy until July 1, 1995, or 182 days after notice of award, whichever is later. The Intervenor has committed to complying with these requirements of the ITB and will be subject to a penalty if it does not, should the bid be awarded. Thus, if the vendor is offering a multi-story building, it is not required to have a handicapped accessible elevator already in place and operating at the time of bid submission. It simply must be installed prior to the lessee's occupancy. Therefore, under the terms of the ITB referenced above, the elevator-related space would not be required to be part of the dry and measurable space computation submitted with the bid. The Department agreed at the pre-bid conference that the 60 exclusive parking spaces it would require, as specified in the ITB, would meet the ITB criteria if within 1,000 feet of the building. In response to this criteria, the Intervenor offered most of the required spaces at the site of its building. It also offered to make spaces available at three other locations as alternatives. It offered to make 48 of the 50 spaces it has on its own building site exclusively available to the Department and also offered 21 parking spaces on "Lot B" or "Parcel B", as delineated in its bid. This lot is within 1,000 feet of the Intervenor's building, which was offered in the bid, and is approximately 350 feet away. It can accommodate the 21 parking spaces, but will necessitate a variance from zoning requirements, in order to place 21 spaces on Lot B. The ITB allows bidders 30 days from the date of any award to deal with such zoning issues and resolving any zoning problems. If this lot is used, the Intervenor will seek a variance in order to be able to put the 21 spaces on the lot. The Intervenor does not yet have the variance, but there is no evidence of record that would establish that it cannot be obtained from the City zoning authority. The Intervenor has an option to lease Lot B, where the 21 parking spaces would be located, and, therefore, has sufficient control of it. Another alternative offered by the Intervenor is designated as "Lot A" or "Parcel A" in its bid. This lot is across an existing municipal parking lot from the Intervenor's facility being offered. It includes 69 parking spaces and is within 1,000 feet of the Intervenor's building. The Intervenor has secured this facility through an option to purchase. The only remaining step in order to purchase the lot would be for the Intervenor's board, responsible for the operation of its programs, including the building, to execute the option it has already entered into. This also constitutes sufficient control over the property to comply with the terms of the ITB. This parking lot and the spaces thereon meet the requirements of the ITB. The third nearby lot, available to the Intervenor, is designated as "Parcel D" or "Lot D" on the Intervenor's bid documents. Additional spaces could be made available on this lot. It is 1,070 feet away from the Intervenor's building, however, and thus does not meet the 1,000-foot requirement set by the Department at the bidders' conference, in its interpretation of the specification concerning parking. The demonstrated availability of the other parking areas and spaces, however, establishes that the Intervenor has sufficient parking available, within the required distance, to meet the terms of the ITB. Moreover, the Intervenor's building will house the office of the Intervenor, as well as the office of the Respondent/Department. The Intervenor's building is located directly adjacent to a free municipal parking lot. This lot would be available to employees of the Intervenor, as well as Intervenor's visitors, and as well as to employees of the Department and the Department's visitors, who, for whatever reason, might not use the exclusive dedicated parking spaces. Because it is in a downtown development area, the Intervenor is not required, under the City of Daytona Beach Zoning Code, to provide any parking for its building. Bid Evaluations The Department received bid responses from the two parties and proceeded to evaluate them. The part of the evaluation based upon prices bid by the vendors was conducted by Department personnel in Tallahassee. The part of the evaluation based upon more subjective factors was conducted by three Department employees in Daytona Beach, who ultimately have to work in the facilities that the Department acquires through this procurement process. The price evaluation was undertaken with the assistance of a representative of the Department of Management Services, who is familiar with statutory and rule requirements for a proper evaluation of bids. Price was apportioned 40 of the total 100 points available in the bid evaluation process. The price evaluation resulted in the Petitioner receiving 40 points because it had the lowest price of the two subject bids. The Intervenor received 33 points for the price criterion. The three Department employees designated to evaluate the other aspects of the bid proposals conducted site visits at each of the vendors' facilities. During the site visits, the evaluators walked through the parking lots and counted the spaces, checked the exit door locations, inquired about heating, ventilation, and air-conditioning facilities and equipment, evaluated the condition of the buildings and how they were being maintained, checked security lighting and other security issues, checked on placement of the lobbies and how offices would be positioned, observed the availability of natural lighting and surveyed neighborhood conditions. Each evaluator then conducted evaluations based upon factors other than cost, without consulting each other. They used an evaluation form that relates to various criteria which come directly from the ITB. Upon completion of the evaluations, the completed forms were forwarded to the Tallahassee office of the Department. The evaluation criteria allow three categories of evaluation under the general heading of "location". Ten points are allowed as a maximum in the category of "availability and frequency of public transportation within the proximity of the space being offered." The evaluators gave the Petitioner five, six and five points, respectively, for its response to this category. They gave the Intervenor seven, six and five points. Both facilities have public bus stops near the building which provide good access to public transportation. The Intervenor's facility is located within a few blocks of the transit transfer station, which offers the advantage that bus passengers will be able to get to the Intervenor's facility without the need of a transfer which could save them considerable time. The Department of Juvenile Justice is the type of state agency which has a great deal of business with clients and their family members of a lower-income status, who might frequently have to rely on public transportation. Nine (9) points are allowed in the evaluation criteria for the category of "appearance of the building property and neighborhood of the property being offered," under the general heading of "location". The Petitioner was accorded three, five and four points, respectively, for its response to this category. The Intervenor was given nine, eight and seven points. This is admittedly a subjective criteria. The appearance of a facility and its surrounding area can make a difference in the morale and productivity of the working staff, as well as the attitude of visitors to the facility. The Intervenor's building is in a renovated, historic structure located in the historic preservation section of the downtown area of Daytona Beach. It has a great deal of aesthetic appeal and has been the subject of several newspaper articles noting the attractiveness and functionality of the renovation. The Petitioner's structure, on the other hand, although well-landscaped and maintained, is a metal, prefabricated building, not as aesthetically interesting or pleasing. It is also located adjacent to higher crime areas in the City. The evaluation criteria allow for four points for the category of "security issues posed by the building and surrounding area" under the category of "location". The evaluators scored the Petitioner's response at two, two and one points for this subject. They scored the Intervenor's bid three, three and two points for the same category. It is apparent that the Petitioner's facility is located in an area which is somewhat crime-prone. While the evidence does not reflect any criminal activity on the Petitioner's site itself, at least one evaluator was intimately and personally familiar with the neighborhood and the criminal problems occurring there. This familiarity was confirmed by Department personnel from police reports showing the area to be a high-crime area. Under the "facility" heading, the evaluation criteria and form allows points for four different categories. It allows 15 points for the category of "susceptibility of the design and space being offered to good utilization by differing segments of the Department." The evaluators gave the Petitioner seven, five and six points for their three evaluations of this response. They scored the Intervenor's submittal at 15, 12 and 10 points. The Intervenor's proposal offers a building that has windows on all four sides with abundant natural lighting, good visibility, and contiguous space. The Intervenor's facility can be very easily renovated into appropriate space for the different segments of the Department. The Petitioner's facility, on the other hand, has few windows, offers limited natural lighting and is not easily visible from the street. Additionally, the Petitioner offered divided space within its building so that some segments of the Department's work force would be physically separated from one another, with access between the two divided areas of office space being only obtainable by going outside the building and then in another door of another part of the building. The evaluation form also allows 10 points for the category of "susceptibility of the building parking area and property as a whole for future expansion." The Petitioner received a score of three, five and five points for this category by the evaluators. The Intervenor's response received seven, eight and three points for the same category. The Petitioner's facility offers no opportunity for expansion unless existing lessees leave the building. There is no room for additional parking for expansion purposes. The Intervenor's facility has space on the first floor not being leased at all at the present time and a portion of the third floor could be enclosed to provide additional space. Further, since the only other tenant is the lessor, there is a prospect that the lessor itself might move to other facilities in order to accommodate Department expansion. Lot A offers considerably more parking spaces than the Department or other tenants of the Intervenor's building need. Furthermore, the Intervenor's facility is located adjacent to a free, municipal parking lot which is only moderately used. Under the same general heading of "facility", the evaluation form and criteria allows ten points for the category of "having all the square footage in a single building will earn more points than square footage offered in more than one building." The Petitioner is offering space in a single building. However, the Petitioner's space would be divided so that the Department's office space would not all be contiguous, and personnel would have to go from one side of the building to the offices on the other side of the building only by going outside the building. This is functionally akin to space being in more than one building. Thus, the Petitioner's proposal would have some of the disadvantages of being like a proposal for more than one building. Workers would not be as readily able to assist one another in dealing with work loads or as easily undertaking many of the work activities requiring them to communicate with each other in each other's physical presence as easily as in a contiguous set of offices located in a single building. It is true that the Petitioner is proposing all of its space in one building. Thus, it meets the ITB criteria in this regard. It also can be argued as the Department evaluators found, that because the space functions akin to being in separate buildings, because of the separation of the offered office spaces, it should be evaluated as being somewhat analogous to space located in two separate buildings. Thus, although both bids were responsive to the ITB in terms of offering space physically and technically within a single building, it was not arbitrary for the evaluators to accord more weight to the Intervenor's response, since all of the office offered by the Intervenor is contiguous space in the same building. However, even if the evaluators had or should have ranked both bids equally under this "single building criteria", that alone would not alter the evaluators' result that the Intervenor's bid and facility was the best response to the agency's needs expressed in the ITB. The evaluation criteria and form also allows a maximum of two points to be accorded to the category of "if space is offered in more than one building, are the buildings connected by overhangs and sidewalks," under the heading of "facility". The space offered by both bidders, the Petitioner and the Intervenor, is clearly in a single building. All of the evaluators gave both parties an equal two points for this category which shows a lack of arbitrariness in the bid evaluation process. When the evaluation was complete, the Intervenor was accorded scores of 86, 82 and 72 points by the three evaluators. Two of the evaluators rated the Intervenor significantly higher, and the third favored the Petitioner's proposal by a single point. The total score given the Petitioner, taking into account its lower price, was 67, 71 and 73 points by the three evaluators. The total score accorded the parties by the three evaluators shows that the Intervenor's proposal was accorded a substantial advantage by two of the three evaluators. The evaluator scores were independently determined but were still generally consistent with each other. They were based upon logic and not merely upon a review of plans, figures, and written responses but also upon a detailed view of the two properties, parking spaces, and the like. Thus, it is determined that the scoring was consistent, logical, and not shown to be unreasonable under the circumstances. Based upon the scores by the evaluators, the Department determined that the Intervenor's bid was the lowest, best and most responsive and elected to award the lease to the Intervenor. There has been no preponderant proof offered to show that the decision or any of the evaluation decisions on individual categories, leading up to the ultimate score and decision to award, were fraudulent, arbitrary, illegal, or dishonest.
Recommendation Based on 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 RECOMMENDED that a Final Order be entered by the Department of Juvenile Justice dismissing the Petitioner's formal protest because the Petitioner lacks standing to initiate the subject proceeding and because the Petitioner has failed to establish that the determination to award a contract to the Intervenor was fraudulent, arbitrary, illegal or dishonest. DONE AND ENTERED this 15th day of June, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, 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 15th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1736BID Respondent's and Intervenor's Proposed Findings of Fact The proposed findings of fact of these two parties are accepted to the extent that they are not inconsistent with the findings of fact made by the Hearing Officer. Certain proposed findings of fact accepted as true are immaterial to the resolution of the issues presented. Petitioner's Proposed Findings of Fact A-F. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, and as not entirely in accordance with the preponderant evidence of record. Accepted. Accepted, but not itself materially dispositive. J.(1-3) Rejected, as not being entirely in accordance with the preponderant evidence of record, and as subordinate to the Hearing Officer's findings of fact on this subject matter. K-L. Rejected, as not being entirely in accordance with the preponderant evidence of record, and as subordinate to the Hearing Officer's findings of fact on this subject matter. M. Accepted, but not itself materially dispositive. N.(1-6- Subparts) Rejected, as not entirely in accordance with the preponderant evidence of record, and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as not entirely in accordance with the preponderant evidence of record, and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. COPIES FURNISHED: Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Mr. Robert Allan Weinberg RW Custom Builders, Inc. 955 Orange Avenue Daytona Beach, Florida 32114 Scott C. Wright, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 G. Steven Pfeiffer, Esquire APGAR, PELHAM, ET AL. 909 East Park Avenue Tallahassee, Florida 32301
Findings Of Fact Broward County and Broward County Board of County Commissioners is a Public Employer within the meaning of Section 447.203(2), F.S. (stipulation of parties). The Teamsters Local Union #769, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is an Employee Organization within the meaning of Section 447.203(10), F.S. (stipulation of parties). In January, 1974, thirty three airport security police employees of the Respondent who worked at the Ft. Lauderdale- Hollywood International Airport and North Perry Airport signed cards authorizing Teamsters Local Union #769 (hereinafter "Union") to represent them for the purpose of collective bargaining with the Respondent (Complainant's Exhibit 6, testimony of Mr. Sack). By letter of January 7, 1974, to Mr. Robert R. Kauth, Broward County Administrator, the Union advised that it represented the airport security employees police and requested that the Respondent recognize the Union as the collective-bargaining representative of the employees and enter into negotiations for the purpose of obtaining a collective bargaining agreement. The Union further offered to demonstrate evidence that it represented the aforesaid employees (Complainant's Exhibit 7, testimony of Mr. Sack). Mr. Kauth responded in a letter dated January 28, 1974, and advised the Union that its letter had been referred to the Board of County Commissioners, but in view of "existing state law", the Commission was unable to and could not recognize the Union as the collective bargaining representative of the airport employees in question (Complainant's exhibit 8). The Union responded by a letter of January 30, 1974, requesting that Mr. Kauth identify the "existing state law" referred to in his letter and advised that the International Union's Constitution specified that the Union did not assert the right to strike amoung employees in the public sector. It also informed Mr. Kauth that the Florida Constitution and statutes guarantee public employees the right to organize and to bargain collectively through a representative of their choice (Complainant's Exhibit 9). Receiving no further response from the Respondent, the Union filed a complaint for declaratory relief and mandatory injunction in the Circuit Court of the Seventeenth Judicial Circuit for Broward County requesting the Court declare that the Union be recognized by the Respondent as the collective bargaining representative for the airport security police employees who had designated the union to represent them, and directing and requiring the Respondent to enter into collective bargaining with the Union as required by Art. 1, Section 6 of the Florida Constitution, and Section 839.221(2), F.S. On July 29, 1974, the Court entered a final decree requiring Respondent to grant recognition to the Union pursuant to Art. 1 Section 6 of the Florida Constitution "as the collective bargaining representative or agent of those airport security police officers employed by the Defendants at the Ft. Lauderdale-Hollywood Airport and North Perry Airport, who, are members and who remain members of the Plaintiff or who have freely and expressly given their consent to the Plaintiff labor organization to act as their collective bargaining agent" (Complainant's Composite Exhibit 11). As a result of the court order, the parties began bargaining, and proposals and counter-proposals were exchanged during the period commencing August, 1974 (Complainant's Exhibit 13, testimony of Mr. Sacks). At one of the negotiating sessions in October, the Respondent gave the Union its proposal for a recognition clause in the eventual agreement, which provided that the Respondent recognized the Union as the collective bargaining representative for those employees who were and would remain members of the Union, and that it would continue recognition after January 1, 1975 for the term of the agreement provided that the Union complied with all state requirements pertaining to recognition as contained in Chapter 447, F.S., and that otherwise recognition and the agreement would cease forthwith (Complainant's Exhibit 14, testimony of Mr. Elster). The Union thereupon filed a motion in the Broward County Circuit Court to hold the Respondent in contempt for violation of the previous final decree. The court, on October 30, 1974, citing Sections 447.009 and .022, F.S., found that the Respondent's proposal as to recognition was not a proper subject of collective bargaining at that time and ordered that it be stricken as a proposal (Complainant's Exhibit 15). At the twelfth negotiation session held on January 8, 1975, the parties reached a proposed collective bargaining agreement, with representatives placing their initials on a rough-draft (Complainant's exhibit 16). Counsel for Respondent agreed to provide a final draft in one week which thereafter was to be submitted to the county commission and the Union membership for approval and ratification. On January 17, the employees in the unit voted to accept the, agreement and new authorization cards were executed by the employees. At this time there were 49 employees in the unit and 46 authorization cards were signed at this time (Complainant's Exhibit 18). Further correspondence and discussions ensued, resulting in agreement on a final draft of the proposed agreement (Complainant's Exhibits 17-21). Article 1 of the proposed agreement concerning recognition provided that the county recognized the Union as the collective bargaining representative of all airport security officers employed by the county at the airports in question "who are members and who remain members of the union, or who have freely and expressly given their consent to the Union to act as their collective bargaining agent". The draft was approved by telegram from the Union's Counsel on February 20th, A except for failure to put the effective date of the agreement, i.e., January 8, 1975 in the draft (Complainant's Exhibit 22). Upon request of the Union, the matter was placed on the agenda of the Board of County Commissioners for its March 4th meeting. By letter to the County Administrator, dated February 28, Respondent's counsel advised that the original recognition had been by court order to recognize the Union "for members only"; that new state labor legislation required that a labor organization register with and be certified by the Public Employees Relations Commission as the majority representative of employees in an appropriate bargaining unit before a legal obligation by a public employer to recognize and bargain with the Union is established; that the Union had not met the registration and certification requirements and that the County was currently appealing in the Fourth District Court of Appeals the order of the lower court which had stricken one of the Respondent's contract proposals during negotiations. He therefore stated that it would be appropriate for the County Commission to consider the appeal before rendering a decision on the proposed agreement (Complainant's exhibit 23). The County Commission, at its meeting, deferred action on the agreement because the Union had not been registered nor certified under current law, and directed its counsel to request an advisory opinion from PERC on the status of the Union in reference to the state statute (Respondent's Exhibit 2). By letter, dated March 12, counsel for the Respondent sought such an advisory opinion from PERC (Respondent's Exhibit 13). Notwithstanding the lack of action by the County Commission, Respondent's Director of the Division of Airports determined to observe the terms of the proposed contract as to various working conditions (Complainant's Exhibit 24). The Union had made an abortive attempt to register with PERC on June 28, 1974, but this was before PERC had been organized and apparently the request was never received (Complainant's Exhibit 12, testimony of Mr. Sack and Mr. Elster). On March 10, 1975, the Union again submitted registration materials to PERC and, by letter of March 25, 1975, the Commission advised the Union that it had met the registration requirements of the statute (Complainant's Exhibit 28). On April 18, 1975, the Union filed a Recognition - Certification petition with PERC seeking certification of the airport security police personnel (Complainant's Exhibit 30), and on May 8, 1975, the Union filed the unfair labor charge against the Respondent alleging that it had violated Section 447.016(1)(a)(c), F.S., by attempting to withdraw recognition that was previously established between the parties and by refusing to sign a final agreement which had been agreed upon on January 8, 1975, (Complainant's Exhibit 1). On or about May 16, 1975, the Union filed with PERC a Motion to Waive the Posting Requirements of Recognition Acknowledgement and Motion to Expedite Processing of Unfair Labor Practice Charges (Complainant's Exhibit 31). In this motion, the Union requested that the posting requirements of recognition acknowledgement under PERC Rule 8H-200.4 (now 8H-2.04) be waived and certification issued based on the fact that it would be inequitable and against the intent and purposes of the statute to deny certification under Section 447.009(1) because recognition had been obtained by court order and the Union represented a majority of the employees in the unit. However, the petition for Recognition - Certification was withdrawn by the Union on June 3, and by letter of June 10, PERC advised it that the withdrawal request had been approved (Complainant's Exhibit 32). The record does not disclose that PERC took any action on the Union's aforesaid motion to waive the posting requirements of recognition-acknowledgment. In April and early May, the parties met and negotiated over a "wage reopener" provision contained in the proposed collective bargaining agreement. However, on May 19, Respondent's Counsel declined to grant a request for a further meeting stating that since the Union had rejected counter-proposals of the Respondent's negotiating team on April 21, it was felt that further meetings would be unproductive (Complainant's Exhibit 25-27). On July 31, 1975, the Union filed an amended unfair labor practice charge against the Respondent and, on August 8, the Acting General Counsel of PERC issued a Complaint and Notice of Hearing which alleged unfair labor practices in violation of Section 447.501(1)(a) and (c) by reason of Respondent's refusal to execute the agreed upon contract and by unilaterally terminating negotiations with the Union thus having failed and refused to bargain in good faith (Complainant's Exhibit 1). On September 12, 1975, subsequent to the hearing, the Fourth District Court of Appeal rendered an opinion that the points on appeal were moot and that jurisdiction of the issues involved between the parties is in PERC pursuant to Section 447, F.S., and dismissed the appeal of Respondent concerning its proposed recognition clause (Hearing Officer's Exhibit 1).
Recommendation It is recommended that the Public Employees Relations Commission, pursuant to Section 447.503(4)(b) issue an order dismissing the charges. DONE and ENTERED this 7th day of November, 1975, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Allen M. Elster, Esquire MAMBER, GOPMAN, EPSTEIN & FOOSANER 16870 Northeast 19th Avenue North Miami Beach, Florida 33162 Thomas W. Burke, Esquire 2005 Apalachee Parkway Suite 105 Tallahassee, Florida 32301 Joseph A. Caldwell, Sr., Esquire Suite 600, 100 Biscayne Boulevard North Miami, Florida 33132
