The Issue Whether the Department of Corrections' proposed award of Lease No. 700:0710 to Melstine Corporation was proper.
Findings Of Fact The Respondent, Department of Corrections, Region Four (Department), issued a request for proposals for approximately 7,500 square feet of office space in Dade County which was designated as Lease No. 700:0710 (RFP). The office space was to be used as offices for the professional and support staff who were providing probation and parole supervision. Petitioner Wharton Little River (Wharton), Intervenor Green East #2, Ltd. (Green East), and Melstine Corporation (Melstine) submitted proposals to the Department. The Department's evaluation committee evaluated the three proposals, and their evaluation included a site visit to each of the proposed locations. Melstine Corporation received the highest number of points followed by Wharton Little River. The Department notified all bidders of its intent to award the lease to Melstine. On March 15, 1995, Wharton filed a notice of intent to protest the Department's decision to award the lease to Melstine. Wharton filed its formal written protest on March 14, 1995. The RFP set forth the requirements for submitting a responsive proposal and the criteria to be used in evaluating the proposals. The bidders were required to provide 55 offstreet parking spaces for the exclusive use of the Department's employees and clients at no additional cost to the Department. This provision is interpreted to mean that the bidder could propose 55 exclusive parking spaces plus or minus one to two percent. The RFP provided spaces in which the bidders were to indicate whether they were proposing onsite or offsite parking. The RFP also provides: Federal, state, county, and local laws, ordinances, rules, and regulations that in any manner affect the items covered herein apply. Lack of knowledge by the bidder will in no way be a cause for relief from respon- sibility. This provision is interpreted to include applicable zoning codes. Both Melstine and Wharton proposed to provide 55 exclusive parking spaces onsite. Green East proposed 40 exclusive spaces and 20 nonexclusive spaces. The evidence did not establish whether Green East's spaces were onsite or offsite. The evaluation criteria assigned a maximum number of points a bidder could receive for specific criteria. The maximum points totaled 100. The criteria for evaluating parking was the "[p]roximity of adequate parking area to the building. Must be well lighted." The maximum number of points that could be awarded to a bidder for parking was 10. Melstine received 10 points for parking. The space proposed by Melstine is located on the ground floor of a six-story building with approximately 87,000 square feet. The building is currently vacant. Melstine is actively seeking to lease other portions of the building. In its proposal Melstine stated that its intention was to market the remaining space on the ground floor to the banking industry as a banking location. There are 54 onsite parking spaces on the property proposed by Melstine. There is additional space onsite that could be converted to 20 parking spaces, bringing the total parking spaces available on the Melstine property to There are approximately 50 offsite parking spaces available in a lot across the street from the building proposed by Melstine. Melstine provided a map in its proposal showing that the located property was located in a C-1, limited commercial, zone. By letter dated February 21, 1995, Phillip J. Procacci, advised the Department that he felt that the Melstine proposal did not meet the requirements of the RFP because the parking spaces did not meet the zoning code requirements of the City of Miami. Department staff contacted the City of Miami zoning officials and were advised that the parking proposed by Melstine was acceptable under the City of Miami's zoning regulations. The Department relied on the representations from the City of Miami that the Melstine property would be in conformance with the zoning code. By letter dated April 17, 1995, Juan C. Gonzalez, Acting Zoning Administrator, advised Melstine's agent that the parking on the Melstine site would be acceptable as meeting the zoning requirements for the City of Miami for office use without the need of providing additional spaces for existing office square footage. By letter dated April 24, 1995, Mr. Gonzalez further clarified the City of Miami's position on parking spaces assigned to individual tenants. While the code does mandate a certain amount of spaces to be provided on site for individual uses, the code is silent on how the parking will be assigned, therefore, the city does not become involved or regulates assignment of existing parking spaces. Region Four of the Department has not experienced a problem with lessors not providing adequate parking in the past. Melstine's proposal met the parking requirements of the RFP and complied with the City of Miami's zoning ordinance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the bid protest of Wharton Little River, Investment, Inc. by Procacci Commercial Realty, Inc. be dismissed and that Lease No. 700:0710 be awarded to Melstine Corporation. DONE AND ENTERED this 20th day of June, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 20th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1839BID To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. (Proposed Recommended Order After Reopening of Hearing) Paragraphs 1-3: Accepted in substance. Paragraph 4: Accepted in substance as it refers to the parking criteria. The remainder is rejected as unnecessary. Paragraph 5: Accepted in substance. Paragraph 6: Accepted to the extent that Wharton received the second highest number of points. Paragraphs 7-11: Accepted in substance. Paragraph 12: Rejected as not supported by the evidence. There was no evidence that access to the parking lot from the Melstine property is owned by Melstine. Paragraphs 13-22: Rejected as subordinate to the facts actually found. Respondent's Proposed Findings of Fact. Paragraphs 1-23: Accepted in substance. Paragraphs 24-25: Rejected as subordinate to the facts found. Paragraphs 26-28: Accepted in substance. Paragraph 29: Accepted. Paragraph 30: Rejected as subordinate to the facts found. Paragraph 31: Accepted. Paragraphs 32-34: Rejected as subordinate to the facts found. Paragraphs 35-41: Accepted in substance. Intervenor's Proposed Findings of Fact. (The paragraphs are unnumbered. Each paragraph will be addressed in the order it appears under the section entitled, "The Computation of Error.") Paragraph 1: The first three sentences are accepted in substance. The fifth, sixth, and seventh sentences are rejected as subordinate to the facts found. The remainder is rejected as not supported by the greater weight of the evidence. Paragraph 2: These adopted paragraphs are addressed above under Respondent's Proposed Findings of Fact. Paragraphs 3-4: Rejected as subordinate to the facts found. Paragraph 5: Rejected as a conclusion of law. Paragraph 6: Rejected as not supported by the greater weight of the evidence. COPIES FURNISHED: R. Beth Atchison Assistant General Counsel Florida Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Robert A. Sweetapple, Esquire Sweetapple, Broeker & Varkas 465 East Palmetto Park Road Boca Raton, Florida 33432 John R. Beranek, Esquire 227 South Calhoun Street Post Office Box 391 Tallahassee, Florida Harry K. Singletary, 2601 Blairstone Road 32302 Jr., Secretary Tallahassee, Florida 32399-2500 Louis A. Vargas General Counsel 2601 Blairstone Road Tallahassee, Florida 32399-2500
The Issue Whether Somerset Park Condominium Association, Inc.; Wise Property Management, Inc.; and Thomas Kelleher (collectively referred to as Respondents) discriminated against Lusheryl Walden (Ms. Walden or Petitioner), on the basis of Ms. Walden’s disability; and, if so, the relief to which Ms. Walden is entitled.
Findings Of Fact Ms. Walden is a 49-year-old woman. She has a muscle disorder which causes her to need the assistance of a medical walker. She also uses a cane and electronic wheelchair. Ms. Walden lives in a rented condominium unit at Somerset Park Condominiums (Somerset Park), which is located at 2866 Somerset Park Drive, Unit 103, Tampa, Florida. She has lived in unit 103 since March 2018. Unit 103 is privately owned, but is managed, along with the other condominium units at Somerset Park, by Wise Property Management, Inc. Mr. Kelleher is employed by Wise Property Management, Inc., as the property manager for Somerset Park. Somerset Park was created by, and continues to be governed by, a Declaration of Condominium of Somerset Park, A Condominium (Declaration), which instrument was recorded in 2006, in the public records of Hillsborough County, Florida. The Declaration describes parking spaces as follows: (c) Parking Spaces. Parking for the Condominium is part of the Common Elements of the Condominium on the Condominium Property. The parking spaces shown on Exhibit 2 of the Declaration may be assigned to a Unit (which assignment need not be recorded in the public records of the County) by the Developer (for so long as the Developer offers a Unit for sale in the Condominium and thereafter by the Association), whereupon it shall become Limited Common Elements of the Unit to which it is assigned. Any consideration paid for the assignment of the parking spaces shall belong to the Developer. A Unit Owner may assign the Limited Common Element parking space appurtenant to his Unit to another Unit by written instrument delivered to (and to be held by) the Association; provided however that no Unit may be left without one Limited Common Element parking space. Upon making such assignment, the Limited Common Element so assigned shall become an appurtenance to the Unit(s) and shall pass with the title thereto regardless of whether or not specifically referenced in the deed or other instrument of conveyance of the Unit. According to the Declaration, parking spaces at Somerset Park are considered “limited common elements” after they are assigned to a unit. Generally speaking, limited common elements consist of properties, equipment, or structures whose use is reserved to a particular unit to the exclusion of other units. Units at Somerset Park are individually owned. When a unit is sold by Somerset Park, the unit comes with its own parking space, which is considered a limited common element “appurtenant thereto.” Other types of limited common elements include patios, balconies, and terraces, as well as air conditioning compressors and water heaters that are located outside of the condominium unit. When Ms. Walden moved into unit 103 in 2018, she was notified that she was assigned to parking space number 409. Parking space number 409 is the limited common element attached to unit 103. In March 2020, Ms. Walden made a verbal request to Mr. Kelleher to be reassigned a parking space closer to her unit. Mr. Kelleher told Ms. Walden that he could not reassign a parking space, but that she was welcomed to reach out to her neighbors to find someone willing to switch. The Declaration specifically sets forth the means by which an assigned parking space may be reassigned. It provides that a “unit owner may assign the limited common element parking space appurtenant to his unit to another unit by written instrument delivered to [Somerset Park.]” For a parking space assigned to a unit that is still owned by Somerset Park, Somerset Park may reassign such parking space to another unit. Ms. Walden’s assigned parking space—parking space number 409—is four parking spaces away from her unit. Ms. Walden has an informal agreement with the resident assigned to parking space number 408 (which is three spaces away from her unit), who allows her to park in that space. There are six parking spaces closer to Ms. Walden’s unit than her assigned space—three to the left and three to the right of the walkway to her unit. All six parking spaces are assigned as limited common elements to condominium units not owned by Somerset Park. All six are outside the control of Respondents who have no authority to force the owners to switch spaces with Ms. Walden. Ultimate Findings of Fact Petitioner failed to prove that there was any reasonable accommodation Respondents could have given her that would have enabled her to park closer to her unit. Respondents offered a legitimate non-discriminatory reason for denying Petitioner’s request for a parking space closer to her unit. Petitioner failed to prove that Respondents intentionally discriminated against Petitioner because of her disability.
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 dismissing Petitioner’s Petition for Relief. 1 Fairway Villas was vacated through settlement agreement during the pendency of an appeal. 2 Somerset Park has unassigned parking spaces that are not reserved as limited common elements. DONE AND ENTERED this 8th day of March, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Tammy S. Barton, Agency Clerk S JODI-ANN V. LIVINGSTONE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2021. Joseph G. Riopelle, Esquire Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Lusheryl Walden 2866 Somerset Park Drive, #103 Tampa, Florida 33613 Boyd, Richards, Parker and Colonnelli, P.L. 400 North Ashley Drive, Suite 1150 Tampa, Florida 33602 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue Whether Petitioner was unlawfully discriminated against by Respondent, based on his disability, in violation of chapter 760, Florida Statutes, the Florida Civil Rights Act ("FCRA"); and, if so, what is the appropriate remedy?
Findings Of Fact From October 2 through December 7, 2017, Petitioner was employed by the City as a PES in its Transportation and Mobility Department ("TAM"). Nature of the Parking Enforcement Specialist Job The role of a PES is to ensure that members of the public follow the City's parking ordinances and regulations. Job duties include patrolling an assigned area in a vehicle or on foot, inspecting for parking violations, issuing summonses and tickets to violators, and assisting the public by answering questions. A PES must be able to work independently with little or no supervisory assistance and deal courteously and fairly with the public. The PES position is governed by the Collective Bargaining Agreement ("CBA") between the City and the Teamsters' Union. Under the CBA, assignment of work shifts is based on seniority. A PES may be assigned to work night and weekend shifts. Before being assigned a shift to work alone, a newly- hired PES participates in two phases of training. Phase one consists of familiarization with equipment, systems, parking ordinances and regulations, and typically lasts four to six weeks. Phase two is focused on hands-on training and a trainee is given more opportunity to operate the vehicles and equipment. One of the purposes of phase two is to ensure that the trainee is able to appropriately handle problems and stressful situations that may arise on the job, such as dealing with irate members of the public while immobilizing a vehicle. Each phase of training is conducted by a fellow PES who is temporarily designated as a training officer under the CBA. A PES serving in the temporary designation of training officer is not considered a supervisor. The City issues each PES certain take-home equipment, including a public safety police radio, keys, flashlight, and identification card, for use while on the job. A PES takes these items home when not on the job and is at all times responsible for his or her City-issued equipment. To perform the job, a PES is also required to use a License Plate Reader ("LPR") and related systems. A LPR scans license plates and indicates when a car should be issued a citation or boot. A PES is expected to drive a City vehicle and view the screens of the machine that alert when the camera scans a vehicle with outstanding citations. When a LPR alerts a PES of a vehicle with outstanding citations, the PES must carefully pull over and turn on the caution lights to advise oncoming traffic of the stopped City vehicle. Once safely pulled over, the PES may then check whether the vehicle has outstanding citations and issue tickets. The City's Policies and Work Rules Prior to commencing employment at the City, each newly- hired employee is provided with copies of the City's written policies. The City has a Policy Concerning Persons with a Disability and Procedures for Accommodation ("ADA Policy"). It prohibits discrimination against a qualified individual because of his or her disability and states that the City will provide reasonable accommodation when necessary. It also explains the procedures for requesting accommodation and that a request may be made by contacting the City's Office of Professional Standards ("OPS"). OPS handles requests for workplace accommodation and determines whether an accommodation will be provided. On September 27, 2017, Petitioner was given a copy of the City's ADA Policy and executed a form acknowledging receipt of same. At no time during his employment did Petitioner indicate that he was a qualified individual with a disability or that he needed an accommodation for a disability or handicap from the City. In fact, at final hearing, Petitioner admitted he did not believe he had a handicap or needed an accommodation to perform his role as a PES. The City has General Employees' Work Rules ("General Work Rules"), which define Major Rule violations. Leaving the City premises during work hours without a supervisor's permission is listed as a Major Rule violation for which any employee can be discharged immediately without warning. All newly-hired employees at the City receive training on the City's General Work Rules. Each Department is required to post the City's General Work Rules in work areas. TAM posts the City's General Work Rules document in the main security office, which is where PESs check out their parking enforcement equipment and pick up the keys to their vehicles. On September 27, 2017, Petitioner was given a copy of the City's General Work Rules and executed a form acknowledging its receipt. Petitioner's Employment with PES Effective October 2, 2017, Petitioner commenced employment at the City as a probationary PES. Parking Enforcement Supervisor Bryan Greene ("Mr. Greene") was involved in the process of interviewing and hiring Petitioner for the PES position. When Mr. Greene initially contacted Petitioner to set up an interview, he asked if Petitioner would need any accommodation. Petitioner stated that he did not need any accommodation. Petitioner never told Mr. Greene that he had a disability or needed an accommodation to perform the job. Mr. Greene was not aware that Petitioner self-identified as a disabled veteran on his job application with the City. For phase one of training, Petitioner was assigned to train on the day shift. For phase two, Petitioner was assigned to train on the night-shift with fellow PES and training officer, Stephanie Sanchez ("Ms. Sanchez"). Petitioner began his night-shift training with Ms. Sanchez in November 2017. Acting Parking Shift Coordinator Jose Vazquez ("Mr. Vazquez") was the immediate supervisor of Petitioner and Ms. Sanchez. Mr. Vazquez's immediate supervisor was Mr. Greene. In the day-to-day performance of his job, Petitioner could communicate with Mr. Vazquez by phone or e-mail. Petitioner never told Mr. Vazquez or his coworker trainers that he had a disability or needed any accommodation. From time to time, Mr. Vazquez would check in with Petitioner on his progress as a regular part of the training process. Petitioner never reported any problems with Ms. Sanchez to Mr. Vazquez or Mr. Greene. On December 6, 2017, Mr. Vazquez sent Petitioner a series of routine e-mails regarding the status of various equipment and training. In one of his e-mails, Mr. Vazquez asked Petitioner if he felt comfortable with enforcement operations and procedures and to let him know if there was anything he was uncertain about. Petitioner sent a response stating, in relevant part, "Thanks Jose, I am comfortable with enforcement. Would like a little more training with the LPR and the different computer programs used in the field." Petitioner did not request to review anything else as part of training. Events Leading to Petitioner's Termination On December 7, 2017, at 12:30 p.m., Mr. Vazquez forwarded Petitioner's e-mail to Ms. Sanchez in reference to training. He instructed her to go over the LPR process and how it works with Petitioner again and told her to "[l]et him drive and control everything so that he gets a feel of it" and "[h]ave him input manual tags too so that he is aware that the LPR will not read all tags." On December 7, 2017, at 5:00 p.m., Petitioner started his shift. Ms. Sanchez let Petitioner drive the City vehicle in the parking garage while she sat in the back. They stopped, parked behind another vehicle, and turned the caution lights on so that Ms. Sanchez could review the LPR process with Petitioner as he had requested. Ms. Sanchez encouraged Petitioner to review his notes on the LPR from the night before and asked him to replicate the process to check if a vehicle was eligible for immobilization. Petitioner became angry that rather than verbally reviewing the instructions over and over with him, Ms. Sanchez directed him to review his notes. Ms. Sanchez explained that she previously had repeated the verbal instruction and wanted to be sure that Petitioner could understand his own notes because he was nearing the end of his training and would soon be on his own with nothing to rely on but his notes. At that point, Petitioner burst out at Ms. Sanchez in a raised voice, "You're aggravating me, I can't stand working with you--you just want me to fail. I'm going home." Sanchez calmly explained that she was trying to help him and reiterated that they would have to go through the steps to learn the process. Petitioner did not listen. He immediately put the City vehicle into drive and sped off to the other side of the garage with Ms. Sanchez still in the vehicle. Petitioner then parked, got out of the vehicle, and went into the main security office with his belongings. Because of Petitioner's outburst and behavior, Ms. Sanchez did not feel that it was safe for her to approach him and waited in the vehicle. After approximately five minutes, Petitioner exited the main security office. He went towards the parking elevator and left. Petitioner left his City-issued take-home equipment, including police radio, keys to access the building, and identification, inside the main security office which was unsecured. Prior to leaving, Petitioner had only been at work for about one hour. Ms. Sanchez immediately contacted Mr. Vazquez. She notified him that Petitioner left work without permission and sent him an e-mail detailing the incident that occurred while training Petitioner on use of LPR systems. Mr. Vazquez advised Mr. Greene of the incident and forwarded him Ms. Sanchez's e-mail. At no time during his December 7, 2017, shift did Petitioner communicate to any supervisor that he was leaving work or not returning that night. Mr. Greene recommended through chain-of-command that Petitioner, as a probationary employee, be terminated from City employment. He felt that Petitioner would not be a good fit for the PES position because he left work without a supervisor's permission in violation of a Major Rule and left his City-issued take-home equipment unattended in an unsecured building. This raised serious safety concerns given the sensitive nature of the equipment, which included a police radio. Additionally, Petitioner's rude, disrespectful, and troubling behavior towards Ms. Sanchez raised concerns as to his ability to appropriately deal with coworkers and members of the public. The City determined that Petitioner voluntarily resigned when he left work without contacting a supervisor and left his City-issued take-home equipment unsecured in the security office. Accordingly, the City accepted Petitioner's voluntary resignation from employment, effective December 7, 2017. Petitioner's Argument Petitioner claims that he had no intention of resigning and that his separation from employment was a termination based upon his disability or handicap. Petitioner believes that his training by Ms. Sanchez should have conformed to his preference on how to learn (repeated verbal instructions without reference to notes or the guide book) and that he was justifiably upset with her. Petitioner explained that his interaction with Ms. Sanchez triggered intestinal distress, necessitating his need to go home and change clothing. He intended to return to work that night but claims he saw an e-mail from management that if Petitioner returned to work, he was to be told to go back home. Petitioner was not copied on that e-mail nor could he explain at final hearing how he saw that e-mail prior to the initiation of his administrative complaint. Petitioner's testimony on this point is not credible. Further, Petitioner admits he did not contact a supervisor prior to leaving his shift. Despite receiving and reviewing the General Work Rules, Petitioner irrationally assumed it was management's responsibility to reach out to him to find out what was going on, rather than him requesting time off. After going home, Petitioner made no effort that evening to contact a supervisor to explain why he left the job. Petitioner's suggestion, that leaving his work equipment was not an indication of quitting, is also not credible. Petitioner claims that he left the keys and equipment in what he believed was his own mailbox, assumed no one would touch it, and that the building was secure. Petitioner cross- examined the City witnesses at final hearing in detail about where his equipment was actually left (on a desk or in his mailbox) but, ultimately, he provided no rational explanation why he left everything in an unsecured building on December 7, 2017, when after every other shift, he previously took those things home. Petitioner did not identify any handicap or disability either while employed with the City or at final hearing. Nor did he request any accommodation that would have enabled him to perform the essential functions of the PES job.
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 dismissing the FCHR Petition 2018- 04710. DONE AND ENTERED this 13th day of May, 2019, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 13th day of May, 2019.
Findings Of Fact The petition herein was filed by Petitioner with PERC on February 12, 1976. (Hearing Officer's Exhibit 1). The hearing in this case was scheduled by notice dated April 23, 1976. (Hearing Officer's Exhibit 2). The Sheriff of Sarasota County is an officer who holds his position by virtue of Article VIII, Section 1(d) of the Constitution of the State of Florida. The duties, responsibilities, and powers of the Sheriff's Department are delineated in Florida Statutes, Ch. 30. There are no special statutes which alter the provisions of Ch. 30 with respect to the Sheriff of Sarasota County. The Petitioner is an association which is seeking to represent a group of public employees concerning matters relating to their employment relationship with the Sheriff's Department. The Petitioner has been certified by PERC to serve as the bargaining representative for employees of the City of Sarasota, Florida. The Petitioner requested recognition as the bargaining agent of the unit of employees described in the petition. The Sheriff's Department did not respond to the request. (Stipulation, Transcript of Record, Page 6). 1/ There is no contractual bar for holding an election in this case. (Stipulation, TR 6). There is no collective bargaining history which would affect the issues in this case. (Stipulation TR, 6, 7). PERC has previously determined chat the Petitioner is a duly registered employee organization. (Hearing Officer's Exhibit 3). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. PERC has previously determined that the Petitioner filed the requisite showing of interest with its petition. (Hearing Officer's Exhibit 4). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. The parties stipulated that probationary personnel employed by the Sheriff's Department, and special deputies who are not regularly salaried employees of the Sheriff's Department should be excluded from any collective bargaining unit ultimately certified by PERC as appropriate in this case. The organizational structure of the Sheriff's Department is accurately depicted in an organizational chart which was received in evidence as Hearing Officer's Exhibit 5. The Sheriff is the chief executive officer of the Sheriff's Department. The Sheriff's Department is divided into six divisions. There are six sworn law enforcement personnel in the Research, Development, and Training Division. The Division is headed by a Lieutenant. A Corporal serves in this division for two days weekly in the Crime Prevention office. There are four officers in the division. The Sheriff's Staff is headed by the Sheriff. There are no sworn law enforcement personnel in this division. There are five sworn law enforcement personnel in the Detention Division. The Division is headed by a Captain. One sergeant and three patrolmen serve in the division. Two of the patrolmen serve as process servers. The Sergeant supervises the activities of the patrolmen and answers to the Captain. There are approximately 78 sworn law enforcement personnel in the Patrol Division. A Captain is in charge of the Division. There are five lieutenants, seven sergeants, and seven corporals. There are five sworn law enforcement personnel in the Administration Division. The Division is headed by a Captain and includes one lieutenant, one corporal, and two patrolmen. There are sixteen sworn officers in the Investigative Division. The Division is headed by a Captain, and includes two sergeants and three corporals. The Sheriff is ultimately responsible for hiring, firing, suspending, and transferring employees of the Sheriff's Department. Captains serve as heads of four of the Department's divisions. The Captain is responsible for the functioning of his division, and for the assignment and training of personnel who serve under him. Captains are the second highest ranking officers in the Department, and answer directly to the Sheriff. Captains normally work a standard day shift. Lieutenants are in charge of the shifts in the Patrol Division. The lieutenants answer to the Patrol Division Captain. The Lieutenant in the Administration Division is in charge of the Purchasing Office and answers to the Administration Division Captain. The Lieutenant in the Research, Development and Training Division is in charge of the Division and answers directly to the Sheriff. Lieutenants who work the day shift work primarily in the central office. In the four to midnight and midnight shifts the Lieutenant works primarily in a patrol car. Lieutenants are responsible for scheduling the men on their shifts, and for inspecting the men. Lieutenants will serve as acting captain during all times when no captain is on duty. The uniform worn by lieutenants and captains includes a white shirt with the appropriate bars worn on the shoulder. Personnel with the rank of sergeant or below wear uniforms which have light green shirts with patches on the arms. Each of the captains in the Department has use of a department motor vehicle. Some but not all lieutenants and sergeants have use of automobiles. The Sergeants are directly responsible for supervising deputies on patrol. Sergeants are generally responsible for supervising fewer employees than Lieutenants supervise, and Sergeants do not perform regular office functions. Corporals generally serve as backup units for the road deputies. The Sheriff seeks recommendations from each level of the chain of command for personnel action including hiring, firing, transfer, suspension, and other disciplinary action. An advisory committee, which consists of sergeants, corporals, and deputies, makes recommendations respecting hiring of new employees. The Sheriff also utilizes an advisory committee to make recommendations respecting promotions. The Sheriff typically follows the recommendations of Captains respecting personnel administration. Typically the Captains recommendations will be based upon the Lieutenant's recommendations which will be based upon the Sergeant's recommendations. Each division and each department within each division submits proposed budgets to the Administrative Captain. The Administrative Captain and the Sheriff together prepare a proposed budget for the Sheriff's Department. Final budget approval must come from the County Commission. The Sheriff has the various appeal routes set out in Florida Statutes Ch. 30 in the event the County Commission does not approve his proposed budget. Only the Sheriff can expend funds on behalf of the Sheriff's Department. Staff meetings are conducted by the Sheriff on an as-needed basis. Captains and Lieutenants regularly serve on the Sheriff's staff. No personnel below the rank of lieutenant regularly serve on the staff. Other officers are invited to participate in the staff meetings when matters affecting their area of responsibility are involved. The Sheriff receives input at the staff meeting respecting new policies. The Sheriff is ultimately responsible for making decisions respecting new policies, but he does seek the advice of the staff. In the event that the Sheriff's Department engages in the collective bargaining process, no final plans have been formulated respecting which personnel would serve on any negotiating team. The Sheriff intends to do his own negotiating and has not determined whether he will utilize the services of any assistants. ENTERED this 9 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 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 This is an appeal from a resolution of the Monroe County Planning Commission ("Planning Commission") granting the application of Barry J. Mankowitz, M.D., for a variance from the off-street parking requirements of the Monroe County Code. The appeal was transferred from the Planning Commission to the Division of Administrative Hearings pursuant to Article XIV, Monroe County Code, the Hearing Officer Appellate Article. The issue presented in the appeal is whether Resolution No. P33-97 of the Planning Commission should be affirmed, reversed, or modified.
Findings Of Fact In January, 1985, Petitioner acquired an existing retail florist business located at 416 Indiantown Road, Jupiter, Florida. Petitioner's business occupied one-half of the building located at that address. The remainder of the building housed La Casa Mexican Restaurant and a Metro Cellular Phone business. At the time that Petitioner acquired the business, the parking lot for the building consisted of 15 spaces and was shared by all three businesses. Six of those spaces were located behind the building and were accessible from an alley. Nine of those spaces, including the handicapped space, were located in front of the building and were accessible from Indiantown Road. The parking lot for the building constituted a legal non-conforming use, that is, it was permitted to exist without meeting current code requirements of the local government. The business lease entered into by the Petitioner on January 21, 1985, for a term of thirty months was essentially a "standard form" lease. However, Petitioner as Lessee and Petitioner's Lessor specifically added to the standard lease language a twenty-fourth clause which provided as follows: Twenty-Fourth: In the event Indiantown Road is widened during the term of this lease and the widening project results in a loss of more than two of the present ten [sic] parking spaces in front of the building, then the rental payments under this lease can be renegotiated by the parties, and if such renegotiations do not result in terms satisfactory to the tenant, the tenant will have the right to cancel this lease with thirty days notice to the landlord. Accordingly, Petitioner specifically retained the right to either stay or vacate the leased premises if the road-widening project resulted in a loss of more than two of the parking spaces in front of the building. The Department subsequently commenced its road-widening project which resulted in the Department's "taking" of two of the parking spaces in front of the building. The Department paid Petitioner's claim for business damages as a result of the loss of two parking spaces in the condemnation proceeding involving Petitioner and the property owner. After the loss of the two parking spaces, the front parking lot was re- designed so as to more closely comply with local code requirements. That re- design of the parking spaces reduced the number of spaces in front of the building by an additional two, resulting in a total reduction of parking spaces in front of the building by four. The re-design left a total of five spaces in front of the building, including a handicapped space. Although a local government can require a legal non-conforming use to be made conforming under certain circumstances, there is no evidence that the local government required the owner of the property leased by Petitioner to re- design the front parking lot according to code requirements. Accordingly, there is no showing that the deletion of the two additional parking spaces was a direct result of the road-widening project. On approximately July 1, 1991, Petitioner moved its retail florist business to 323 West Indiantown Road, Jupiter, Florida. Petitioner relocated its business at that time because Petitioner's president believed that business "...was at a point where it was just going to be falling off." (R. 37). The relocation of Petitioner's business was caused by Petitioner's decision to conduct its business from a different location. Petitioner did not move its business as a direct result of the Department's acquisition of two parking spaces. Accordingly, Petitioner is not eligible for relocation benefits.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for relocation benefits. DONE and ENTERED this 3rd day of November, 1993, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7265 The Department's proposed findings of fact numbered 5-8 and 10 have been adopted in substance in this Recommended Order. The Department's proposed findings of fact numbered 1 and 2 have been rejected as being subordinate to the issues involved herein. The Department's proposed findings of fact numbered 3, 4, and 9 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Attn: Eleanor F. Turner, Mail Station 58 Tallahassee, Florida 32399-0458 James R. Clodfelter Authorized Representative Acquisition Consultant Enterprises, Inc. Boca Bank Corporate Center 7000 West Palmetto Road, Suite 503 Boca Raton, Florida 33433 Charles Gardner, Esquire Department of Transportation 605 Suwannee Street, Mail Station #58 Tallahassee, Florida 32399-0458
The Issue The issue for determination is whether the Florida Department of Labor and Employment Security illegally rejected Petitioner's bid as nonresponsive.
Findings Of Fact Fred Boozer, Sr., (Boozer), the Petitioner, owns Boozer Properties, a family business which includes a building at 2235 South Babcock Street, Melbourne, Brevard County, Florida. The building is currently occupied by staff of the Florida Department of Labor and Employment Security (LES) and other tenants. In south Brevard, LES staff also occupies another building in Palm Bay. Because of staff expansion and the need to co-locate its offices, LES issued a Request for Proposal (RFP) for Lease No. 540:0904 on January 28, 1992. The RFP had been previously advertised but was successfully challenged on issues unrelated to the issues in this proceeding. The January 1992 RFP sought approximately 11,474 to 11,818 square feet of office space. The RFP also specified that 95 off-street parking spaces be provided for the exclusive use of LES employees and clients. The spaces were to be suitably paved and lined, and under the control of the bidder. The RFP advertised a pre-proposal conference on February 4, 1992. No bidder attended, and no objections to the RFP were filed. Six responses were received on the February 28th deadline, one of which was immediately determined to be nonresponsive. The remaining bid proposals were evaluated, and Boozer's bid, offering his Babcock Street site, and 95 parking spaces, received the highest points from the evaluation committee. During a recent LES bidding process for office space in West Palm Beach, a problem arose with a bidder's ability to provide the required parking spaces. Cognizant of this, the LES leasing manager contacted the City of Melbourne to determine whether the apparent bid winner, Boozer, could meet his obligation to provide 95 spaces. The written response dated March 20, 1992, from Dominic Mauriello, a Melbourne city planner, provides his estimation that, for the various uses in the Babcock Street building, 207 parking spaces would be required. The memo states that a site plan on file at the city planning office reflects that there are 165 spaces. The site plan attached to Boozer's bid proposal submitted to LES indicates that 175 spaces are available. LES staff person, Lynne Mobley, telephoned Fred Boozer on March 24, 1992, informing him of the memorandum from the city. He responded with a request that he be allowed twenty-four hours to provide additional information. By March 27, 1992, the LES leasing office had not received further information from Boozer. The RFP had advertised a 30-day deadline for the bid award, which deadline fell on a weekend. The agency considered that it needed to make the award on Friday, the 27th. After contacting the City of Palm Bay to assure that the next highest rated response could deliver the requisite parking spaces, a letter was sent notifying Woodlake S.W. No. 1, Ltd., (Woodlake) of its award. In a letter dated March 27, 1992, LES notified Boozer that its bid was determined nonresponsive based on the outcome of investigation and consultation with the city regarding his inability to produce the required 95 exclusive spaces. In the meantime, Fred Boozer had contacted Peggy Bray, the City's Planning and Zoning Administrator, who provided an amended estimation stating that 190 spaces would be required for the Babcock Street site, and that the site currently includes 184 parking spaces. Ms. Bray's letter, dated March 27, 1992, states that in order to provide 95 spaces for the Department of Labor, 1800 square feet of office space would need to remain vacant. The Bray letter was immediately sent by facsimile transmission to LES, and was received the afternoon of March 27th, after the award and rejection notices were sent. Boozer's building is approximately 39,000 square feet. Several tenants are month to month lessees, and another tenant is expected to move prior to the beginning of the LES lease term. Boozer is willing to keep vacant the 1800 square feet and contemplated that necessity when he submitted his bid proposal. He did not include this agreement in his written bid response, but neither did LES specifically ask, either in the bid form or at the time of the committee's site walk-through prior to the bid award. Boozer contends that he responded on the bid proposal that he would provide 95 exclusive spaces and he remains willing to provide those spaces. At hearing, Boozer disclosed that 20 additional parking spaces are located adjacent to the subject property and are available for use by HRS' County Health Services, another tenant in the Babcock Street building. The spaces would reduce by 20 the spaces required by the city code, but their existence was not disclosed in the bid proposal as they are not part of the attached site plan. Boozer's onsite parking spaces range from one-half to one foot short of the eleven-feet width required by the city code. No evidence was presented with regard to any pending or contemplated enforcement action, and LES did not base its decision on this defect. LES did base its decision on a good-faith reliance on the communication by a member of the City of Melbourne planning staff. Even when that initial communication was corrected by the planning administrator, the number of spaces available were still less than needed for LES purposes and to comply with the City's code. LES did not anticipate, nor was it informed prior to bid award, of Boozer's ability and willingness to keep space vacant to comply with his commitment to provide 95 parking spaces to LES.
Recommendation Based on the foregoing, it is hereby, recommended that a final order be entered dismissing Petitioner's protest of intended bid award. RECOMMENDED this 18th day of June, 1992, in Tallahassee, Leon County, Florida. MARY CLARK 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 18th day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2372BID The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings of Fact Adopted in paragraphs 2, 3 and 4. Adopted in paragraphs 4 and 9. Adopted in paragraph 6. Adopted in substance in paragraph 7. Rejected as unnecessary. The testimony of Ms. Mobley is that she did not receive the message. Adopted in paragraph 10. Adopted in paragraphs 8 and 9. Adopted in paragraphs 10 and 13. Rejected as unnecessary. 10-13. Adopted in paragraph 11. Rejected as unsubstantiated by competent evidence. Adopted by implication in paragraph 5. Rejected as irrelevant, except as to Intervenor's spaces, which is adopted in paragraph 8. 1718. Rejected as unnecessary and irrelevant. Respondent's Proposed Findings of Fact 1. Adopted in paragraph 3. 2. Adopted in paragraph 1. 3. Adopted in paragraph 2. 4-5. Adopted in paragraph 4. 6-7. Adopted in paragraph 5. 8. Adopted in paragraph 6. 9. Adopted in paragraph 7. 10-11. Adopted in paragraph 8. 12. Adopted in paragraph 10. 13. Adopted in paragraph 12. 14. Adopted in paragraph 9. Intervenor's Proposed Findings of Fact 1-2. Adopted in substance in paragraph 3. 3. Rejected as unnecessary. 4-5. Adopted in paragraph 4. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 11. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 10. Adopted in paragraph 9. 15-16. Adopted in paragraph 8. Rejected as unnecessary. Adopted in Preliminary Statement. 19-28. Rejected as unnecessary. COPIES FURNISHED: Howard M. Swerbilow, Esquire Post Office Box 541271 Merritt Island, FL 32954-1271 Edward A. Dion, Esquire Department of Labor and Employment Security Suite 307, Hartman Building 2012 Capital Circle Southeast Tallahassee, FL 32399-2189 Jack Spira, Esquire 5205 Babcock Street N.E. Palm Bay, FL 32905 Alan Taylor Elizabethan Development Corporation 245 Avenue O S.W. Winter Haven, FL 33880 Frank Scruggs, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle S.E. Tallahassee, FL 32399-2152 Cecilia Renn Chief Legal Counsel Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle S.E. Tallahassee, FL 32399-2152
