The Issue The issue presented is whether Respondents are guilty of the allegations contained in the Administrative Complaint filed by Petitioner against them, and, if so, what disciplinary action should be taken, if any.
Findings Of Fact At all times material hereto, Respondent Richard Charles Weit has been a real estate broker licensed in the state of Florida, having been issued license numbered 0094418, and Respondent R C Properties International, Inc., has been a real estate broker licensed in the state of Florida, having been issued license numbered 0195105. At all times material hereto, Respondent Weit has been licensed and operating as a qualifying officer and broker of Respondent R C Properties. Jose Martinez met Respondent Weit in approximately 1986 as a result of a newspaper ad which had been placed by Weit. Weit personally owned a number of properties. At the time, Martinez was a construction worker, looking for real estate considered to be a "handyman special." Martinez wanted to buy property which was in need of repair so that he could make the repairs and then sell the property at a profit. Martinez purchased from Respondent Weit three such properties owned by Weit during 1986 and one during 1987. He bought them, repaired them, and sold them at a profit. On several occasions, Respondent Weit sold those properties for Martinez after Martinez had executed the necessary repairs. On all occasions, Respondent Weit sold those properties to Martinez for very small down payments since they both understood that Martinez needed his available cash to make the necessary repairs in order to be able to sell them at a profit. Respondent Weit was not acting as a real estate broker in any of those transactions or in the transaction involved in this proceeding. The properties which he sold to Martinez were owned by Weit. As the business relationship developed between Martinez and Weit, both men developed a trust for each other and worked together somewhat informally in that business relationship which resulted in a profit for both of them. By 1989 Martinez had gone into business with a partner, Jesse Deveras. As a licensed general contractor, Deveras was able to "pull permits" for the repairs which Martinez needed to make to the "handyman specials." In early 1989, Martinez and Deveras talked with Respondent Weit about purchasing an apartment building that Weit owned at 227 Northeast 26th Street, Miami, Florida. The apartment building was a three-story CBS structure containing 18 units. At the time, Martinez and Deveras were interested in purchasing that apartment building and another building located on the next street. Respondent Weit set the sale price for the apartment building at $190,000 and drafted a contract to that effect. Martinez and Deveras did not wish to pay that much for that building, and the contract was never executed. Martinez and Deveras thoroughly inspected that building at that time and fully understood that the building was in need of repair. Around that time, Respondent Weit received a letter from the Department of Housing and Urban Development of Metropolitan Dade County, Florida, notifying him that the apartment building was in need of repairs and was in violation of certain minimum housing standards. That letter gave Respondent Weit 60 days in which to remedy the violations. The violations were all clearly visible and involved such things as repairing windows and screens, replacing deteriorated door jambs and baseboards, replacing broken electrical switch cover plates, and repairing the damage from some "apparent water seepage." Respondent Weit showed Martinez and Deveras that letter. On November 13, 1989, Jorge Garcia, a police officer for the City of Miami Police Department, was dispatched to Respondent Weit's apartment building to check for "criminal elements." While there, he noticed a strong smell of gas. He notified the Fire Department, which responded to his call with fire engines and a fire inspector. The Fire Department subsequently summoned an inspector from the City of Miami Code Enforcement Section. A determination was made that there was a gas leak in the building. Accordingly, the remaining tenants were evacuated, and all utility service to the building was terminated. Officer Garcia obtained from a family living there the name and telephone number of Respondent Weit as the person in charge of collecting rent. He contacted Respondent Weit and spoke with him personally no later than the following day. He advised Weit that the building was going to be condemned, that the tenants needed to be relocated, and that the building was to be boarded up to prevent entry. Since the tenants had just made a rent payment, Officer Garcia told Respondent Weit that he should refund the rent payment so the tenants could move elsewhere. Respondent Weit went to the police station on Biscayne Boulevard where Officer Garcia worked and left the rent money he had collected so that it could be returned to the tenants. On November 14, when City of Miami officials returned to the apartment building, they discovered that Respondent had complied with their instructions. The doors and windows of the apartment building were locked and boarded up to prevent entry. Further, the iron gate at the front door was padlocked and chained. Maurice Majszak was the City of Miami fire inspector who responded to the property on November 13, 1989. During his inspection he found violations of the South Florida Building Code and the National Fire Protection Agency life/safety handbook, which the City of Miami was authorized to enforce. He returned to his office and drafted a letter to Respondent Weit on that same day, describing the violations which he had found and ordering Respondent Weit to correct those violations within 45 days. That violation letter was attached to a transmittal letter dated November 14, 1989. Respondent Weit had continuing problems with receiving his mail at the address of R C Properties. Accordingly, he had made arrangements with fire inspector Maurice Majszak so that whenever the City of Miami Fire Department needed to contact Respondent regarding any of the properties owned by him, rather than mailing notices to Respondent, Inspector Majszak would hand- deliver notices to Respondent after 2:00 p.m. That arrangement had worked well over the years, and Respondent Weit had always signed for any notices which the fire department hand-delivered to him. On November 14, 1989, Inspector Majszak attempted to hand deliver the two fire department letters to Respondent Weit-- the November 13 violation letter and the November 14 transmittal letter. Since he was unable to do so because Respondent Weit was not there, Inspector Majszak subsequently sent the letters to Respondent Weit by certified mail, but he failed to receive them. Pursuant to his inspection, the inspector from the Code Enforcement Section of the Building and Zoning Department of the City of Miami directed a letter to Respondent Weit dated November 22, 1989, advising him that the apartment building needed to be repaired or demolished. That letter was sent to Respondent Weit by regular mail but was not received by him. On December 9 or 10, 1989, Martinez and Deveras approached Respondent Weit about purchasing the apartment building. They advised Respondent Weit that they had again inspected the building approximately a week earlier. Since the apartment building was now vacant (not producing rental income) and due to the nature of the repairs needed, Respondent Weit agreed to reduce the purchase price by $40,000. On December 11, 1989, Martinez and Deveras entered into a contract with Respondent Weit whereby they agreed to purchase the apartment building from him. The new purchase price was $153,000, for which Martinez and Deveras put up a deposit of only $500. The contract recited that although Respondent Weit was a registered real estate broker, he was selling the property on his own account, that no commission would be paid by the purchasers, and that the property was being sold "as is." The contract further provided that the buyers would pay $8,500 in cash at the time of closing, of which the $500 deposit would be a part. Under the contract, Respondent Weit would take back a purchase money wrap-around mortgage. The contract specifically provided that the purchasers were taking title to the building on that same day although the closing would take place at a later date. It further provided that although interest on the mortgage would begin running from that same day, no mortgage payment would be due until 75 days later. Taxes, rent, and other revenue and expenses were to be prorated as of December 11, 1989, the date of the contract. The contract also specifically recited that the apartment building being purchased was vacant. It was understood by Respondent Weit, by Martinez, and by Deveras that Weit was requiring only a small down payment because Martinez and Deveras needed to have their cash available to effectuate repairs to the building in order to rent it and then sell it at a profit. Further, all three understood that the repairs needed to commence quickly so that the building could be rented. Although the three men considered Martinez and Deveras to be the "official owners" of the building as of December 11, 1989, the date they signed the contract for the purchase and sale of the building, they knew Martinez and Deveras would not be owners of record until the closing took place. They also understood that there might be some problem with the City of Miami insofar as Deveras "pulling permits" to begin the repair work prior to Deveras and Martinez becoming the owners of record. Accordingly, at the request of Martinez and Deveras, Respondent on December 11, 1989, executed an affidavit that he had just sold the property to Martinez and Deveras. The three men reasoned that the affidavit would be sufficient to allow Deveras to begin "pulling permits." The closing was scheduled for January 12, 1990. Martinez requested that Respondent Weit's attorney prepare all of the closing documents so that Martinez could avoid incurring additional expenses relative to acquiring title to the property. No title examination was performed by Martinez or Deveras or by anyone on their behalf, and they did not require one. Prior to the closing date, Martinez again approached Respondent Weit and explained that he could not pay the cash at closing because he needed to utilize all of his money for the necessary repairs. Respondent Weit agreed that Martinez and Deveras would pay him no cash at closing and that Martinez would give him a mortgage on a different property owned by Martinez instead. The closing did take place on January 12, 1990, using a closing statement computed as of December 11, 1989. Rather than receiving cash at closing, Respondent Weit received a mortgage in the amount of $8,500 on the other piece of property owned by Martinez. Accordingly, on January 12, 1990, Martinez and Deveras became owners of record of an 18-unit apartment building for a total expenditure of approximately $500 in closing costs. Thereafter, Martinez and Deveras went to the City of Miami to "pull permits" to begin the repair work. At that time, City of Miami officials showed Deveras and Martinez copies of the November letters which had been mailed to Respondent Weit. Respondent Weit had never told Martinez or Deveras about those November letters since he had not known about them. Deveras and Martinez never made any repairs to the apartment building. Further, they never made any mortgage payments to Respondent Weit pursuant to either the mortgage on the apartment building or the mortgage on the other property owned by Martinez which had been used to substitute for the cash owed to Respondent at closing pursuant to the purchase and sale contract. Instead, on April 23, 1990, Martinez and Deveras entered into a contract to sell the apartment building to Miguel Santiago for $165,000. That contract recited that the property was being sold "as is." The only specific disclosure regarding the condition of the building contained in that contract is as follows: "Buyer acknowledges that there exists code violations on the property which he agrees to correct at his own expense." The contract further required the buyer to begin repair work on the property within two weeks of closing. Respondent Weit agreed to the transfer of the mortgage and approved of the sale to Santiago. In approximately November of 1990 he voluntarily appeared before the Unsafe Structures Board of Metropolitan Dade County, Florida, to assist the subsequent owners of the apartment building to show cause why the building should not be demolished. Eventually, the City of Miami entered into a contract for the demolition of the building. The building was demolished in September of 1991. By 1990, Martinez had become licensed as a real estate salesman in the state of Florida. Since then, he has been employed part time as a real estate salesman working out of his own home. Respondent Weit eventually filed suit against Martinez and Deveras due to their nonpayment under the mortgages. In June of 1991 Martinez and Deveras filed a complaint with the Department of Professional Regulation alleging that Respondent Weit had sold them a building without them knowing its condition. That complaint resulted in the Administrative Complaint filed in this cause.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Respondents Richard Charles Weit and R C Properties International, Inc., not guilty and dismissing the Administrative Complaint filed against them in this cause. RECOMMENDED this 11th day of June, 1992, 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 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1992. COPIES FURNISHED: Theodore Gay, Esquire Department of Professional Regulation 401 Northwest 2nd Avenue, Suite N-607 Miami, Florida 33128 Mr. Richard C. Weit 775 Northeast 79th Street, Suite B Miami, Florida 33138-4743 R C Properties International, Inc. 775 Northeast 79th Street, Suite B Miami, Florida 33138-4743 Darlene F. Keller, Division Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 APPENDIX Petitioner's proposed findings of fact numbered 1-11 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 12 has been rejected as not being supported by any competent evidence in this cause.
Findings Of Fact The parties to this proceeding have stipulated to the correctness of the following facts: Respondent filed a Consent and Joinder simultaneously with the Declaration of Tuscany Place, a condominium, which was recorded in Official Records Dock 1281, Page 1833, Public Records of Seminole County, Florida, and was filed with the Division of Florida Land Sales and Condominiums under I.D. #80 CN5742. Respondent accepted deeds in lieu of foreclosure from the Developer, Goehring Development Corp., under paragraph number 16.5 of the Declaration of Condominiums which deeds were dated May 10 and May 12, 1982, and recorded in Official Records Book of Seminole County, Florida. (Copies of the deeds are attached [to the Stipulation as to Facts] and are self-explanatory.) Respondent sold Unit 16-E to Huey M. Napier. All remaining units were sold to Larry J. Whittle on January 31, 1983. Copies of contracts for the two purchases are attached [to the Stipulation as to Facts]. The term "developer" was defined in paragraph 21.7 of the Condominium Declaration and was approved for filing by the Division including the provision that any successor or alternate developer must indicate its consent to be treated as the developer. Respondent attempted to comply with oral and written communications from the Division as to the regulation relating to "Subsequent Developer," as Respondent could not locate Statutes or Division Rules requiring Subsequent Developer filing. Copies of letters from the Division are attached [to the Stipulation as to Facts]. Respondent admits the sales described above, but denies any liability under Statutes or Rules as a matter of Law. The above-numbered paragraphs constitute the facts stipulated between the parties. Attached to the parties' stipulation are a series of documents. These documents establish that the aforementioned sale from Respondent to Huey M. Napier occurred on or about October 22, 1982. This sale involved a single condominium unit. The remaining ten units obtained by Respondent from the original developer by virtue of a deed in lieu of foreclosure were sold on or about January 4, 1983. On or about November 29, 1982, representatives of Petitioner warned Respondent's counsel that failure to file as a second developer with Petitioner in accordance with Section 718.502, Florida Statutes, would place Respondent in violation of that law. Respondent subsequently filed with Petitioner in accordance with the requirements of Section 718.502, Florida Statutes, on or about January 14, 1983.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioners have been subjected to discrimination as envisioned by the "Fair Housing Act" Section 760.37, Florida Statutes (2007), concerning the terms, conditions, privileges, or services and facilities, regarding their rental housing and based upon their alleged disabilities.
Findings Of Fact The Petitioners (the Tuccis) have been long-time tenants of Mrs. Ngyuen's. They moved into apartment number eight in the apartment complex known as Silver Springs Place Apartments in May 2002. They have resided there ever since. When the Petitioners first heard about their apartment being available in 2002 they had a conversation with the Respondents and she invited them to go look over the apartment to determine if they wished to move in. Before the Respondents were aware of it, the Tuccis had moved into the apartment. They apparently never actually filed an application for rental with the Respondents. After she learned that they had unilaterally moved into the apartment, she met with the Petitioners and the Petitioners signed a lease. They have lived in apartment number eight ever since. The Respondent and her husband own the apartment complex in question in Ocala, Florida. The property is located at 1315 Southeast Silver Springs Place in Ocala, Florida. The Petitioners contend that they are disabled with various mental and physical disabilities. Mr. Tucci has chronic low back pain and degenerative arthritis of the knees. Mrs. Tucci has sclerosis with chronic back pain. Mrs. Tucci is receiving Social Security Disability benefits. The Petitioners maintain that the Respondents knew of their disabilities because the Ocala Housing Authority informed the Respondents of their disabilities at the time or after the time they rented they originally rented the apartment. They contend that they indicated their disabilities and the fact that Mrs. Tucci was receiving Social Security Disability benefits, on their rental application. Neither the Petitioners nor the Respondents provided any evidence of such a rental application. There is no persuasive evidence that the Ocala Housing Authority ever informed the Respondents, concerning any disabilities of the Petitioners. The Petitioners maintain that they requested a reasonable accommodation for their disabilities from the Respondents, consisting of the opportunity to move to a downstairs apartment in order to enable them to avoid the physical rigors of climbing stairs and to better enjoy their apartment premises. They maintain that the Respondents denied their request. The Petitioners also maintain that they requested that numerous repairs be made by the Respondents since June of 2005, such as repairs to the refrigerator, the stove, and the cabinets. They contend that the Respondents refused to make those repairs. Additionally, they Petitioners contend that the Respondents harassed, intimidated, and threatened them by attempting to terminate their tenancy if they did not pay a noticed rent increase. They maintain that the Respondents coerced them by not renewing their lease after they requested a downstairs apartment. Mrs. Nguyen contends that the Respondents had no knowledge that the Tuccis were handicapped. They have been long-time tenants of the Respondents. It was only upon her advising Mr. Tucci that she was going to have to raise the rent by $25.00 per month, to cover the increased expenses of insurance and tax increases, that the Petitioners lodged an allegation of discrimination against the Respondents. There is no question that the Petitioners are disabled and that is undisputed. The Respondents knowledge of that disability, whether or not they received a request for a reasonable accommodation of it and whether they acted to accommodate the disability in a reasonable fashion is in dispute. On several occasions Mrs. Ngyuen has observed Mr. Tucci walk up and down the stairs carrying groceries and washing and waxing his car. She has observed Mrs. Tucci on numerous occasions walk up and down the stairs carrying groceries from the store, walk to the store, or hang clothes on a clothes line. She observed that the Petitioners seem to be able to perform these tasks without any difficulty and to give no indication that they suffered from a disability or a handicap. Mr. Tucci, on a number of occasions requested to move to a downstairs apartment. The first time was approximately two years or more ago when a downstairs apartment became available. Mrs. Ngyuen told the Tuccis they could have the apartment, but that they would need to move within two days in order to give her adequate time to prepare the Tuccis apartment for re-rental. The Tuccis stated to her that they could not move that quickly and so the move never occurred. Mrs. Ngyuen rented the apartment to another tenant. Vacancies do not occur frequently in this apartment complex and when a vacancy occurs the apartment is typically rented within one week. If the Respondents left the downstairs apartment un-rented for the two weeks the Tuccis requested, as necessary time to allow them to arrange a move to the downstairs apartment, such would cause the Respondents to keep the apartment vacant for an inordinate period of time and to suffer significant financial loss. The second request by the Tuccis to move to another downstairs apartment came approximately six months after the first request. In this instance the Petitioners wanted to move from their one bedroom apartment into a two-bedroom apartment, which was a downstairs apartment. Mr. Ngyuen advised them that they could have that apartment, but the rent would be more than for the one bedroom apartment they were currently living in. Mr. Tucci offered to pay the same one bedroom rent and then to, in effect, pay in-kind for the extra amount of rental for the two bedroom apartment by keeping a watch on the Respondents property at the apartment complex, in lieu of paying the extra rental price. Mrs. Ngyuen rejected that offer and Mr. Tucci did not agree to move into the apartment. It was rented to another tenant. On two other occasions in October of 2004 and October 2005 downstairs apartments became available for rental, but the Petitioners never requested to move on those two occasions. The Petitioners never communicated to the Respondents that they were actually handicapped or disabled nor did they actually request a reasonable accommodation for their disabilities, in terms of requesting a downstairs apartment (or otherwise). The persuasive, preponderant evidence reveals that the Respondents did not harass, intimidate, or threaten the Petitioners with terminating their tenancy. Mrs. Ngyuen did call the Petitioners in April of 2006 to ask them if they intended to renew their lease. Their lease was due to expire on May 31, 2006. Mrs. Ngyuen informed them at this time that their rent would have to increase from $350.00 per month to $375.00 per month due to increases in property insurance premiums and property taxes and other costs. Mr. Tucci apparently became angry at this prospect and at about this time Mrs. Ngyuen informed him that if he did not pay the increase in rent she would be forced to lease the property to someone else. She then sent the Petitioners a 30-day notice of expiration of their lease. Thereafter, however, the Petitioners continued to live in the same apartment and entered into an agreement with the Respondents for a month-to-month tenancy. The Petitioners have also alleged that the Respondents failed to provide them with the same terms and conditions of tenancy in terms of making requested repairs to items in their apartment. Specifically, they requested repairs to their refrigerator, the stove, and the cabinets. The Petitioners apparently attribute this alleged failure to provide the same terms and conditions of tenancy as other tenants to be due to their disabilities. In fact, the Respondents received two requests for repairs from the Petitioners since they have resided in the apartment. The first one was a requested repair to the refrigerator and stove. The repairs were completed within a matter of one or two days. The second request was on June 5, 2006, in which the Petitioners stated that their toilet was leaking. In fact, Mr. Tucci fixed it himself. The Respondents did go to inspect the Petitioners unit on June 6, 2006, to see if any further repairs needed to be made. Mr. Tucci informed the Respondents of his refrigerator leaking at that time and they replaced it. The Petitioners, in fact, acknowledged that the requested repairs had been made. Witness George Henry Bennett had been a tenant of the Respondents for approximately 13 years. He is a disabled person and receives Social Security, 100 percent disability benefits and has since 1994. He has never observed or experienced any instances of discrimination against disabled persons, including himself, by the Respondents. He is unaware of any complaints by tenants concerning the way the Respondents operate and maintain the apartment complex. In his experience, repairs are always made by the Respondents in a timely manner. He has heard the Petitioner Angelo Tucci state that he was going to "get" the Ngyuens. In summary, in consideration of the totality of the testimony it is apparent that a rather rancorous relationship on the part of Petitioner Angelo Tucci towards the Respondents has developed over time. In view of the testimony, and upon observation of the candor and demeanor of the witnesses, it is evident that this relationship has biased the testimony of the Petitioners somewhat, particularly that of Angelo Tucci. In light of this circumstance, it is determined that the testimony of witness Ngyuen, for the Respondents, and that of George Bennett is more credible and persuasive than that of the Petitioners. It was thus established that, although it is undisputed that the Petitioners are disabled, that there is no credible, persuasive evidence that the Respondents have been motivated to, nor have acted in a manner discriminatory toward the Petitioners on account of their disabilities. It is determined that the Petitioners have not requested a downstairs apartment as a request for a reasonable accommodation for their disabilities. It has not been demonstrated by credible, persuasive evidence that the Respondents were aware of their disabilities. It is further determined that the Respondents' decision not to keep the subject downstairs apartment or apartments vacant for the period of time the Petitioners deemed required for them to effect a move was a reasonable business decision. It was made by the Respondents to avoid an undue financial impact on their operation which would be caused by leaving an apartment vacant for a two week period of time while waiting for the Petitioners to move and with the resultant delay in refurbishing and preparing their vacated apartment for new tenants. This decision by the Respondents was not shown to be related in any way to any discriminatory animus toward the Petitioners because of their disabilities. It is determined that the Petitioners never provided the Respondents any rental application which depicted the fact and circumstance of their disabilities to the Respondents.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and the arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 4th day of February, 2008, 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 4th day of February, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Angelo and Melissa Tucci 1315 Southeast Silver Spings Place Number 8 Ocala, Florida 34471 David Porter, Esquire 351 Northeast 8th Avenue Ocala, Florida 34470
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Rule 7C-1.04 as set forth in the Notice to Show Cause and that a $200 fine be imposed. DONE and ENTERED this 11th day of March, 1983, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1983. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Billy M. Arzie Arzie Apartments 710 North 2nd Avenue Jacksonville Beach, Florida 32250 Sherman S. Winn, Director Division of Hotels and Restaurants 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Respondent Emerald Plaza West, Inc., holds license No. 23-12623-H, issued by petitioner. Miami Garden West Apartments consists of 31 or 38 (T. 79) apartments, in several buildings located on Northwest 183rd Street in Miami, Florida. Rogers Brown, who has worked as an inspector for petitioner for six years, visited Miami Garden West Apartments on April 29, 1981, to perform a "call back" inspection. He wanted to determine whether violations he had noted on a routine inspection on February 19, 1981, had been corrected. He found that a hot water faucet handle with stripped threads had not been replaced; that an old, tagless car remained in the complex's parking lot; and that a handrail leading to the second story of building No. 18259 had not been properly secured. It still needed welding. The eaves on buildings 18257 and 18259 were rotten; the laundry room lacked a door and the living room ceiling in apartment No. 3 in building No. 18259 leaked. In addition, Mr. Brown found on April 29, 1981, that certain conditions had persisted since June of the year before. The drop ceiling in apartment No. 4 continued to need repair; the ceiling in apartment No. 2 in the building at 2250 Northwest 183rd Street continued to leak; and roaches and evidence of rodents continued to be present. By September 3, 1981, the drop ceiling had been repaired and a new faucet handle had replaced the threadless one. The window in apartment No. 2 in the building at 2250 Northwest 183rd Street had been worked on, but the handrail in building No. 18259 still needed repair. Moisture remained on the ceilings of the southeast bedroom of apartment No. 4 in the building at 2250 Northwest 183rd Street and the living room of apartment No. 3 in building No. 18259, notwithstanding various roof repairs. The laundry room lacked not only a door but also a door frame. Respondent makes repairs from time to time and regularly exterminates the premises. Petitioner filed a proposed order which has been considered in the drafting of the foregoing findings of fact and substantially adopted, in substance. Proposed findings that have not been adopted have been rejected as inconsistent with or unsupported by the evidence or as irrelevant to the controversy.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner assess a civil penalty against respondent in the amount of $1,500. DONE AND ENTERED this 14th day of January, 1982, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1982. COPIES FURNISHED: Janice G. Scott, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Tomas F. Gamba, Esquire 779 Brickell Plaza, Suite 706 Miami, Florida 33131 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Sherman S. Winn, Director Division of Hotels and Restaurants 725 South Bronough Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue Whether Respondents committed discriminatory housing practices against Petitioner as alleged in the Petition for Relief filed by Petitioner.2
Findings Of Fact Petitioner is a male of Hispanic origin. Petitioner suffers from a debilitating physical illness and has a history of mental illness. Respondents own and/or operate a large apartment complex in Dade County, Florida. At no time relevant to this proceeding did Respondents or their staff know that Petitioner suffered from a debilitating illness. Petitioner resided in Apartment 1519 of Respondents’ apartment complex between an unspecified date in 1999 and December 2003. In approximately March 2003, Petitioner requested permission of Respondents to transfer to another apartment in Respondents’ apartment complex. This request was made prior to the expiration of Petitioner’s then-current lease. Petitioner testified that the request was made after Apartment 1519 was vandalized. At all times relevant to this proceeding, Respondents had a policy that permitted a resident to transfer from one apartment to another apartment prior to the end of the tenant’s term only if the tenant’s payment history demonstrated that the tenant had no rent checks dishonored by the tenant’s bank and that he or she had not been late in paying the rent on more than two occasions. Respondents denied Petitioner permission to transfer from one apartment to another only because of Petitioner’s poor payment history. Over the course of his tenure in Respondents’ apartment complex, Petitioner had been late with his rent payment on 12 separate occasions and had rent checks dishonored on two separate occasions because his bank account had insufficient funds to cover the checks. There was no evidence Respondents discriminated against Petitioner by denying his transfer request. In December 2003, Respondents evicted Petitioner from Apartment 1519. This action was taken based on Petitioner’s poor payment history, because he repeatedly caused disturbances at the apartment complex, and because he damaged his apartment and neighboring apartments by intentionally flooding his apartment.3 There was no evidence Respondents discriminated against Petitioner by evicting him from Apartment 1519.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition For Relief. DONE AND ENTERED this 1st day of April, 2004, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 1st day of April, 2004.
The Issue Whether Respondents discriminated against Petitioner in the rental of her apartment based on Petitioner’s religion (Catholic) or handicap (Fibromyalgia) as alleged in the Petition For Relief filed by Petitioner with the Florida Commission on Human Relations (FCHR) on November 3, 2008.
Findings Of Fact At times relevant to this proceeding, Petitioner resided in an apartment located at 937 Southwest 7th Avenue, Miami, Florida (the subject apartment complex). Petitioner moved from the apartment in February 2008, after her rent subsidy payments ended. Guevara Management II, Inc. (Guevara Management) managed the apartment complex at which Petitioner resided. Rodo Guevera is an owner of Guevara Management. Mr. Ramirez is a tenant at the subject apartment complex. Mr. Ramirez has assisted Mr. Guevera from time to time in making emergency repairs at the complex, but Mr. Ramirez has no managerial authority or responsibility for the apartment complex. Petitioner testified that she suffers from Fibromyalgia. Petitioner’s only claim of discrimination based on her alleged disability is her observation that over the last couple of years other tenants who have assistive apparatuses for ambulation have moved out of the apartment complex. Petitioner does not normally use a cane or other assistive device to help her with her ambulation. Both Mr. Ramirez and Mr. Guevara testified, credibly, that they were unaware that Petitioner suffered from Fibromyalgia and that they had never seen her use a cane or other assistive device. Mr. Guevara acknowledged that certain tenants who used assistive devices for ambulation had moved out of the apartment complex over the past couple of years. Mr. Guevara explained, credibly, that those tenants had voluntarily moved to facilities that could provide them more assistance as their need for care increased. Petitioner alleged that Mr. Ramirez engages in voodoo practices and that he had vandalized her apartment because she is a Catholic. Petitioner alleged that Mr. Ramirez vandalized her apartment, left voodoo and cult paraphernalia in her apartment, cut off her water supply for three weeks, harassed her, and stalked her. There was no evidence that Mr. Ramirez, Mr. Guevara, or anyone acting on behalf of Guevara Management knew that Petitioner was Catholic or committed any act based on her religion. Petitioner had a physical confrontation with Mr. Ramirez after he cut off her water supply following a leak in a water heater. As a result of this confrontation, Mr. Ramirez obtained a restraining order against Petitioner and Petitioner was involuntarily hospitalized pursuant to Part I of Chapter 394, Florida Statutes, which is commonly referred to as the Baker Act. Petitioner was released following a week of hospitalization. Mr. Ramirez testified, credibly, that he only wants Petitioner to leave him alone. Mr. Ramirez’s denial that he has ever harassed or stalked Petitioner is credible. There was insufficient evidence to establish that Mr. Ramirez is a member of Santeria or any other cult. Mr. Ramirez testified, credibly, that he is Catholic. There was insufficient evidence to establish that Mr. Ramirez or anyone else improperly entered or vandalized Petitioner’s apartment. Mr. Guevara acknowledged that Petitioner’s water supply had been cut off on occasion so that necessary repairs could be made to the plumbing, but he further testified, credibly, that Petitioner’s water supply had never been cut off for a three-week period.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the FCHR enter a final order finding Respondents not liable for the acts of discrimination alleged in the subject Petition for Relief. DONE AND ENTERED this 8th day of April 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 8th day of April 2009.
Findings Of Fact Respondents, Max Kastner and Gitta Kastner, were at all times material hereto licensed by Petitioner, Department of Business Regulation, Division of Hotels and Restaurants, to operate the Euclid Apartments, 1211 Euclid Avenue, Miami Beach, Florida, license number 23-3431H, and the Euclid Plaza Apartments, 1227 Euclid Avenue, Miami Beach, Florida, license number 23-51O8H. The Euclid apartments On February 27, 1986, Petitioner inspected the Euclid Apartments and found that the fire extinguishers located on the premises were not attached with a State approved service tag and were in need of recharging, the premises' front doors were not equipped with automatic self-closing hardware, an extension cord was run from a hallway light fixture to apartment 14, numerous jalousies and screens were missing or broken, furniture was stored in the hallways; the wall at the entrance to the building was breached by a hole which could admit vermin onto the premises, and, refrigerators were stared outside the building. At the conclusion of the inspection, Respondents were issued a written warning which detailed the deficiencies and directed that they be corrected within 7 days. On March 6, 1986, Petitioner re-inspected the Euclid Apartments and found that while the deficiencies relating to the storage of furniture, the storage of refrigerators, and the extension cord had been corrected, Respondents had failed to correct the remaining deficiencies. Accordingly, Petitioner issued the subject notice to show cause. The Euclid Apartments were subsequently inspected on two occasions. On March 20, 1986, Petitioner's inspection of the premises found that all deficiencies bad been corrected except for the installation of automatic self- closing hardware and the replacement of missing or broken screens and jalousies. On May 13, 1986, the premises were once again inspected and found to be free of deficiencies except for the absence of the self- closing hardware for the front doors. The Euclid Plaza Apartments On February 27, 1986, Petitioner inspected the Euclid Plaza Apartments. Pertinent to this proceeding, Petitioner's inspection revealed that one Fire extinguisher was missing and that the remaining fire extinguishers required recharging; jalousies and window screens were missing; the exit doors of the building were not equipped with automatic self-closing hardware; open vent spaces were not closed, and a current State license was not displayed. At the conclusion of this inspection, Respondents were issued a written warning detailing the deficiencies and directed to correct them within 7 days. When the Euclid Plaza Apartments were reinspected on March 6, 1986, the only deficiency that had been corrected was the replacement of missing jalousies, however, the premises were reinspected on March 21, 1986, following the Petitioner's issuance of a notice to show cause, and all deficiencies were found to have been corrected. The Written Warning The warnings issued by Petitioner on February 27, 1986, granted Respondents 7 days within which to correct the deficiencies, When Petitioner reinspected the premises on the morning of March 6, 1986, 7 days had not yet elapsed. Mr. Kastner averred that all deficiencies were corrected by the end of the day of March 6, 1986. The evidence fails to establish that Respondents did not correct any deficiencies in a timely manner except for their failure to install automatic self-closing hardware on the front door of the Euclid Apartments and their failure to replace missing or broken screens and jalousies at the Euclid Apartments.
The Issue Whether the Petitioner, Antonella DiBella, is entitled to credit for the answer provided to Question 68 on the Florida real estate broker's license examination taken on June 25, 2003. If so, the Petitioner asserts she should have been awarded a passing grade on the licensure test.
Findings Of Fact The Petitioner is a candidate for licensure as a Florida real estate broker. At issue in this proceeding are the examination results to the licensure test taken by the Petitioner on June 25, 2003. The Respondent is the state agency charged with the responsibility of administering the licensure examinations and for determining whether or not an applicant's test answers should receive credit. In this case the Petitioner believes the answer she provided to examination Question 68 should receive credit. Question 68 is part of a multiple-choice section that gives applicants a statement then lists four options for completion of the statement; only one of the options is awarded points. The Petitioner chose an option that was not awarded points. The selection and scoring of the question is not disputed. That is, the Petitioner acknowledges the selection she made and recognizes that it was not the option awarded points by the Respondent. Thus there was no scoring error alleged. Instead, the Petitioner believes that the answer she provided, "leverage," was the correct completion to the statement. It was not. The statement in Question 68 described a process that is defined as "disintermediation." The correct answer is supported by information found in texts approved by the Florida Real Estate Commission (FREC). Neither the Respondent nor FREC requires real estate broker schools to use any specific textbook. Schools choose textbooks from those approved by the Respondent and prepare students as they may deem appropriate. The Respondent does not require that an approved text contain all the terms that may appear on an examination within a glossary. In fact, the textbook used by the Petitioner did not contain "leverage" or "disintermediation" within the glossary. The Petitioner believes that had the terms been within the glossary of her text, the answer to Question 68 would have been clear, but that nevertheless the answer she provided was still within the range of acceptable answers. "Leverage," as defined by the Real Estate Investment Analysis and Business Opportunity Brokerage text, "is the use of borrowed funds to finance the purchase of an asset." See p. 357. The Florida Real Estate Principles, Practices & Law text, at page 278, describes "disintermediation" as follows: When the yield from other investments is greater than the yield from the thrift institutions, many depositors withdraw savings and invest directly in the more rewarding investment. When substantial funds are withdrawn from thrift institutions, the process is called disintermediation. The result is a so- called credit crunch and a shortage of mortgage funds. As funds available for mortgages decrease and credit shortages occur, interest rates on mortgage money increase. In turn, as interest rates rise, demand for mortgages declines, and economic activity in the real estate industry falls off. (Emphasis in original) Based upon a complete review of Question 68, the answer provided by the Petitioner was inconsistent with the answer selected by the Respondent. The two could not be the completion of the statement as they are not remotely similar in definition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order that affirms the examination results for the Petitioner and dismisses the challenge to the test results. DONE AND ENTERED this 27th day of April 2004, in Tallahassee, Leon County, Florida. S ___________________________________ J. D. Parrish 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 April, 2004. COPIES FURNISHED: Juana C. Watkins Acting Director Division of Real Estate Department of Business and Professional Regulation Hurston Building North Tower Suite 802 North 400 West Robinson Street Orlando, Florida 32801 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Antonella DiBella 17216 Newport Club Drive Boca Raton, Florida 33496
