Findings Of Fact The Summit Application. By correspondence dated February 25, 1987, Summit was advised by the Division that it was one of the preliminary applicants selected in the drawing held February 18, 1987, for an available quota license in Hillsborough County. The letter clearly stated that Summit had forty-five days to file a full and complete application with the Division. Summit was given notice that failure to do so within that time frame would be deemed a waiver of its right to apply for the quota license. On July 1, 1987, Summit wrote to the Division requesting an extension of time in which to obtain zoning approval for the location sought to be licensed in Hillsborough County. Summit recited various zoning problems it was experiencing which might necessitate the filing of an amended application with an alternative location. On July 10, 1987, the Division notified Summit of its long-standing policy to grant extensions where a "good faith effort" was demonstrated by an applicant. Summit was further advised to contact the Division's Tampa Office and that the Division was prohibited by statute from granting an extension beyond August 17, 1987, the one hundred and eightieth day from the date of selection of Summit as a preliminary applicant, i.e., February 18, 1987. On August 4, 1987, the Division notified Summit that it would be granted an extension to submit an amended application no later than August 17, 1987. Summit failed to file an amended application by August 17, 1987. On September 1, 1987, the Division denied Summit's license application on the ground that there was no properly zoned location in which to place the license. On September 20, 1987, Summit requested an informal proceeding in accordance with Section 120.57(2), Florida Statutes. Paragraph six of this request indicated Summit's belief that there were no disputed issues of material fact. On November 2, 1987, the Division entered a Recommended Order, which recommended denial of Summit's license. On January 19, 1988, the Division by Final Order, adopted the recommendation and denied Summit's license. It was not until May 5, 1988, when Summit attempted to introduce certain factual matters on appeal, that the parties became aware of potential disputed facts. The Peterson Application. In January of 1984, Peterson submitted a preliminary application for a new quota alcoholic beverage licensed in Hillsborough County, Florida. By correspondence dated July 17, 1987, Peterson was advised by the Division that he had been selected as an alternative preliminary applicant for a quota liquor license in Hillsborough County. 1/ The correspondence also notified Peterson that he had forty-five days in which to file a full and complete application in accordance with Florida Administrative Code Rule 7A- 2.017. Peterson also was personally familiar with the Division's license application process in that he had assisted his father in filing the Summit application. Peterson notified the Division by letter dated September 20, 1987, that during late July or early August, 1987, he had received the Division's July 17, 1987, notification. Peterson further advised of his change of address and asked that any future correspondence be mailed to his new address in Tampa. At no time prior to license denial did Peterson request an extension of time in which to file a license application. On September 29, 1987, the Division issued a Notice of Intent to Disapprove Peterson's license due to his failure to timely submit an application for the same. On October 7, 1987, Peterson first notified the Division that his failure to timely file an application was due to zoning problems in Hillsborough County. On October 21, 1987, the Division notified Peterson that his license application had been denied because he failed to file a full and complete application within the prescribed forty-five day time period. Peterson timely requested a hearing, indicating his uncertainty as to whether there were disputed issues of material fact, and the matter was scheduled for an informal proceeding on January 8, 1988. In lieu of appearing at the informal hearing, Peterson elected to provide the Division with written documentation and legal argument in response to the license denial. On February 23, 1988, the Division entered a Recommended Order, which recommended license denial. On May 19, 1988, the Division entered its Final Order which adopted the Division's prior recommendation of license denial. Zoning in Hillsborough County. The Beverage Law requires an application for a quota license to include a properly zoned location for operation of the license to be issued. To find a suitable location, the applicant must follow up leads on locations. In light of the $75,000 to $200,000 investment the applicant will be making in the business, it is reasonable for the applicant to want to conduct traffic counts and preview the competitive environment. The applicant then must negotiate a lease. To be considered proper, a location in Hillsborough County must be commercially zoned as well as "wet-zoned." In order to obtain wet-zoning, one must go through the zoning process in Hillsborough County. Just to apply for the zoning change, there are substantial expenses that must be paid by the applicant. The zoning application in Hillsborough County is more extensive, and the zoning laws are more complicated, than in many other counties in Florida. Typically, the application cannot be completed on one visit to the zoning office. Summit picked up its application in early March, 1987, and filed it on March 31, 1987. A hearing was scheduled before a zoning hearing officer on June 4, 1987, but the hearing was postponed to June 18, 1987. At the hearing, several neighbors appeared and opposed the application. The zoning hearing officer decided that the application should be granted, but the final decision was for the Hillsborough County Board of Commissioners to make. This hearing was scheduled for July 28, 1987, and the Board's final decision was to deny the application. When Summit saw the extent of the opposition to its wet-zoning application at the June 18, 1987, hearing, it became concerned about the eventual outcome and began looking for alternative locations. It also apprised the Division of its situation and was told that, if it was acting and continued to act in good faith, it could file an amended application with a suitable location with a "reasonable chance" of being properly zoned, so long as the amended application was filed by August 17, 1987, the 180-day deadline. When the zoning hearing officer recommended approval of wet-zoning for Summit, Summit suspended its search for an alternative location. When the Board denied wet- zoning, Summit tried to no avail to secure another properly zoned location. Peterson, who was directly involved in his father's efforts to secure a location for Summit, decided not to even try to do so when he was notified of his selection as an alternate preliminary applicant. In certain counties, including, but not limited to, Hillsborough County, the failure rate to comply with the 45-day rule is higher than in other counties. In Hillsborough County, it is difficult to find a location that is already properly zoned. A properly zoned location must be already zoned commercial and, in addition, must be wet-zoned in Hillsborough County. Summit and Peterson presented evidence that it had called officials from ten of 15 randomly chosen counties to inquire about their zoning requirements and the failure rate for applicants trying to obtain a wet-zoned location. All of the officials from the other counties relayed that in their experience and to their knowledge, no applications were denied once submitted. Hillsborough County, Florida, was the only county of those contacted that denied applications once submitted. There are 67 counties and over 500 municipalities in Florida that have various kinds of zoning laws with which applicants for a quota license must comply. Although some applicants from Hillsborough County have experienced difficulty with zoning, seven of the 18 original preliminary applicants in the 1984 Hillsborough County drawing found properly zoned locations within 45 days, and in the 1987 drawing, 14 of the 18 original preliminary applicants found properly zoned locations within 45 days. It was not proven that zoning difficulties are unique to Hillsborough County. To the contrary, the evidence shows examples of other jurisdictions in which local zoning recently presented difficulties for applicants -- parking restrictions in the City of North Miami Beach and liquor store restrictions in the City of Apalachicola. Originally, there was no 45-day rule for applications to be submitted. The 45-day period was chosen so that the Division would have ample time to perform its investigation before the 180-day period expired.
Recommendation Based upon the foregoing, it is recommended that both Summit's and Peterson's applications for a new quota liquor license be DENIED. DONE and ENTERED this 27th day of February, 1989 in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 27th day of February, 1989.
The Issue The issue in this case is whether to grant the appeal of Valentinos Koumoulidis from the Planning and Zoning Board's denial of his application for variances from the requirement of a minimum lot width of 150 feet at the setback line and from the requirement of a minimum of 20 percent clear space.
Findings Of Fact When the Appellant, Valentinos Koumoulidis, bought the subject property, the building was being used as a six-unit motel--three units on each of two floors. There were approximately 1600 square feet of space on each of the two floors. The property fronts at 606 Bayway Boulevard; the back of the property is waterfront. In 1991, the Appellant applied for and was granted a parking variance and variances to enable him to convert the first floor to retail use and convert the second floor to a residence. Apparently construction was delayed, and in October, 1992, the Appellant reapplied for the variances to enable him to convert the first floor to retail use and convert the second floor to a residence, while withdrawing the application for a parking variance. (He had decided to convert from straight- in/back-out parking to an off-street parking lot.) In 1994, the Appellant again applied for variances, this time to allow him to add approximately 300 square feet of commercial space to the back of the first floor and approximately 900 square feet of residential space to the back of the second floor. The Board denied those variance requests in October, 1994. Rather than appeal, the Appellant decide not to pursue the addition of commercial space to the back of the first floor and, on December 22, 1994, instead applied for variances to allow him just to add approximately 900 square feet of residential space to the back of the second floor. (Of the 900 square feet, approximately 550 would be enclosed, and approximately 350 would be open deck.) The evidence (primarily through the testimony of Noel Woods, one of the Appellant's neighbors) was that the residential property in the immediate vicinity is comparable, in terms of square footage of living space per dwelling unit, to the Appellant's current second floor--i.e., approximately 1600 to 1700 square feet. There was some evidence that residential properties across the intracoastal waterway from the Appellant's property are valued as high as a million dollars. But the evidence (again, the testimony of Noel Woods) also was that condominium units in the immediate vicinity are valued at approximately $175,000. There was no evidence that the use the Appellant is making of his property (retail on the first floor and residential on the second floor) is not a reasonable use.
The Issue The issue for determination in this matter is whether Respondents engaged in acts of housing discrimination against Petitioners on the basis of race in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioners, Donald Travis and Lisa Harrell, are a bi-racial couple (Mr. Travis is African-American and, therefore, belongs to a class of persons subject to protection under Florida's Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes, and Ms. Harrell is white). They have two sons who are bi-racial (one is African-American and white, the other is white and Asian). Petitioners lived in Apartment 163 at 10075 West Highway 98, Pensacola, Florida 32506. Respondents, John and Anne Cutler, are the owners of two four-plex apartments at 10075 West Highway 98, Pensacola, Florida 32506, including the unit occupied by Petitioners that gave rise to this matter. They are both retired educators who own and operate their apartment rental business in their retirement. In their teaching and professional careers, both have instructed students of various races and national origins. Petitioner, Donald Travis, is a veteran of Desert Storm and has been treated for Post Traumatic Stress Disorder. He regularly takes medications to treat anxiety and depression. On April 4, 2008, Petitioners moved into Apartment 163, which had been recently painted, carpeted, and had a new ceiling fan and light installed in the living room. Everything went smoothly between Petitioners and Respondents for several months. Mr. Cutler had to unplug the downstairs toilet with a plunger a few times, but everything else seemed to be in working order. Both Mr. and Ms. Cutler considered Petitioners to be good tenants. As summer approached, Mr. Travis asked Mr. Cutler about installing a screen door for the sliding glass doors. This could not be done without replacing the entire sliding glass doors. When Apartment 131 became vacant, its screen door was moved to Petitioners' apartment. The screen door had a slit in it, which Ms. Cutler repaired with tape. When Apartment 132 became vacant, the good screen door from that apartment was used to replace the taped one in Petitioners' apartment. Respondents tried to keep everything in working order in Petitioners' apartment. When Petitioners' refrigerator door would not close, Respondents replaced the refrigerator. Respondents thought Petitioners were happy with their apartment. Petitioners called Respondents about a plumbing leak and said feces was running down the wall. The leak and pipe were fixed by B & G Plumbing. Petitioners were shown the water shut-off valve in case of future leaks. Petitioners believe that Respondents treated them differently from other tenants in the apartment buildings. Petitioners believe that other tenants were allowed to keep pets in their apartments while they were not. Respondents allowed tenants who had pets when they purchased the apartments to keep them, but banned pets on all future rentals. The rent for Petitioners' apartment, including water, sewer, and garbage, was $650.00. Petitioners always paid their rent on time. Petitioners asked to be moved into a better unit since they believed their unit was inferior to others in the complex. Petitioners wanted to move into Apartment 162 which, in their opinion, was in much better shape than their unit. Respondents offered to put new carpet into Apartment 162 before Petitioners moved in, but they refused. Petitioners decided to leave the apartment because they believed the maintenance was not properly performed. On December 5, 2008, the day Petitioners made known their desire to leave the apartment, Mr. Travis confronted Mr. Cutler. Mr. Cutler offered Apartment 132 to Petitioners because it was ready for occupancy after its occupants had moved out. Apartment 133 would soon be ready, and was also offered to Petitioners. Mr. Travis angrily refused to move into any apartments in the two four-plexes. He yelled at Mr. Cutler and told him he hated him. This exchange was witnessed by a neighbor, Gary Denton. Mr. Cutler offered to let Petitioners move out without penalty, and agreed to return their $650.00 deposit. Petitioners accepted the offer and received the deposit in full as well as a waiver of the first five days' rent for December and an additional four days of rent to allow them time to pack and move. Petitioners accused Respondents of renting one four-plex to whites only and the other to minorities. At the time Petitioners moved out, both four-plexes had tenants of different races. As of the date of the hearing, five of the six total units rented were to non-white tenants. Only one was rented to a white couple.
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 25th day of November, 2009, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 25th day of November, 2009. COPIES FURNISHED: John Cutler Anne Cutler 5970 Limestone Road Pensacola, Florida 32504 Donald Travis Lisa Harrell 1008 West Young Street Pensacola, Florida 32501 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues presented by this case concern the entitlement of the Intervenors, Mr. and Mrs. Mayer, to be granted zoning variances, in keeping with the provisions of Section 131.016(e), City of Clearwater Building and Zoning Regulations, to vary from the conditions set forth in Section 131.044, City of Clearwater Building and Zoning Regulations, dealing with the area and dimension regulations for RS-50, Single-Family Residents. In particular, the Intervenors would request that the front setback line be reduced from 25 feet to roughly feet and that a variance concerning the area covered by the dwelling be increased from 25 percent to 33.7 percent. 1/
Findings Of Fact On November 12, 1980, the Intervenors requested that they be granted the variances set out in the Issues Statement of this order. The terms and details of that variance application may be found as part of the City's Composite Exhibit No. 1, admitted into evidence. A public hearing was conducted on this request and that hearing was held on January 15, 1981. The taped transcript of that hearing may be found as the City's Exhibit No. 2, admitted into evidence. Following that hearing, a decision was made by the Board of Adjustment and Appeal for the City of Clearwater, Florida, to grant the variance requests. The Petitioners in this cause were opposed to that grant of variance and requested a hearing. The matter was forwarded from the City of Clearwater to the Division of Administrative Hearings and on March 25, 1981, a hearing de novo was conducted to consider this dispute. At the time of the hearing, the Petitioner, Barbara Beakes, was presented as a witness and identified the claim of the Petitioners as being one of opposition to the project in question which requested variances, for reason that it obscured her view of the water; caused a decrease in the value of her property and in addition to her attorney, expressed opposition to the area of coverage to be involved with the proposed building project of the Intervenors and to the front setback line at issue. The Intervenors, Ray and Christine Mayer, who reside at 940 El Dorado Avenue, Clearwater Beach, Florida, through their project, would desire to construct a garage which would be approximately 15.4 feet from the front property line as opposed to the 25 foot front setback line required of the City of Clearwater. The construction in question would not advance the building line in the direction of the street. Moreover, the distance from the street to the front of the building had originally been 13.1 feet when present front setback lines were not in effect. The Intervenors have also requested what they deemed to be a variance from the requirement of maximum lot coverage by their residence, varying it from 25 percent to the 33.7 percent proposed by their construction. As stated in a preceding footnote, it was determined at the hearing that the new requirement for maximum lot coverage is 42 percent and it having been agreed by the parties that the area coverage in question is only 33.7 percent, the necessity for variance on that issue no longer exists. Intervenors' Exhibits Nos. 1, 2, 3, 5, 6, 7 and 8, are photographs depicting the nature of the structure in question in various stages of construction and modification. Notwithstanding the Petitioner Beakes' complaint that her view was obstructed by the construction, there was no specific proof related to the clear space requirement of Section 131.200, City of Clearwater Building and Zoning Requirements, and in fact her view is already obstructed by a fence which now exists on the Mayers' property and the constriction proposed by the Mayers would not materially change that circumstance. The proof on the issue of decreased property value offered by Petitioner Beakes does not seem to be a specific criterion addressed by the variance ordinance.
Findings Of Fact Lior Hason is the owner of Britt's Cafe, a restaurant which occupies property owned by the Petitioner's Stanislaw and Kasimiera Budzinski. On or about December 19, 1995, Harry S. Cline, an attorney for Mr. Hason and the Budzinskis, filed an application for a variance from the City of Clearwater's Development Code, for the purpose of eliminating three required parking spaces from the front of the subject property for the construction of an outdoor cafe at 201 South Gulfview Boulevard. The Code requires one parking space per 200 square feet of gross floor area, and a variance was required to remove three existing parking spaces from the unit's parking space inventory. The matter was brought before the City's Development Code Adjustment Board at its January 11, 1996 meeting. Mr. Cline appeared at the meeting on behalf of the applicant and presented the project. No one else was present to speak in support of or in opposition to the request. However, four letters in opposition from neighboring business owners were submitted. Notwithstanding these objections, the Board determined that the applicant had substantially met all standards for approval listed in the City's Land Development Code; and upon vote of the Board, the application was approved, subject to certain conditions, by a three to two majority. Mr. Hason entered into discussions with City officials to determine what was necessary. Official City reaction was initially favorable. Mr. Hason was advised of the requirements for the project and had plans drawn which called for a deck with a 35 to 36 inch railing with landscaping around it, and with posts and lights. When the plans were submitted to the City officials, the only change suggested was to raise the railing height to 45 inches, which was done, after which the City approved the plans and the permit was granted. The deck was then constructed exactly according to the approved plans. At some time during 1996, Mr. Hason discussed with some City employees putting an awning over the deck. During these discussions, the City employees sent Mr. Hason a copy of Section 41.221(1)(c), Clearwater City Code, which provides for awnings to be removable. Mr. Hason considered the sending of this Code provision to be tantamount to a favorable reply to his inquiry, and, based on that, he finalized his plans for the installation of a removable awning. The proposed awning is designed in such a fashion as to be extendible and retractable on a frame, capable of easily being pulled up against the front of the building like a drapery. With a minimum of further effort, consisting of the removal a several bolts, the entire awning construction can be removed from the frame. Mr. Hason submitted his application for the variance to install the awning on February 2, 1997. In the interim, the City employees with whom Mr. Hason discussed the project changed their position from favoring the project to opposing it. He was ultimately advised in December 1996 or January 1997 that the awning could not be permitted because an awning could not be approved over a deck for which a permit should not have been issued and for which the issuance was a mistake. Though the Board had not yet voted on the application, no information was given to Mr. Hason as to what he could do to make the project approvable. His application, on February 2, 1997, was submitted because, Hason claims, he had been told, by someone not further identified, that applying for a variance for the awning would make everything right. The Variance Staff Report submitted to the Board by the appropriate City employees acknowledged that the frame over which Mr. Hason proposed to put the awning does not meet code because it was constructed within a required setback area from South Gulfview Boulevard, but since the frame was built pursuant to a City-issued permit, consistent with City policy, the City accepted its existence. In its final recommendation to the Board, the staff concluded that notwithstanding the encroachment into the setback area, the project "appears to comply with all standards for approval, provided attention is given to the external appearance of the cafe:" The staff then went on to recommend approval of the project subject to certain conditions, all of which, Mr. Hason accepts and agrees to. Nonetheless, the Board denied the permit by a vote of four to one. Mr. Hason contends that the Board vote was an attempt by the Board to get back at him because of what it perceived as his failure to comply with the conditions placed upon the issuance of the first permit and his alleged misrepresentation of the scope of his project at the time. Mr. Hason, however, categorically denies he has done anything contrary to the dictates of the City. He went back to City officials many times during the construction of the deck to make sure the project was built as required. The majority of the Board members believe, however, that the deck as constructed, goes far beyond the limited structure approved by the granting of the parking space variance in January 1996. This animosity toward the project can be seen from a review of the audio record of the February 13, 1997, Board meeting where, during a colloquy between a Board member and Mr. Hason, it appeared the member was somewhat put out by the entire situation. His analysis indicates a less than complete recollection of the matter, however. Whereas one of the conditions to the issuance of the initial permit was that the area of the outdoor cafe should not be greater than 25 percent of the indoor area of the restaurant, this member pointed out that the 69 outdoor seats were far in excess of 25 percent of the 115 or so indoor seats. This constituted a confusion of seating as opposed to area. No evidence was presented concerning whether Mr. Hason had violated the area constraint. In the main, however, while it appeared that a majority of the Board members were unhappy about the way the project developed, and expressed the opinion that the project did not conform to what they had intended to approve, there was no indication any member s vote was motivated by anything other than a sincere belief in the correctness of his position. There was no indication of any inappropriate or vindictive action by anyone on the Board or its staff. Stephen Sarnoff, a central permitting specialist with the City reviewed the plans for the initial construction and for the current application. As he recalls, the plans for the initial deck construction did not show any support beams, fans, overhead structure or latticework fencing, and the deck, as built, does not conform to the plans as submitted. City Code requirements call for a railing of from 30 to 42 inches high. The current railing of 45 inches does not conform to that standard, and Mr. Sarnoff is not aware of any request from the City that the railing be raised to that height, as Mr. Hason claims. By the same token, while there is no requirement in the ordinance that a deck be of a certain height, anything higher than 12 inches is considered a structure and a waiver is required. This deck was approved for 12 inches. A certificate of occupancy is usually issued for a deck, but in the instant case, such a certificate has not been issued because the deck, as built, is not in compliance with the 1996 approval. If it is brought into compliance, it will be approved. Sarnoff is aware of and familiar with other outdoor restaurant decks built at various locations in the Clearwater area, as indicated by Mr. Hason. Some are not within the CR-28 zone and do not come under the same standards as are applicable here. Others, which must conform to the instant requirements appear to have movable awnings which are acceptable. Still others are in a different zoning district with different set-back requirements, and some were initially denied, but were subsequently approved when they were brought into compliance with the requirements. John Richter, a senior planner for the City, was the individual who prepared the staff report on the instant project and initially recommended approval, contingent upon changes to the external appearance of the facility. He made suggestions and has discussed the project with Hason on his several visits to the property. He did discuss an awning with Hason at some point, but their discussions did not deal with its mobility. All in all, Mr. Richter concluded that the project appears to meet the standard for approval, provided attention is given to the external appearance of the cafe. David S. Shuford, the City's central permitting director and development code administrator indicated that the variance required for the awning, which was an integral part of the structure already built, was not automatically granted with the granting of the permit for the deck structure. Section 42.221, Clearwater City Code, was adopted to promote a more festival atmosphere in some of the outdoor tourist areas. The intent of subsection (l)(c) of that provision was to require the use of moveable items and to design structures that would meet wind requirements and not interfere with pedestrian traffic. The term "moveable" means what it says, and in Shuford's opinion, from the plans he saw, the proposed awning would not be easily moveable on a daily basis. The Clearwater City Code establishes the area in question as one where, once guidelines are developed, they will be adopted and be complied with. Mr. Shuford opines that the current deck, in the rafter area, goes beyond what was proposed at the time the project was submitted for the parking variance and was approved. This is what appears to be the source of the difficulty the Board members have with it. However, if designed to comply with the guidelines, this awning could be approved. He would agree with the conditions outlined in the staff recommendation so far as they relate to painting and architectural matters.
The Issue Whether Respondent, Assad F. Malaty, discriminated against Petitioners, Dr. James E. Townsend and his niece, Contessa Idleburg (formerly, Ms. Rogers), in violation of the Florida Fair Housing Act and, if so, the appropriate remedy therefor.
Findings Of Fact Based on the weight of the credible evidence, Dr. Townsend has a qualifying handicap under the FFHA. He suffered a stroke in May 2014, upon which the requested modifications and accommodations were based. The stroke substantially limited one or more major life activities, given his need for using a wheelchair and walker. § 760.22(7)(a), Fla. Stat. Mr. Malaty conceded as much at the hearing.3/ Based on the weight of the credible evidence, Ms. Idleburg has a qualifying handicap under the FFHA. She has a shunt to drain fluid from her brain, has received Supplemental Social Security Income since at least 2014, and also has used a walker. That said, the evidence is undisputed that Petitioners requested the modifications and accommodations solely to assist Dr. Townsend after he suffered the stroke. Thus, Ms. Idleburg’s handicap is not relevant to the claims at issue. Based on the weight of the credible evidence, Petitioners informed Mr. Malaty in May 2014 that Dr. Townsend suffered a stroke and requested that he make several modifications to the Unit, including handrails in the bathroom, and handrails and a ramp at the front door, and to accommodate them by assigning them a parking spot outside the Unit. There is no dispute that the requested modifications and accommodation were never made. Importantly, however, the evidence does not establish that Petitioners’ renewed those requests again before they filed complaints with the Department of Justice in late 2016 and HUD in early 2017.4/ Although Dr. Townsend reminded Mr. Malaty in a December 2016 letter that he had failed to make the requested the modifications, the undersigned finds that letter to be more in the nature of a response to Mr. Malaty’s threat of eviction rather than a renewed request to accommodate them. The weight of the credible evidence also confirms that Petitioners never offered to pay for the handrails, ramp, or signage for the requested parking spot. Indeed, Dr. Townsend testified that he believed Mr. Malaty was responsible for making such modifications as the owner of the Unit. Based on the weight of the credible evidence, the undersigned finds that Mr. Malaty did not evict Petitioners because of their handicaps or their requests for modifications or an accommodation. Mr. Malaty initially threatened to evict them for failing to pay rent in January 2013, reducing their rent in September and December 2016, and failing to take care of the lawn as required in the lease. It had been three years since Petitioners requested the modifications and accommodation due to Dr. Townsend’s stroke and they did not re-raise those issues again until after Mr. Malaty threatened to evict them for failing to pay the rent. The evidence also is clear that Petitioners could have avoided eviction by paying the missed rent by December 29, 2016. But, they failed to do so and then did not pay their rent in January 2017, which ultimately led to Mr. Malaty filing the eviction action.
Conclusions For Petitioners: James E. Townsend, Sr., pro se Contessa Idleburg, pro se Apartment 2101 140 Aida Street Lakeland, Florida 33805 For Respondent: Charlann Jackson Sanders, Esquire Law Office of Charlann Jackson Sanders 2225 East Edgewood Drive, Suite 8 Lakeland, Florida 33803
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 Petitioners’ Petition for Relief. DONE AND ENTERED this 19th day of December, 2019, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO 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 19th day of December, 2019.
The Issue Appellant raises two issues on appeal: (1) whether the Board misconstrued a provision in the Special Area Plan for College Park (Special Area Plan) of the Urban Mixed-Use District 1 (UMU-1) zoning classification, which prescribes the allowable height for Type I buildings within that district; and (2) whether there is competent substantial evidence to support the Board's decision that the development and use of the subject property is compatible with the use and structures on the nearby property.
Findings Of Fact Based upon the evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made: On December 27, 1993, Universal Outdoor, Inc. ("Universal") entered into a twenty year lease agreement with the Greater Hollywood Jaycees pursuant to which Universal was authorized to erect an outdoor advertising sign on property owned by the Jaycees in the general vicinity of the southwest corner of Hollywood Boulevard and Interstate-95 (the "Site") within the city limits of Hollywood, Florida. The site is located at an extremely busy intersection. A railroad track separates the Site from the Interstate. To the immediate south and west of the Site is a city owned golf course. A building which serves as the Jaycees meeting hall and headquarters is located on the Site. There is a catering business that operates out of the building, at least on a part time basis. The Jaycees acquired the Site from the City of Hollywood on or about December 15, 1965. As best can be determined from the evidence in this case, the Site was owned by the government before it was acquired by the Jaycees. After securing the lease from the Jaycees, Universal applied to the City of Hollywood for a city building permit (the "Building Permit") to construct an outdoor advertising sign on the site. The city issued the requested Building Permit on February 2, 1994. The Hollywood City Commission, as well as the City's Building and Zoning Department, had to approve the issuance of the Building Permit. In deciding to issue the Building Permit, the City Commission and its Building Department apparently concluded that a sign was not inconsistent with the zoning for the Site. On or about February 3, 1994, Universal submitted an application (the "Sign Application") to the Department for a state Outdoor Advertising Sign permit for the Site. The Department denied the Sign Application in a notice dated February 15, 1994 (the "Denial Notice") stating that the Site was "in unpermitable zoning." At some point after the Sign Application was filed with the Department, Universal assigned all of its interest and rights under the lease, the Building Permit and the Sign Application to Hancock. The transfer apparently occurred sometime around the end of February. The circumstances and conditions of the transfer of interest from Universal to Hancock are not entirely clear. The president of Hancock is the brother of one of the principals of Universal. Thus, there is some question whether the transfer was an arms-length deal. At one point during the hearing, Hancock suggested that it never received formal notification of the Department's denial of the Sign Application. However, the evidence is clear that Hancock was aware when it obtained an interest in the Site that a state permit was necessary and that a hearing had been requested in connection with Universal's Sign Application. The building permit obtained from the City of Hollywood was apparently valid for only a limited time. In order to obtain a building permit for a sign, Hancock claims that the City of Hollywood required the permit applicant to make a donation of $20,000 to the Hollywood Boys Club. It is not clear when or whether such a payment was made by either Universal or Hancock. As noted in the Preliminary Statement above, the parties have stipulated that a timely request for an administrative hearing was submitted in connection with the Denial Notice. However, it does not appear that any case involving Universal was referred to DOAH. In any event, it is clear that no hearing was scheduled to be conducted on the denial of the Sign Application prior to the date that the Building Permit was to expire. Faced with the imminent expiration of the Building Permit and convinced that the City had correctly determined that the zoning allowed the sign, Hancock proceeded with construction of the sign beginning in approximately the end of April. An inspector for the Department noticed the sign under construction and issued a Notice of Violation on May 2, 1994 for erecting the sign without an Outdoor Advertising Permit from the Department. Hancock promptly halted all construction activity. At the time the Sign Application was filed with the Department in February, the Site was zoned "OS" by the City of Hollywood. The "OS" designation is a for an "open space district". The "OS" designation for this parcel appears to have been an error since the existing uses are inconsistent with that designation. The Department denied the Sign Application because the Site was not specifically zoned either industrial or commercial. In reaching this determination, the Department did not confer with the City of Hollywood nor did it make any investigation to determine what uses were permitted in the "OS" zoning district. While the City Zoning Code included certain areas specifically designated "commercial" and "industrial," it is not clear that the city intended these terms to coincide with the use of the terms in Chapter 479, Florida Statutes. "Commercial" is defined in the City Zoning Code as "any activity where there is an exchange of goods or services for monetary gain. . ." The "OS" designation allowed a number of uses which arguably fell within this definition, including camp grounds, cemeteries, golf courses, horse farms, riding stables and other similar uses. On or about April 6, 1994, the City of Hollywood passed four ordinances which cumulatively had the effect of repealing the City's prior zoning code and replacing it with a new code. There is some confusion regarding the applicable zoning for the Site under the new Zoning Code. The City's Official Zoning Map reflects that the property was rezoned "GU", which is a government use district. The adjoining golf course, which is publicly owned, is also zoned "GU". The City Planning Department has acknowledged that the "GU" designation is only applicable to government-owned property. Such designation is clearly not applicable to this Site. Furthermore, the default zoning of "RS- 1" (single family residential) is not consistent with the subject property's comprehensive land use plan designation and is inconsistent with the present use of the property. As a result of the ambiguities resulting from the newly passed zoning ordinances, the Site should be treated as unzoned as of April 6, 1994. There is at least one commercial use on the same side of the Interstate within 800 feet of the Site. In addition, there are more than three separate commercial uses within 1600 feet of the Site, each visible from the main traveled way, that are within 1600 feet of each other and within 600 feet of the right of way of the adjacent Interstate. Consequently, the Site qualifies as a "commercial-unzoned" area as defined in Chapter 479, Florida Statutes. Only the City Commission has the power to rezone property and, as of the date of the hearing in this matter, no such action had been taken with respect to the Site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order granting the application for a state Outdoor Advertising Sign permit for the Site. DONE AND ENTERED this 13th day of January 1995 in Tallahassee, Leon County, Florida. J. STEPHEN MENTON 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 13th day of January, 1995.
The Issue The issues to be determined in this appeal are: (1) whether Petitioner was afforded procedural due process; (2) whether the City failed to observe the essential requirements of law; and (3) whether the City's decision was supported by competent substantial evidence.
