The Issue The issue in this case is whether the Board of Trustees of the Internal Improvement Trust Fund (BOT) should charge Respondent with lease payments and fine him for unauthorized use of sovereignty submerged lands under the Halifax River in Daytona Beach.
Findings Of Fact Respondent owns residential property on the Halifax River in Daytona Beach. In 2004, he entered into a Sovereignty Submerged Lands Lease with BOT to allow him to construct a single-family dock structure into the Halifax River from his property. In 2007, he entered into a Modification to Increase Square Footage (Modified Lease). The Modified Lease covered 2,714 square feet, required an annual lease fee of $423.89, and expired on November 16, 2008. The Modified Lease provided for a late charge equal to interest at the rate of 12 percent per annum from the due date until paid on any lease fees not paid within 30 days from their due dates. There was no evidence that any lease fee under the Modified Lease was not paid or paid late. In August 2008, BOT attempted to have Respondent enter into a Lease Renewal. He did not renew his lease, and the Modified Lease expired on November 16, 2008. Respondent paid no lease fees for 2008/2009. In September 2009, BOT again attempted to have Respondent enter into an updated Lease Renewal at an annual lease fee of $436.78 and pay current and past due lease fees. BOT placed Respondent on notice that his failure to do so could be considered a willful violation of Chapter 253, Florida Statutes, which could subject Respondent to administrative fines of up to $10,000 a day. Respondent did not renew his lease or pay any lease fees. Instead, he complained (as he claims to have since 2005) that a stormwater outfall structure installed by the Florida Department of Transportation (DOT) in 1998 approximately 100 feet to the north (upriver) of his dock structure, at the end of Ora Street, was not functioning properly and was allowing silt to enter the river, shoaling the water in the area of Respondent’s dock structure (and elsewhere in the vicinity) and eventually making it impossible for Respondent to moor his boat at his dock structure and navigate to the Intracoastal Waterway (ICW). The DOT outfall structure at Ora Street has been in existence since the 1950’s. In 1998, DOT added a silt box, which is not functioning properly and is allowing silt to enter the river. The evidence is not clear whether silt from the DOT outfall structure was entering the river before 1998. In 2010, BOT informed Respondent by certified mail that it had contacted the DOT at Respondent’s request and determined that DOT was planning to clean and monitor the outfall structure after August 2010 but had no plans to dredge sediment from the river. BOT also placed Respondent on notice that he was in violation for not renewing his lease and paying all current and past due fees, and that he would be fined and required to remove his dock structure if he did not come into compliance. This certified letter was designated an NOV. The evidence was not clear when the letter was sent to Respondent, but it is clear that Respondent has continued to refuse to renew the lease, or pay any fees, and has not removed his dock structure. BOT takes the position in this case that Respondent must pay: the Lease Renewal annual lease fee of $436.78 for 2008/2009, plus the Lease Renewal late charge equal to interest at the rate of 12 percent per annum from November 30, 2010; and an annual lease fee of $448.49 for 2009/2010, plus a late charge equal to interest at the rate of 12 percent per annum on the $448.49 from November 29, 2009. The evidence did not explain how the annual lease fees for the years 2008/2009 and 2009/2010 were determined. (But see Florida Administrative Code Rule2 18- 21.011(1)(b)10.b., set out in Conclusion of Law 24, which may explain how the annual lease fees were determined.) Invoices in evidence charge Respondent a total of $1,283.22 through July 30, 2010: $436.78, plus tax, for a total of $465.17 for the year 2008/2009; $448.49, plus tax for a total of $477.64 for the year 2009/2010; and $36.18 of interest on the $448.49. BOT also takes the position that Respondent must either: enter into a lease for the year 2010/2011 and beyond; remove part of his dock structure so that he will preempt only 1,150 square feet of sovereignty submerged land (so as not to require a lease, but only a cost-free consent of use); or remove the entire dock structure. BOT also seeks the imposition of an administrative fine under Rules 18-14.002 and 18-14.005(5). In its First Amended NOV, BOT sought a fine in the amount of $2,500; in its PRO, BOT seeks a fine in the amount of $2,500 for the first offense and $10,000 per day from the issuance of the NOV for repeat offenses. Respondent believes he should not be required to pay any lease fees or fines because of his inability to use his dock structure due to the shoaling of the river caused by the malfunctioning DOT outfall structure. Respondent believes it is DEP’s responsibility to require DOT to remove the silt from the river and make the outfall structure work properly. He believes this is required by the state and federal constitutions, statutes, and rules, and by an unspecified “federal bond issue” or “federal bond agency.” DEP takes the position that the silting from the outfall structure and its adverse impact on Respondent’s ability to use his dock structure is irrelevant because the requirement of a lease is based on preemption of sovereignty submerged land, not on the lessee’s use of the land. DEP also believes that, under an operating agreement among governmental agencies, the St. Johns River Water Management District (SJRWMD), not DEP, is the agency responsible for enforcing the applicable environmental laws and permit conditions against DOT. DOT has indicated to the parties that it is in the process of modifying the outfall structure so that it functions properly but that it does not have the money to remove silt from the river. DEP personnel visited the site at approximately 11:00 a.m. on July 16, 2010, and measured the water in the vicinity of the terminal platform and slips of Respondent’s dock structure to be approximately 36 inches deep, which is deep enough for navigation. DEP did not take measurements in the slips of the dock structure, between the terminal platform and Respondent’s property, or between the vicinity of the terminal platform and the ICW. The evidence was not clear what the tide stage was at the Respondent’s dock structure when DEP measured the water depth. DEP called the tide stage low, or near low, based in part on tidal charts for Ormond Beach and the Halifax River indicating that the tide was low at 11:21 a.m. and high at 4:10 p.m. on July 16, 2010. However, the persuasive evidence was that the tidal chart applied to locations at the beach, and there is a difference in the tides at Respondent’s dock structure and at the beach. It does not appear that the tide was dead low or near dead low at Respondent’s dock structure at 11:00 a.m. on July 16, 2010; it probably was between low and slack, possibly a half foot higher than dead low. Regardless of the measurements taken by DEP on July 16, 2010, Respondent testified that he is not able to operate his boat from his dock structure consistently due to shoaling from the silt. He testified that, as a result, he kept his boat at a marina for a year at a cost of $7,000 but cannot afford to continue to do so.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that BOT enter a final order: (1) that, within 10 days, Respondent sign the appropriate lease renewal and send it, along with $1,283.22 in past due lease fees and interest owed BOT, plus the lease payment for 2010/2011, by cashier’s check or money order made payable to the “Internal Improvement Trust Fund,” with a notation of OGC Case No. 10-1948, sent to 3319 Maguire Boulevard, Suite 232, Submerged Lands and Environmental Resource Program; or (2) that, within 20 days, Respondent remove his dock structure or at least enough of it to preempt no more than 1,150 square feet of sovereignty submerged; and (3) that, within 30 days, Respondent pay BOT a fine in the amount of $2,000, by cashier’s check or money order made payable to the “Internal Improvement Trust Fund,” with a notation of OGC Case No. 10-1948, sent to 3319 Maguire Boulevard, Suite 232, Attention David Herbster, Program Administrator, Submerged Lands and Environmental Resource Program. DONE AND ENTERED this 3rd day of November, 2010, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 2010.
The Issue The issue in this case is whether, in making an award of a lease for office space, the Respondent acted according to the requirements of law.
Findings Of Fact In February, 1993, the Department of Labor and Employment Security ("Department") issued a Request for Proposal and Bid Submittal No. 540:0969 ("RFP") seeking to lease approximately 18,684 square feet of office space in Jacksonville, Florida, for a period of six years. The space was to house the Office of Disability Determinations ("ODD"), which processes disability claims and determines whether claimants are eligible for Social Security and Supplemental Income benefits. The office has minimal contact with the general public. The RFP provided that all bids were subject to conditions stated within the RFP. Bids not in compliance with RFP conditions were subject to rejection. RFP Article D, General Provisions, Paragraph 8 provides as follows: The Department reserves the right to reject any and all bid proposals for reasons which shall include but not be limited to the agency's budgetary constraints; waive any minor informality or technicality in bids' to accept that bid deemed to be the lowest and in the best interest of the state, and if necessary, to reinstate procedures for soliciting competitive proposals. A pre-bid conference was conducted by the Department on February 16, 1993. Representatives from the vendors involved in this proceeding attended the conference. Bids were opened on March 5, 1993. The Department received five responses, three of which were deemed to be responsive and which were evaluated. The remaining two responses were determined to be nonresponsive and were not evaluated. On or about March 10, 1993, based on the evaluations, the Department proposed to award the bid to Koger Properties, Inc. On or about March 17, 1993, the Department notified the vendors of the intended award. The Petitioners filed timely notices protesting the intended award. TOWNCENTRE PROPOSAL Paragraph 13 sets forth conditions to which a bidder must agree in order to be awarded a bid. Subsection "a" of the paragraph states, "[i]f successful, bidder agrees to enter into a lease agreement on the Department of General Services Standard Lease Agreement Form BCM 4054 (Attachment F - Do not complete)." The copy of the Department of General Services Standard Lease Agreement Form which was included in the RFP was a poorly reproduced copy. Article III of the Lease Agreement Form provides as follows: III HEATING, AIR CONDITIONING AND JANITOR SERVICES 1.a. The Lessor agrees to furnish to the Lessee heating and air conditioning equipment and maint(illegible) in satisfactory operating condition at all times for the leased premises during the term of the lease at the (illegible) of the Lessor. b. The Lessor agrees to maintain thermostats in the demised premises at 68 degrees Fahrenhe(illegible) the heating season and 78 degrees Fahrenheit during the cooling season; and certifies that boilers the(illegible) been calibrated to permit the most efficient operation. The Lessor agrees to furnish janitorial services and all necessary janitorial supplies for the leased (illegible) during the term of the lease at the expense of the Lessor. All services required above shall be provided during the Lessee's normal working hours, whic(illegible)marily from 7:30 a.m. to 5:30 p.m., Monday through Friday excluding state holidays. Also attached to the RFP was a copy of an addendum to the lease, also poorly reproduced. The addendum provides as follows: Article III, Paragraph III Addendum for Full Service Lease The lessor and lessee mutually agree that the described prem(illegible) leased in this lease agreement shall be available to the department (lessee) for its exclusive use twenty four (24) (illegible) per day, seven (7) days per week during the lease term. T(illegible) space to be leased by the department will be fully occupied during normal working hours from 7:30 a.m. to 5:30 p.m., Mo(illegible) through Friday, excluding holidays, Saturdays and Sundays, (illegible) may be fully or partially occupied during all other periods (illegible) time as necessary and required at the full discretion of th(illegible) department. Accordingly, services to be provided by the le(illegible) under the terms of the lease agreement, including electrici(illegible) other utilities, will be provided during all hours of occup(illegible) at no additional cost to the department (lessee). Although the copy of the lease agreement and addendum included in the RFP were poorly reproduced, it is clear that the addendum modifies the paragraph of the lease agreement related to provision of heating, air conditioning and janitorial services to require that HVAC services be provided throughout the premises during all hours of occupancy at no additional cost to the Department. The proposal submitted by Towncentre included an "Attachment Z" which states as follows: The following represent exceptions and/or clarifications to the terms of the Request for Proposal and Bid Submittal Form ("RFP") for the referenced Lease. Except as noted herein, Bidder shall comply fully with the terms of the RFP..." Item #7 of Attachment Z states as follows: The Building in which the space is offered is serviced by central heating, ventilating and air conditioning; therefore, no separate thermostats will be provided in the space other than in the computer room. However, the required temperature standards will be maintained and satisfied. The computer room HVAC shall be available 24 hours a day. Otherwise, after-hours HVAC is billed at $80 per hour. Attachment Z also included additional exceptions to the provisions of the RFP. Contrary to the requirements set forth in the addendum attached to the lease form included in the RFP, the Towncentre proposal included additional charges for after hours uses. The Department determined that the Towncentre proposal was nonresponsive and disqualified the proposal from further consideration. Because the Towncentre proposal includes HVAC charges which are specifically prohibited under the terms of the RFP, the Towncentre proposal is nonresponsive to the RFP. Towncentre asserts that other sections of the RFP indicate that, within the leased premises, only the computer room is required to be heated or cooled on a continuous basis. Vendors had an adequate opportunity to direct questions regarding the RFP to Department officials. There is no evidence that Towncentre sought clarification from the Department related to this matter prior to submitting the bid proposal. In the notification to Towncentre that the bid had been determined to be nonresponsive to the RFP, the Department identified the other exceptions as additional reasons for the determination of nonresponsiveness. At hearing Towncentre introduced no evidence related to the remaining items included within Attachment Z. BRYAN SIMPSON JR. FOR P.V. ASSOCIATES The Simpson bid was deemed to be responsive and was evaluated. The evaluations were performed by three Department employees, Dorea Sowinski, Albert Cherry, and Tom Mahar. On March 9, 1993, the evaluators visited the physical locations of the three responsive bids. (Although the bid had been declared nonresponsive, they also visited the Towncentre site, apparently as a courtesy.) The Simpson space is located in downtown Jacksonville. After completion of the site visits, the evaluators separately and independently completed their evaluation sheets. The evaluators awarded a total of 262 points to Koger Properties and 248 points to Simpson. Page 7 of the RFP sets forth the evaluation criteria which were considered in awarding evaluation points. The RFP stated as follows: The successful bid will be the one determined to be the lowest and best. All bids will be evaluated based on the award factors enumerated below: Rental, using Present Value methodology for basic term of lease (See D, General Provisions Items 3 and 4) applying the present value discount rate of 5.6 per cent. (Weighing: 35) Conformance of and susceptibility of the design of the space offered to efficient layout and good utilization and to the specific requirements contained in the Invitation to Bid. (Weighing: 20) The effect of environmental factors, including the physical characteristics of the building and the area surrounding it on the efficient and economical conduct of the Departmental operations planned for the requested space. (Weighing: 20) Offers providing contiguous space within preferred boundaries. (Weighing 5) Frequency and availability of satisfactory public transportation within one block of the offered space. (Weighing 15) Availability of adequate dining facilities within one mile of the offered space. (Weighing: 2) Proximity of offered space to the clients served by the Department at this facility. (Weighing: 3) Proximity of offered space to other Department activities as well as other public services. (Weighing: 0) TOTAL POINTS: 100 Simpson asserts that the evaluators acted improperly in awarding points in categories 3, 5, 6 and 7. Category 3 relates to the effect of environmental factors, including the physical characteristics of the building and the area surrounding it on the efficient and economical conduct of the Departmental operations planned for the requested space. Although Simpson asserts that category 3 is vague and ambiguous, there was no objection to the category prior to the submission of the bid responses and the announcement of the proposed lease award. Each evaluator could award up to 20 points in this category for a total of 60 available points. Koger was awarded 55 points. Simpson received 27 points. As to individual evaluators awards, Tom Mahar awarded Simpson five points, Albert Cherry awarded Simpson ten points, and Dorea Sowinski awarded Simpson 12 points. Based on the written memo dated March 10, 1993, identifying the reasons for the recommended bid award, two of the three evaluators considered the Koger space to be located in a safer area than the Simpson facility, and, at least in part, based their point awards on this factor. The two evaluators cite minimal anecdotal information in support of their opinions. The evaluators undertook no investigation related to safety issues and there are no facts to support their opinions. Their award of points for "environmental factors" is arbitrary. Category 5 relates to the frequency and availability of public transportation within one block of the offered space. Each evaluator could award up to 15 points in this category for a total of 45 available points. Both Koger and Simpson received the maximum 45 points. RFP Page Two, question 8 provides as follows: Public Transportation availability: BIDDER RESPONSE: (Check appropriate box) Taxi , Bus , Frequency of service closest bus stop . Both Koger and Simpson indicate service by taxi and bus. The Koger proposal indicates a frequency of service as "8 BUSES" and the closest bus stop as "IN FRONT OF BUILDING ON WOODCOCK DRIVE." Simpson indicates a frequency of service as "15 minutes" and the closest bus stop as "front of building." The Department asserts that the Koger level of transportation access, albeit less than that serving the Simpson site, is satisfactory and therefore entitled to an award of all points available. Simpson asserts that the greater availability of public transportation to the Simpson site should result, under the terms of the evaluation criteria, in Simpson receiving more points than the Koger site for this category. The evaluation criteria clearly requires consideration of both the frequency and availability of satisfactory public transportation. Simpson asserts that in considering the transportation category, the evaluators should have reviewed local public transportation schedules. Review of such schedules establishes that the Simpson site is served more frequently by public bus transportation than is the Koger site, and further establishes that the number of bus routes directly serving the Simpson property far exceeds the routes serving the Koger site. Simpson did not include the schedules in the RFP response. The Simpson site is also located nearby the downtown public transportation transfer station at which point many, perhaps all, local bus routes connect. Simpson did not denote the location of the transfer station in the RFP response While the evaluation committee is not required to consider the bus schedules in reviewing bid proposals, the evaluation committee failed to consider the substantially greater frequency and availability of public transportation to the Simpson site relative to the Koger site, as set forth in the respective RFPs. The Department's position is contrary to the specific criteria identified in the RFP. The award of equivalent points for transportation access to both Simpson and Koger is unsupported by fact or logic and is arbitrary. Category 6 relates to the availability of adequate dining facilities within one mile of the offered space. Each evaluator could award up to two points in this category for a total of six available. Koger was awarded six points. Simpson received one point. When the evaluators rated the adequacy of dining facilities, they considered only those dining facilities which were located within two blocks of the offered space. Such is contrary to the clear terms of the RFP. The Department offered no rationale for the decision to amend the RFP criteria after submission of the proposals. The Simpson RFP response states only that there are adequate dining facilities within walking distance of the offered facility. The Koger response states that there are "three (3) sandwich shops within walking distance in the Koger center and other numerous restaurants within one (1) mile." As to individual evaluators awards, Tom Mahar awarded Simpson one point, while both Albert Cherry and Dorea Sowinski awarded Simpson zero points. Mahar's award was based on his opinion, again based on alleged safety concerns, that employees would be hesitant to walk to nearby restaurants and that driving and parking presented a problem in the downtown location. Cherry voiced a similar opinion. As to alleged safety concerns, Mahar and Cherry again based their opinions on minimal anecdotal information, supported by neither fact nor logic. Neither evaluator undertook any factual analysis of the safety issues relative to the proposed site. Their award of points for this category is arbitrary. On the other hand, Sowinski did not see any restaurants close to the Simpson site during the site visit. In excess of 40 restaurants are located within one mile of the Simpson site. The restaurants provide a variety of dining options both as to expense and fare. Sowinski's failure to observe restaurants located across the street from the Simpson site is, although difficult to understand, apparently a simple mistake on her part. Category 7 relates to the proximity of offered space to the clients served by the Department at this facility. Each evaluator could award up to three points in this category for a total of nine available. Simpson offered no evidence that the determination of points awarded for category 7 was inappropriate.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Labor and Employment Security enter a Final Order DISMISSING the protest filed by Towncentre Venture, and WITHDRAWING the proposed award of lease contract based on the Request for Proposal and Bid Submittal No. 540:0969. DONE and RECOMMENDED this 28th day of June, 1993, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1993. APPENDIX TO CASES NO. 93-2015BID and 93-2106BID The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner Towncentre Venture Towncentre Venture's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 4. Rejected, second sentence is irrelevant. 5-7. Rejected, irrelevant. Taken as a whole, the RFP indicates that HVAC services are to be provided throughout the leased premises during all hours of occupancy at no additional cost to the Department. The evidence fails to establish that the vendors were confused about the terms of the RFP. There were apparently no related questions addressed to Department personnel during the pre-bid conference or at any time subsequent to the conference and prior to the bid opening. 10. Rejected. Not supported by the document cited which does not identify the attachment by letter. 13. Rejected, irrelevant. The standard form lease included in the RFP was a sample document. None of the blank spaces were completed. 16. Rejected, irrelevant. The attendees at the conference were provided an opportunity to inquire as to all matters. There were apparently no questions asked related to the RFP's requirement that HVAC services be provided throughout the facility during all hours of occupancy at no additional cost to the Department. 17-18, 20-21. Rejected, irrelevant. The terms of the RFP are clear. 19. Rejected, irrelevant. The terms of the addendum for full service lease clearly indicate that such HVAC services were to be provided at no additional charge, not just in the computer room, but throughout the entire leased facility. 22. Rejected. The Towncentre bid was nonresponsive to the terms of the RFP. Petitioner Bryan Simpson, Jr., for P. V. Associates P. V. Associates' proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 3. Rejected, not supported by the greater weight of the evidence which establishes that the RFP was issued seeking space for the Jacksonville Office of Disability Determinations. 4, 23, 24. Rejected, unnecessary. Respondent Department of Labor and Employment Security The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 17. Rejected. The decision to award equivalent points for public transportation access fails to reflect the substantially greater access provided to the Simpson site and is arbitrary. 20-21. Rejected, not supported by greater weight of evidence which establishes no evidence that safety concerns were based on a reasonable evaluation of facts. There are no facts to support the conclusion that the Simpson location if less safe than the Koger site. COPIES FURNISHED: Shirley Gooding, Acting Secretary Suite 303, Hartman Building 2012 Capital Circle S.E. Tallahassee, Florida 32399-2152 Cecilia Renn Chief Legal Counsel Suite 307, Hartman Building 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152 Thomas M. Jenks, Esquire Pappas and Metcalf, P.A. 1 Independent Drive, Suite 3301 Jacksonville, Florida 32202 Nathan D. Goldman, Esquire Marcia Maria Morales, Esquire 200 Laura Street Post Office Box 240 Jacksonville, Florida 33202 Edward Dion, Esquire Assistant General Counsel Suite 307, Hartman Building 2012 Capital Circle S.E. Tallahassee, Florida 32399-2189
The Issue Whether Respondent's license as a real estate salesman should be suspended or revoked, or the licensee otherwise disciplined, for alleged violation of Chapter 475, F.S., as set forth in Administrative Complaint dated September 2, 1981. At the commencement of the hearing, the parties stipulated to Paragraphs 2 and 3 of the Administrative Complaint. Although Paragraph 2 thereof indicates that Respondent is a registered real estate salesman, he testified without contradiction that he has been licensed as a broker for the past 3-1/2 years. Accordingly, that fact will be reflected in the Findings of Fact herein. Both parties called one witness each to testify at the hearing, and Respondent testified in his own behalf. No exhibits were submitted in evidence.
Findings Of Fact Respondent, John M. Bosko, of Tampa, Florida, is a registered real estate broker and was so registered at all times relevant to the matters pertinent to this proceeding. (Testimony of Respondent, Stipulation) On or about May 11, 1979, Respondent leased a house which he owned at 3105 South Adams Street, Tampa, Florida, for a term of one year, to Gregory and Cindy Morrison. The lease was payable in the amount of $265.00 per month, and a $265.00 security deposit, to ensure compliance with performance of the lease provisions, was paid at the commencement of the lease. (Testimony of G. Morrison, Respondent, Stipulation) Gregory Morrison occupied the leased premises commencing in May, 1979. His wife, Cindy, left the house in December, 1979, and the couple was divorced in January, 1980. Mrs. Morrison took most of the furniture with her upon her departure. About March 1980, Respondent advised Morrison that he intended to sell the house and would not be renewing the lease. Morrison told him than he would leave the premises at the termination of the lease, on May 10, 1980. (Testimony of G. Morrison, Respondent) During the first week of April, 1980, Morrison moved to his future place of residence and did not live any longer in the leased house. During this period there was no furniture in the house. As to those articles that remained on the premises, the testimony of Morrison and Respondent is conflicting. Morrison claimed that he left a "pile of stuff" in the living room, including cleaning items, a vacuum cleaner, and games. He also testified that he had stored power tools, a weight bench, weights, a tuxedo, and a trombone in the garage. However, Respondent took a prospective purchaser of the house to the premises at approximately this time and they observed only an old vacuum cleaner in the living room. There were no clothes in the closets, no food in the refrigerator, and only some debris in the corner of the closets. About 500 whiskey bottles were distributed throughout the house, and about 35 marijuana plants were located in the family room. Respondent testified that he saw nothing in the garage. He therefore hired someone to clean the premises and put any of Morrison's items in the garage. Respondent was of the opinion that the house had been abandoned and that Morrison had forfeited the security deposit. (Testimony of G. Morrison, Respondent, Bankston) Morrison went to the house some time thereafter, saw that his property was missing, and reported it to the police. He telephoned the Respondent who informed him that he thought Morrison had vacated the premises, and that he had secured another tenant. Respondent told him that any of his property that had been left in the house could be found in the garage. Respondent declined to return the security deposit because he believed that Morrison had breached the provisions of the lease. Although Morrison had not paid the rent when due on April 1, he had a five-day grace period and tendered the month's rent to the Respondent within that time, but Respondent refused to accept it. Respondent proceeded to lease the property to another tenant and did not issue any notices to Morrison, or initiate any judicial proceedings pursuant to Chapter 83, Florida Statutes. Respondent testified that he was unaware of the provisions of Chapter 83. (Testimony of G. Morrison, Respondent) Morrison filed a civil action against Respondent for recovery of his personal property. The parties arrived at a compromise settlement consisting of return of Morrison's security deposit and one month's rent. (Testimony of G. Morrison)
The Issue Whether Respondents, Horse Creek Estates Homeowners Association, Inc. (HCE); The Compass Management Group, LLC; and Dale Mullin, HCE president, discriminated against Petitioners, Kevin and Catherine Hannon, in violation of the Florida Fair Housing Act.
Findings Of Fact PARTIES Petitioners are a married couple with children, living in Naples, Florida. During the applicable period, Petitioners owned a home located at 442 Saddlebrook Lane (Saddlebrook home). They currently reside in their new home at 3452 Atlantic Circle. Petitioners did not allege they are members of a protected class and they were subjected to discrimination based on that protected classification. Petitioners alleged that Respondents violated the Florida Fair Housing Act, as amended in the manner specifically described: -Respondents creates [sic] different terms and standards for different tenants and do not have a fair screening process; -Respondents continue to discriminate against proteted [sic] classes in order to “create” their desired All White Neighborhood; -Respondents failed to provide a “written adverse action notice as required by the Federal Trade Commission (FTC) Further, Petitioners alleged as the “ultimate facts” and “entitlement to relief” as: Respondents did discriminate when they unfairly denied the tenants based on highly inaccurate information. They failed to use a fair screening process and intentionaly [sic] delayed the approval process. This action caused and created unnecessary stress and a considerable amount of time, effort and financial burden & expenses to prove tenant was not a convicted felon. Respondents have never taken any responsibility for their actions, apologized or expressed remorse. They have manipulated the facts and benefit by having unlimited [illegible] I am seeking justice.5/ Petitioners claimed their tenants were subjected to discrimination based on their protected class: race and familial status. As set forth below, such discrimination was not established. Respondent HCE is a Florida not-for-profit corporation. According to Mr. Mullin, HCE represents 109 lots, including 103 homes, four empty lots and one lot being developed.6/ Since its inception, HCE has, through its members, approved its articles of incorporation and bylaws, and amended its declaration of condominium in accordance with Florida law. Respondent Mr. Mullin is currently president of HCE’s Board of Directors (Board). Mr. Mullin has been on the Board since 2010 and has served as its president for the last two years. Mr. Mullin resides in the community. The undersigned finds that Mr. Mullin was listed as a Respondent in his official capacity as the Board’s president, and not in his individual capacity. Respondent Compass Management Group, LLC (Compass), is a property management company which supervises approximately 130 different properties in Naples and the surrounding area, including HCE. Compass is responsible for the accounting, repairing property, and processing sales and leases for the various properties it manages. Compass processes the various lease applications, but does not make any decisions on which tenants are approved or denied; those decisions are made by the individual property associations. SCENARIO In 2014, Petitioners were in the process of building a new home in another Naples neighborhood. Petitioners determined that if they could not sell the Saddlebrook home in order to obtain the necessary financing for their new home, they would list the Saddlebrook home as rental property. Petitioners engaged Chris Lecca as their real estate rental agent for the Saddlebrook home. Mr. Lecca listed the Saddlebrook home on the MLS (multiple listing services). Nhuchau Hong Presti, who is also a real estate agent, saw the MLS rental listing for the Saddlebrook home. She, along with her husband Scott Presti, completed and executed the Compass application checklist (2 pages), and the “Estates at Horse Creek” lease application7/ (21 pages, which included a copy of the Florida Residential Landlord and Tenant Act) on June 27, 2014. This lease application included a notice that “[an] interview with the Board is required prior to approval.”8/ The Saddlebrook home lease term was August 1, 2014, through March 31, 2015. The Prestis submitted their completed lease application to Mr. Lecca. Prior to submitting the lease application to Compass, Mr. Lecca performed a background check on Mr. and Mrs. Presti. Mr. Lecca found the Prestis to have “decent or good credit.” The background check also provided information about an old arrest of Mr. Presti. The arrest was over ten years old and was not a felony. Mr. Lecca could not envision any reason for the Prestis’ application to be denied. Mr. Lecca submitted the Prestis’ lease application to Compass on Tuesday, July 1, 2014, 30 days before the lease was to begin. Compass forwarded the lease application to the HCE Board for its review and determination. According to HCE bylaws, a decision on the lease application had to be announced within 15 days of the application.9/ On Wednesday, July 9, Compass sent a letter to Petitioners notifying them that the Prestis’ lease application was denied. The stated reason was: This application is being denied do [sic] to results that were returned on the background/credit check for the applicants. Attached is a copy of the Horse Creek Estates “Regulatory Criteria for Disapproving a Rental Lease”. . [sic] The Board initially based its decision on information found in the “REAL-ID Incorporated” documentation, which reflected Mr. Presti’s arrest and Mrs. Presti’s financial foreclosure actions. Once the Board was advised of the circumstances, the Board exercised its right to interview the Prestis. As a result of that personal interview, the lease application was approved, and the Prestis moved into the Saddlebrook home. Compass’ client services manager, Ms. Nolen, advised Mr. Lecca that the Board’s basis for the denial was Mr. Presti’s felony conviction and Mrs. Presti’s financial foreclosure actions. Shortly thereafter, Petitioners engaged an attorney who requested the Board to reconsider the denial decision. On Monday, July 14, Mr. and Mrs. Presti were asked to attend an in-person interview with the Board or members of the Board. Although the Board (through Compass) offered to meet with the Prestis on Thursday, July 17, a conflict arose and the interview was re-scheduled to Friday, July 18. On July 18, Mr. and Mrs. Presti, accompanied by Mr. Lecca, arrived at the interview location, Mr. Mullin’s residence. Mr. Mullin declined to allow Mr. Lecca to attend the meeting, stating that Mr. Lecca’s presence wasn’t necessary. Board members, Mr. Mullin and Mr. Sussman, interviewed the Prestis. Following this 30 to 45 minute interview, the Board reversed its denial and approved the Prestis’ lease application. Mr. Mullin telephoned Mr. Lecca and told him that the lease application was approved. The Compass approval letter was issued on Tuesday, July 22. The Prestis moved into the Saddlebrook home on or about August 1, the date the lease began. They have paid their monthly rental fee timely and there have been no complaints. No testimony or evidence was presented that demonstrated any type of discrimination was the motivation for the initial denial of the lease application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations, dismissing the Petition for Relief filed by Petitioners in its entirety, and denying Respondent’s request for attorney’s fees. DONE AND ENTERED this 8th day of May, 2015, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 May, 2015.
The Issue The issue framed by the Notice to Show Cause is whether Allison on the Ocean, Inc., violated Section 718.502(2)(a), Florida Statutes (1984 Supp.) by accepting a deposit of $85,000 and executing a "Memorandum of Agreement" with Hildagard Waltraud Bitton when that Memorandum of Agreement had not been approved for use as a reservation agreement form by the Division of Land Sales Condominium and Mobile Homes?
Findings Of Fact Allison on the Ocean, Inc., is an active, for profit Florida Corporation (PX 4). 1/ Ms. Chantal Fianson is the owner of all five hundred shares of authorized stock in Respondent (PX 4; testimony of Ms. Fianson). The Allison Hotel in Miami Beach, consisting of studio apartments, was leased by Ms. Fianson. She intended to convert it to condominium ownership. Apparently the lease was held in the name of Allison on the ocean, Inc. An attorney was retained by Ms. Fianson to prepare the necessary papers for the condominium conversion. In connection with that conversion application, a reservation deposit agreement had been submitted to the Department of Business Regulation, copy of which was entered into evidence as PX 2. After those conversion papers were submitted to the Division in Tallahassee, Ms. Fianson was informed in April 1954 that the condominium conversion would not be approved because although she had a long-term lease, a condominium project required ownership of the land on which the building stood (testimony of Ms. Fianson). Before the Department of Business Regulation declined to approve the condominium project as originally proposed by Ms. Fianson, on March 2, 1984, an agreement entitled "Memorandum of Agreement" was executed between Allison on the ocean, Inc., and Hildagard Waltraud Bitton by their respective representatives stating Ms. Bitton's intent to purchase or sublease three units in the property (PX 1). That memorandum shows by its terms that it was not intended to be the contract for the purchase and sale of the units. It provided for the cancellation of the agreement within ninety days, at the buyer's option, and stated that the validity and the interpretation of the agreement would be governed by Florida law (PX 1 paragraph 7). Ms. Bitton paid $85,000 to Allison on the Ocean, Inc., in connection with this Memorandum of Agreement, which money was then used for expenses related to the conversion of the building to a condominium (testimony of Ms. Fianson). Significantly, the prefatory "whereas" clauses in the agreement stated that "Developer is in the process of converting the Allison Hotel, located at 6261 Collins Avenue, Miami Beach, Florida to a Condominium . . ." after which by hand interlineation was written "or SUB LEASE" and the initials of the representatives of both parties appear. The memorandum expressed the intention of the parties that if the proposed condominium conversion were not approved, Ms. Bitten would receive not a fee ownership in condominium units, but a sublease of an unspecified term from the lessee-developer, under the long-term lease which the Respondent did have on the Allison Hotel. The attorney for the purchaser/lessee Ms. Bitten drew up the Memorandum of Agreement (PX 1), and it was not submitted to the Division for review before it was executed. After learning in April 1984 that the condominium project would not be approved, Ms. Fianson did arrange to purchase the land from its owner, and another lawyer was obtained to file condominium documents reflecting the fee ownership by the developer. In the interim, the condominium market became very bad, and ultimately the bank which had provided the Respondent the purchase money mortgage for the property foreclosed on the Allison Hotel. The evidence does not show whether the $85,000 which was used in the conversion process was ever returned to Ms. Bitton.
Recommendation It is recommended that the notice to show case issued in this case be dismissed. DONE AND ORDERED this 5th day of September 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 5th day of September 1986.
Findings Of Fact The Declaration of Condominium for Oaks of Broward was filed by Margen, a Florida Partnership, in May, 1974 in the Public Records of Broward County and with the Petitioner. All documents required to be filed by Margen with Petitioner were filed and the fees paid. Simultaneously a recreational lease was filed of property adjacent to the condominium in which Barnett Bank of Hollywood was named as Trustee and Lessor, and The Oaks Condominium Association, Inc. of Broward as Lessee. Between May 1974 and early 1976 Margen sold to individuals 39 condominium units at Oaks of Broward. In early 1976, Housing Investment Corporation, mortgagee, began foreclosure proceedings which resulted in title to all of the Oaks condominium property, except for the 39 units previously sold, being taken by The Oaks of Broward, Inc., Respondent. Thereby Respondent became successor in title to the previously unsold 75 units in the building and to the position of the Lessor on the long-term recreational lease. On or about August 1977, Respondent offered for sale the 75 condominium units pursuant to prospectus admitted into evidence as Exhibit 2. In addition thereto and as part of the sales effort Respondent executed and recorded the Declaration Waiving Rents, a copy of which was admitted into evidence as Exhibit Neither of these documents was filed with Petitioner. The 75 units owned by Respondent were sold with the recreational lease rents waived. Pursuant to the terms of the recreational lease the original 39 buyers pay $20 per month, either to the Association or directly to the Lessor. This lease is a net/net lease, which means the Lessor performs no services except to provide the premises themselves. The Condominium Association is responsible for and pays all maintenance, taxes, upkeep and expenses for the operation of the Recreation Area. All condominium units, the original 39 as well as the remaining 75, pay to the Association, as part of the common expenses, their pro rate share of those operating expenses. It is this disparate treatment of the two groups of unit owners with respect to the recreational lease rent payment of $20 per month that is one subject of Petitioner's request for a cease and desist order. The second subject of the Petition for a cease and desist order is Petitioner's contention that Respondent is a Developer and is required to file documents and pay a $10 filing fee for each of the 75 condominiums sold, regardless of whether fees for these 75 units were paid by Respondent's predecessor in title.
Findings Of Fact Respondent is the owner and developer of the Plaza Venetia Marina, located in Biscayne Bay in Dade County, Florida, just north of the Venetian Causeway. Respondent has constructed the marina on submerged lands leased from the Board of Trustees of the Internal Improvement Trust Fund, acting through the Department of Natural Resources. The submerged lands which are the subject of the lease in question in this proceeding are sovereignty lands lying within the Biscayne Bay Aquatic Preserve as defined in Section 258.165(2)(a) , Florida Statutes, and in Chapter l6Q-18, Florida Administrative Code. Chapter l6Q-18 became effective March 20, 1980. In 1976 and 1977 Respondent received permits from the State of Florida, Department of Environmental Regulation, and the Army Cords of Engineers for two "J" shaped main docks, one 700 feet long and the other 500 feet long, roughly forming a half circle extending about 450 feet from the shore. The permits also authorized the construction of two 280-foot long "T" shaped docks within the semicircle, one on each side of the central dock and fueling facility which is the subject matter of this proceeding. on October 27, 1977, DER issued Permit No. l3-30-0740-6E to Respondent, authorizing the construction of the central dock and fueling facility. On August 18, 1977, Respondent applied to the Board of Trustees and DNR for the lease in controversy. The letter and enclosures indicated the area to be leased would encompass 38,268 square feet of bay bottom. The applicant's letter makes reference to a "docking and fueling facility," while the legal description submitted with the application is captioned "Omni Marina Phase II and Fueling Dock." The plan-view drawings and cross-sectional views of the pier which Respondent filed with DER and which were in turn furnished to DNR show a platform at the end of the central pier labeled with the words "FUEL," but do not show any building associated with the pier. A cross-sectional view of the platform alone was neither provided by Respondent nor requested by either DER or DNR. Notwithstanding this fact, however, during the course of DNR review of the lease application, Respondent advised DNR officials of its intention to place some structure on the platform at the terminus of the central pier to serve as a "fueling station." DNR personnel in charge of the application evaluation in fact conducted in-house discussions concerning the agency's interpretation of what would constitute a "fueling facility." These DNR officials in fact knew that Respondent intended to erect a structure on the platform of the central pier to serve as a fueling facility. Despite this knowledge, DNR officials did not request additional information relating specifically to the character of any structure which Respondent intended to erect on the platform at the end of the central pier for reasons hereinafter set forth. The Board of Trustees of the Internal Improvement Trust Fund met on March 23, 1978, and approved Respondent's lease application The minutes of that meeting state that: This facility is consistent with existing usage and does not unreasonably interfere with lawful and traditional public use of-the Preserve and is in compliance with Section 258.165, Florida Statutes. As a result of the Board approval, a lease was issued and duly executed allowing Respondent ". . . to operate exclusively a fueling facility upon sovereignty lands. . . ." Respondent was granted a lease term of five years commencing March 21, 1978. At the time the lease in question was approved, neither the lease itself nor any rule, statute, or agency practice defined the term "fueling facility." There were, in fact, no rules adopted by the Board of Trustees or DNR in existence on March 23, 1978, governing the leasing of sovereignty submerged lands. Instead, DNR and the Board of Trustees employed former Rule 18-2.22, Florida Administrative Code, as a policy guide in processing submerged land lease applications. Under the Florida Administrative Procedure Act, the provisions of Chapter 18-2, Florida Administrative Code, had become null and void as of October 1, 1975, by virtue of the failure of the Board of Trustees and DNR to readopt those rules in accordance with Chapter 120, Florida Statutes. Even Chapter 18-2, Florida Administrative Code, however, failed to define "fueling facility," "marina," or "commercial docking facilities," all of which terms appear in the disputed lease issued to Respondent. Former Rule 18-2.164, Florida Administrative Code, contains licensing requirements for marinas, including furnishing construction drawings of proposed structures and complying with the requirements of that rule in the event any structural modifications occur. The record in this cause establishes, however, that DNR, at the time the lease in controversy was issued, did not uniformly apply the "policy guide" contained in former Rule 18-2.164, Florida Administrative Code. In fact, it appears that prior to the promulgation of the Biscayne Bay Aquatic Preserve rule, Chapter 16Q-18, Florida Administrative Code, on March 20, 1980, DNR's policy in the leasing of sovereignty submerged lands was to concern itself only with the amount of state land that a proposed use would require. In this connection DNR and the Board of Trustees were not concerned with the design of structures to be placed on leased sovereignty submerged lands, but were concerned only with maintaining the (integrity of lease boundaries. After December 20, 1978, DNR expressed this policy as a rule, exempting the modification of existing structures from lease modification requirements so long as the structural modification did not require ". . . the use of any additional sovereignty submerged lands." Rule 16Q-17.14(1)(j) , Florida Administrative Code. At the time of the issuance of the lease here in question, Respondent did not know the exact nature, size, or height of any structure that it might wish ultimately to build on the central platform. The words "fueling station" appear on the platform at the end of the center pier in one of the drawings submitted to DER, and in turn forwarded to DNR by DER. On January 11, 1979, approximately fourteen months after issuance of the DER permit and less than one year after issuance of the lease here in question, Respondent furnished a copy of the floor plan of the proposed building on the central pier to DER. This floor plan indicated areas to be included in the building for bait and tackle facilities, a food store, storage areas, restroom facilities, and a marina office. Also shown on the floor plan was a storage area for electric carts to be used in servicing vessels utilizing the marina facilities. On April 20, 1979, the City of Miami issued a valid building permit for construction of the marina fueling station. Respondent notified DER and DNR in July of 1979 that it intended to begin construction of the marina shortly thereafter. Construction of the central pier began on July 16, 1979, and ended on June 11, 1980. Construction of the fueling platform began on February 25, 1981, with erection of the fueling station walls beginning sometime after April 1, 1981. Prior to construction of the fueling platform and building, but after completion of the central lease pier, DNR made an annual inspection of the marina on February 16, 1981. During this inspection, the central lease dock was checked and found to be in compliance with the Biscayne Bay Aquatic Preserve Act. In December of 1981, DNR learned that Respondent had constructed a building on the platform at the end of the central pier through receipt of a copy of a DER warning notice issued to Respondent. DNR then sent a letter to Respondent on January 29, 1982, advising Respondent to revise its plans and locate the building on the uplands since the building as constructed might be in violation of Section 258.165, Florida Statutes, commonly referred to as the Biscayne Bay Aquatic Preserve Act. Correspondence then ensued between DNR and Respondent culminating in a March 8, 1982, letter from DNR advising Respondent of DNR's intent to seek cancellation of the lease for the central pier at an April 20, 1982, meeting of the Board of Trustees. The following day, on March 9, 1982, an inspection was made of the central lease facility. The building constructed on the platform at the end of the central pier has a floor area of approximately 3,800 square feet, and a roof area of approximately 5,292 square feet. The building was constructed at a cost of approximately $500,000. The net area of the platform at the end of the central pier contains about 9,640 square feet. The height of the structure is approximately 18 to 20 feet, and it is situated over the water approximately 400 feet east of the bulkhead. The interior of the building has been divided into six rooms, and no fuel pumps were found on the leased area on March 9, 1982. Construction of the building was halted before it could be completed or put into use. The building as presently constructed has provisions for the following uses: a waiting area for water-borne transportation, a bait and tackle shop and marine supply store, an electric cart parking and recharging station, and an attendant' room with cash register and equipment for fuel pumps. In addition, the structure contains bathroom facilities for boat owners and passengers and employees, and shower facilities for marina employees. All of these uses are customarily associated with the operation of marina facilities. Construction of the fueling station at the end of the central pier did not require the use of any sovereignty submerged lands in addition to those encompassed within the existing lease. Further, construction of the building did not require additional dredging or filling nor did it result in any significant adverse environmental impact.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the Board of Trustees of the Internal Improvement Trust Fund dismissing this cause, and denying the relief requested against Respondent. DONE AND ENTERED this 3rd day of June, 1983, at Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1983. COPIES FURNISHED: Paul R. Ezatoff, Jr., Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Clifford A. Shulman, Esquire and Thomas K. Equels, Esquire Brickell Concours 1401 Brickell Avenue, PH-1 Miami, Florida 33131 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Lee Rohe, Esquire Assistant Department Attorney Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Director Department of Natural Resources Executive Suite 3900 Commonwealth Boulevard Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER =================================================================
