The Issue Whether the permit Harbor Woods seeks should be denied lest effluent from a sewage treatment plant enter the proposed basin? Whether the proposed project will cause odors and degradation of water quality in contravention of DER standards and rules, as a result of stormwater runoff?
Findings Of Fact On Merritt Island in Brevard County, Harbor Woods owns an 80-acre parcel on the western shore of Newfound Harbor. From the north, Sykes Creek flows into Newfound Harbor, which opens into the Banana River to the south. The parties stipulated that Newfound Harbor, which is navigable, contains Class III waters. Paralleling the northern boundary of the Harbor Woods property is a ditch through which 800,000 gallons or more of effluent from a sewage treatment plant operated by Brevard County pours into Newfound Harbor daily, at a point about 400 feet north of the proposed flushing channel. A mile or so south of the proposed flushing channel is the nearest boundary of the Banana River Aquatic Preserve. PETITIONER'S INTEREST Robert B. Sampson, Carl Seidel and Betty Holcombe have all been boating in Newfound Harbor and expect to use the waters of Newfound Harbor in the future. Ms. Holcombe is an avid angler and has fished those waters often. MAN vs. MOSQUITO At one time an arm of Newfound Harbor extended onto the property Harbor Woods now proposes to develop. As a means of mosquito control, the authorities caused a dike to be built along the eastern edge of the property, wailing off the shallows and interdicting the tidal flow. The impoundment was then filled with fresh water in an effort to keep the bottom covered. The idea was to deprive mosquitoes of mud they need for depositing eggs. The effort was not completely successful, and the area continues to be sprayed with insecticides. The mosquitoes that now breed in the vicinity of the impounded fresh water are capable of transmitting encephalitis and other diseases and constitute a more serious problem than the mosquitoes whose larvae formerly hatched on the salt mud flats. The area of the original impoundment was reduced some time after 1967 by filling in conjunction with development to the north of the Harbor Woods property. PARTIAL RESTORATION PROPOSED Barber Woods, which owns the bottom landward of the dike, proposes to drain the fresh water to an unspecified upland site, uproot some seven and a half acres of cattails, remove the muck, and fill with clean sand so as to reshape the perimeter of the impoundment and its bottom contours; and consolidate four small islands into a single "recreational" island within the newly formed basin, which would only then be connected to Newfound Barber by dredging a flushing channel through the dike. Unplugging the dike would entail removal of about a quarter acre of productive wetlands, mainly mangroves, which would be transplanted inside the basin. The project would improve the property aesthetically and result in more land area for the "mid-rise" condominium buildings Barber Woods intends to erect. Although the project would not restore the site to its precise pro-impoundment state, the proposed basin is designed, in part, to fill the ecological role the pristine embayment once played. The level bottom of the new basin would lie at 1.5 feet NGVD; once the dike was breached, saltwater would fill the basin to a uniform depth of one and one half feet, and spill over to submerge five acres of cordgrass (Spartina alterniflora) which would be planted along the northern and southern shores of the basin. The unplanted bottom of the basin would comprise another five acres. After removing 330 feet of the dike, and in order to insure the movement of water in and out of the basin, a channel 150 feet wide would be dug out into Newfound Harbor 92 feet waterward of the mean high water line. Turbidity curtains would be used during dredging. If the cordgrass and the mangroves, which are to be planted in the same area, take hold and flourish, white mangroves would dominate in five years' time, and the quarter acre strip along the dike which would be lost would then have been replaced by an area twenty times as large. Eventually red mangroves should become dominant. The uncontroverted evidence was that, because of all the new vegetation proposed, the project would ameliorate water quality in Newfound Harbor and provide a new food source, habitat and nursery area for various organisms, including mosquitophagous fish. AMBIENT POLLUTION The objectors raised the question whether any plantings in the new basin could be expected to survive in light of the poor water quality in Newfound Harbor. The waters of Newfound Barber do not meet minimum standards for Class III waters now, and would not be brought up to those standards by any project like the one proposed. Brevard County's Fortenberry Sewage Treatment Facility, the source of the effluent pouring into Newfound Harbor, has been the object of administrative proceedings in which DER has alleged that the facility is discharging excessive amounts not only of nutrients like phosphorous but also of copper, mercury, lindane, and malathion. Petitioners Exhibit No. 4. Excess nutrients in the water would foster, not retard, the growth of submerged plants, but some of the substances DER itself claims are being introduced into Newfound Harbor could be lethal to plants. DER has alleged in a notice of violation that effluent from the Fortenberry Sewage Treatment Facility "is acutely toxic." Petitioners' Exhibit No. 4. Reese Kessler, a DER employee, noted "a six inch layer of black ooze" along the Newfound Barber side of the dike in September of 1981, which, he reported, "Presumably resulted from a recent heavy discharge of sewage effluent." DER's Exhibit No. 2. If constructed as proposed, the basin would exchange waters with Newfound Barber, primarily under the influence of the wind. Southeast winds predominate at the site. When the wind blows from the southeast, a clockwise gyre in Newfound Barber takes the effluent due east from the mouth of the ditch and away from the proposed flushing channel, but a northeast wind would result in sewage effluent entering the basin, if it blew hard enough. Runoff entering the basin from upland would also be a motive force, as would the ebb and flow of the tide, to a lesser extent; the tidal range in the area is on the order of one-tenth of a foot. Ninety percent of the water in the basin would leave it and enter Newfound Barber in 30 days' time, even without any wind. The flushing channel is fairly wide and not much deeper than the surrounding bottom; natural circulation should be enough to keep it clear of siltation. Because water quality in Newfound Harbor is so bad, the water in the proposed basin would also fall below minimum standards for Class III waters. According to uncontroverted testimony, however, the new basin would not cause or aggravate water quality standard violations. The new vegetation would be protected from most boat traffic by being planted in shallow beds. The experts unanimously predicted it would thrive and ameliorate a bad situation. STORMWATER RUNOFF The dike not only keeps the waters of Newfound Harbor out; it also prevents any additional pollution of Newfound Harbor from upland source. Harbor Woods intends to construct parking lots, in conjunction with the multi-story condominium buildings it plans to build around the proposed basin. The precise location and dimensions of the buildings and parking lots have not been decided upon but it is clear that rainwater draining over the parking lots would make its way to the proposed basin and, eventually, to Newfound Harbor. Harbor Woods has proposed to encircle the new basin with grassy swales large enough to hold the first half inch of rain that would otherwise drain directly into the basin. Water overflowing the swales could reach the basin only by passing through a sand filter, which would remove all oil. Gasoline is not ordinarily split in most parking lots and quickly evaporates, in any case. But rain washing over parking lots picks up oils, greases and heavy metals. Bow badly water traversing a parking lot Is polluted depends principally on what the parking lot surface is. The optimal parking surface is concrete block, which allows for some percolation. The first inch of rainfall washes off 90 percent of the substances that pollute runoff The evidence was uncontroverted that the runoff would meet Class III standards before it entered the proposed basin. PROPOSED FINDINGS CONSIDERED Respondent DER filed proposed findings of fact, conclusions of law and recommended order. DER's proposed findings of fact have been considered and in large measure adopted, in substance. To the extent they have been rejected, they have been deemed unsupported by the weight of the evidence, irrelevant, immaterial, cumulative or subordinate.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER grant petitioner's application on the conditions proposed and on the additional condition that any parking lots over which draining water would eventually reach Newfound Harbor be paved with concrete block. DONE and ENTERED this 10th day of November, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1983. COPIES FURNISHED: Joe Teague Caruso, Esquire Post Office Box 757 Cocoa Beach, Florida 32931 Dennis R. Erdley, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Robert B. Sampson Post Office Box 431 Merritt Island, Florida 32952 Carl Seidel c/o Robert B. Sampson Post Office Box 431 Merritt Island, Florida 32952 Betty Holcombe c/o Robert B. Sampson Post Office Box 431 Merritt Island, Florida 32952 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
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 This is an appeal from Resolution No. P60-99 of the Monroe County Planning Commission ("Planning Commission"), in which the Planning Commission approved the decision of the Monroe County Planning Department ("Planning Department") denying two applications for building permits submitted by the Appellants, Robert and Ruth Stoky ("the Stokys"). One application requested a building permit to reconstruct a screened porch and to build an elevated deck in the rear of the Señor Frijoles/Cactus Jack's restaurants, which are located at 103900 Overseas Highway, Key Largo, Florida; this application was assigned building permit number 99-3-857 ("permit number 99-3-857"). The second application requested a building permit to reconstruct a trellis as a separate structure associated with the Sundowner restaurant, also located at 103900 Overseas Highway, Key Largo, Florida; this application was assigned building permit number 99-3-858 ("permit number 99-3-858"). The instant appeal was forwarded by the Planning Commission to the Division of Administrative Hearings pursuant to Article XIV, Monroe County Code, the Hearing Officer Appellate Article, and Monroe County ("the County") has appeared as Appellee in this case. In their Initial Brief, the Stokys abandoned their appeal of the decision of the Planning Commission approving the Planning Department's denial of their application for permit number 99-3-858; therefore, the ultimate issue presented in this appeal is whether the Planning Commission's Resolution No. P60-99 should be affirmed, reversed, or modified with respect to the its decision approving the Planning Department's denial of the Stokys' application for permit number 99-3-857.
The Issue The issue is whether Respondent is guilty of committing a discriminatory housing practice against Petitioners, based on their national origin, in violation of the Florida Fair Housing Act, sections 760.20-769.37, Florida Statutes.
Findings Of Fact In 2006, Petitioners purchased the single-family detached residence located at 1360 Northeast 41st Place in Homestead, Florida. The home is located behind an access gate that requires a card to operate. The card is serviced by Respondent through its management company, The Continental Group. Petitioners claim that Respondent's harassment forced them to move out of their home in October 2012. It is likely, though, that the timing of their relocation was influenced by a foreclosure judgment entered on March 7, 2012. The foreclosure judgment calculated interest on the unpaid mortgage note from September 1, 2008, suggesting that Petitioners had not made mortgage payments for the four years immediately preceding their moving out of the house. Petitioners' residence is subject to a declaration of covenants and bylaws. Respondent and The Continental Group are responsible for enforcing the provisions of these homeowner documents. Petitioners have a long history of violations of the homeowner documents dating as far back as at least late 2008. A notice dated December 31, 2008, advised Petitioners of a noncompliant lease. Notices dated June 30 and December 15, 2009, advised Petitioners that their landscaping lacked mulch. Notices dated August 10 and 25, 2009, advised Petitioners of a vehicle blocking the sidewalk. A notice dated September 24, 2009, advised Petitioners of a driveway that required pressure- cleaning. The notices became more numerous in 2010 and 2011. Claimed violations included an oil stain on the driveway, mildew on one or more exterior walls, and more landscaping issues, almost all of which involved shrubs that needed trimming. On occasion, the inspector cited the failure to trim dead branches or small amounts of grass growing between driveway pavers, but, mostly, she cited the failure to trim live vegetation. The evidentiary record contains 18 citations for overgrown shrubs, even though the photographs that are part of the citations reveal only a conventional foundation planting under the front windows that at no time extends above the bottom of the window frame. There are seven citations for grassy driveway pavers, although only one photograph clearly reveals any such grass--perhaps one linear foot of a few blades of grass wedged between a few pavers immediately in front of the garage door. A similar pattern of citations extended into 2012. Petitioners do not ground their claim of discrimination of these violations, though. Respondent produced a thick written summation of citations and fines that it imposed on homeowners in 2011-12, and Petitioners do not stand out in this document. Respondent clearly enforced the homeowner documents closely, so all that can be gleaned from Petitioners' long citation history is that relations between Petitioners, on the one hand, and Respondent and The Continental Group, on the other hand, may have been strained at times. In any event, the evidentiary record discloses that Petitioners were fined 17 times for untrimmed shrubs and 11 times for failing to remove the mildew from exterior walls. This record of fines is illustrative, not exhaustive. Petitioners believe they have been fined about $10,000. Regardless whether this figure is correct, Petitioners have been fined a substantial amount of money, but they have never paid any of these fines. Petitioners also failed to stay current on their homeowner assessment and maintenance fees. By August 12, 2011, Petitioners overdue balance on these items totaled $1,145 plus another $1,000 in costs in connection with filing a lien against their residence. In mid-August 2011, Respondent sent a notice to all homeowners that their access cards would be deactivated, necessitating the reregistration of the vehicles and recoding of their cards. The notice warned that Respondent would recode only the cards of residents who were current with their maintenance fees. Shortly after receiving this notice, Petitioners visited the management office to reregister their two vehicles and have The Continental Group recode their two access cards. Petitioners first met Ivan Arguello, who is an administrative assistant for The Continental Group. Mr. Woolley presented his access card to Mr. Arguello, so he could recode it. Pursuant to Respondent's policy, Mr. Arguello checked Petitioners' account and found them delinquent, so, again pursuant to Respondent's policy, Mr. Arguello informed them that he could only activate one card, not both cards, unless they paid their balance in full or entered into a payment plan approved by Respondent or its attorney. Mr. Woolley was irate and retrieved his card from Mr. Arguello. Mr. Woolley proceeded to address the issue with Mr. Arguello's supervisor, Mr. Gonzalez, who, at the time of the hearing, no longer was employed with The Continental Group. Petitioners stepped into Mr. Gonzalez's office, which was near the desk occupied by Mr. Arguello. Mr. Woolley and Mr. Gonzalez became angry and argued loudly. Although Mr. Woolley was aware that he could have obtained the recoding of one card, he was unwilling to accept this offer and instead left without the recoding of either card. All of the evidence offered by Petitioners' witnesses of the inconvenience posed by having no access card was entirely attributable to Mr. Woolley's decision not to accept the offer to recode one of his and his wife's two cards. At no time after this confrontation in the office did either Petitioner ever ask an employee of The Continental Group or Respondent to recode one of their access cards; Mr. Woolley merely retained an attorney to pursue the matter. For their part, Mr. Gonzalez did not direct Mr. Arguello to recode one of Petitioners' cards, nor did Mr. Arguello choose to do so on his own. The policy of the management company or Respondent was to require that the resident produce the card to be recoded, and Mr. Woolley had done that when he had handed his card to Mr. Arguello. Although Mr. Woolley left with his card, the actual recoding required Mr. Arguello, who had noted the card number, only to enter some information on his computer. Under Respondent's policy, Petitioners were entitled to the recoding of one of their cards. Under Mr. Arguello's personal policy, which he testified that he has applied to other loudly confrontational residents, he would not recode a card of a vocally abusive resident. When asked if the resident had to return to the office "contrite," Mr. Arguello answered: "No, no. They just have to come back not yelling." Tr. 57-58. No evidence suggests that the failure of The Continental Group to recode the one card was due to discrimination based on national origin. Petitioners alleged that The Continental Group and Respondent selectively enforced these policies against Petitioners, but they produced absolutely no proof to support this claim, even as to Mr. Arguello's personal policy. At the time of the incident in the office, Petitioners had already incurred a number of unpaid fines and maintenance fees. When Mr. Woolley became irate at the prospect of being restricted to a single access card, despite his failure to meet all of his financial obligations to the community association, it is an easy inference that Mr. Gonzalez and Mr. Arguello found Mr. Woolley's attitude inappropriate and decided not go out of their way to help Mr. Woolley, such as by activating one of his cards, unless he asked again in a more civilized fashion. Essentially, the only evidence of discrimination in this case is that Petitioners are Haitian, they did not get two access cards when they visited the management company's office, and The Continental Group did not complete the recoding of one of their cards after they left the office. Respondent argues that none of the representatives of Respondent or The Continental Group knew that Petitioners are Haitian. Certainly, this is the testimony of these witnesses. Both petitioners are dark-complected and speak English with a French accent, but it is unnecessary to determine if these facts are sufficient to support an inference of a different national origin because two additional facts stand between Petitioners and a prima facie case. First, even if The Continental Group employees knew that Petitioners are Haitian, there is no evidence of discrimination based on this place of origin. There is no evidence that Mr. Arguello or Mr. Gonzalez treated Petitioners differently from other residents who did not pay their fines and fees when it came to recoding access cards. This is true as to Respondent's policies and Mr. Arguello's personal policy. Second, there is no proof of any harm to Petitioners that they did not cause to themselves. At any time, in a normal tone of voice, they could have obtained a single access card, but they chose not to do so. If Mr. Arguello had not implemented his personal policy, Respondent perhaps could have proved that Petitioners commenced this proceeding for an improper purpose--namely, to harass Respondent. Respondent's policies restricting the availability of access cards based on whether residents were current on their obligations to the community association was written and disseminated among the residents. Thus, if Petitioners' claim of discrimination had been based exclusively on the implementation of these sensible, written policies, they might have exposed themselves to paying Respondent's reasonable attorneys' fees and costs. However, Mr. Arguello's implementation of his personal policy--while understandable--raises a different issue in requiring the analysis of the intent and effect of another tier of decisionmaking by Respondent or, in this case, The Continental Group. Ultimately, as noted above, Mr. Arguello's implementation of his personal policy does not support a finding of a prima facie case of discrimination, but his policy's subjective standard makes the inference of an intent to harass on the part of Petitioners more difficult to make--to the point that such an inference cannot be made.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 30th day of January, 2013, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 30th day of January, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Margaret H. Mevers, Esquire Teresita M. Perez, Esquire Lydecker | Diaz 19th Floor 1221 Brickell Avenue Miami, Florida 33131 Pierre Woolley Emmanuella Woolley 2033 Northwest 178th Way Pembroke Pines, Florida 33029
Findings Of Fact Petitioner is James Newberry Jr., who was also the Petitioner in the underlying challenge to Emergency Rule 64B14ER98-1 of Respondent Florida Board of Orthotists and Prosthetists, designated as DOAH Case No. 98-1186RE. The underlying case was brought pursuant to Section 120.56(5), Florida Statutes, pertaining to "Challenging Emergency Rules; Special Provisions." Mr. Newberry prevailed therein. The instant costs and fees case has been brought, in the alternative, pursuant to Sections 120.595(3) and 57.041, Florida Statutes. These are the only statutes relied upon in the Petition. In oral argument, Petitioner's counsel acknowledged that no case law exists to support an award of fees and/or costs under Section 57.041, Florida Statutes. The Petition does not contain an allegation that Petitioner incurred the attorney's fees set out in the attached affidavit of Ryan Garrett. The Petition does not attach any contract for attorney's fees. Petitioner's counsel acknowledged orally that no contract for fees existed and that the statements of the attorneys representing Petitioner addressed to "The Board of Orthotists Certification" in Baltimore, Maryland were addressed in that way because of an agreement between that private corporate entity and Petitioner Newberry, who is one of its members. By that agreement, apparently not reduced to writing, the Maryland corporation agreed to provide Petitioner with an attorney and pay the attorney's fees and further advanced all Petitioner's costs. "The Board of Orthotists Certification," also known as "The Board for Orthotics and Prosthetics Certification," of Baltimore, Maryland was not a party to the underlying emergency rule challenge. No evidence of its standing, if any, to challenge the emergency rule nor even of its involvement with Mr. Newberry for fee purposes was presented in DOAH Case No. 98- 1186RE.
The Issue The two issues raised in this proceeding are: (1) whether the basis and reason Respondent, Vestcor Companies, d/b/a Madalyn Landings (Vestcor), terminated Petitioner, Carlos Gomez's (Petitioner), employment on June 28, 2002, was in retaliation for Petitioner's protected conduct during his normal course of employment; and (2) whether Vestcor committed unlawful housing practice by permitting Vestcor employees without families to reside on its property, Madalyn Landing Apartments, without paying rent, while requiring Vestcor employees with families to pay rent in violation of Title VII of the Civil Rights Act of 1968, as amended, and Chapter 760.23, Florida Statutes (2002).
Findings Of Fact Based upon observation of the demeanor and candor of each witness while testifying, exhibits offered in support of and in opposition to the respective position of the parties received in evidence, stipulations of the parties, evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2002), and the entire record compiled herein, the following relevant, material, and substantial facts are determined: Petitioner filed charges of housing discrimination against Vestcor with the Commission on August 30, 2002. Petitioner alleged that Vestcor discriminated against him based on his familial status and his June 28, 2002, termination was in retaliation for filing the charge of discrimination. Vestcor denied the allegations and contended that Petitioner's termination was for cause. Additionally, Vestcor maintained Petitioner relinquished his claim of retaliation before the final hearing; and under oath during his deposition, asserted he would not pursue a claim for retaliation. Petitioner was permitted to proffer evidence of retaliation because Vestcor terminated his employment. The Commission's Notice was issued on January 7, 2005. The parties agree that Petitioner was hired by Vestcor on June 25, 2001, as a leasing consultant agent for Madalyn Landing Apartments located in Palm Bay, Florida. Petitioner's job responsibilities as a leasing consultant agent included showing the property, leasing the property (apartment units), and assisting with tenant relations by responding to concerns and questions, and preparing and following up on maintenance orders. Petitioner had access to keys to all apartments on site. At the time of his hire, Petitioner was, as was all of Vestcor employees, given a copy of Vestcor's Employee Handbook. This handbook is required reading for each employee for personal information and familiarity with company policies and procedures, to include the company requirement that each employee personally telephone and speak with his/her supervisor when the employee, for whatever reason, could not appear at work as scheduled, which is a basis and cause for termination. The parties agree that Vestcor's handbook, among other things, contains company policies regarding equal employment; prohibition against unlawful conduct and appropriate workplace conduct; procedures for handling employee problems and complaints associated with their employment; and procedures for reporting illness or absences from work, which include personal notification to supervisors, and not messages left on the answering service. Failure to comply with employment reporting polices may result in progressive disciplinary action. The parties agree that employee benefits were also contained in the handbook. One such employee benefit, at issue in this proceeding, is the live-on-site benefit. The live-on- site benefit first requires eligible employees to complete a 90-day orientation period, meet the rental criteria for a tax credit property, and be a full-time employee. The eligible employee must pay all applicable security deposits and utility expenses for the live-on-site unit. Rent-free, live-on-site benefits are available only to employees who occupy the positions of (1) site community managers, (2) maintenance supervisors, and (3) courtesy officers. These individuals received a free two-bedroom, two-bathroom apartment at the apartment complex in which they work as part of their employment compensation package. The rent-free, live-on-site benefit is not available for Vestcor's leasing consultant agent employees, such as Petitioner. On or about July 3, 2001, Petitioner entered into a lease agreement with Vestcor to move into Apartment No. 202-24 located at Madalyn Landing Apartments. The lease agreement ended on January 31, 2002. The lease agreement set forth terms that Petitioner was to receive a $50.00 monthly rental concession, which became effective on September 3, 2001. Although he was eligible for the 25-percent monthly rental concession, to have given Petitioner the full 25 percent of his monthly rental cost would have over-qualified Petitioner based upon Madalyn Landing Apartment's tax credit property status. Petitioner and Vestcor agreed he would receive a $50.00 monthly rental concession, thereby qualifying him as a resident on the property. Petitioner understood and accepted the fact that he did not qualify for rent-free, live-on-site benefits because of his employment status as a leasing consultant agent. Petitioner understood and accepted Vestcor's $50.00 monthly rental concession because of his employment status as a leasing consultant agent. The rental concession meant Petitioner's regular monthly rental would be reduced by $50.00 each month. On September 1, 2001, Henry Oliver was hired by Vestcor as a maintenance technician. Maintenance technicians do not qualify for rent-free, live-on-site benefits. At the time of his hire, Mr. Oliver did not live on site. As with other employees, to become eligible for the standard 25-percent monthly rental concession benefits, Mr. Oliver was required to complete a 90-day orientation period, meet the rental criteria for a tax credit property, be a full-time employee, and pay all applicable security deposits and utility expenses for the unit. On November 13, 2001, Michael Gomez, the brother of Petitioner (Mr. Gomez), commenced his employment with Vestcor as a groundskeeper. Groundskeepers did not meet the qualifications for rent-free, live-on-site benefits. At the time of his hire, Mr. Gomez did not live on site. As with other employees, to become eligible for the standard 25-percent monthly rental concession benefits, Mr. Gomez was required to complete a 90-day orientation period, meet the rental criteria for a tax credit property, be a full-time employee, and pay all applicable security deposits and utility expenses for the unit. On November 21, 2001, 81 days after his hire, Mr. Oliver commenced his lease application process to reside in Apartment No. 203-44 at Madalyn Landing Apartments. Mr. Oliver's leasing consultant agent was Petitioner in this cause. Like other eligible Vestcor employees and as a part of the lease application process, Mr. Oliver completed all required paperwork, which included, but not limited to, completing a credit check, employment verification, and income test to ensure that he was qualified to reside at Madalyn Landing Apartments. Fifteen days later, on November 28, 2001, Mr. Gomez commenced his lease application process to reside in Apartment No. 206-24 at Madalyn Landing Apartments. As part of the leasing process, Mr. Gomez, as other eligible Vestcor employees who intend to reside on Vestcor property, completed all necessary paperwork including, but not limited to, a credit check and employment verification and income test to ensure he was qualified to reside at Madalyn Landing Apartments. Included in the paperwork was a list of rental criteria requiring Mr. Gomez to execute a lease agreement to obligate himself to pay the required rent payment, consent to a credit check, pay an application fee and required security deposit, and agree not to take possession of an apartment until all supporting paperwork was completed and approved. Mr. Gomez's leasing consultant was Petitioner. On December 28, 2001, Petitioner signed a Notice to Vacate Apartment No. 206-24, effective February 1, 2002. The Notice to Vacate was placed in Vestcor's office files. Petitioner's reasons for vacating his apartment stated he "needed a yard, garage, more space, a big family room, and some privacy." Thirty-four days later, February 1, 2002, Mr. Gomez moved into Apartment No. 206-24 at Madalyn Landing Apartments without the approval or knowledge of Vestcor management. On January 9, 2002, a "Corrective Action Notice" was placed in Petitioner's employee file by his supervisor, Genea Closs. The notice cited two violations of Vestcor's policies and procedures. Specifically, his supervisor noted Petitioner did not collect administration fees from two unidentified rental units, and he had taken an unidentified resident's rental check home with him, rather than directly to the office as required by policy. As a direct result of those policy violations, Ms. Closs placed Petitioner on 180 days' probation and instructed him to re-read all Vestcor employees' handbook and manuals. Petitioner acknowledged receiving and understanding the warning. At the time she took the above action against Petitioner, there is no evidence that Ms. Closs had knowledge of Petitioner's past or present efforts to gather statements and other information from Mr. Gomez and/or Mr. Oliver in anticipation and preparation for his subsequent filing of claims of discrimination against Vestcor. Also, on January 9, 2002, Petitioner was notified that his brother, Mr. Gomez, did not qualify to reside at Madalyn Landing Apartments because of insufficient credit. Further, Petitioner was advised that should Mr. Gomez wish to continue with the application process, he would need a co-signer on his lease agreement or pay an additional security deposit. Mr. Gomez produced an unidentified co-signer, who also completed a lease application. On January 30, 2002, the lease application submitted by Mr. Gomez's co-signor was denied. As a result of the denial of Mr. Gomez's co-signor lease application, Vestcor did not approve Mr. Gomez's lease application. When he was made aware that his co-signor's application was denied and of management's request for him to pay an additional security deposit, as was previously agreed, Mr. Gomez refused to pay the additional security deposit. As a direct result of his refusal, his lease application was never approved, and he was not authorized by Vestcor to move into any Madalyn Landing's rental apartment units. At some unspecified time thereafter, Vestcor's management became aware that Mr. Gomez had moved into Apartment No. 206-24, even though he was never approved or authorized to move into an on site apartment. Vestcor's management ordered Mr. Gomez to remove his belongings from Apartment No. 206-24. Subsequent to the removal order, Mr. Gomez moved his belongings from Apartment No. 206-24 into Apartment No. 103-20. Mr. Gomez's move into Apartment No. 103-20, as was his move into Apartment No. 206-04, was without approval and/or authorization from Vestcor's management. Upon learning that his belonging had been placed in Apartment No. 103-20, Mr. Gomez was again instructed by management to remove his belongings. After he failed and refused to move his belongings from Apartment No. 103-20, Vestcor's management entered the apartment and gathered and discarded Mr. Gomez's belongings. As a leasing contract agent, Petitioner had access to keys to all vacant apartments. His brother, Mr. Gomez, who was a groundskeeper, did not have access to keys to any apartment, save the one he occupied. Any apartment occupied by Ms. Gomez after his Notice to Vacate Apartment No. 103-20 was without the knowledge or approval of Vestcor and in violation of Vestcor's policies and procedures. Therefore, any period of apartment occupancy by Mr. Gomez was not discriminatory against Petitioner (rent-free and/or reduced rent), but was a direct violation of Vestcor's policies. On February 10, 2002, Mr. Oliver signed a one-year lease agreement with Vestcor. Mr. Oliver's lease agreement reflected a 25-percent employee rental concession. Throughout Mr. Oliver's occupancy of Apartment No. 203-64 and pursuant to his lease agreement duration, Mr. Oliver's rental history reflected his monthly payment of $413.00. There is no evidence that Mr. Oliver lived on site without paying rent or that Vestcor authorized or permitted Mr. Oliver to live on site without paying rent, as alleged by Petitioner. On June 2, 2002, Ms. Closs completed Petitioner's annual performance appraisal report. Performance ratings range from a one -- below expectations, to a four -- exceeds expectations. Petitioner received ratings in the categories appraised as follows: Leasing skills -- 4; Administrative skills -- 2, with comments of improvement needed in paperwork, computer updating, and policy adherence; Marketing skills -- 4, with comments that Petitioner had a flair for finding the right markets; Community awareness -- 3, with no comment; Professionalism -- 2, with comments of improvement needed in paperwork reporting; Dependability -- 2, with comments of improvement needed in attendance; Interpersonal skills -- 3, with no comments; Judgment/Decision-making -- 3, with no comments; Quality of Work -- 2, with comments that work lacked accuracy; Initiative -- 4, with no comment; Customer service -- 3, with no comments; Team work -- 2, with comments of improvement needed in the area of resident confidence; Company loyalty -- 2, with comments of improvement needed in adherence to company policy and procedures; and Training and development -- 3, with no comments. Petitioner's Overall rating was 2.5, with comments that there was "room for improvement." On June 27, 2002, while on 180 days' probation that began on January 9, 2002, Petitioner failed to report to work and failed to report his absence to his supervisor, Ms. Closs, by a person-to-person telephone call. This conduct constituted a violation of Vestcor's policy requiring all its employees to personally contact their supervisor when late and/or absent from work and prohibited leaving messages on the community answering service machine. On June 28, 2002, Petitioner reported to work. Ms. Closs, his supervisor, informed Petitioner of his termination of employment with Vestcor for failure to report to work (i.e. job abandonment) and for probation violation, as he had been warned on January 9, 2002, what would happen should a policy violation re-occur. It was after his June 28, 2002, termination that Petitioner began his personal investigation and gathering of information (i.e., interviews and statements from other Vestcor employees) in preparation to file this complaint. Considering the findings favorable to Petitioner, he failed to establish a prima facie case of retaliation by Vestcor, when they terminated his employment on June 28, 2002. Considering the findings of record favorable to Petitioner, he failed to establish a prima facie case of housing and/or rental adjustment discrimination by Vestcor, based upon familial status of himself or any other employer. Petitioner failed to prove Vestcor knowingly and/or intentionally permitted, approved, or allowed either Mr. Gomez or Mr. Oliver to live on site without a completed and approved application followed by appropriate rent adjustments according to their employment status and keeping within the tax credit requirement, while requiring Vestcor employees with families (or different employment status) to pay a different monthly rent in violation of Title VII of the Civil Rights Act of 1968. Petitioner failed to prove his termination on June 28, 2002, was in retaliation for his actions and conduct other than his personal violation, while on probation, of Vestcor's policies and procedures.
Recommendation Based on the foregoing, Findings of Fact and Conclusions of Law, it is RECOMMENDED the Florida Commission on Human Rights enter a final order dismissing the Petition for Relief alleging discrimination filed by Petitioner, Carlos Gomez. DONE AND ENTERED this 29th day of August, 2005, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2005.
Findings Of Fact On October 14, 1994, Jonathan O. and Merrill S. Hanke, by their representative John A. Skicewicz, P.A., a registered real estate broker, submitted, for consideration at the October 18, 1994 meeting of the City's Planning and Zoning Board, (Board), a conditional use request to operate a vehicle service facility at property located at 1139 Eldridge Street in Clearwater. Though Mr. Skicewicz indicated at hearing that he had the Hanke's authorization to file the original application, no indication of that appeared on the document, nor was any authorization ever found in the records kept by the City. Nonetheless, an authorization form accompanies the amended application, which was accepted by the City and which was the application considered and approved by the Board. As is normal practice, the application had been, before the Board action, submitted to the City's planning staff which, upon review, recommended approval subject to several conditions. The special conditions limited the work area to five service bays, prohibited any auto service work from being done outside the building, prohibited outside storage of materials, mandated provision of adequate dumpster service, limited hours of operation to 7:00 AM to 6:00 PM on Mondays through Saturday and required compliance with Section 41.053(30) of the City Land Development Code with regard to vehicle service uses. At its meeting on October 18, 1994, the Board granted the conditional use permit upon conditions consistent with those recommended by the City staff, with the exception that no limitation on hours of operation was imposed. The Appellant did not object to the permit at the Board meeting because, it is represented, the owner of the company was travelling at the time the notification letter from the City came, and the matter was thereafter overlooked. The Board's approval was appealed on October 28, 1994 by Werner- Donaldson Moving Services, Inc., (WD), which operates a moving and storage facility on the property adjoining the subject property on either side. To the east is a warehouse storing household goods. The Permittee's building is approximately 1 - 2 feet in from the west property line and approximately 30 feet in from the east property line, except for a loading dock and small 30 by 30 foot structure which extends almost to that line approximately 48 feet in from Eldridge Street. The property in issue was formerly used as a millworking operation which manufactured wooden moldings and decorative pieces, employing 4 to 5 individuals. At that time, the parking area, encompassing 32 spaces, was greater than that which was needed for employee parking. Five of the spaces now would be in front of the office area; twelve in the shell area in front of the smaller building to the east; eight behind the small building to the east and in from Maple Street; and seven more in back of the building in from Maple Street. WD contends that this parking configuration would result in cars being required to back out into both Eldridge and Maple Streets, which would constitute a traffic hazard because of the significant number of large tractor trailer trucks which come to its facility each day. This would be compounded by the difficult configuration of the building and the support posts inside which would necessitate vehicles having to back out into the street to be moved around for work. The roof on the building in question is made of metal over wood beams. Mr. DeRoy, the WD comptroller, believes this type of construction would be inconsistent with the flame hazards of automobile repair work. Though the adjacent WD buildings are not constructed of wood, Mr. DeRoy nonetheless considers there to be a substantial fire risk due to those factors. Eldridge and Maple Streets are dead end streets. There is a day care center at the end of one of them. WD asserts that most of the businesses in the area are warehouses, a National Guard armory, and an electric company substation. Its representative contends that the neighborhood is quiet, and there is a residential area to the south. There are no other automobile repair shops in the neighborhood, and Mr. DeRoy, for WD, contends the proposed use of the property in issue would not be compatible with the neighborhood. Mr. DeRoy claims that adding an auto repair shop at the instant location would decrease WD's property values as it would be an eyesore to the community. No independent evidence of this was presented, however. Though there are no auto repair shops on either Maple or Eldridge Streets in the two blocks east of N. Greenwood Avenue, the immediate area in question, there are at least five such installations within one block west of Greenwood and north of Maple. In addition, there is a machine shop, a cabinet shop, a hardware concern, two lumber businesses and a fuel and oil distributor, among others. Clearly, the area is not residential. It is classified as limited industrial, which includes vehicle service. When the application was brought for evaluation, noise was a factor considered but only as it related to the residential area to the south. Because of that, one staff agency recommended the inclusion of limited hours of operation in the permit. No one from the area in question, (residents were notified in advance by mail) appeared at the Board meeting or wrote in to object, however, and, consequently, noise was not considered as a problem. While working hours were not limited, a requirement that all work be done indoors was included as a condition of the permit. Parking was addressed by the City's Traffic Engineer who interposed neither objection or comment. Since this was a changed use as opposed to a new use, and since the Code requires the parking lot to accommodate the total need of the facility, the staff felt that parking requirements would be less under the changed use as opposed to the old use and would be sufficient. However, it appears that none of the properties currently in use in the area meet the City's current parking standards. Fire was also not considered to be a problem by the staff. City rules require approval by the Fire Marshall before occupancy. Any deficiencies existing would be identified then and, perforce, corrected before the building could be used. WD contends that body and fender repair and painting is not included in the intended definition of vehicle service. The Code definition includes the service and repair of vehicles, boats, and the like; washing and waxing; and installing mufflers, among other things. The Code definition does not specifically list body and fender repair, top and upholstery installation and repair, or the dismantling of engines, which are specifically covered elsewhere. The Code provides that these latter activities shall not be permitted unless specifically approved by the Board. In the instant case, the Board approved the application which refers to vehicle service. A staff comment, included in the application package which went before the Board, and which would appear to satisfy that requirement, notes that: Vehicle service will be primarily auto repairs which will include auto body work, and all aspects of mechanical work including rebuilding.
