Findings Of Fact Petitioner is authorized statutorily to license and regulate real estate salesmen and brokers. At all times material to these charges, Donald J. Munch was a licensed real estate salesman holding license number 045938. From December, 1987 through May 30, 1989, Munch was licensed as a salesman with Active One Realty, Inc., Winter Park, Florida. He now holds a broker's license. Sand Dollar Condominium Association was an association of condominium owners who owned apartments in Sand Dollar Condominiums. Owners of apartments in the condominium had entered into agreements with the association to rent out their apartments. This agreement provided that the association would receive 20% of the rents received. Munch was the owner of Four Seasons Properties (Four Seasons), a property management company, which contracted with Sand Dollar Condominium Association (Sand Dollar) from December 13, 1987 until May 30, 1989 to provide various management services, including but not limited to, recruiting, hiring and supervising all personnel; installing and maintaining an electronic bookkeeping system; collecting monthly assessments; maintaining a bank account; preparing and mailing delinquent notices; auditing accounts and records; and collecting delinquencies; negotiating outside contracts for Sand Dollar; and supervising a rental program organization with advertising, printing, electronic bookkeeping, rotation scheduling and mailings. Although not specifically stated, Four Seasons was to collect for the rental of apartments. Four Seasons was to be paid for its management services $2,000.00 per month payable on the first of every month during the duration of the contract. It is uncontroverted that, in addition to this compensation, Four Seasons also received 15% of the 20% of receipts from the rental of apartments which were payable to Sand Dollar by the owners of apartments who participated in the rental program provided by the association and managed by Four Seasons. It is uncontroverted that, when Four Seasons began management of the condominium, the condominium was over $10,000.00 in arrears with regard to money used by the association for upkeep of the condominium which had been taken from the rental escrow accounts. Four Seasons, through its owner Munch, rented apartments for the association, collected fees from owners, rents from lessees, deposited the proceeds into the bank account of Four Seasons maintained in accordance with its contract with the association, and accounted periodically to the association and owners during the period of its management. The Respondent's broker knew of the Respondent's activities and did not expect commissions or deposits to his account from the Respondent. Four Seasons and Munch assert that Sand Dollar owed Four Seasons $7,100.00 when their contract was terminated. Four Seasons provided Sand Dollar a complete financial statement and a check for $10,079.92 to Sand Dollar. Four Seasons retained $7,100.00, the amount which it claimed it was owed by Sand Dollar. Subsequently, Sand Dollar sued Four Seasons over the $7,100.00 claim and Munch paid the money into Sand Dollar's attorney's trust account.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administrative Complaint be dismissed. DONE AND ENTERED this 15th day of August, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1990. COPIES FURNISHED: Janine A. Bamping, Esq. Senior Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street P.O. Box 1900 Orlando, FL 32802 Howard Hadley, Esq. 2352 Carolton Road Maitland, FL 32751 Kenneth E. Easley, Esq. General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Darlene F. Keller Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street P.O. Box 1900 Orlando, FL 32801 ================================================================= AGENCY FINAL ORDERS ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE, Petitioner, vs. CASE NO. 0164284 DOAH NO. 90-0709 DONALD J. MUNCH Respondent. /
The Issue The issues in this matter concern an Administrative Complaint/Notice to Show Cause, which has been brought by the Petitioner against the Respondent charging various violations of Chapter 718, Florida Statutes. Those accusations are more completely described in the conclusions of law.
Findings Of Fact The parties in the person of their counsel entered into a written prehearing stipulation, by which certain facts were agreed to. Those facts are as follows: Stipulated Statement of Facts: The Petitioner herein is the State of Florida, Department of Business Regulation, Division of Florida Land Sales and Condominiums. The Respondent in this matter is Sujac Enterprises, Inc., the developer of a residential condominium known as Ginger Park Condominium located in Jacksonville, Florida. Mr. Jackson M. Jobe is the president of the developer corporation. Transition from developer control of the condominium association occurred pursuant to Section 718.301, Florida Statutes, on November 1, 1983. Prior to this date, Respondent Sujac Enterprises, Inc., was in control of the condominium association. On April 18, 1983, The Division received a condominium complaint from unit owner, Cynthia A. Doallas, filed against Sujac Enterprises, developer of the Ginger Park Condominium. The Division investigation file was opened on April 20 and this investigation was assigned to Janice Snover, specialist and investigator. The Declaration of Condominium was recorded March 12, 1982. The condominium association was incorporated February 16, 1982. Section 8.4 of the declaration of condominium provides for an assessment guarantee for so long as the developer shall own any condominium units within the condominium. At the time of this stipulation, the developer still owns at least one condominium unit within the condominium. The developer controlled association failed to maintain the accounting records provided by Section 718.111(7)(a), (b), Florida Statutes, during the period beginning with the incorporation of the association through at least March 1983. Accounting records were assembled after March of 1983. Mr. Phillip DiStefano was elected to the board of administration in March of 1983 in accordance with Section 718.301(1) , which provides that when unit owners other than the developer own 15 percent or more of the units, the unit owners other than the developer shall be entitled to elect no less than one-third of the members of the board of administration. Mr. DiStefano was elected by unit owners other than the developer. The developer through its president instituted recall procedures pursuant to the procedure as outlined in Section 718.112(2)(g), Florida Statutes, against board member Phillip DiStefano, by circulating a form entitled "Removal of Director or Directors." Mr. Jobe solicited signatures for the agreement, and further, voted the developer corporation's unsold unit votes in favor of the recall. Mr. DiStefano was recalled, with a sufficient number of unit owners other than the developer voting in favor of recall to approve the recall. The developer controlled condominium association failed to provide to unit owners a financial statement of actual receipts and expenditures for the fiscal/calendar year ending December 21, 1982, within 60 days of the end of the year. This financial statement was, however, provided to unit owners approximately three months after the 60 day time period provided in Section 718.111(13), Florida Statutes, had elapsed. The following additional facts are found based upon the presentation made at the final hearing: At the point of the final hearing, the developer still owned a condominium unit within the condominium. The developer had allowed other persons to take charge of the accounting procedures of the condominium association from the inception of the association through March 1983. Those other persons operated on the basis of a checkbook in which check stubs were maintained and deposit slips kept. Some invoices were also maintained. These records, in addition to not being maintained by the developer when the developer was serving as the association in this period through March 1983, were not in accordance with good accounting practices. Moreover, they did not contain an account for each unit, designating the name and current mailing address for the unit owner, with the amount of each assessment, the dates and the amounts in which the assessments came due and the amount paid upon these individual accounts, with the balance due being reflected. As revealed by an audit which the developer had requested of an accountant which it hired, this audit dating from June 7, 1983, there was a deficit in the reserve account on that date. This discovery was made prior to the transfer of the accounting records from the developer to other condominium unit owners. In effect, on June 7, 1983, the reserve account for capital expenditures and maintenance was insufficiently funded. The exact amount of deficit was not shown in the course of the hearing. Therefore, it has not been demonstrated that the deficit of June 7, 1983, corresponds to the deficit in the reserve account in the amount of $1,186.18, effective December 31, 1983 as found by Petitioner's accountant. Respondent in its efforts to refute responsibility for the reserve deficit has failed to demonstrate, by way of defense, that charges incurred on behalf of other condominium unit owners should reduce the developer's deficit responsibility. This pertains to its reference to prepaid insurance, pest control and construction costs related to a fence. The reserve account for capital expenditures and maintenance is a common expense. The developer, pursuant to Section 8.4 of the declaration of condominium is responsible for the deficit in the reserve account as reflected on June 7, 1983, in keeping with the assessment guarantee set forth in that section. That guarantee continued until the account was tranferred to the other condominium unit owners. Features of the aforementioned guarantee related to responsibility to insure against additional assessments attributable to deficits other than those in the reserve account, i.e. for other forms of common expenses, developer's share, only would occur at the point of sale of the last condominium unit. That contingency had not occurred at the time of the conduct of the final hearing. The developer kept the accounting records from April 1983 until June 1983. Subsequently when the records were turned over to the other condominium unit owners as a part of the transition of association control, the developer failed to have a transitional review conducted by an independent accountant related to financial records of the association.
Recommendation It is recommended that a final order be entered which imposes a penalty in the amount of $2,500 for those violations established pertaining to Count I, IV and V and that Counts II and III be dismissed. DONE AND ORDERED this 3rd day of July 1984, in Tallahassee, Florida. CHARLES C. ADAMS 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 3rd day of July, 1984. COPIES FURNISHED: Karl M. Scheuerman, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Jerry A. Funk, Esquire 1020 Atlantic Bank Building Jacksonville, Florida 32202 E. James Kearney, Director Division of Land Sales and Condominiums The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 =================================================================
The Issue Whether Rule 61B-23.003(9), Florida Administrative Code, is an invalid exercise of delegated legislative authority.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner, Michael Gertinisan, is a unit owner and member of the Bay Hills Village Condominium Association, Inc. (Association). The Association is responsible for the operation of the Bay Hills Village Condominium. Petitioner purchased his unit in December, 1992. Prior to December, 1992, the Petitioner had leased the unit for a number of years. The Bay Hills Village Condominium is a mobile home park condominium where each unit is comprised of a parcel of vacant land upon which is placed a mobile home. Transfer of control of the Association from the developer to the unit owners, other than the developer, pursuant to Section 718.301, Florida Statutes, has not occurred. However, unit owners, other than the developer, are entitled to elect a representative to the board of administration of the Association in an upcoming election. The declaration of condominium for Bay Hills Village Condominium was recorded in the public records in 1985. A number of units were sold to purchasers in 1985. At the time Bay Hill Village Condominium was created and the declaration of condominium recorded in the public records in 1985, the controlling statute, Chapter 718, Florida Statutes, contained no maximum period of time during which the developer was entitled to control the operation of the Association through its ability to elect a majority of the board of administration. The developer of a condominium is statutorily entitled to control the affairs of the condominium association for a period set forth in the statutes. This right to control the affairs of the condominium association for the period set forth in the statutes is a substantive vested right. With the right to control the condominium association, comes the attendant rights, including but not limited to, the right to: (a) adopt a budget meeting the marketing needs of the developer; (b) enter in to contracts with related entities providing for maintenance and management of the condominiums; (c) control ingress and egress on and over the condominium property to move construction equipment; (d) adopt board policies relating to the renting of units in the condominium; (e) adopt board policies regarding placement of "For Sale" signs on the condominium property and to model its units; (f) maintain the property in accordance with the developer's need to conduct an ongoing sales program; and (g) change the size and configuration of units in the condominium to meet the needs of the developer's marketing campaign. In those situations where the developer still exercises control over the condominium association, the aforestated rights of the developer would be substantively impaired by a retroactive application of Section 718.301(1)(e), Florida Statutes, as created by Chapter 91-103, Section 12, Laws of Florida, to condominiums in existence prior to the affective date of the Chapter 91-103, Section 12, Laws of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, ORDERED that the Petitioner failed to establish that Rule 61B-23.003(9), Florida Administrative Code, is an invalid exercise of delegated legislative authority and the relief sought by the Petitioner is DENIED. DONE AND ORDERED this 14th day of January, 1994, in Tallahassee, Florida. WILLIAM R. CAVE 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 14th day of January, 1994. APPENDIX TO FINAL ORDER, CASE NO. 93-6214RX The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact: The Petitioner elected to not file any proposed findings of fact. Respondent's Proposed Findings of Fact: Proposed findings of fact 1, 2, 3, 4, 5, 6, 8 and 9 are adopted in substance as modified in Findings of Fact 1, 2, 3, 4, 5, 6, 7 and 8, respectively. Proposed finding of fact is unnecessary. COPIES FURNISHED: Michael Gertinisan 10506 Bay Hills Circle Thonotosassa, Florida 33592 Karl M. Scheuerman, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Henry M. Solares, Director Division of Florida Land Sales Condominiums and Mobile Homes 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondents discriminated against Petitioner, Christa Bartok, on the basis of her disability, in violation of the Fair Housing Act (FHA).
Findings Of Fact Based on evidence offered at hearing and testimony of witnesses, as well as the facts agreed upon in the Pre-hearing Stipulation, the following Findings of Fact are found: Bayou Breeze is a residential condominium association in Pensacola, Florida. Ms. Bartok was a prospective buyer of a condominium unit from its owner, a Bayou Breeze resident. The address of the unit was 300 Bayou Boulevard, Unit 106, Pensacola, Florida. Ms. Bartok is a person with a non-visible disability, which she described as anxiety, emotional distress disorder, and an autoimmune disease. Ms. Bartok was also the owner of a dog named Moni, weighing more than 40 pounds. She identified Moni as her emotional support dog. At all times material to this matter, Ms. Bartok was represented by Simone Sands, a real estate broker. The seller of Unit 106 was represented by Greg Thomas, also a realtor. The communication regarding all aspects of the sale of the property was through the two realtors. At the time of executing the contract, Bayou Breeze3 Bylaws provided, in pertinent part, Pets. Pets shall be kept or maintained in and about the condominium property only if unit owner is granted a conditional license to maintain one pet by the Association. Such a license will be granted subject to the following conditions and reservations: A. Acceptable Pets. The only pets to be maintained on condominium property shall be dogs under twenty (20) pounds when fully grown, cats and small birds. In addition, the Declaration of Condominium Paragraph XVI provided, in pertinent part, Approval of Purchasers, Lessees and Transferees No unit owner shall sell, lease or otherwise convey a unit, nor shall any sale, lease, conveyance or transfer of a unit other than by foreclosure or by devise or operation of law on account of the death of the unit owner, be effective unless the board of directors of the Association shall have approved the identity of the proposed purchaser, lessee or transferee in writing. Application of a proposed purchaser, lessee or transferee shall be in writing and on a form to be provided by the Association and shall be accompanied by two letters of recommendation. Any such application not rejected within 10 days after receipt by the Association or an officer thereof shall be deemed to have been approved. The costs for the submission of an application shall not exceed $100. … 3 The association name changed from Pensacola Executive House Condominium Association, Inc. to its current name. Right of First Refusal Should an Owner wish to sell or transfer his Unit, he shall deliver to the Association an Owner’s written notice containing a copy of the executed purchase agreement between buyer and seller, which agreement shall be executed subject to the Associations [sic] waiver of its right of first refusal and consent to the sale or transfer. The Owner shall also submit to the Association, within five (5) days from receipt of any request from the Association, any supplemental information as may be required by the Association. Ms. Bartok received the declarations and bylaws. However, a list of items to be submitted to the Association for sale of a property was provided to the owner, which included: letter of intent to sell, application for sale/transfer, two letters of recommendation, background check, and contract for sale. The list of items provided to the owner was not provided to Ms. Bartok. On June 20, 2020, Ms. Bartok executed a residential contract for purchase of Unit 106. A term that Ms. Bartok included in the contract provided, in pertinent part: “contingent upon buyer receiving HOA approval for her emotional support dog which is over condo weight restrictions but meets Fair Housing Act requirements for HOA waiver.”4 Ms. Bartok also provided a letter with her contract dated June 15, 2020, from her treating physician, Timothy Tuel, M.D., of Baptist Health Care. The letter stated: Dear Christa, I do believe you have several medical conditions that would benefit from a properly trained emotional support animal. Please contact me if you have other questions. 4 Ms. Bartok executed a counteroffer for the property on June 24, 2020, which did not change the term regarding approval of her ESA. Although, the letter does not specifically identify Ms. Bartok’s disability, it references her “medical conditions,” and that she could benefit from having an ESA. In addition to the contract and letter from Dr. Tuel, Ms. Bartok provided a completed application, two letters of recommendation, and a receipt for training for her dog.5 Ms. Bartok did not provide a completed background check because Mr. Thomas had advised Ms. Sands that the “HOA manager does it.” In addition, on June 30, 2020, in response to Ms. Sands’ text of, “good morning any reply from HOA,” Mr. Thomas indicated, “[n]o, not yet they’re doing background check.” Thus, Ms. Bartok had a reasonable belief that she could rely upon Mr. Thomas’ statement that the HOA was facilitating the background check and there was no need to provide the information at that time. Ms. Trimaur, the property manager for the Association, has managed Bayou Breeze condominiums for more than 11 years, and generally, receives all applications for sale or transfers of units at Bayou Breeze. She received the application materials Ms. Bartok submitted for the sale of Unit 106, which included the sales contract, letter from Dr. Tuel, reference letters, and the receipt for pet training sessions. Although Ms. Trimaur stated that it was difficult to read the digital copy of the letter from Dr. Tuel, she recalled that there was reference to Ms. Bartok’s “medical condition.” Ms. Trimaur also testified that Mr. Thomas told her that Ms. Bartok requested a waiver of the pet policy. Ms. Trimaur did not receive the financial or criminal background information with Ms. Bartok’s application packet. Ms. Trimaur submitted the application materials to Mr. Cross for review. She testified that she also had verbal discussions about the dog with Mr. Cross. 5 The receipt for training referenced “Beginner Training-for Moni” and was scheduled to begin on July 25, 2020. Mr. Cross, the president of the association, reviewed a copy of the application materials. He testified that Ms. Trimaur bypassed normal approval process by submitting the packet without the background checks due to COVID-19. As the Association president, Mr. Cross is required to review all application materials to determine whether the Association elects to exercise its right of first refusal. Mr. Cross testified that he reviewed the contract. However, he testified that he did not recall reading Ms. Bartok’s term that the acceptance was contingent upon approval of her emotional support dog. Mr. Cross did not state that there were pages missing or that there was anything that would prevent him reviewing the contract in its entirety. Mr. Cross testified that he reviewed the recommendation letters,6 which noted the size of Petitioner’s dog. He also spoke to Ms. Trimaur about the dog. After review of the application materials that Ms. Bartok submitted, Mr. Cross sent a letter to Anai, the owner of Unit 106, on July 2, 2021. The letter stated: Dear Anai, The association is in receipt of your request to sell your condominium unit 106 Bayou Breeze Condominiums, 300 Bayou Breeze, Pensacola, Fla. As you know there are specific requirements a potential new purchaser of a condominium must meet, according to the Bayou Breeze Declaration of Condominiums, Articles of Incorporation, By-Laws and Rules and Regulations, before they will be eligible to purchase a Condominium at the said premises. Section X of the By-Laws states the following: Pets. Pets shall be kept or maintained in and about the 6 The recommendations were not offered into evidence in this case. condominium property only if a unit owner is granted a conditional license to maintain one pet by the association. Such a license will be granted subject to the following conditions and reservations: Section A clearly states that a dog weighting [sic] 20 pounds or less that was fully grown could qualify. Section D. states that the dog must be carried in the arms when taken in and out of the building. The information that you have submitted so far is primarily the request for the Association to waive its pet restrictions in accordance to the By-Laws, section X of the Condominium Governing Laws. Unfortunately, that is something that we cannot do. Don’t get me wrong, I love dogs. I, at one time lived at Bayou Breeze but had to move because I wanted a dog. I have been the president of this association for 29 years. Over the years the association has had many requests much like your potential buyer’s request to waive our rules. We are well aware of the HUD laws as well as the American Disability Act. We have, unfortunately been to court several times on this issue. We have never waived the pet requirements. Even though we have not received all of the background information and detailed documentation that is necessary for the Association to approve a purchase of this unit, I am notifying you that the Association cannot except [sic] this application, because of the current situation that you have presented. Sincerely Charles D. Cross President, Bayou Breeze Condominium Association 300 Bayou Breeze, Pensacola, Fl. 32501 Mr. Cross acknowledged in his written position statement that Ms. Bartok submitted a request for waiver for an ESA. He testified that he did not deny the request for an ESA because it was not clear to him that the request was for an ESA. Both Mr. Cross and Ms. Trimaur testified that Ms. Bartok’s request for an ESA was not accepted because the materials provided were incomplete, i.e. that the application did not include the financial and criminal background check. Both Ms. Trimaur and Mr. Cross testified that other tenants of Bayou Breeze have been approved for ESAs. The letter from Mr. Cross to Anai is inconsistent with Mr. Cross’ testimony. First, the letter signed by Mr. Cross clearly states that he is aware of the request for a “pet waiver” and stated that he is “well aware of the HUD laws as well as the American Disability Act. … We have never waived the pet requirements.” Second, the letter states that “Even though we have not received the background information, … the Association cannot except [sic] the application, because of the current situation that you have presented.” At hearing, Mr. Cross testified that he expected to receive more information. If the application packet was incomplete and Mr. Cross expected to receive additional information, it would follow that Mr. Cross would specify in writing to Anai the items that were needed to complete the application. That did not happen in this case. The letter makes no reference that additional information could be provided or what information was necessary. Last, Mr. Cross claimed the letter to Anai was not a denial letter. However, it clearly stated that the request to waive the pet restriction was something the Association could not do and has never done, even when involving the ADA. The undersigned finds that the statements in the letter together with the term in the contract seeking a waiver and Ms. Bartok’s letter from her physician demonstrates that Respondents had notice of Ms. Bartok’s request for a reasonable accommodation pursuant to the ADA. The undersigned also finds that Respondent’s letter of July 2, 2020, was a denial of Ms. Bartok’s application for purchase of Unit 106 based on her request for a reasonable accommodation, a waiver for her ESA. Ms. Bartok testified that she believed the July 2, 2020, letter was a denial of her application. Believing she could not purchase the property, she canceled the contract on the same date. After Ms. Bartok canceled the contract, believing that the Association improperly denied her request for a “pet waiver” for her ESA, she submitted a letter dated July 8, 2020, requesting a reasonable accommodation for her disability. That letter included another letter from Dr. Tuel, to the Association, which stated, in pertinent part: Dear Housing Association: Christa Bartok is my patient and has been under my care since April 7, 2020. I am intimately familiar with her history and with the functional limitations imposed by her disability. She meets the definition of disability under the Americans with Disabilities Act, the Fair Housing Act, and Rehabilitation Act of 1973. Due to [intentionally omitted] illness, Christa Bartok has certain limitations regarding performing some life activities. [Intentionally omitted] can be a direct effect of a chronic illness. In order to help alleviate these difficulties, and to enhance his/her ability to live independently and to fully use and enjoy the dwelling unit you own and/or administer, I am prescribing an emotional support animal that will assist Christa Bartok in coping with his/her disability. Her dog Monroe (Moni) qualifies as an emotional support animal under the guidelines put forth by the Fair Housing Act and The American’s [sic] with Disabilities Act. … Ms. Bartok credibly testified that she submitted the letter with attachments to Mr. Cross’ email address. She submitted a second request for reconsideration of the Association’s decision on July 10, 2021. Ms. Bartok did not receive a response to her letters. Although Mr. Cross confirmed his email at the final hearing, he denied receiving Ms. Bartok’s emailed requests for reasonable accommodation. The undersigned credits Ms. Bartok’s testimony on the issue of whether the emails were sent to Mr. Cross. Ms. Bartok testified that after she canceled the contract, she purchased another home. She asserts that she incurred costs for the difference in the amount of the mortgage she has paid since the denial letter was issued, the difference in costs for HOA dues, and the loss associated with extending her rental agreement prior to purchasing her new home. Ms. Bartok did not provide any supporting documents to demonstrate her loss that she asserts she incurred as a result of Respondent’s discriminatory actions. Ultimate Findings of Fact The evidence demonstrates that Ms. Bartok established that she suffers from anxiety, emotional distress disorder, and an autoimmune disease, and therefore, she has proved by a preponderance of the evidence that she is disabled within the meaning of the FHA. Ms. Bartok’s additional term included in her application for sale and the request for accommodation submitted following rejection of her application, was sufficient to demonstrate by a preponderance of the evidence that the Association was on notice that Ms. Bartok sought the “pet waiver” as a reasonable accommodation for her ESA. The undersigned finds the preponderance of evidence supports a finding that approving Ms. Bartok’s dog as an ESA was a reasonable accommodation that would assist Ms. Bartok by providing emotional support; and Respondents refused the requested accommodation. There is not sufficient evidence to establish that the Association has articulated a legitimate, non-discriminatory reason for withholding approval of Ms. Bartok’s ESA. Therefore, Ms. Bartok established by a preponderance of evidence that Respondents discriminated against her based on her disability, by failing to approve a request for a reasonable accommodation (approving Ms. Bartok’s ESA) in violation of the FHA.
Conclusions For Petitioner: Christa N. Bartok, pro se 203 Southeast Syrcle Drive Pensacola, Florida 32507 For Respondent: Sharon D. Regan, Esquire Post Office Box 13404 Pensacola, Florida 32591
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order granting Christa Bartok’s Petition for Relief, in part, as follows: finding that Respondents engaged in a discriminatory housing practice based on Ms. Bartok’s disability, by failing to provide a reasonable accommodation to Ms. Bartok in the form of an ESA; and (b) ordering Respondents to prohibit the practice of denying reasonable accommodations to individuals and potential buyers who request a reasonable accommodation on the basis of their disability. Ms. Bartok, having failed to prove she suffered any quantifiable damages as a result of her purchase of a different home, she is not entitled to damages or other financial relief. DONE AND ENTERED this 8th day of October, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S YOLONDA Y. GREEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Sharon D. Regan, Esquire Post Office Box 13404 Pensacola, Florida 32591 Christa N. Bartok 203 Southeast Syrcle Drive Pensacola, Florida 32507 Stanley Gorsica, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020
Findings Of Fact For purposes of the Motions to Dismiss filed by Agrico and the Department, the following findings of fact are based upon the pleadings in this case, matters to which the parties have stipulated, and DOAH Case Number 86-3618, as well as final agency action resulting therefrom: On or about August 26, 1986, Petitioners filed with the Department a petition for formal administrative proceeding which challenged the dredge and fill permit that the Department intended to issue to Agrico. The Department transmitted this matter to the Division of Administrative Hearings for hearing, and it was assigned to the undersigned Hearing Officer as DOAH Case Number 86- 3618. Petitioners relied upon Sections 120.57(1) and 403.412(5), Florida Statutes, to "initiate" DOAH Case Number 86-3618 as is clearly set forth in paragraph 20 of their Petition filed in that case. In their Motion for Fees and Costs at paragraph 3, Petitioners further allege, and thereby concede, that they "initiated the above styled proceeding (DOAH Case Number 86-3618)." A final hearing was scheduled to begin on April 28, 1987 in DOAH Case Number 86-3618. However by letter to the Department dated March 2, 1987, Agrico voluntarily withdrew its application for a dredge and fill permit which was the subject of that case. Thereafter, a telephone conference call was held on March 17, 1987, following which an Order Closing File was filed in DOAH Case Number 86-3618 on that same date, and jurisdiction was relinquished to the Department. The Final Order in Case Number 86-3618 was entered by the Department on May 18, 1987 which states: Upon consideration, it is ORDERED that the withdrawal of permit application number 53-1093999 is GRANTED with prejudice to further Department consideration of the application, but without prejudice to the future submission of another dredge and fill application covering the same tract of land covered by application number 53-1093999. The withdrawal of permit application number 53-1093999 divests the Department of jurisdiction to proceed with consideration of (Booker Creek and Manasota's) petition. Humana of Florida, Inc., v. Department of Health and Rehabilitative Services, 500 So.2d 186 (Fla. 1st DCA 1986). Accordingly, the above-captioned case (DOAH Case Number 86-3618) is DISMISSED as moot. On July 16, 1987, Petitioners timely filed their Motion for Fees and Costs which was assigned to the undersigned Hearing Officer and given DOAH Case Number 87-3007F. Petitioners are each incorporated as not-for-profit corporations within the State of Florida, with principal off ices in Florida, and each having less than twenty-five full time employees, as well as a net worth of not more than two million dollars.
Findings Of Fact Petitioner, Grove Isle, Ltd. is the developer of a 510 unit three-tower condominium project on an island now known as Grove Isle in Biscayne Bay. As part of the project Grove Isle plans to construct a ninety slip pleasure boat marina on the west side of the island. Since its inception, the project has been in litigation between the parties to this Proceeding. See Bayshore Homeowners Association, Inc., et al v. DER, DOAH Case No. 79-2186, 79-2324 and 79-2354; State ex rel. Gardner v. Sailboat Key, Inc., 295 So.2d 658 (Fla. 3rd D.C.A. 1974); Doheny vs. Sailboat Key, Inc., 306 So.2d 616 (Fla. 3rd D.C.A. 1974); Bayshore Homeowners Association, Inc. v. Ferre, Case No. 80-101-AP (Circuit Court, Appellate Division, Dade County, September 16, 1980). Petitioners Doheny and Filer have their residences near the site of the proposed marina. In the past they have used the waters in and around this site for fishing, boating and swimming. If the marina is constructed their use of the waters in the immediate area of the marina could be limited somewhat. While Petitioner Jaffer does not live in the immediate area of the marina, he also uses the waters of Biscayne Bay around Grove Isle for recreation. The project could have some minimal impact on his use of those waters. The protesting organizations: Bayshore Homeowners Association, Inc., Coconut Grove Civil Club, Tigertail Association, and the Tropical Audubon Society, Inc. all have members who use the waters of Biscayne Bay in the area of the project for nature study or recreation. The use of these waters by their members could be diminished in some degree if the marina is constructed. That portion of Grove Isle from which the marina will project is owned by Grove Isle Club, Inc., an entity created to operate the recreational facilities appurtenant to the Grove Isle Condominium. The Club is an integral part of the Grove Isle condominium project. Membership in the Club is mandatory for unit owners. It is the plan of Grove Isle, Ltd. that after the marina is constructed the individual wet-slips will be sold to only condominium owners. Grove Isle, Ltd. expects to realize a onetime profit from the sale of each slip. The slips would therefore not produce a periodic or reoccurring income to the developer. In the recent past, DNR has interpreted its rules relating to submerged land leases not to require a lease for the construction of a marina over submerged state lands if the marina will not generate a regular income. Evidence of this practice dates back to June 8, 1978. On March 29, 1979, Grove Isle applied to DNR for a state lease of the submerged lands over which the proposed marina would be constructed. By a letter of April 4, 1979, from Daniel S. Meisen, Administrator, Operations Section, Bureau of State Lands, the Department informed Grove Isle that a lease would not be required. The full text of the letter follows: April 4, 1979 Ms. Pat Bourguin Post, Buckley, Schub and Jernigan, Inc. 7500 Northwest 52nd Street Miami, Florida 33166 Dear Ms. Bourguin: Martin Margulies A review of the above referenced application has aided us in determining that a lease will not be required although the submerged bottom lands are state-owned. Submerged land leases are not re- quired for private docks or non-income producing facilities. Your $150.00 refund is being processed and will be forwarded to you within the next two months. If we can be of further assistance in this matter, please contact Laura Lewallen of this office. Sincerely, Daniel S. Meisen Administrator Operations Section Bureau of State Lands DSM/11m cc: DER West Palm Beach Health Department The State of Florida owns the submerged lands to the west of Grove Isle over which the marina would be constructed. Beginning in the fall of 1979 and continuing through the spring of 1980, there was a string of correspondence between DNR, Mr. Doheny and Grove Isle. This was its basic pattern. Mr. Doheny would write to DNR with some information indicating in his opinion that the proposed marina would not be private in nature, that is, persons other than condominium owners might be able to use the wet-slips. In response to Mr. Doheny's letter DNR would then query Grove Isle requesting assurances that the marina would be private. At least three of these inquiries, April 26, 1979; October 26, 1979; and February 12, 1980, appear in the record. Grove Isle then responded with letters indicating in various ways that the marina would not be income producing. It is apparent from some of the correspondence that there were also oral communications among the parties. The contents of these communications do not appear in the record. Finally on March 13, 1980, Mr. Doheny wrote to DNR on behalf of the Homeowner Petitioners to express his disagreement with the Department's position previously expressed in correspondence dating back to April 4, 1979, that if the proposed marina is limited to only condominium owners and does not produce direct income then it does not require a lease. Mr. Dean on behalf of Dr. Gissendaner replied to Mr. Doheny on March 24, 1980, by reiterating the Department's consistent position on this project. The text of the letter fellow's: March 24, 1980 David A. Doheny, Esquire 1111 South Bayshore Drive Miami, Florida 33131 Re: Grove Isle Marina Dear David: Dr. Gissendanner asked that I respond to your letter dated March 13, 1980 regarding Grove Isle Marina. Attached his a copy of the affidavit executed by Grove Isle, Ltd. and the subsequent letter to Grove Isle, Ltd. from the Department of Natural Resources. It is the position of the Department of Natural Resources that where a condominium marina will derive no income from the rental or lease of boat slips and furthermore, where all slips will be used exclusively by the condominium unit purchasers that the marina is not a commercial/industrial docking facility requiring a lease from the Trustees pursuant to Rule 16C-12.14, F.A.C. and Chapter 253.03, F.S. (1979). This position is based on the proposition that riparian rights attached to a single condominium unit purchaser as do riparian rights for a single family lot owner who likewise is exempt from a submerged land lease. Sincerely, Henry Dean Assistant Department Attorney Division of State Lands HD/le Enclosures cc: Elton J. Gissendanner Richard P. Ludington On May 3, 1979, the Board of Trustees of the Internal Improvement Trust Fund passed a resolution which states in pertinent part that: Where the Trustees have title, by either deed of conveyance or sovereignty pursuant to 1 and/or 2 above, and where any person has requested an environmental or other permit and where the Trustees neither by statute nor rule must give permission for the use involved in the permit, the Execu- tive Director is authorized to indicate, by letter or otherwise, said circumstances and that no action by the Trustees is necessary for the said use; . . . Subsequently Mr. Jaffer, the Homeowners and Mr. Filer filed their petitions for administrative hearings on April 2, 1980, 4/ April 9, 1980, and April 21, 1980, respectively. DNR's position concerning a lease requirement was well known to all of the Petitioners by at least January 2 and 3, 1980, the date of the final hearing on the related DER cases for the instant project. 5/
Recommendation For the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Natural Resources issue a final order dismissing the petitions in Case Nos. 80-670, 80-768, and 80-815. DONE and RECOMMENDED this 11th day of December, 1980, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1980.
Findings Of Fact Based upon the pleadings and responses thereto, an Order imposing sanctions for Respondent's failure to submit discovery as required by the undersigned dated October 15, 1986 and the entire record compiled herein, I hereby make the following relevant factual findings. Respondent is the developer of a condominium known as La Residence. As Presently developed, La Residence consists of sixty units. La Residence is located in Boca Raton, Florida. Respondent failed to meet the completion date for the subsequent phases of La Residence as is described in the declaration of condominium of La Residence. According to the Declaration of Condominiums for La Residence, the scheduled dates listed for construction of the subsequent phases of La Residence were June, 1982 for phase II; February, 1983 for phase III, and November, 1983 for phase IV. Amendments to the Declaration of Condominium of La Residence were recorded on June 30, 1981, March 22, 1982 and August 2, 1984. Respondent did not furnish the Division with copies of the above-referred amendments. Additionally, Respondent failed to provide purchasers of units within La Residence, copies of the above-referred amendments. Respondent failed to hold annual members meeting for the years 1981, 1982, 1983 and 1984. Respondent failed to call a members meeting to allow non-developer unit owners to elect a director after fifteen percent of the available units had been conveyed. Respondent failed to mail to unit owners, copies of the proposed annual budget for the years 1982, 1983, and 1984. Respondent failed to include the statutory reserves and the proposed annual budget as required for the years 1982, 1983 and 1984. Respondent failed to fund reserve accounts for the years 1982, 1983 and 1984. Respondent failed to provide unit owners with financial reports for fiscal years 1982, 1983 and 1984. Respondent failed to pay the developer's share of assessments due to be paid by the developer after June 30, 1982. The Declaration of Condominium for La Residence was recorded in the public records of Palm Beach County in 1981. Control of the Condominium Association was turned over to non-developer unit owners on February 16, 1985. No "turnover report" was prepared by a certified public accountant nor was such a report ever furnished to the Condominium Association by Respondent. Respondent has not provided the Condominium Association copies of all canceled checks and bank statements for the time period dating from the recordation in 1981 to January 31 1984. Respondent, or a representative on its behalf, did not appear at the hearing to refute or otherwise contest the alleged violations set forth in the Notice to Show Cause filed herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions, of a Law, it is hereby RECOMMENDED Respondent pay to the Division, within thirty (30) days of issuance of the Division's Final Order, a civil penalty in the amount of ten thousand dollars ($10,000). Respondent secure the services of an independent certified public accountant who shall review the condominium records and submit a turnover review in accordance with the provisions of Section 718.301(4)(c), Florida Statutes (1985) and rule 7B-23.03(4)(5) and (6), Florida Administrative Code. Within thirty days of the Division's Final Order, it is recommended that the Division issue guidelines to Respondent to ensure that the condominium records are reviewed in accordance with the above-referenced statutory and rule provisions. Provided that monies are found to be due and owing the association based on the review, Respondent shall be directed to remit such amounts to La Residence of Boca Del Mar Condominium Association. Recommended this 23rd day of March, 1987, in Tallahassee, Florida. JAMES E. BRADWELL, 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 23rd day of March, 1987.
Findings Of Fact At all times relevant to this case, the Respondent, Pebble Springs Condominium Association of Bradenton, Inc., was the condominium association for Pebble Springs Condominium VI in Bradenton, Florida. Matthew Ford is and, at all times relevant to this complaint, was a unit owner at Pebble Springs Condominium VI and a member of the condominium association. Matthew Ford requested to inspect the Respondent's records, hereafter described in paragraph 4 and referred to as Exhibits A and B, which were prepared and provided by the law firm of Becker, Poliakoff and Streitfeld, P.A., to the Respondent as a bill for legal services rendered in the Respondent's suit against Ford. At the time that Ford made his request for Inspection of the Respondent's records pursuant to Section 718.111(7), Florida Statutes, he was the defendant in a circuit court lawsuit in which the Respondent was plaintiff. Said court case is currently on appeal. Joint Exhibits A and B constitute the entirety of said law firm's bill to the Respondent. Joint Exhibit B describes each instance of attorney's service to the Respondent and the amount of time attributed to said service. The parties stipulate that the information contained in the document sought by Ford is the same as that reported in Exhibit B. The data in Exhibit B is reported in four columns, as follows: date, attorney, time, and actions. The information listed under "actions" includes the following listings: (03/14/83) Telephone conversation with bank officers and association officers re unfreezing of association funds. (03/14/83) Preparation for meeting with board members and witnesses; preparation of counterclaim. (03/14/83) Research concerning mandamus and other injunctive relief; preparation of counterclaim. (03/15/83) . . . preparation of counterclaim and motions to strike. (03/16/83) Preparation of counter-claim; . . . filing of counterclaim and coordination of service. (04/06/83) Preparation of motion to dismiss or for more definite statement and motion to strike on behalf of firm and Daniel J. Lobeck. (04/07/83) Memorandum to Alan E. Tannenbaum re Murley contempt of court order. (04/08/83) Receipt and review of motion to dismiss filed on behalf of board by insurance counsel; . . . (04/12/83) Preparation of motion to hold [deleted in exhibit] in contempt. (04/13/53) Correspondence to auto owners; correspondence to [deleted]; amendment of motion for contempt; setting of contempt hearing. (04/15/83) Review of motion to appoint special master and notice of bearing; telephone conference with Alan Tannenbaum re same. (04/18/83) Conference with Daniel J. Lobeck re: motion to appoint receiver. (04/19/83) Preparation of proposed order dismissing motion to appoint special master; research and preparation for hearing on motion; hearing on motion; telephone conferences with clients re hearing and order. Ford's request as to Joint Exhibit B was refused by the Respondent, which did provide him with Joint Exhibit A which states the sum due for legal services together with stated costs and total balance due. The Respondent also provided for Ford's inspection the Respondent's ledgers and checkbooks, which displayed the sums paid each month by the Respondent to the law firm. In the course of the litigation between the Respondent and Ford, Ford sought the production of documents from the Respondent as evidenced by Exhibit C. In the context of the hearing for attorney fees in the litigation between the Respondent and Ford, the Respondent has offered to provide Ford with the information which he had previously sought. During March or April 1983, Ford filed a complaint with the Petitioner alleging that he was being denied access to the Respondent's books and records contrary to Section 718.111(7), Florida Statutes. The Petitioner conducted an investigation of Ford's complaint, which resulted in the issuance by the Petitioner of a Notice to Show Cause to the Respondent issued May 9, 1983. The Respondent requested a formal hearing by petition dated June 1, 1983, which request was granted.
Recommendation Having found the Respondent not guilty of the allegations contained in the Administrative Complaint, it is recommended that the Administrative Complaint filed against Respondent be dismissed. DONE and RECOMMENDED this 5th day of March, 1984, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 5th day of March, 1984. COPIES FURNISHED: Karl M. Scheuerman, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Daniel J. Lobeck, Esquire 1343 Main Street, Suite 204 Sarasota, Florida 33577 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
