The Issue Whether Respondent, a condominium association, violated Section 718.112(2)(c), Florida Statutes; by holding board meetings on January 2, 7, and 16 or 17, 1985, which were not open to all unit owners and for which notice was not posted; If so, what sanctions should be imposed.
Findings Of Fact Petitioner, the Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, is the state agency charged with the duty of enforcing Chapter 718, Florida Statutes, the Florida Condominium Law. Respondent, Windsor Park Condominium Association, Inc., is the condominium association responsible for a 64-unit residential condominium known as the Windsor Park North Condominium ("Condominium") located at 120 Wettaw Lane, North Palm Beach, Florida. In their Prehearing Stipulations, the parties agreed that the disputed issues are whether the Association, contrary to law, held condominium board meetings on January 2, 6 and 16 and 17, 1985, which were not open to all unit owners and for which notice was not posted. The Association contends that if such meetings were, in fact, held, they were "emergency" meetings for which notice was not required under the statute. In December 1984, a five-member board of administration was elected by the members of the Association to run the condominium association in 1985; Muriel Siebern was elected President. Until November 1984, Respondent had contracted with a professional management company known as First Columbia Management to manage the Condominium. Norma Calhoun carried out those management duties on behalf of the company. When the contract expired in November 1984, Harry Christie (then President of the Association) signed a new one-year contract, on behalf of the Association, with Florida Management Professionals, Inc., a newly formed management company which was owned by Norma Calhoun. Until November 1984, the First Columbia Management hired, fired, and supervised employees, maintenance personnel and repairmen billed and collected assessments of common expenses paid Association bills prepared the annual budget and year-end financial statements communicated with the Association's attorney and, attended unit owner meetings. From November until early January, 1985, these functions continued to be performed by Norma Calhoun, on behalf of her newly formed management company. But in early January 1985, the newly elected board of administration terminated the Association's contract with Ms. Calhoun's company and began performing the management duties of the Association without the assistance of a professional management company. II. The newly elected board of administration of the Association held four meetings between January 2 and January 17, 1985. Advance notice of these meetings was not posted on the Condominium property; and no unit owners other than members of the present (or past) board attended. The first meeting was held on January 2, 1985, at the former management company's offices in North Palm Beach. Four members of the board (a quorum) were present: Muriel Siebern, President; Sue Day, Vice President; Fred Kelly, Treasurer; and Lori Powers, Member-at-Large. Ms. Calhoun, and Harry Christie, President of the outgoing board, were also present. One purpose of this meeting was to affect a turn-over of the Association's records to the new board. Mr. Christie, outgoing president, presented the key to the locker room, financial statements for the Association from January through October 1984, the book of minutes, a history of the names and addresses of all unit owners, and the results of the vote taken at the December 1984 annual meeting. The board, however, also discussed with Ms. Calhoun the nature and performance of her management duties, reviewed various contracts, and discussed with her a pending court hearing in a lawsuit in which the Association was a party. No emergency conditions surrounded this meeting which would have precluded the posting of notice at least 48 hours in advance. Ms. Siebern had called Ms. Calhoun five days before the meeting to ask her to attend. III. On January 7, 1985, Ms. Siebern and two other members of the board (a quorum) met in the offices of Richard Breithart (the attorney who now represents the Association) to discuss the management contract which Mr. Christie had signed with Florida Management Professionals, Inc., in November 1984. (The board members had discussed the contract on the way to attorney Breithart's offices and felt it was not binding.) After Mr. Breithart concurred, the board decided to fire Ms. Calhoun and terminate the contract with her management company. After polling the two absent board members (by telephone) and obtaining their concurrence, the three board members met with Ms. Calhoun that same day at First Columbia Management's offices, and informed her of their decisions. They asked that she turn over to them all of the Association's records, including all financial statements. Some of those records were not immediately available since they were kept at the former management company's offices in Clearwater. Ms. Calhoun responded that she would retrieve the material, but that it would take several weeks to receive it. The board members asked her to call them when it was received. No one told Ms. Calhoun that an emergency existed or that there was an urgent or pressing need for the records. The board members also asked that the Association's checkbook be returned. Although the Association asserts that these were emergency meetings which excuse their failure to post 48 hours notices, no emergency has been shown. Prior to their January 7 meeting, the individual board members were given at least 24 hours notice. The ostensible "emergency" was based on the need to obtain the Association's complete records from Ms. Calhoun, but Mrs. Siebern and other members of the board became aware of the need to obtain the Association's records as early as December 1984. Moreover, the board members, thereafter, did not articulate a need to obtain the records on an emergency basis, which precluded 48 hours notice. (See letter of Ms. Siebern to Mr. Cassels, dated February 12, 1984, attached to Petitioner's Exhibit No. 2). The Association's answers to the Division's interrogatories also fail to mention the existence of an emergency. (Petitioner's Exhibit No. 3) Finally, the Association has not shown any likelihood of injury if it had delayed its January 7 meeting an additional 24 hours in order to post 48-hour notices to all unit owners. Although the board encountered delay in obtaining the Association's complete records from Ms. Calhoun, no injury was shown. There is no evidence or even allegation that Ms. Calhoun was guilty of misappropriation of funds or that the Condominium's bills were not being timely paid. IV. On January 16 or 17, 1985, three board members, including Ms. Siebern, met again at the offices of attorney Breithart. After obtaining concurrence (by telephone) of the two absent board members, the board decided to dispense with the services of attorney Levine, who had been representing the Association in the pending lawsuit, and hire attorney Breithart in his place. The Association asserts that an emergency existed (precluding the need to post notice in advance of the meeting) since a hearing in the pending lawsuit was imminent. This emergency, however, was self-induced even if it existed, it was brought about by the board's failure to timely act. (The board members were dissatisfied with attorney Levine as early as December 1984, when he advised the members at the annual meeting of the Association that they would not prevail on the merits of the pending lawsuit. The board members were aware--then--that a hearing would be scheduled in the lawsuit during the next several weeks.) Another reason for firing attorney Levine was his alleged charging of expensive fees. But it has not been shown why action could not be taken to resolve this concern after giving 48 hours notice, as required by the Condominium Law.
Recommendation Accordingly, based on the foregoing, it is RECOMMENDED: That the Association be found guilty of four violations of Section 718.112(2)(c), Florida Statutes; that it be required to submit a certified check for $4,000 to the Division; and that it be ordered to henceforth conduct all board meetings in accordance with the notice and open meeting requirements of the Condominium Law. DONE and ORDERED this 26th day of February, 1986, in Tallahassee, Florida. R. L. CALEEN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1986. COPIES FURNISHED: Karl M. Scheuerman, Esq. 725 S. Bronough St. Tallahassee, FL 32301 Richard O. Breithart, Esq. 818 U.S. Highway One, Suite 8 North Palm Beach, FL 33408 APPENDIX RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT 1-7. Approved, in substance. 8. Adopted, except the last nine lines are rejected as not supported by a preponderance of the evidence. 9-31. Adopted, in substance. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT 1-2. Adopted, in substance. 3a-d; 4-7. Rejected as not supported by a preponderance of the evidence.
Findings Of Fact Respondent A.R.M. Limited, Inc., is the developer of the residential condominium known as Trails at Royal Palm Beach, a phase condominium containing a total number of 230 units when completed, located in Royal Palm Beach, Florida. During 1981 Respondent submitted to Petitioner all documents required to properly register the condominium, including the Declaration of Condominium and the Contract for Sale. By letter dated June 16, 1981, Petitioner notified Respondent that the documents it had received were in acceptable form and that Respondent would soon be advised as to the results of the Petitioner's "content examination". By letter dated July 14, 1981, Petitioner notified Respondent that it had completed its examination, and the condominium documents were proper. On April 27, 1982, Respondent recorded the Declaration of Condominium for Phases I and II in the public records in Palm Beach County. The Offering Circular, the Declaration of Condominium, and the Contract for Sale contained a developer's guarantee of common expenses for a two-year period commencing with the recording of the Declaration of Condominium and guaranteeing that the unit owners' monthly assessment would not exceed $75 a month for the period of the guarantee. Accordingly, the initial guarantee period terminated April 27, 1984. Thereafter, the guarantee period was extended by the developer until April 27, 1985, and again until December 31, 1985. No evidence was offered to show that any unit owner objected to the extension of the guarantee period. However, no vote of the unit owners was taken regarding either of the two extensions, and no written agreement was obtained. During the period of time between the initial guarantee period and January 1, 1986, Respondent did not pay assessments on a regular basis but instead paid the difference between the association's expenses and income. In other words, the developer did fund all shortfalls through December 31, 1985. The Offering Circular approved by Petitioner in 1981 contained a copy of the Contract for Sale which was to be used, and in fact has been used, for the condominiums units. That Contract specifically provides for purchasers to pay an initial contribution to working capital in the amount of "$300 . . . which may be used by the Association for start-up expenses as well as ordinary expenses . . . " Pursuant to that contract, Respondent utilized start-up funds to off set common expenses of the condominium arising from the sale of 28 units between April 27, 1984 and April 27, 1985. Fourteen of those units were sold between April 27, 1984 and October 1, 1984, and 14 of those units were sold between October 1, 1984 and April 27, 1985. In a phase condominium, since the total number of units within the condominium increases as phases are added, the number of unit owners paying assessments for common expenses increases and, consequently the percentage of ownership of the common elements and percentage of common expenses liability changes per unit. When Respondent registered the condominium with Petitioner in 1981 Respondent filed all documents necessary for the entire project (including all phases) but only paid the filing fee related to Phases I and II at that time. As Respondent continued developing the condominium and selling additional units in subsequently-constructed phases, appropriate amendments to the original Declaration were recorded in the public records. Respondent, however, failed to file copies of those recorded amendments with Petitioner. By cover letter dated March 3, 1986, Respondent filed with Petitioner a developer's filing statement for subsequent phases and enclosed a check in the amount of $940 to cover filing fee requirements. According to an attachment to that filing, Respondent was filing Phases 900, 1000, 1100, 1200, 1300, 1400, 2000, 2100, 2200, 2400, and 2500, which in totality comprised 94 units. According to the same attachment, these Phases were added to the condominium through recordation of amendments to the original Declaration with such recordation occurring between 1983 and 1986. According to information submitted by Respondent to Petitioner, as of March 3, 1986, closings had taken place on 77 units in Phases 900, 1000, 1100, 1200, 1300, 1400, 2100, 2400, and 2500 prior to Respondent's filing the subsequent phase documents with Petitioner. There is no allegation that the documents when filed were improper or that Respondent failed to provide them to the unit owners at the time they were executed. In January of 1988 unit owners other than the developer elected a majority of the board of administration of the condominium association, and turnover of control of the association from developer control to control by unit owners other than the developer occurred.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it Is'; RECOMMENDED that a Final Order be entered: Finding Respondent guilty of the allegation contained within count one; Finding Respondent not guilty of the allegations contained within counts two and three of the Notice to Show Cause; Requiring Respondent to effectuate the financial review discussed in the Conclusions of Law section of this Recommended Order and pay to the condominium association any amount of unpaid assessments for the time period in question; and Assessing a fine against Respondent in the amount of $1000. DONE and RECOMMENDED this 20th day of May, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1988. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 87-2917 Petitioner's proposed findings of fact numbered 1, 3, 5, 7, the first sentence of 9, the third sentence of 15, and 16-20 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 8 has been rejected as being immaterial to the issues under consideration herein. Petitioner's proposed findings of fact numbered 2, 4, 6, 9 except for the first sentence, 10-14, and 15 except for the third sentence have been rejected as not constituting findings of fact but rather as constituting conclusions of law, argument of counsel or recitations of the testimony. COPIES FURNISHED: Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Karl M. Scheuerman, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 A.R.M. Limited, Inc. Trails at Royal Palm Beach Suite 315 1300 North Florida Mango Road West Palm Beach, Florida 33409 Dennis Powers, Esquire Suite 315 1300 North Florida Mango Road West Palm Beach, Florida 33409
The Issue The issues are (1) whether Florida Housing Finance Corporation's (Florida Housing) intended decision to award low- income housing tax credits for an affordable housing development in medium-size counties to Grove Manor Phase I, LTD (Grove Manor), JIC Grand Palms, LLC (Grand Palms), Madison Palms, Ltd. (Madison Palms), and RST The Pines, LP (The Pines), was contrary to solicitation specifications, and if so, whether that determination was clearly erroneous, arbitrary, capricious, or contrary to competition; and (2) whether Florida Housing's determination that Brownsville Manor, LP (Brownsville), achieved the maximum available score of 28 points was contrary to solicitation specifications, and if so, whether that determination was clearly erroneous, arbitrary, capricious, or contrary to competition.
Findings Of Fact Florida Housing is a public corporation created pursuant to section 420.504. One of its responsibilities is to award low-income housing tax credits, which developers use to finance the construction of affordable housing. Tax credits are made available to states annually by the United States Treasury Department and are then awarded pursuant to a competitive cycle that starts with Florida Housing's issuance of an RFA. On September 3, 2015, Florida Housing issued an RFA in which it expected to award up to an estimated $10,763,426.00 of tax credits for affordable housing developments in medium counties. The RFA also requested proposals for housing developments in small counties, but that portion of the RFA is not at issue. All applicants in this proceeding proposed developments in medium counties. They include Redding (Seminole County), HTG (Hernando County), Brownsville (Escambia), Grove Manor (Polk County), Grand Palms (Manatee County), Madison Palms (Brevard County), and The Pines (Volusia County). Florida Housing retained the right to "waive Minor Irregularities in an otherwise valid Application" filed pursuant to the RFA. Fla. Admin. Code R. 67-60.008. A "minor irregularity" is defined as "a variation or condition of the Application pursuant to this rule chapter that does not provide a competitive advantage or benefit not enjoyed by other Applicants, and does not adversely impact the interests of the Corporation or the public." Fla. Admin. Code R. 67-60.002(6). These rules are particularly relevant in this case, as during the scoring process Florida Housing waived minor irregularities for several applicants. Florida Housing's Executive Director appointed a review committee comprised of Florida Housing staff to evaluate the applications for eligibility and scoring. Ninety-eight applications were received, processed, deemed eligible or ineligible, scored, and ranked pursuant to the terms of the RFA, administrative rules, and applicable federal regulations. Applications are considered for funding only if they are deemed "eligible," based on whether the application complies with various content requirements. Of the 98 applications filed in response to the RFA, 88 were found to be eligible, and ten were found ineligible. All applicants in this case were preliminarily deemed to have eligible applications and received a maximum score of 28 points. The RFA specifies a sorting order for funding eligible applicants. Recognizing that there would be more applications than available credits, Florida Housing established an order for funding for applicants with tied scores using a sequence of five tie breakers, with the last being a lottery number assigned by the luck of the draw. Applications with lower lottery numbers (closer to zero) are selected before those with higher lottery numbers. On January 29, 2016, Florida Housing posted a notice informing the participants that it intended to award funding to eight developments in medium counties, including those of Grove Manor, Grand Palms, Madison Palms, and The Pines. While the applications of HTG, Brownsville, and Redding were deemed to be eligible, they were not entitled to a preliminary award of funding because of their lottery number ranking. The randomly assigned lottery numbers of those applicants are as follows: HTG (14), Brownsville (16), and Redding (17). HTG and Redding timely filed formal written protests. HTG's protest is directed only at Grove Manor's application. Because Grove Manor agreed that its score should be adjusted downward, HTG is the next applicant in the funding range and should be awarded tax credits, assuming it successfully emerges from the credit underwriting process. No party has challenged the scoring of HTG's application. Redding's protest is directed at the applications of The Pines, Madison Palms, Grand Palms, and Grove Manor, who were selected for funding. Redding also contends that Brownsville, which has a lower lottery number, should have been deemed ineligible or assigned a lower score so that it would no longer be in the funding range. In an unusual twist of events that occurred after the posting of the notice on January 29, 2016, Madison Palms and Grove Manor agreed that they are either ineligible or out of the funding range. Therefore, assuming that adequate funds are available, in order for Redding to be awarded credits, it must establish that at least one of its remaining targets (Grand Palms, Brownsville, and The Pines) is ineligible or should be assigned fewer points. No party has challenged the scoring of Redding's application. Under the RFA, applicants are awarded points in three categories: general development experience, local government contributions, and proximity to services. Depending on whether family or elderly units are being proposed, to obtain proximity to service points, an applicant may select among several types of community services, including transit, a grocery store, a medical facility, a pharmacy, or a public school. Redding has challenged the number of proximity points awarded to The Pines for proximity to a medical facility and public school, Grand Palms for proximity to a pharmacy, and Brownsville for proximity to a public bus transfer stop. Based on Florida Housing's preliminary review of the applications, all three achieved a total proximity score of 18 points. The RFA requires that an applicant submit a Surveyor Certification Form with its application. The form identifies a Development Location Point (DLP), which is representative of where the development is located and must be on or within 100 feet of an existing residential building or a building to be constructed. The DLP is represented by a latitude and longitude coordinate. The distance from the DLP to the selected service is how the proximity points are awarded. The services on which an applicant intends to rely must also be identified on the form, along with the location of the service, as well as the latitude and longitude coordinates for each service. The RFA requires that the coordinates "represent a point that is on the doorway threshold of an exterior entrance that provides direct public access to the building where the service is located." Jt. Ex. 1, p. 25. Redding contends that the coordinates for certain services selected by The Pines, Grand Palms, and Brownsville are not on the "doorway threshold of an exterior entrance that provides direct public access to the building where the service is located." Accordingly, it argues that the number of proximity points awarded to each applicant must be lowered. The Pines selected a public school that has no doors allowing direct public access to the facility. Instead, the school is a series of buildings and classrooms connected by sidewalks and covered breezeways, making a primary "doorway threshold" problematic. The office is interior to the school. Given this unusual configuration, The Pines placed the coordinates at a student drop-off area in front of the school, where students then walk under the covered breezeways to their classrooms, and members of the public walk to offices and/or classrooms. Even if Redding's desired point for the coordinates was used, there would be no difference in the awarded proximity points, as the change in distance would be minimal. The coordinates for The Pines' medical facility are approximately 90 feet from the door that provides direct public access. This was due to an error by the surveyor, who used the back of the facility, rather than the front doorway threshold. Even if the front door had been used for the threshold, The Pines would still be entitled to the same amount of proximity points, as the change in distance would be minimal and not change the scoring. The slight error in the form is a waivable minor irregularity. Brownsville selected a public bus transfer stop for its transit service. Due more than likely to a digital error in one of the satellites used to pinpoint the spot, the coordinates were approximately 150 feet from the canopy where passengers load and unload. Even if the correct point had been used, it would not change the amount of proximity points awarded to Brownsville. The slight error in the form is a waivable minor irregularity. Finally, Grand Palms selected a pharmacy for one of its services. During the process of locating the doorway threshold at the pharmacy, a traverse point was established 70 feet east of the doorway threshold. This was necessary because of an overhang above the doorway threshold. A measurement was then made from the traverse point to the doorway threshold. By mistake, the coordinates on the form represented the location of the traverse point, instead of the doorway threshold of the pharmacy. However, this 70-foot error did not affect the distance from the pharmacy to the DLP or the points awarded to Grand Palms for proximity to a pharmacy. The slight error in the form is a waivable minor irregularity. Florida Housing determined that the coordinates used by The Pines, Brownsville, and Grand Palms yielded the same proximity point score had they been located at the "doorway threshold" and/or "embark/disembark location" as defined in the RFA. Because there is no language in the RFA that provides direction on how to treat these types of minor errors, or mandates that Florida Housing treat them as a non-waivable item, Florida Housing considers them to be a minor irregularity that can be waived. In sum, the deviations were immaterial, no competitive advantage was realized by the applicants, and they were entitled to the proximity points awarded during the preliminary review. Redding also contends that Brownsville is ineligible for funding because it failed to comply with a material requirement in the RFA. In its application, Brownsville stated that it intends to place an 87-unit development on a "scattered site" consisting of two parcels (Site I and Site II) with an intervening roadway (North X Street) between them. The RFA defines a development which consists of a scattered site "to mean a single point on the site with the most units that is located within 100 feet of a residential building existing or to be constructed as part of the required Development." Jt. Ex. 1, p. 25. Stated another way, if multiple parcels are used for the development, the DLP must be located on the site which contains the majority of the residential units. Florida Housing considers this to be a material, non-waivable requirement of the RFA. In Brownsville's Surveyor Certification Form, the DLP is located on Site I, a 1.49-acre parcel that is zoned Commercial and lies west of Site II. In making its preliminary decision to award funding to Brownsville, Florida Housing relied upon the validity of the DLP as of the application deadline and assumed that Site I would have the majority of the units. It had no way to verify the accuracy of that information during the initial scoring process. The RFA requires an applicant to attach to its application a form entitled, "Local Government Verification that Development is Consistent with Zoning and Land Use Regulations." Brownsville's verification form was signed by Horace L. Jones, Director of Development Services for Escambia County, who confirmed that the intended use of the property was consistent with local zoning regulations. The verification forms do not include any information regarding the number of units on each parcel of the site. Florida Housing defers to the local government in determining whether local zoning requirements will be met. Mr. Jones later testified by deposition that Escambia County zoning regulations allow only "25 dwelling units per acre" on Site I. Therefore, on a 1.49-acre parcel, the maximum number of units allowed is 36, or less than a majority of the 87 units. Because Brownsville did not comply with a material requirement of the RFA for a scattered site, Florida Housing now considers the DLP for proximity purposes to be invalid. Had it concluded otherwise, Brownsville would be given a competitive advantage over the other applicants. Brownsville contends, however, that during the County site review process, it will utilize a procedure by which the County can consider the two parcels as a "Single Unified Development" and "cluster" the dwelling units. Although the County has a process to allow the transfer of density from one parcel to another, Brownsville had not started this process as of October 15, 2015, the due date for all applications and the cutoff date for any changes. Also, this process would entail a public hearing before the Board of County Commissioners (Board), and there is no guarantee that the Board would approve the density transfer. In fact, Mr. Jones testified that he was not sure if the density transfer was even a viable option. Therefore, the application of Brownsville contains a material deviation from the RFA and is not eligible for funding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Housing Finance Corporation enter a final order rescinding the preliminary award to Grove Manor Phase I, Ltd. and Madison Palms, Ltd.; determining that Brownsville Manor, LP, is ineligible for funding; and designating HTG Hammock Ridge, LLC, and Redding Development Partners, LLC, as the recipients of tax credits being made available for developments in RFA 1015-106. DONE AND ENTERED this 19th day of April, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2016. COPIES FURNISHED: Kate Fleming, Corporation Clerk Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 (eServed) Michael P. Donaldson, Esquire Carlton Fields Jorden Burt, P.A. Post Office Box 190 Tallahassee, Florida 32302-0190 (eServed) Hugh R. Brown, General Counsel Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 (eServed) Betty C. Zachem, Esquire Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 (eServed) M. Christopher Bryant, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 (eServed) Maureen McCarthy Daughton, Esquire Maureen McCarthy Daughton, LLC Suite 340 1725 Capital Circle Northeast Tallahassee, Florida 32308-1591 (eServed) Donna Elizabeth Blanton, Esquire Radey Law Firm, P.A. Suite 200 301 South Bronough Street Tallahassee, Florida 32301-1706 (eServed) Douglas P. Manson, Esquire Manson Bolves Donaldson, P.A. 1101 West Swann Avenue Tampa, Florida 33606-2637 (eServed)
The Issue The issue is whether Florida Housing Finance Corporation’s (Florida Housing) intended decision on January 29, 2016, to award low-income housing tax credits for an affordable housing development in Hillsborough County pursuant to Request for Applications 2015-107 (RFA-107) was contrary to Florida Housing’s rules, policies, or solicitation specifications; and, if so, whether that determination was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact The Parties Florida Housing is a public corporation created pursuant to section 420.504, Florida Statutes. One of its responsibilities is to award low-income housing tax credits, which developers use to finance the construction of affordable housing. Tax credits are made available to states annually by the United States Treasury Department and then are awarded pursuant to a competitive cycle that starts with Florida Housing’s issuance of an RFA. This proceeding concerns RFA-107. Madison is an applicant entity for a proposed affordable housing development in Hillsborough County. ARD is a developer entity of affordable housing. SP Gardens and City Edge are entities in the business of providing affordable housing and filed applications pursuant to RFA-107. Background On September 21, 2015, Florida Housing published on its website proposed solicitation RFA-107, inviting applications for the award of tax credits for the development of affordable housing located in six counties, including Hillsborough County. The RFA provided that only one applicant would be awarded tax credits for Hillsborough County. In response to the RFA, six applications were submitted for Hillsborough County. A scoring committee appointed by Florida Housing evaluated the applications and submitted a recommendation to the Board of Directors (Board). On January 29, 2016, all participants received notice that the Board had determined which applicants were eligible or ineligible for consideration of funding. Only the application filed by a non- party, Mango Blossoms, was found ineligible. The Board determined that SP Gardens and City Edge satisfied all mandatory and eligibility requirements for funding and received “perfect” scores of 28 points out of a total of 28 points. They were ranked one and four, respectively, based on random lottery numbers assigned by the luck of the draw. Because Bethune and The Boulevard are no longer parties, and their applications have been deemed to be ineligible by Florida Housing, SP Gardens and City Edge are now ranked one and two. The Board also determined that Petitioners satisfied all mandatory and eligibility requirements for funding; however, they received a score of 23 out of 28 total points, and were ranked below SP Gardens and City Edge. In this bid dispute, Petitioners contend that Florida Housing erred in the scoring, eligibility, and award decision of the applications of SP Gardens and City Edge. But for the incorrect scoring of those two applications, Petitioners argue they would have been entitled to an allocation of housing credits or would have been moved up in the ranking. SP Gardens Consistent with its policy, even though an appeal was taken by Petitioners, in 2016, Florida Housing awarded tax credits to the highest ranked applicant, SP Gardens. On April 21, 2016, Florida Housing issued an invitation to credit underwriting, which was accepted by the applicant on April 25, 2016. SP Gardens closed on the purchase and sale agreement, as amended, on June 15, 2016, and Florida Housing issued a carry- over allocation agreement on August 5, 2016. The applicant has since completed a credit underwriting with a positive recommendation, closed on the financing with the tax credit investor, and commenced construction of its development. Petitioners contend the application of SP Gardens is deficient in three respects, which renders the applicant ineligible for funding. First, they contend SP Gardens failed to demonstrate control over the site of the project, as required by the RFA. Second, they contend the purchase and sale agreement is invalid because the applicant cannot enforce the specific performance of the contract. Finally, they contend the development location point (DLP) is not located on the parcel where most of the units will be constructed. Section 4.A.8.a. of the RFA requires in part that the applicant demonstrate site control in the following manner: The Applicant must demonstrate site control by providing, as Attachment 15 to Exhibit A, the documentation required in Items a., b., and/or c., as indicated below. If the proposed Development consists of Scattered Sites, site control must be demonstrated for all of the Scattered Sites. SP Gardens submitted documentation to satisfy item a., which requires that an “eligible contract” be provided with the application in order to demonstrate control over the project site. An applicant typically submits an address, property description, metes and bounds, folio number, intersections of streets, or other information that describes the subject property. Florida Housing’s practice is to accept the representations of an applicant. SP Gardens’ purchase and sale agreement (contract) identifies the subject property using an engineer’s drawing with sketched hash marks, a description of the property as “approximately two acres,” and an address of “1108 E. Bloomingdale Avenue” in Valrico. County records do not reflect that such an address exists. However, the records do indicate an address of 1108 East Bloomindale Avenue that is on the proposed site and is owned by GF Financial, LLC, the seller of the property. Except for this scrivener’s error, the purchase and sale agreement is otherwise an acceptable agreement. An eligible contract must include a specific performance remedy. Petitioners contend the purchase and sale agreement cannot be enforced because of various alleged deficiencies in the agreement, including a failure to provide a legal description of the property and language in the agreement which does not reflect a meeting of the minds of the buyer and seller. However, a legal description of the property is not required. Then, too, Florida Housing does not attempt to determine if there was a meeting of the minds of the parties or if the agreement is legally enforceable. Only a circuit court may do so. See § 26.012, Fla. Stat. Petitioners also contend the DLP is not located on a parcel where most of the units will be constructed. The DLP is located on the property that is identified in the purchase and sale agreement. Whether or not the property ends up consisting of scattered sites will be addressed during the credit underwriting process. Florida Administrative Code Rule 67- 48.0072 provides in part that “credit underwriting is a de novo review of all information supplied, received or discovered during or after any competitive solicitation scoring and funding preference process, prior to the closing on funding.” Pursuant to this rule, during the credit underwriting process, a scattered site applicant must demonstrate compliance with the RFA. Also, in the final site plan approval process, the configuration of the proposed development will be fleshed out. With the advantage of hindsight in this case, this is exactly what SP Gardens did after it was issued an invitation to credit underwriting. By providing all required forms, a DLP, and appropriate assurances that it would comply with all RFA terms, SP Gardens has satisfied all RFA requirements. See, e.g., Brownsville Manor, LP v. Redding Dev. Partners, LLC, 224 So. 3d 891, 894 (Fla. 1st DCA 2017). The preponderance of the evidence supports a finding that the application of SP Gardens is eligible for funding. City Edge Petitioners allege that City Edge failed to disclose all of the principals of the applicant and developer. They also contend that City Edge is unable to pursue specific performance of its sale and agreement contract against the developer or the seller of the property. The RFA requires an applicant to “provide a list identifying the principals for the applicant and for each developer.” The application identifies City Edge as the applicant entity. It also identifies the general partner of the applicant entity, City Edge Senior GP, LLC, and its limited partner, The Richman Group of Florida, Inc. (TRGF). TRGF is both the limited partner of the applicant entity and the developer entity for City Edge. City Edge identified the principals for TRGF as of the application deadline. Florida Housing determined that this form was adequate to meet the requirements of the RFA. The application names James P. Hussey as the developer entity’s Treasurer. At hearing, Mr. Hussey’s position with TRGF was verified by TRGF’s vice president and a corporate document. Petitioners point out that, according to a printout of the annual report filed by TRGF with the Secretary of State, as shown on the SunBiz website, at the time the application was filed, the Treasurer of TRGF was Doreen Cole, and not Mr. Hussey. However, the evidence shows that Ms. Cole was removed from the position of Treasurer on or about September 1, 2015, and she subsequently separated from the company in late 2015. Through sworn testimony and a corporate record, City Edge established that Mr. Hussey was Treasurer at the time of the application deadline, November 5, 2015. Notably, Florida Housing does not rely on SunBiz for establishing who the principals of an entity are as of the application deadline. This is because SunBiz does not definitively identify the corporate officers as of the application deadline, and it sometimes contains errors. See, e.g., Warley Park, LTD v. Fla. Housing Fin. Corp., Case No. 17- 3996BID (Fla. DOAH Oct. 19, 2017; FHFC Dec. 8, 2017). For this reason, Florida Housing does not require applicants to provide SunBiz printouts to verify the names of the principals. Petitioners also contend that because of various deficiencies, the purchase and sale agreement cannot be enforced in circuit court. For the reasons expressed above, this determination does not lie within the jurisdiction of Florida Housing. In any event, the RFA requires that if the owner of the property is not a party to the eligible contract, the applicant must submit documents evidencing intermediate agreements between or among the owner, or other parties, and the applicant. Here, City Edge included in its application: (a) a purchase and sale agreement between 301 and Bloomingdale, LLC (the seller), and TRGF (the purchaser), and (b) a purchase and sale agreement between TRGF (the seller) and City Edge (the buyer). The latter document is the intermediate contract and meets all RFA-specified requirements for an intermediate contract. The documents reflect that TRGF possesses a specific performance remedy to compel 301 and Bloomingdale, LLC, to sell the property, and City Edge possesses the right to compel TRGF to perform under the intermediate contract. For purposes of ascertaining compliance with the RFA, the documents submitted by City Edge suffice. In a similar vein, Petitioners contend City Edge did not demonstrate site control because it did not include an eligible contract. Currently, 301 and Bloomingdale, LLC, is the owner of the property on which the housing will be built. City Edge attached to its application a purchase and sale agreement and an intermediate contract. The two contracts satisfy the elements of an eligible contract necessary to demonstrate control over the project site, they provide a specific performance remedy, and they conform to the RFA. The preponderance of the evidence supports a finding that City Edge’s application is eligible for funding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Housing Finance Corporation enter a final order dismissing the Protest of Petitioners. It is further recommended that Florida Housing reaffirm its decision to award tax credits to SP Gardens. DONE AND ENTERED this 6th day of June, 2018, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 6th day of June, 2018. COPIES FURNISHED: Hugh R. Brown, General Counsel Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301-1329 (eServed) Sarah Pape, Esquire Zimmerman, Kiser & Sutcliffe, P.A. Suite 600 315 East Robinson Street Orlando, Florida 32801-1607 (eServed) J. Timothy Schulte, Esquire Zimmerman, Kiser & Sutcliffe, P.A. Suite 600 315 East Robinson Street Orlando, Florida 32801-1607 (eServed) Craig D. Varn, Esquire Manson Bolves Donaldson Varn Suite 820 106 East College Avenue Tallahassee, Florida 32301-7740 (eServed) Christopher Dale McGuire, Esquire Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301-1329 (eServed) Lawrence E. Sellers, Jr., Esquire Holland and Knight, LLP Suite 600 315 South Calhoun Street Tallahassee, Florida 32301-1872 (eServed) Tiffany A. Roddenberry, Esquire Holland & Knight, LLP Suite 600 315 South Calhoun Street Tallahassee, Florida 32301-1872 (eServed) M. Christopher Bryant, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 (eServed) Amy Wells Brennan, Esquire Manson Bolves Donaldson Varn, P.A. Suite 300 109 North Brush Street Tampa, Florida 33602-2637 (eServed) Douglas P. Manson, Esquire Manson Bolves Donaldson Varn, P.A. Suite 300 109 North Brush Street Tampa, Florida 33602-2637 (eServed) Corporation Clerk Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301-1329 (eServed)
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
