Findings Of Fact The Respondent holds a real estate license and is a registered real estate broker. (Petitioner, Exhibit 1 and 2) The Respondent was a thirteen (13) year employee of Mr. J. Clair Lanning, who in 1969 executed a property management agreement with Mr. A. W. Ross, to manage a 5-unit apartment building at 1033 19th Avenue South, St. Petersburg, Florida. (Testimony of Lanning, Respondent Exhibit 3). Upon Mr. Lanning's retirement in the mid-seventies, the Respondent continued to manage Mr. Ross' property by agreement of the parties. (Testimony of Lanning). The written agreement did not require that monthly statements be furnished to Mr. Ross, although Mr. Ross stated that the Respondent verbally agreed to such a procedure and a prior written agreement between Mr. Lanning, Mr. Ross and a previous owner required monthly statements. (Testimony of Ross, Respondent Exhibit 1). The Respondent furnished monthly statements to Mr. Ross until she became bedridden due to a serious accident. (Testimony of Ross, Thomas and Lanning). Following the Respondent's accident, the office files were moved from her office to her bedroom and the statements were generally not furnished on a monthly basis. (Respondent Exhibit 2). The apartments were in a low income area, and were subject to substantial variations in occupancy. The tenants could be described as "transients" and, accordingly, made payments on a weekly basis. (Testimony of Brown and Lanning). The Respondent was given a "free hand" in making repairs and maintaining the building. (Testimony of Ross). In return for managing the property, the Respondent was paid $50.00 per month. The Respondent has complied with the request for an accounting to the best of her abilities. (Testimony of Thomas, Ross and Lanning). Although a former tenant testified that she gave rent monies to a girl who she thought to be Respondent's daughter, and such monies were not accounted for by the Respondent, there is no reason to believe that the girl in question was the Respondent's daughter or that the Respondent ever received such payment. (Testimony of Brown). No testimony or documents were presented which support the allegation that the Respondent received any monies from March 1 through March 15, 1978, which were not accounted for. During the course of this investigation, a Board investigator requested and received access to the records in the possession of the Respondent relating to the subject property that she was required to keep pursuant to the written agreements. Certain of the records were unavailable to the investigator because they were destroyed in an office fire. (Testimony of Thomas).
Findings Of Fact John M. Oreto is registered with the Florida Board of Real Estate as a broker and was so registered in February 1978 when the contract for sale and purchase of real estate was executed by Mr. and Mrs. Zins and Mr. and Mrs. Johnson. In February, 1978, Arthur Zins and his wife were visiting in Holiday, Florida and were in the market to purchase a residence for their pending retirement. In the course of their search, they contacted Respondent to look at a house where they had seen Respondent's FOR SALE sign. Respondent came to the home of Carl Warner, with whom the Zinses were staying, to drive them to see the residence. Warner accompanied the Respondent and the Zinses to inspect the property. The Zinses were impressed with the cleanliness and general appearance of this property and concluded, following their inspection, that it would suit their purposes. Following the inspection, the group returned to Warner's home where further discussions were held and the Zinses decided to make an offer to purchase the home. Respondent took a form contract and inked in the appropriate blanks at this time in accordance with the terms and conditions agreed to by the Zinses. The offer was $1,000 less than the asking price and was signed by the Zinses. During the discussion surrounding the execution of the offer, Warner recalls commenting that when he purchased his home a year or so earlier, he received a one-year warranty on his appliances. The Zinses and Warner all testified that Respondent made the comment regarding state law providing a guarantee, but Mr. Zins was not sure if the comment was made before or after the offer was signed by him, and Mrs. Zins thought the comment was made after the offer was signed by her, but she was not sure if the comment was made before or after the Johnsons had accepted the offer. Respondent denies making this comment. In any event, the comment regarding the guarantee, whether or not made by Respondent, was not a factor in the Zins's executing the contract to buy the house. All parties agreed that Respondent explained the entire contract to them before they signed. This is the sixth home purchased by the Zinses and in all other transactions, both of buying and selling, but one, they utilized the services of a real estate agent. They never received a guarantee on the equipment purchased in any other home, nor had they ever had serious problems following these other purchases. The inspection of this home prior to making the offer revealed no evidence of roof leaks such as water stains on the ceiling. As soon as the Zinses signed the contract, Respondent took it to the Johnsons and induced them to accept the offer. He then returned to tell the Zinses that they had a valid contract to purchase a wonderful home. The contract (Exhibit l) provided the buyers with the opportunity just prior to closing to "walk through" to see that all appliances were in working order. The Zinses did not return to Holiday until after the closing, but were not concerned because the house appeared so well-taken-care-of at the time of their inspection. Some two weeks after closing the Zinses returned to Florida and moved into the residence they had purchased. About two months later, following a very heavy rain, they saw evidence that the roof was leaking. They called Respondent, who advised them to get in touch with Johnson, which they did. Johnson ultimately declined responsibility for the roof. Later, several of the appliances failed and had to be replaced. The Zinses then wrote a letter to the Petitioner and these charges resulted. At no time during the discussions surrounding the signing of the contract did the Zinses ever inquire about who would provide the guarantee they say Respondent told them covered the house and contents for one year. Their only thought appears to have been that they were well-pleased with the house they were buying.
Findings Of Fact The Respondent, William C. Lovelace, has been a certified building contractor in the State of Florida since 1984, holding license number CB CO 29103. The Respondent has been a registered roofing contractor in the State of Florida since January, 1989, holding license number RC 0058368. Case No. 91-0390--The Clarks. On or about June 8, 1987, the Respondent, who was doing business as Lovelace Development Enterprises, Inc., at the time, entered into a contract with James and Nedra Clark, then residents of the State of Ohio, for residential contruction on a residential building lot they owned in a subdivision in Safety Harbor in Pinellas County, Florida. The contract price was $69,900, payable as follows: (1) $100 deposit; (2) $13,960 slab draw, paid August 9, 1987; (3) $17,450 frame draw, paid September 1, 1987; (4) $17,450 dry-in draw, paid September 16, 1987; (5) $13,960 dry wall draw, paid October 30, 1987; and (6) a $6,980 final payment, to be made when the certificate of occupancy was obtained, and paid on December 1, 1987. The contract the Respondent signed and sent to the Clarks in Ohio for their signatures provided for construction to begin within 30 days and to be substantially completed within six months of commencement. Before the Clarks signed and returned the contract to the Respondent by mail from Ohio, they modified the contract to provide for a completion date of November 1, 1987. The Respondent never commented on the Clarks' contract modification and never intimated that there would be any problem with having the Clark home ready for occupancy by November 1, 1987. The Clarks made arrangements to move to their new home one weekend in October, 1987. They flew down on the Saturday before their furnishings and belongings were to arrive by moving van. When the Clarks arrived on Saturday, they were shocked to find that the home was nowhere near ready for occupancy. The Respondent explained that he was having financial problems. The Clarks asked why he accepted their draw payments and never told them that he was having financial problems and was not progressing with construction as scheduled. The Respondent offered to, and did, put the Clarks up in an apartment building he owned until the Clark home was ready for occupancy. The Respondent did not pay three suppliers or subcontractors who worked on the Clark home and who subsequently filed claims of lien. The Clarks themselves satisfied the liens, plus the claimants' attorney fees, in addition to the contract price they had paid the Respondent. These additional payments amounted to approximately $7,000. On or about October 18, 1989, a criminal information was filed against the Respondent in Case No. CTC 8926280MMANO in the County Court for the Sixth Judicial Circuit, in and for Pinellas County, Florida. The information charged the Respondent with misapplication of the Clarks' real property improvement funds in violation of Section 713.345, Fla. Stat. (1989). After a non-jury trial, the Respondent was found and adjudicated guilty as charged and was sentenced to 60 days in jail, suspended, and placed on probation for one year. Conditions of probation included the requirement that the Respondent make restitution to the Clarks in the amount of $9,036.96, payable within one year, with minimum monthly payments set at $100. The Respondent appealed from the judgment of conviction. Execution of the sentence is stayed pending appeal. The appeal was pending at the time of the final hearing. Case No. 91-0391--The Parows. On or about December 28, 1987, the Respondent entered into a contract with George and Barbara Parow for residential contruction on a residential building lot they owned in a subdivision in Pinellas County, Florida, called Windsor Woods II. The contract price was $103,892, payable as follows: (1) $5,750 deposit; (2) $14,721 slab draw, paid February 17, 1988; (3) $14,721 lintel pour draw, paid February 23, 1988; (4) $14,721 frame draw, paid March 18, 1988; (5) $19,629 dry-in draw, paid April 22, 1988; (6) a $19,629 dry wall draw, paid May 11, 1988; and (7) $14,721 final payment to be paid when the certificate of occupancy was obtained. Construction on the Parow home was to begin on January 19, 1988, and actually began on or about February 5, 1988. The Respondent did not pay several suppliers and subcontractors who worked on the Parow home and who subsequently filed claims of lien. As construction progressed, the Parows became aware of liens and discussed them with the Respondent. The Respondent assured the Parows that they all would be taken care of. Instead, more liens of other suppliers and subs were filed. On advice of legal counsel, the Parows withheld the final draw. They also decided to refinance their property in order to finish construction themselves. To do so, they had to file a civil suit in Case Number 88-013508- 023 in Circuit Court, Sixth Judicial Circuit, in and for Pinellas County, Florida. They also had the bank deposit the last draw under the contract with the Respondent into the court registry. In the course of litigation, all valid liens were paid from the money in the court registry. In addition, the Parows were required to pay $957 for a certificate of occupancy, $1,254 that the Respondent was supposed to have paid for carpeting in the home, and $628 for appliances the Parows had paid for but did not get from the Respondent. Additional items were paid by the Parows to finish the house. All told, the Parows paid about $5,000 more out-of-pocket than they should have under the contract with the Respondent, as modified by extras and changes, to complete their home. On or about October 31, 1989, a criminal information was filed against the Respondent in Case No. CTC 8928044MMANO in the County Court for the Sixth Judicial Circuit, in and for Pinellas County, Florida. The information charged the Respondent with misapplication of the Parows' real property improvement funds in violation of Section 713.345, Fla. Stat. (1989). After a non-jury trial, the Respondent was found and adjudicated guilty as charged and was sentenced to 60 days in jail, suspended, and placed on probation for one year, to run concurrent with the probation imposed in Case No. 9826280MMANO (the Clark case). Conditions of probation included the requirement that the Respondent make restitution to the Parows in the amount of $10,178.73, payable $1,000 a month. The Respondent also appealed from the judgment of conviction in the Parow case. Execution of the sentence is stayed pending appeal. The appeal was pending at the time of the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Construction Industry Licensing Board enter a final order: (1) finding the Respondent, William C. Lovelace, guilty as charged; (2) imposing an administrative penalty in the amount of $2,000, payable within 30 days; (3) requiring the Respondent to pay the costs associated with the investigation and prosecution of these matters, payable as determined by the Board in consideration of the amount of the costs; (4) requiring the Respondent to make full restitution to the Clarks and the Parows within two years; (5) placing the Respondent on probation for two years conditioned on (a) timely payment of the fine, of the costs, and of the restitution to the Clarks and the Parows, (b) successful completion of continuing education in the areas of financial or general business practices, and (c) such other conditions of probation as the Board may deem appropriate. RECOMMENDED this 19th day of June, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1991. APPENDIX TO RECOMMENDED ORDER To comply with the requirements of Section 120.59(2), Fla. Stat. (1989), the following rulings are made on the Department's proposed findings of fact: 1.-4. Accepted and incorporated. The final draw was $14,721. Otherwise, accepted and incorporated. The $250 was designated "fines and costs," and is unnecessary. Otherwise, accepted and incorporated. 7.-8. Accepted and incorporated. 9. The $250 was designated "fines and costs," and is unnecessary. Otherwise, accepted and incorporated. COPIES FURNISHED: Robert B. Jurand, Esquire Senior Attorney Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 William C. Lovelace, pro se 1961 Cove Lane Clearwater, Florida 34624 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Jack McRay, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times here involved Defendant was a broker registered with the FREC. In 1974 he obtained a listing on a house located at 227 River Hill Drive, Jacksonville, Florida. An associate measured the interior dimensions of all rooms in the house and the dimensions of the carport, basement, attached utility shed, covered entry way, covered patio, and walks. The interior dimensions of the heated portions of the house, which did not include the basement, was approximately 1540 square feet. The basement contained 310 square feet, the utility shed 120 square feet, the covered entry 38 square feet, a covered porch 295 square feet, two patios 497 square feet, and the carport 380 square feet. Thereafter Defendant made up and had placed in the Florida Times Union and Journal on July 14, 1974 an advertisement offering this house for sale with the ad stating the house contained 2300 square feet. Mr. and Mrs. Beaudreau saw the ad, arranged with Defendant's office to see the house, and on July 16, 1974 made an offer to purchase the house which offer was subsequently accepted by the seller. On September 3, 1974 the transaction was closed. Approximately one year later the Beaudreaus decided to put the house on the market and called a real estate broker to handle the sale. When the salesman visited the property he measured the floor area contained in the exterior dimensions of the house, excluded all unheated area and advised the Beaudreaus that the house contained approximately 1560 square feet. When the Beaudreaus asked Defendant why he had advertised the house as containing 2300 square feet and were given short shrift they complained to the FREC and the investigation and administrative complaint here involved followed. In appraising property the value of all components of the property are considered with the heated area generally receiving the highest value per square foot. The Jacksonville Board of Realtors conduct indoctrination courses which are required for all members, however, they do not teach how to determine the square footage in a house. No uniform system of measuring the square footage of a house is taught at the approved real estate course's which are compulsory for all applicants for registration with the FREC. There is no one uniform system for determining the square footage in a house. Some consider only the heated area should be included; others include areas not heated, such as porches, garages, basements, etc. No regulation has been promulgated by the FREC to standardize the procedure for determining the square footage of a residence, although the better view appears to be that only the heated area be included and all open area, such as porches, carports, patios, garages, etc. be excluded. The covered area of the residence at 227 River Hill Drive exceeded 2700 square feet. In placing the ad Defendant excluded the area of the carport to arrive at his figure of 2300 square feet.
Findings Of Fact Respondent, Eric Ager, is a registered residential contractor in Florida, having been issued license number CR CA11771. Respondent held the license at all times referred to in these Findings Of Fact. Background While licensed and doing business as Ager Construction Company and Ager Homes, Inc., the Respondent has built 700 homes in Florida since 1975. There was no evidence of any prior disciplinary proceedings against him. Before 1983, the Respondent qualified and did business as Ager Construction Company. At about that time, the Respondent decided to retire and was given an opportunity to get his money out of the business when his older brother, Irwin, a Michigan licensed contractor since the early 1960's, offered to buy and operate the business. The Respondent agreed and sold his company to Ager Homes, Inc., the company his brother, Irwin, formed for this purpose. Since Irwin was not licensed in Florida, the Respondent agreed to stay on as the qualifying agent for Ager Homes, Inc., but his role was to be gradually phased out and eventually terminated when Irwin could replace him. Irwin was the sole shareholder and director of Ager Homes, Inc. He also was the president. The Respondent acted as vice-president for a time but later served only as resident agent for purposes of service of process for the company (as well as qualifying agent.) As qualifying agent for Ager Homes, Inc., the Respondent saw it as his job to be in the field and do the actual building. He and Irwin consulted before Irwin estimated a job, but otherwise all financial matters were handled exclusively by Irwin. When permanent financing on a job the Respondent was working on closed, Irwin would prepare an affidavit of no liens and an affidavit of no unpaid invoices. The affidavit of no liens also stated that "there have been no . . . services or material furnished to the property for which a valid lien could be filed, nor has there been material or services furnished to, or labor performed on said property for which there are unpaid bills." The Respondent generally did not sign or even see these affidavits. The DeSantis On July 6, 1985, Ager Homes, through Irwin, entered into a contract to sell the DeSantis an $89,000 house to be built on a lot in a subdivision called Coventry. The sales price included a swimming pool and screened pool area enclosure. On or about October 17, 1985, Ager Homes, through its foreman, Randy Martin, subcontracted with National Screen & Aluminum, Inc., for the screen enclosure. The original contract price was $4,169. Later, on Martin's recommendation, the DeSantis requested that the screen enclosure be enlarged and the roof gabled. Martin entered into an addendum for the additional work by National Screen, at an additional cost of $622. National Screen's work was completed the morning of the closing on October 30, 1985. Irwin left a signed affidavit of no liens and affidavit of no unpaid bills with the closing agent (along with the other papers he had to sign), and the transaction closed as scheduled. In accordance with the practice of Ager Homes, the Respondent knew nothing about the affidavits but assumed that they would be given at the closing, as usual. In fact, National Screen had not been paid in full, and there was still a balance due of $3,399 as of April 1986. National Screen filed a claim of lien, and its successor, Design Aluminum, sued in February 1986, to foreclose the lien. The DeSantis hired legal counsel, and a judgment was entered in the DeSantis' favor in May 1987, based on the technicality that National Screen's November 5, 1985, notice to owner was too late. The Respondent knew nothing about either the National Screen subcontract or the affidavits until after March 1986. In the fall of 1985, Irwin had begun to have financial difficulties. They stemmed from the development of the Coventry subdivision. Muck and ground problems required the unforeseen expenditure of $100,000 to $200,000. Irwin was unable to maintain a healthy cash flow. By March 1986, Irwin also had begun to have personal problems, including a death in the family. During the week of March 15, 1986, Irwin left Florida and abandoned Ager Homes. Irwin left the Respondent 70 to 80 unpaid invoices to deal with. The Respondent operated the business for some time and tried to get Ager Homes' bills paid. In the case of the National Screen lien, the Respondent believed the title company would pay the lien and sue Ager Homes far reimbursement, but the title company refused to pay on the ground that the lien was not a covered title defect. After this became apparent, the Respondent still did not arrange to have the debt paid. He vaguely understood from Irwin that the job had cost more than it should have, but he never investigated to learn the true facts and never denied that the debt was valid. The Schultzes On June 21, 1985, Ager Homes, through Irwin, contracted with the Schultzes to build a house on a lot in Coventry for a price of $115,000. On the Schultz job, there was a difficulty with the air conditioning. The air conditioning would not operate effectively. After much experimenting, it was decided that an additional unit would be necessary. The transaction closed on November 7, 1985, before the additional air conditioning unit was added. Irwin signed and provided an affidavit of no liens and affidavit of no unpaid invoices at the closing. In accordance with the practice of Ager Homes, the Respondent knew nothing about the affidavits but assumed they would be given at the closing, as usual. Ager Homes subcontracted the air conditioning system to Airtron, Inc. The original price was $2500. With the additional unit added after the closing, the total due to Airtron was $2781. This amount never was paid. In February 1986, the Respondent and Irwin gave Airtron a promissory note for $12,000, which included the $2,781 on the Schultz job. In April 1986, Airtron filed a claim of lien on the Schultz property. By August 1986, Irwin had left, and the Respondent had not kept Ager Homes current on new billings by Airtron. On August 7, 1986, the Respondent signed another promissory note to Airtron for the balance due, which by then had grown to $26,000. On October 31, 1986, the Schultzes paid the $2781 lien when they closed the resale of their house in Coventry. The Respondent has paid a total of approximately $5000 on the debt, leaving $18,600 due and owing. At first, the Respondent thought the title company would pay Airtron and sue Ager Homes for reimbursement. Eventually, it became apparent that the title company would not pay.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order: (1) suspending the residential contractor license of the Respondent, Eric Ager, until such time as he has paid Design Aluminum and Airtron, Inc., in full on the outstanding accounts of Ager Homes, Inc., and reimbursed the Schultzes what they paid to clear the Airtron lien from their property, up to a maximum suspension of two years; and (2) after the suspension, either (a) reinstating the license, subject to a one year probation, if the Respondent can demonstrate good faith, diligent efforts to pay the debts, or (b) revoking the license for failure to make good faith, diligent efforts to pay the debts. RECOMMENDED this 24th day of September 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 24th day of September 1987. COPIES FURNISHED: W. D. Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Eric Ager 3041 Xevlyn Ct. Safety Harbor, Florida 33572 Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation P. O. Box 2 Jacksonville, Florida 32201 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue Did Respondent, LGI Homes-Florida, LLC (LGI), discriminate in housing against Petitioners, Bridget and Tonny Walker, on account of their race in violation of section 760.23 Florida Statutes (2018)?1 1 All references to the Florida Statutes are to the 2018 compilation unless noted otherwise.
Findings Of Fact Mr. and Ms. Walker are African-American. Their claim in this matter arises out of their inquiry into buying a house from LGI in its Hill 'N Dale community. LGI is a national homebuilder. It develops residential communities consisting of homes that it built. It offers financing for those homes. LGI follows a specific, multi-step process for home sales. The process includes maintaining a log of contacts with potential buyers. The log includes the name of the sales representative who spoke to the potential buyers, the date of the contact, and the outcome of the contact. The process also includes a loan pre-qualification step. Using a Pre-Qualification Worksheet, a sales representative gathers basic financial information from a prospective buyer including employment, compensation, and bank account balances. In addition, LGI obtains a credit report for the prospective buyer. A determination that a buyer is qualified is effective for 30 days at any LGI property. After 30 days, a buyer who wishes to tour a home must undergo the pre-qualification process again. LGI does not give home tours to individuals unless they pre-qualify for financing. It follows this policy to conserve sales representative time by avoiding wasting time showing homes to individuals who are unlikely to be able to purchase them. LGI also says the policy avoids raising unrealistic expectations in would-be buyers who will not be able to finance a home. LGI's policies require every sales representative to first take each pre- qualified prospective buyer to a target home, identified as the lowest price home available, before viewing any other available homes on the property. On March 17, 2018, Mr. and Ms. Walker visited LGI's Ballentrae community. There they completed the pre-qualification process. An LGI representative advised them that they were pre-approved for a home valued around $150,000. The Walkers did not tour a home in the Ballentrae community. On June 16, 2018, the Walkers visited LGI's Hill 'N Dale community. They had scheduled an appointment with Danine Stratton, an LGI sales representative. After the Walkers arrived and seated themselves in the waiting area, a Caucasian couple arrived and sat down. When Ms. Stratton entered the waiting area she spoke to the Caucasian couple before acknowledging the Walkers. Ms. Stratton consulted with the Walkers and obtained the information needed for pre-qualification from them. This was necessary because more than 30 days had passed since they had pre-qualified at the Ballentrae property. She also asked for some demographic information. The Walkers inquired about purchasing a four-bedroom house. Ms. Stratton expressed skepticism that they could afford a four-bedroom home. During the consultation Ms. Stratton learned that Mr. Walker's name was spelled "Tonny," with two "n"s. She noted that the spelling was unusual. She went on to say, "It's either three things, your mother could not spell, your mother was on drugs, or just unique." The Walkers were justly offended and understandably perceived the comment as invoking racial stereotypes. Ms. Stratton maintains that this was just good natured, light-hearted, teasing meant to build rapport with the Walkers. She testified that she was "completely shocked" that they were offended. Ms. Stratton is not credible. It is not plausible that a sales person would expect insulting a customer's mother to build rapport with the customer. Ms. Stratton's comments are inexplicable. Nonetheless, Ms. Stratton gave the Walkers a tour of the community.2 She offered to show the Walkers a three-bedroom home, consistent with LGI's "target home" strategy. They asked about a four-bedroom home. Ms. Stratton said that a four-bedroom home was not available for showing. There is no persuasive evidence that one was available at that time or that a four- bedroom home was shown during that time period to non-minority persons. Ms. Stratton was willing to sell a three-bedroom home to the Walkers. By then they had decided they would not purchase a home from LGI. In 2 The testimony of Ms. Walker and Ms. Stratton differed on this point and others. Based on the demeanor of the witnesses, consistency with other evidence, and the implausibility of some of Ms. Stratton's testimony, the undersigned finds Ms. Walker more credible and persuasive. Ms. Walker's words, "I declined her offer to purchase any home with LGI." (Tr. p. 39). Upset by Ms. Stratton's comments about the spelling of Mr. Walker's name, the Walkers decided that they just wanted to leave. In order to do this peacefully they said they needed to check with an uncle to obtain funds for the required earnest money. They also refused to sign the pre-qualification form. On June 17, 2018, Ms. Stratton texted the Walkers saying, "Hey there, just touching base. Were you able to talk with your uncle about helping out?" This text demonstrated that Ms. Stratton wanted to sell the Walkers a home. On June 18, 2018, Ms. Walker replied that because of the comment about the spelling of Mr. Walker's name, "We will not be purchasing with LGI." Ms. Stratton replied: Oh my goodness, I'm so sorry that I offended you. I certainly didn't mean to. I was just making a joke and in hindsight was in poor taste. Again, I'm so sorry and best of luck to you guys." Ms. Walker went to an LGI property in Ruskin and spoke to a supervisor there named Joe Boyd. He assured her that LGI would take care of the problem and someone would call her. Ms. Walker also called LGI's home office in Texas. She was connected to the area director for Florida. He emailed Ms. Walker and said that he would have someone named Todd Fitzgerald contact her. Mr. Fitzgerald did not contact the Walkers. On Friday, June 22, 2018, at 12:52 p.m., Ms. Walker sent Mr. Boyd an email. It stated, "Myself and my husband recently visited one of your properties and received poor customer service and rude racist remarks from one of your employees. I have spoken to one of you[r] managers locally but I do not [know] if anything was done. There was no follow up. Please contact me at [phone number]." On Friday, June 22, 2018, at 10:13 p.m., Mr. Boyd replied: It is my understanding that our division president Todd Fitzgerald called you to discuss this. Please let me know if he hasn't and I will be happy to call. Please be assured that in no way was the intent of our representative to offend in any way. We apologize for you feeling that you received comments that were rude and even racist, that is definitely not like us, so from the bottom of my heart I am sorry on behalf of our company. I'll be available to discuss tomorrow if Todd has not already spoke with you. Have a nice evening! The next day Ms. Walker replied: "Thank you for your quick response. But I have not spoken to Todd Fitzgerald." There is no evidence of further communications between LGI and the Walkers. The Walkers did not offer to purchase a home from LGI. They would not purchase a home from LGI. From March 2018 through March 2019, LGI closed on the sale of 15 homes at Hill 'N Dale for which Ms. Stratton was the responsible sales representative. African-Americans purchased seven of those houses. On May 20, 2018, Ms. Stratton sold a four-bedroom home Hill 'N Dale to Alfreeda Harrington, an African-American, for $175,000.00. This was before her June meeting with the Walkers. Ms. Stratton sold a three-bedroom home in Hill 'N Dale to Tawanda Boyd, for $160,000.00. Ms. Boyd is an African-American. On August 11, 2018, Beverly Easton, an African-American, purchased a four-bedroom home in Hill 'N Dale for $175,000.00. Ms. Stratton was the sales representative for the transaction. On June 9, 2018, Ms. Stratton sold a home in Hill 'N Dale to the Samuels family, who were African-Americans. On April 12, 2019, Ms. Stratton sold a home in Hill 'N Dale to an African-American buyer whose last name is Wheeler. On March 25, 2019, Ms. Stratton sold a home in Hill 'N Dale to an African-American buyer whose last name is Bacon. On January 28, 2019, Ms. Stratton sold a home in Hill 'N Dale to an African-American buyer whose last name is Swanson.
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 denying the Petition for Relief. DONE AND ENTERED this 12th day of June, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 12th day of June, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Brett Purcell Owens, Esquire Fisher & Phillips, LLP Suite 2350 101 East Kennedy Boulevard Tampa, Florida 33602 (eServed) Bridget Trinettea Walker Tonny Walker 1144 Barclay Woods Drive Ruskin, Florida 33570 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
Findings Of Fact The Respondent, Home Owners Direct Sales, Inc., is now and was at all times alleged herein a registered real estate entity. Respondent, Roger L. Davis is now a registered real estate broker and from July 30, 1976 to the present time, has been a registered real estate broker, President and active firm member of Respondent, Home Owners Direct Sales, Inc. Respondent Davis, by and through agents of Respondent Home Owners Direct Sales, Inc., solicited from property owners in the Dade, Broward and Palm Beach County areas the payment of a fee in return for listings to sell their property in a magazine which was published by Home Owners Direct Sales, Inc. The complaint alleges that in its solicitation efforts, Respondents advised property owners that the magazine would be published monthly and contain the property owners listing; that such representations were false and known to be false when made; that subscribers relied upon such representations which prompted them to simultaneously pay a listing fee; that none of said fees received subsequent to July 1, 1976 were held or maintained in a trust account and that by reason thereof, the Respondents are guilty of fraud, misrepresentation, concealment, false pretenses, false promises, etc. within the meaning of Subsection 475.25(1)(a), Florida Statutes, and Respondent Home Owners Direct Sales, Inc. by and through President Davis is additionally guilty of collecting an advance fee without depositing 75 percent thereof in a trust account in violation of Subsection 475.452, Florida Statutes, all in violation of Subsection 475.25(1)(d), Florida Statutes. The complaint alleges further that the Respondents, as a means to assure the receipt of said deferred payments, recorded the deferred payment contract amount as liens against the real property interest of those who chose this method of payment for the service to be performed by Home Owners Direct Sales, Inc. Based thereon, the complaint alleges that the Respondents have placed upon the public records of the county, a lien which purports to affect the title of, or encumber, real property for the purpose of collecting a commission or to coerce the payment of money to the broker in violation of Subsection 475.42(1)(j) Florida Statutes, and derivatively in violation of Subsection 475.25(1)(d), Florida Statutes. Further, the complaint alleges that approximately 207 contracts were recorded in Broward County as liens of which there presently remains outstanding approximately 187 liens against the real property interests of those who chose the deferred payment method of compensation to Respondent Home Owners Direct Sales, Inc.; that Respondent has failed to take any steps to remove said liens from the public records and that by reason thereof, Respondent Home Owners Direct Sales, Inc. by and through its President, Roger L. Davis, is guilty of false pretenses, dishonest dealing, trick, scheme or device in a business transaction in violation of Subsection 475.25(1)(a), Florida Statutes. The complaint also alleges that Ronald Kavin, during times material, was a registered real estate salesman in the employ of Home Owners Direct Sales, Inc.; that pursuant to the terms of his (Kavin) employment agreement, Respondent Home Owners Direct Sales, Inc. by and through its President, Roger L. Davis, paid the sums of $250 and $150 by checks dated September 16 and 29, 1976, respectively to salesman Kavin which were returned for nonsufficient funds. Based thereon, the complaint alleges that the Respondents are guilty of dishonest dealing in violation of Subsection 475.25(1)(a), Florida Statutes. Based thereon, the complaint concludes that the Respondents are guilty of a course of conduct or practices which show that they are so dishonest and untruthful that the money, property transactions and rights of investors and those with whom they may sustain a confidential relation may not be safely entrusted to them, all in violation of Subsection 475.25(3), Florida Statutes. An examination of the record compiled herein reveals that sometime during the month of March, 1975, a corporate brokerage agreement was entered into between Jeff Davey, James McKay and Marylin Benjamin. As a means of doing business, the parties utilized a previously established Florida corporation, Macoda, Inc. James McKay was President of the corporation and Jeff Davey and Marylin Benjamin were Vice Presidents with Benjamin also serving as active broker. Jeff Davey was the son-in-law of President McKay who advanced the initial funds for capitalizing the corporation. Jeff Davey was charged with publishing and distributing the magazine, ensuring that signs were placed on the property of owners who utilized the service, and taking photos of such properties. Messr. McKay envisioned establishing a profitable, ongoing venture for his son-in-law and daughter. As originally conceived, the corporation planned to publish a magazine which would illustrate real property that was available for sale by owners in Dade, Broward and Palm Beach counties. The procedure simply stated involved putting the sellers of property in contact with buyers so that a viewing time could be arranged between them. Further negotiations between seller and prospective buyer were usually handled solely between them without any input or assistance from the personnel of Respondent Home Owners Direct Sales, Inc. During the early days of the corporate venture, monies collected from advertisers and all publication expenses, office expenses and salaries were handled by Jeff Davis and/or James McKay. In the early months of the operation, Messrs. Davey and McKay, pursuant to guidance and counseling from their accountants and lawyers, collateralized the listing fee contracts and used them as receivables to defray the steadily mounting negative cash flow resulting from the business operations. Sometime in December, 1975, Jeff Davey left the country for personal reasons. Thereafter, Messr. McKay took a more active role in the publication of the magazine and took sole charge of financial matters and policy decisions. The best guesstimate is that during this period, the venture was operating at a deficit of approximately $200,000 and was committed to substantial fixed overhead expenses. Mr. McKay who was retired and wealthy, contacted Respondent Roger L. Davis, who was then the publisher of a business and financial opportunity magazine and engaged his services to try to sell the business. Respondent Davis advertised the business in his financial opportunity publication for the asking price of $50,000. After several months of screening prospects, it became apparent to Respondent Davis that he would be unsuccessful in his efforts to locate a prospective buyer for the business and so advised the owner, Messr. McKay. During June or July of 1976, Respondent Davis offered to purchase the business for the outstanding obligations which amounted to approximately $12,000. At the outset of his assumption, Messr. Davis satisfied outstanding obligations of approximately $7,000 which were due to the printer. That amount also represented outstanding bills for rent, phone, salaries and other current expenses. Respondent Davis testified that when he purchased the business in June, 1976, the books were in a shambles and it was extremely difficult to determine what receivables the corporation was due and what obligations were due and owing. His testimony which was corroborated by his ex-wife, Ann Davis, reveals that he (Davis) made an honest good faith effort to satisfy all outstanding obligations with the limited funds available. He was able to obtain extensions from the printer so that approximately 15,000 copies of the magazine's November issue was printed. Respondent Davis found difficulty in physically laying out the magazine due to his lack of experience in layout work. By this time, Davis had exhausted all of his available revenues from the service and he had no funds to hire personnel to perform those functions. He contacted several property owners who had a listing agreement with Respondent Home Owners Direct Sales, Inc. after he took over its operations and was able to determine that approximately 50 - 60 property owners had in fact sold their houses and therefore no longer needed the service. He also testified that he was not responsible for filing the liens on the property of owners who utilized the deferred payment plan with Respondent Home Owners Direct Sales, Inc. He related several instances wherein he, when confronted by a property owner and was advised that an outstanding lien was affecting the title to their property, gave a release or satisfaction for the lien. When Respondent Davis took over the operations of the business, he retained the services of Ronald Kavin for office and sales manager in overall charge of initiating sales. His overall responsibilities included training salesmen, making appointments for sales persons and assuring that they kept appointments. Approximately September 16, 1976, Messr. Kavin approached Respondent Davis for $250 which he needed to pay a garage repair bill. Messr. Davis credibly testified that he advised Messr. Kavin that although he had no money, he would issue him a check which should not be deposited until he assured him that sufficient funds were on deposit in the bank to cover the check. Approximately two weeks later, Messr. Kavin again approached Messr. Davis for $150 to defray expenses which he had incurred in his duties as office manager. Again Respondent Davis explained that while he had no money, he expected to obtain some money shortly from an investor whom he had arranged financing for some property which he owned and that he (Kavin) should not attempt to negotiate the check until he had prior clearance from Davis that he had sufficient monies on deposit in the bank. Messr. Kavin attempted to negotiate both checks which were returned for nonsufficient funds.
Recommendation Based on the foregoing findings and conclusions, I hereby recommend that the registration of the Respondent corporation, Home Owners Direct Sales, Inc. and the license and registration of Respondent Roger Davis be placed on probation for a period of one year. RECOMMENDED this 22nd day of May, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Louis B. Guttmann, III, Esquire Florida Real Estate Commission 400 West Robinson Avenue Post Office Box 1900 Orlando, Florida 32802 Roger L. Davis, Esquire c/o "A" Inc. 1980 North Atlantic Boulevard Cocoa Beach, Florida 32931 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, An agency of the state of Florida, Plaintiff, PROGRESS DOCKET NO. 3218 BROWARD COUNTY DOAH CASE NO. 77-2065 HOME OWNERS DIRECT SALES INC. and ROGER L. DAVIS, Respondents. /
The Issue Whether the Respondents are guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust, in a business transaction in violation of subsections 475.25(1)(b),(d) and (k), Florida Statutes, by virtue of the sale of the Wal-Mar Motel by Montver, Inc., to Derek and Lucy Lea.
Findings Of Fact At times material hereto, Respondents were the holders of the following Florida real estate license numbers: John H. McCain (McCain), license number 0192076; J. H. Miller license number 364090 and Dynamic Realty, Dynamic Commercial Group, license number 0044285. The licenses issued to Respondents McCain, Miller and Dynamic Realty were as broker, salesman and corporate broker, respectively. Prior to December, 1983, Derek and Lucy Lea, who are married, were residents of England. During the summer of 1983, they became interested in purchasing property in the United States and determined that in order to immigrate they would need to purchase and become owners of an American business. In keeping with their interests, they came to Florida (Pinellas County) during October, 1983 to inquire about the purchase of a motel listed by Respondent McCain. The Leas were assisted in their search by Dynamic Realty and J. Miller as selling brokers, acting as co-broker with Edna Stokes of Great Britain. The Leas learned of properties for sale in the States through advertisements, and decided that they were interested in purchasing a motel. Their preference was to own a business on the west coast of Florida because of the residence of Mrs. Lea's relatives in the Tampa area. The Leas responded to an advertisement of Edna Stokes who offered them information pertaining to Florida properties. The Leas advised Stokes of their special requirements, including a preference for the west coast of Florida, a motel business which offered a single story residence to accommodate the physical needs of Mrs. Lea's mother and a business situated off the major thoroughfares such that they could house their numerous pets and permit them to roam freely. Edna Stokes provided information on several motels in Florida including two in the Ft. Lauderdale area. Three were noted in the Clearwater/Dunedin area, one of which was under contract to another party and therefore not available. Of the remaining two, only one had the special locale and elevation requirements requested by the Leas, the Wal-Mar Motel located in Dunedin. The Leas had no prior experience in the motel business. During 1983, Mr. Lea was unemployed and his prior experience had been as a messenger in a bookmaking establishment. The major source of family support came from Mrs. Lea's employment as a computer operator. During October, 1983, the Leas began negotiations to purchase the Wal- Mar after they inspected the property late one evening. Respondent Miller made an arrangement for Mrs. Lea to revisit the Wal-Mar the next day. The Wal-Mar was listed for sale by Respondent McCain. Mrs. Lea, in the company of Respondents Miller, McCain and Kathy McCain, the daughter of Respondent McCain and the then manager of the hotel, inspected the Wal-Mar. Mrs. Lea concluded her inspection the following day. During the evening when Mrs. Lea inspected the Wal- Mar, she spoke to her husband by phone and they then decided to make an offer to purchase. Respondent Miller prepared an offer in accordance with Mrs. Lea's instructions and as a safeguard, included provisions in the purchase offer to protect the Leas' interest by allowing a suitable time for inspection and verification of both the physical condition of the premises and the financial books and records. The Leas' offer was accepted and Mrs. Lea returned to England. Respondent Miller later assembled financial data furnished by the owner and forwarded it to the Leas for their personal review. In addition to the written information passed on by Kathy McCain, Respondent Miller included an independent summary of survey results compiled by him of similar area motels respecting comparable rates. The Leas reviewed the information provided by Respondent Miller and confirmed their approval and satisfaction of the data by returning a telegram to Respondents Miller and Dynamic stating that the pertinent condition of the contract (paragraph 17E) was approved. 1/ The Leas returned to the United States and closed the transaction on December 17, 1983. They operated the Wal-Mar Motel through approximately January, 1985. The Leas enjoyed marginal success during the winter season of 1984 and made agreed mortgage payments to the seller for three months. Thereafter, they made no further payments although they continued to live and operate the motel and collected income for approximately ten additional months. They were eventually foreclosed and the property was returned to the seller. The Leas filed a civil suit and obtained a judgement against Respondent Dynamic. Dynamic did not appeal the judgement in favor of the Leas. However, the effect of that judgement is not dispositive of the issues relating to Respondent Dynamic's alleged wrongdoings herein based on, inter alia, different standards of proof in the two forums and Respondent counsel's stated position that Dynamic chose not to seek appellate review based solely on financial considerations. When the Leas contracted to purchase the motel, there was a general expectation within the tourist industry in the Tampa Bay area that the upcoming winter season would be a banner season. One factor leading to this expectation was the scheduling of the Super Bowl which was played in Tampa during 1984 and which was expected to bring a large influx of additional visitors. However, the expected increase in tourism did not occur and the area suffered a remarkably and unusually cold winter which led to a marked drop in tourism. Kathy McCain, who had agreed to assist the Leas in operating the motel and to assure a smooth transition, was unexpectedly told by the Leas that she should prepare to leave within days following the Leas purchase of the Wal-Mar. Ms. McCain inquired of the Leas whether they wanted to review certain files she maintained of past visitors such that the Leas could canvas them to determine whether or not they could generate some business through that medium and the Leas declined her offer. Kathy McCain thereafter disposed of the motel registration cards based on the Leas' wishes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT: Petitioner enter a Final Order dismissing the administrative complaint filed herein in its entirety. Recommended this 24th day of May, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 24th day of May, 1989.
Findings Of Fact Peck Plaza Condominium was developed by Edwin W. Peck, Inc. The management of this condominium has been turned over to 2625 Management Corporation, Inc. (Association) a nonprofit corporation charged with the assessment of charges and fees for the maintenance and operation of the common elements and other duties not material to this determination. The Respondents retained ownership of the 29th floor which is leased to King Arthur's Roundtable, Inc., a Kentucky corporation which operates a restaurant and cocktail lounge in this space. The limited common element is an express elevator from the garage and lobby to the restaurant on the 29th floor. Electricity for the operation of this elevator is currently charged to the Association. Respondents retained control of the roof of the condominium which is leased to Motorola Corporation, apparently for installation of broadcasting equipment. The structure comprising the condominium "flares" out at the 28th floor, thus making the 28th and 29th floors approximately 40 percent larger than the lower 27 floors. A limited number of parking spaces are reserved for the lessee of the 29th floor and an additional 55 parking spaces are reserved for the patrons of the restaurant. The parking spaces are part of the common elements operated by the Association. The Declaration of Restrictions, Reservations, Covenants, Conditions and Easements of Peck Plaza (contained in Exhibit 1)(hereafter referred to as Declarations) provided that the regular assessment for units would be as follows: Unit 2 SW $ 25.00 monthly Unit 3 SW (Resident Manager's apartment) -0- 29th floor Unit 400.00 monthly All other units 75.00 monthly Unit 2 SW is the second floor lobby which provides access to the express elevator and is owned by Respondents. It occupies about the same space as a one-bedroom living unit. Assessments are levied to cover common expenses such as insurance for fire and extended coverage, vandalism and malicious mischief for units, common elements and limited common elements, public liability insurance for common elements, operating expenses, maintenance expense, repairs, utilities, replacement reserve and reasonable operating reserve for common elements. The developer reserved the right to subdivide the 29th floor into 4 apartments and until so modified the Declarations provide that its owner be assessed 533.32 percent of the regular assessments assessed against standard living units. ($75 x 5.3332 which is approximately equal to $400) The Declaration of Condominium (Exhibit 1) Schedule B establishes the percentage of undivided interest in common elements and common surplus. There the 29th floor is awarded 5.621 percent, the 28th floor is awarded 5.12 percent divided equally between the four units, and the remaining floors receive 3.72 percent divided between the four units on that floor. Unit 2 SW is awarded .202 percentage. Assessments have subsequently been raised to $90 for the standard living unit and a corresponding increase for the 29th floor and Unit 2 SW. At the Association board meeting on April 12, 1975 (Minutes thereof Exhibit 5) the issue of the electricity for the express elevator being charged to the Association was raised and the board approved a motion that, since the tenant of the 29th floor was keeping the top of the building lighted, they would consider this a "swap out" and continue to pay for the electricity for the express elevator. At the board meeting on April 10, 1976 the issue of the charge for electricity for the express elevator was again raised and after Mr. Peck advised that he would not comply with the Association's prior request to install a meter and relieve the Association of the expense of the express elevator, the board voted to refer the issue to Petitioner herein for resolution. The estimated cost of the electricity for the elevator is approximately $110 per month (Exhibit 4). The Declaration provides in part: "In connection with the operation of a restaurant or other business/commercial enterprise or the operation of apartments in the twenty-ninth (29th) floor Unit there will be constructed as a Limited Common Element (as same is hereinafter defined) an express elevator which will run from the garage and lobby (which are common areas on the second floor) directly to the twenty-ninth floor Unit, nonstop, and this elevator will be for the sole use and purposes of the owner of the twenty-ninth floor Unit except as otherwise provided herein. There is a LIMITED COMMON ELEMENT appurtenant to the twenty-ninth (29th) floor Unit in this condo- minium as shown and reflected by the floor and plot plans, known as the express elevator whether the use of the twenty-ninth (29th) floor is for the purpose of access to condominium Units or to a restaurant or other business/commercial use. This Limited Common Element is reserved for the use of the Unit appurtenant thereto to the exclusion of other units, and there shall pass with the said Unit as appurtenant thereto, the exclusive right to use the Limited Common Element so appurtenant. Expenses of maintenance, repair or replacement [sic] relation to the said Limited Common Element shall be paid for by the owner of the twenty-ninth floor Unit. In the event the Developer elects to subdivide the said twenty- ninth floor Unit, then the Limited Common Element appurtenant to the said twenty-ninth floor Unit known as the express elevator shall be reapportioned among the twenty-ninth floor Unit as so subdivided." Nowhere in the Articles, By-Laws or Declarations is specific provision made for the operating expenses of the limited common element. As noted above Respondent, at the hearing, contended that, following the April 12, 1975 meeting of the board, where the motion to accept the use of the exterior lights on the top of the building for the elevator electricity as a "swap out" was carried, he took action upon this "swap out". The action he took was to continue to pay the expenses of maintenance, repair or replacement of the express elevator, to continue to pay the assessment for the 29th floor and Unit 2 SW, to repair defects in the pool and air conditioning, and to correct the odor in the hall. Also his claim for $11,500 against the Association was not pressed. However when asked if that claim had been satisfied Mr. Peck replied, no. Clause 44 of Lease Agreement (Exhibit 6) for occupancy of the 29th floor provides: "Lessor agrees to use its best efforts to have separate meters installed at its expense for all public utilities used in relation to the demised premises. In the event it is unsuccessful, submeters will be installed for gas, water and other public utilities and the cost of utilities shall be prorated on a monthly basis." The above Findings of Fact are substantially in agreement with the Proposed Findings submitted by Petitioner and Respondent. Petitioner proposed findings that: The ownership of 2 SW is irrelevant to the proceedings does not comport to the evidence that 2 SW comprises the lobby from where there is access to the express elevator; and Each residential owner is assigned one parking space per unit is not supported by any evidence regarding the number of parking spaces assigned unit owners. However neither of these findings is material to the result reached. Respondent's proposed finding that the 29th floor is presently assessed $510 per month is not in agreement with the evidence that the owner of the 29th floor, who also owns Unit 2 SW pays an assessment of $480 per month for the 29th floor and $30 per month for Unit 2 SW. Other proposed findings inconsistent with the above findings have been fully considered and are neither relevant nor material to the conclusions below.
