The Issue The issue to be resolved in this proceeding concerns whether the Respondent Department acted fraudulently, arbitrarily, illegally or dishonestly in making a decision to award Central Florida Legal Services, Inc., the Intervenor, a bid concerning a proposed contract to enter into Lease No. 800:0045. Embodied within that general issue are questions involving whether the Petitioner, Robert Allan Weinberg's (Weinberg) response to the Department's Invitation to Bid (ITB) was responsive, was the lowest and best bid and whether the Intervenor's bid was responsive to the ITB and was the lowest and best bid. Finally, it must be determined whether the Department properly evaluated the bid proposals in accordance with legally-acceptable, competitive bidding principles, in an honest and non-arbitrary fashion.
Findings Of Fact This dispute arose upon the Department electing to seek office space for personnel of its District 12, in Daytona Beach, Florida. After considering the type and nature of the facilities it needed, the Department ultimately published a set of specifications for the desired facility in an ITB. The ITB included detailed instructions for preparation and submittal of bids and a relevant form. A pre-bid conference was conducted and thereafter, three vendors submitted bids. One proposal was determined by the Department to be non- responsive because the amount of space contained in the bid proposed by that vendor did not meet the Department's specifications contained in the ITB. That agency decision was not contested. The bid submitted by the Intervenor, as well as the Petitioner, were both determined to be responsive by the Department. After evaluating the proposals based upon criteria contained in the ITB, the Department ultimately determined that the lowest, best and most responsive bid was that submitted by the Intervenor. It notified the bidders of its decision to award the subject bid to the Intervenor, and the Petitioner filed a protest. A formal written protest was timely filed, initiating this proceeding. The issues raised by the parties, concerning the relative responsiveness of the two bids, revolve around the question of adequate parking, the status of existing tenants in the buildings, a consideration required by the terms of the ITB, the question of adequacy of "dry and measurable" space, the question of "location" (including building appearance, appearance of the property, the character of the neighborhood, security issues, design or layout of the proposed space, and provision for future expansion). Petitioner's Responsiveness The Petitioner's response to the ITB is deficient in terms of provisions for parking, as well as concerning the disclosure of the status of existing tenants in the Petitioner's building. The parking facilities offered by the Petitioner do not meet the requirements of the ITB. The ITB requires that 60 parking spaces be available for the exclusive use of the Department. Petitioner's Exhibit 1, Item 21 in evidence (the ITB) provides: For this facility, the Department has determined that a minimum of 60 parking spaces are required to meet its needs. Its parking is to be provided as part of a lease cost to the department. The lessor will grant to the lessee an exclusive right to use 60 parking spaces. Lessor shall submit with this bid submittal a letter certifying that the lessor agrees to the requested number of parking spaces on site, states the number of parking spaces per square foot of space as required by the local zoning jurisdiction and provides a site plan of the parking lot identifying the number of parking spaces assigned to specific other tenants. The purpose of this submittal is to assure parking spaces conform to local jurisdiction requirements of number and size, and that the number of parking spaces requested in this invitation can be achieved without infringing on or combining with the parking requirement of other tenants (emphasis contained in original document). The Petitioner's bid submittal does not show spaces assigned to specific other tenants, as required by the ITB, and does not state the number of parking spaces per square foot of space required by the local zoning jurisdiction, which is the City of Daytona Beach, Florida. The Petitioner proposes to house the Department in two sections of an existing building. Those sections are presently occupied by other tenants. Other space within the building is also presently occupied and will continue to be occupied, even if the Department decides to lease the Petitioner's space at issue. The Petitioner's site plan shows that it has 92 spaces available to serve tenants in that building located on the building site. In addition to those spaces, the Petitioner proposes to use eight (8) additional spaces located off-site. Certain space in the Petitioner's proposed building is presently leased to the Florida Department of Health and Rehabilitative Services (HRS). That lease will remain in effect even if the Petitioner leases the space at issue to the Department. Under that HRS lease, 29 spaces are committed to HRS on an exclusive basis, with six (6) other spaces on a non-exclusive basis. There is additional office space in the building presently occupied by private businesses, which totals 4,470 square feet. Under the City of Daytona Beach Code, the parking requirement for 4,470 square feet of commercial office space, in a building the size of the Petitioner's is 16 spaces. The eight (8) parking spaces off the building site, proposed to be used by the Petitioner, are adjacent to and serve an existing building that also houses a private business. That building has 16 total parking spaces, including the eight (8) which the Petitioner is proposing to allocate to the agency, if the bid is awarded. The building contains 3,900 square feet. Under the City of Daytona Beach Code, it must have a minimum of 14 parking spaces for that square footage. If the Petitioner leased space to the Respondent, its total parking space requirement to serve all of its tenants, including the proposed office space, under the City of Daytona Beach Code, would be 125 spaces. Eighty-nine (89) of those spaces would be for the exclusive use of the Respondent and HRS. The Petitioner's site plan, however, reveals that only 108 spaces are available, including the spaces at the off-site location. Additionally, the existing parking spaces of the Petitioner, designed to serve handicapped persons, do not conform to the current City of Daytona Beach Code. Handicapped parking spaces are required by that Code to be 12 feet wide, with an additional five feet provided for access of handicapped persons. In order to meet this dimensional requirement, the Petitioner's need for parking spaces to accommodate all tenants, will increase by four (4) spaces. He will need a total of 129 spaces to accommodate all tenants, including the Department, should the bid be awarded. He has only 108 spaces available. Mr. Weinberg testified on behalf of the Petitioner, to the effect that the parking lot could be re-configured in order to gain 13 more spaces. This did not include the four additional spaces that would be needed to properly accommodate the handicapped parking spaces to the requirements of the City of Daytona Beach Code. The Petitioner's bid submittal plan, however, does not reflect any site plan involving re-configuration of the parking area. Moreover, it was not established that the reconfiguration proposed by the Petitioner can be accomplished under the mandates of the City of Daytona Beach Code. If it could, the Petitioner would still not have sufficient spaces to meet the requirements in the ITB, as well as the requirements of existing tenant leases and code requirements, concerning parking spaces for relevant amounts of building square footage allocated to the various tenants. The Petitioner's bid also does not meet the criteria of the ITB containing the status of existing tenants. The ITB requires that vendors provide information regarding the rights of existing tenants, including written documentation regarding their status, as that relates to the availability and the time of availability of the space proposed in the bid. The ITB provides, in pertinent part: Existing tenants: If the offered space or any portion thereof (including parking areas) is at present occupied or will be covered by an active lease(s) at the stated availability date, written documentation by the tenant indicating acknowledg- ment of the lessor's bid and ability to vacate premises by the proposed date or earlier to allow lessor's renovation work to be completed must be included with the bid submittal. If the existing tenants are on a month-to-month lease, the bidder must provide a letter of explanation of this condition. There are two existing tenants in the space which the Petitioner has proposed to lease to the Department. The Petitioner offered no written documentation from either tenant indicating acknowledgment of the bid and lessee's ability to vacate the premises. The only information which the Petitioner provided was for one of those tenants and that was not signed nor acknowledged by the tenant. No information was provided, as required by the ITB, as to the other tenant. Intervenor's Responsiveness The Petitioner maintains that the Intervenor's proposed office space was not "dry and measurable" at the time the bid was submitted by the Intervenor. The Petitioner also contends that the Intervenor's bid does not meet the parking facility requirements of the ITB. The criteria in the ITB require a definition of "dry and measurable" space available and also contain provisions allowing the vendor time to complete the facility through renovation, etc., subsequent to the bid submittal, but prior to the occupancy time specified in the ITB. The ITB provides, on page 2 in the second paragraph: Space to be made available: 07-01-95 or within 182 days after notification of bid award, whichever occurs last. Under the heading, "Handicap Standards and Alterations", at page 4 of the ITB, the ITB provides: Lessor agrees that the demised premises now conform, or that, prior to lessee's occupancy, said premises shall, at the lessor's expense, be brought into conformance with the require- ments of Section 553.48, F.S., providing requirements for the physical handicapped and the requirement of public law 101-336, July 26, 1990, known as the "American With Disabil- ities Act of 1990.". . . The proposed space must be in an existing building or a building which is to be complete by July 1, 1995, and is 50 percent complete on the bid deadline submission. To be considered as existing, the entire space must be dry, fully enclosed, and capable of being physically measured, to determine net rentable square footage, at the time of bid submittal. Reno- vations to bring the facility into compliance with all applicable federal, state, and local codes and regulations and/or to meet with desired arrangements are permitted, if carried out in accordance with prescribed procedures: Bids offering multi-story or multi-level buildings must have all stories serviced by an elevator which meets the requirements of DCA accessibility manual . . . (emphasis in original). The Intervenor's proposal meets these requirements. The facility proposed by the intervenor is in an existing building. "Dry and measurable" means that the facility has exterior walls and a roof and is at least enclosed enough as to not to become wet or to be wide open to the elements. The Intervenor's proposed building has exterior walls and a roof and is enclosed with windows and doors secured so that it would not get wet or be open. There is ample space within the Intervenor's existing building to determine the net rentable square footage and to ensure that the square footage being offered meets the bid specifications. In fact, measurement was undertaken by the Intervenor's representative, including its architect, and the space and site plans were made available to representatives of the Department, who were in a position to make the same measurements when they conducted a site visit of the premises. The only part of the facility that was not dry and measurable at the time of bid submission was a proposed new elevator, and entrance space related to the elevator, which the Petitioner has proposed to construct in order to meet the "Americans with Disabilities Act" requirements. The elevator and related space needed to accommodate entrances into the second floor of the building by the elevator were not dry and measurable at the time of bid submission and were not required to be by the terms of the ITB. The express provisions of the ITB allow vendors to renovate facilities in order to meet government regulations "prior to lessee's occupancy." The vendor is not required to have the space ready for occupancy until July 1, 1995, or 182 days after notice of award, whichever is later. The Intervenor has committed to complying with these requirements of the ITB and will be subject to a penalty if it does not, should the bid be awarded. Thus, if the vendor is offering a multi-story building, it is not required to have a handicapped accessible elevator already in place and operating at the time of bid submission. It simply must be installed prior to the lessee's occupancy. Therefore, under the terms of the ITB referenced above, the elevator-related space would not be required to be part of the dry and measurable space computation submitted with the bid. The Department agreed at the pre-bid conference that the 60 exclusive parking spaces it would require, as specified in the ITB, would meet the ITB criteria if within 1,000 feet of the building. In response to this criteria, the Intervenor offered most of the required spaces at the site of its building. It also offered to make spaces available at three other locations as alternatives. It offered to make 48 of the 50 spaces it has on its own building site exclusively available to the Department and also offered 21 parking spaces on "Lot B" or "Parcel B", as delineated in its bid. This lot is within 1,000 feet of the Intervenor's building, which was offered in the bid, and is approximately 350 feet away. It can accommodate the 21 parking spaces, but will necessitate a variance from zoning requirements, in order to place 21 spaces on Lot B. The ITB allows bidders 30 days from the date of any award to deal with such zoning issues and resolving any zoning problems. If this lot is used, the Intervenor will seek a variance in order to be able to put the 21 spaces on the lot. The Intervenor does not yet have the variance, but there is no evidence of record that would establish that it cannot be obtained from the City zoning authority. The Intervenor has an option to lease Lot B, where the 21 parking spaces would be located, and, therefore, has sufficient control of it. Another alternative offered by the Intervenor is designated as "Lot A" or "Parcel A" in its bid. This lot is across an existing municipal parking lot from the Intervenor's facility being offered. It includes 69 parking spaces and is within 1,000 feet of the Intervenor's building. The Intervenor has secured this facility through an option to purchase. The only remaining step in order to purchase the lot would be for the Intervenor's board, responsible for the operation of its programs, including the building, to execute the option it has already entered into. This also constitutes sufficient control over the property to comply with the terms of the ITB. This parking lot and the spaces thereon meet the requirements of the ITB. The third nearby lot, available to the Intervenor, is designated as "Parcel D" or "Lot D" on the Intervenor's bid documents. Additional spaces could be made available on this lot. It is 1,070 feet away from the Intervenor's building, however, and thus does not meet the 1,000-foot requirement set by the Department at the bidders' conference, in its interpretation of the specification concerning parking. The demonstrated availability of the other parking areas and spaces, however, establishes that the Intervenor has sufficient parking available, within the required distance, to meet the terms of the ITB. Moreover, the Intervenor's building will house the office of the Intervenor, as well as the office of the Respondent/Department. The Intervenor's building is located directly adjacent to a free municipal parking lot. This lot would be available to employees of the Intervenor, as well as Intervenor's visitors, and as well as to employees of the Department and the Department's visitors, who, for whatever reason, might not use the exclusive dedicated parking spaces. Because it is in a downtown development area, the Intervenor is not required, under the City of Daytona Beach Zoning Code, to provide any parking for its building. Bid Evaluations The Department received bid responses from the two parties and proceeded to evaluate them. The part of the evaluation based upon prices bid by the vendors was conducted by Department personnel in Tallahassee. The part of the evaluation based upon more subjective factors was conducted by three Department employees in Daytona Beach, who ultimately have to work in the facilities that the Department acquires through this procurement process. The price evaluation was undertaken with the assistance of a representative of the Department of Management Services, who is familiar with statutory and rule requirements for a proper evaluation of bids. Price was apportioned 40 of the total 100 points available in the bid evaluation process. The price evaluation resulted in the Petitioner receiving 40 points because it had the lowest price of the two subject bids. The Intervenor received 33 points for the price criterion. The three Department employees designated to evaluate the other aspects of the bid proposals conducted site visits at each of the vendors' facilities. During the site visits, the evaluators walked through the parking lots and counted the spaces, checked the exit door locations, inquired about heating, ventilation, and air-conditioning facilities and equipment, evaluated the condition of the buildings and how they were being maintained, checked security lighting and other security issues, checked on placement of the lobbies and how offices would be positioned, observed the availability of natural lighting and surveyed neighborhood conditions. Each evaluator then conducted evaluations based upon factors other than cost, without consulting each other. They used an evaluation form that relates to various criteria which come directly from the ITB. Upon completion of the evaluations, the completed forms were forwarded to the Tallahassee office of the Department. The evaluation criteria allow three categories of evaluation under the general heading of "location". Ten points are allowed as a maximum in the category of "availability and frequency of public transportation within the proximity of the space being offered." The evaluators gave the Petitioner five, six and five points, respectively, for its response to this category. They gave the Intervenor seven, six and five points. Both facilities have public bus stops near the building which provide good access to public transportation. The Intervenor's facility is located within a few blocks of the transit transfer station, which offers the advantage that bus passengers will be able to get to the Intervenor's facility without the need of a transfer which could save them considerable time. The Department of Juvenile Justice is the type of state agency which has a great deal of business with clients and their family members of a lower-income status, who might frequently have to rely on public transportation. Nine (9) points are allowed in the evaluation criteria for the category of "appearance of the building property and neighborhood of the property being offered," under the general heading of "location". The Petitioner was accorded three, five and four points, respectively, for its response to this category. The Intervenor was given nine, eight and seven points. This is admittedly a subjective criteria. The appearance of a facility and its surrounding area can make a difference in the morale and productivity of the working staff, as well as the attitude of visitors to the facility. The Intervenor's building is in a renovated, historic structure located in the historic preservation section of the downtown area of Daytona Beach. It has a great deal of aesthetic appeal and has been the subject of several newspaper articles noting the attractiveness and functionality of the renovation. The Petitioner's structure, on the other hand, although well-landscaped and maintained, is a metal, prefabricated building, not as aesthetically interesting or pleasing. It is also located adjacent to higher crime areas in the City. The evaluation criteria allow for four points for the category of "security issues posed by the building and surrounding area" under the category of "location". The evaluators scored the Petitioner's response at two, two and one points for this subject. They scored the Intervenor's bid three, three and two points for the same category. It is apparent that the Petitioner's facility is located in an area which is somewhat crime-prone. While the evidence does not reflect any criminal activity on the Petitioner's site itself, at least one evaluator was intimately and personally familiar with the neighborhood and the criminal problems occurring there. This familiarity was confirmed by Department personnel from police reports showing the area to be a high-crime area. Under the "facility" heading, the evaluation criteria and form allows points for four different categories. It allows 15 points for the category of "susceptibility of the design and space being offered to good utilization by differing segments of the Department." The evaluators gave the Petitioner seven, five and six points for their three evaluations of this response. They scored the Intervenor's submittal at 15, 12 and 10 points. The Intervenor's proposal offers a building that has windows on all four sides with abundant natural lighting, good visibility, and contiguous space. The Intervenor's facility can be very easily renovated into appropriate space for the different segments of the Department. The Petitioner's facility, on the other hand, has few windows, offers limited natural lighting and is not easily visible from the street. Additionally, the Petitioner offered divided space within its building so that some segments of the Department's work force would be physically separated from one another, with access between the two divided areas of office space being only obtainable by going outside the building and then in another door of another part of the building. The evaluation form also allows 10 points for the category of "susceptibility of the building parking area and property as a whole for future expansion." The Petitioner received a score of three, five and five points for this category by the evaluators. The Intervenor's response received seven, eight and three points for the same category. The Petitioner's facility offers no opportunity for expansion unless existing lessees leave the building. There is no room for additional parking for expansion purposes. The Intervenor's facility has space on the first floor not being leased at all at the present time and a portion of the third floor could be enclosed to provide additional space. Further, since the only other tenant is the lessor, there is a prospect that the lessor itself might move to other facilities in order to accommodate Department expansion. Lot A offers considerably more parking spaces than the Department or other tenants of the Intervenor's building need. Furthermore, the Intervenor's facility is located adjacent to a free, municipal parking lot which is only moderately used. Under the same general heading of "facility", the evaluation form and criteria allows ten points for the category of "having all the square footage in a single building will earn more points than square footage offered in more than one building." The Petitioner is offering space in a single building. However, the Petitioner's space would be divided so that the Department's office space would not all be contiguous, and personnel would have to go from one side of the building to the offices on the other side of the building only by going outside the building. This is functionally akin to space being in more than one building. Thus, the Petitioner's proposal would have some of the disadvantages of being like a proposal for more than one building. Workers would not be as readily able to assist one another in dealing with work loads or as easily undertaking many of the work activities requiring them to communicate with each other in each other's physical presence as easily as in a contiguous set of offices located in a single building. It is true that the Petitioner is proposing all of its space in one building. Thus, it meets the ITB criteria in this regard. It also can be argued as the Department evaluators found, that because the space functions akin to being in separate buildings, because of the separation of the offered office spaces, it should be evaluated as being somewhat analogous to space located in two separate buildings. Thus, although both bids were responsive to the ITB in terms of offering space physically and technically within a single building, it was not arbitrary for the evaluators to accord more weight to the Intervenor's response, since all of the office offered by the Intervenor is contiguous space in the same building. However, even if the evaluators had or should have ranked both bids equally under this "single building criteria", that alone would not alter the evaluators' result that the Intervenor's bid and facility was the best response to the agency's needs expressed in the ITB. The evaluation criteria and form also allows a maximum of two points to be accorded to the category of "if space is offered in more than one building, are the buildings connected by overhangs and sidewalks," under the heading of "facility". The space offered by both bidders, the Petitioner and the Intervenor, is clearly in a single building. All of the evaluators gave both parties an equal two points for this category which shows a lack of arbitrariness in the bid evaluation process. When the evaluation was complete, the Intervenor was accorded scores of 86, 82 and 72 points by the three evaluators. Two of the evaluators rated the Intervenor significantly higher, and the third favored the Petitioner's proposal by a single point. The total score given the Petitioner, taking into account its lower price, was 67, 71 and 73 points by the three evaluators. The total score accorded the parties by the three evaluators shows that the Intervenor's proposal was accorded a substantial advantage by two of the three evaluators. The evaluator scores were independently determined but were still generally consistent with each other. They were based upon logic and not merely upon a review of plans, figures, and written responses but also upon a detailed view of the two properties, parking spaces, and the like. Thus, it is determined that the scoring was consistent, logical, and not shown to be unreasonable under the circumstances. Based upon the scores by the evaluators, the Department determined that the Intervenor's bid was the lowest, best and most responsive and elected to award the lease to the Intervenor. There has been no preponderant proof offered to show that the decision or any of the evaluation decisions on individual categories, leading up to the ultimate score and decision to award, were fraudulent, arbitrary, illegal, or dishonest.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Department of Juvenile Justice dismissing the Petitioner's formal protest because the Petitioner lacks standing to initiate the subject proceeding and because the Petitioner has failed to establish that the determination to award a contract to the Intervenor was fraudulent, arbitrary, illegal or dishonest. DONE AND ENTERED this 15th day of June, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, 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 15th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1736BID Respondent's and Intervenor's Proposed Findings of Fact The proposed findings of fact of these two parties are accepted to the extent that they are not inconsistent with the findings of fact made by the Hearing Officer. Certain proposed findings of fact accepted as true are immaterial to the resolution of the issues presented. Petitioner's Proposed Findings of Fact A-F. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, and as not entirely in accordance with the preponderant evidence of record. Accepted. Accepted, but not itself materially dispositive. J.(1-3) Rejected, as not being entirely in accordance with the preponderant evidence of record, and as subordinate to the Hearing Officer's findings of fact on this subject matter. K-L. Rejected, as not being entirely in accordance with the preponderant evidence of record, and as subordinate to the Hearing Officer's findings of fact on this subject matter. M. Accepted, but not itself materially dispositive. N.(1-6- Subparts) Rejected, as not entirely in accordance with the preponderant evidence of record, and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as not entirely in accordance with the preponderant evidence of record, and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. COPIES FURNISHED: Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Mr. Robert Allan Weinberg RW Custom Builders, Inc. 955 Orange Avenue Daytona Beach, Florida 32114 Scott C. Wright, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 G. Steven Pfeiffer, Esquire APGAR, PELHAM, ET AL. 909 East Park Avenue Tallahassee, Florida 32301
The Issue Whether Petitioners' Petition for Relief from a Discriminatory Housing Practice (Petition for Relief) filed against Respondents should be granted by the Florida Commission on Human Relations (Commission).
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Samari Lake East (Development) is a residential condominium apartment development located on approximately 16 or 17 acres of land in the City of Hialeah Gardens, Florida. It is one of the largest such developments in Miami-Dade County. The Development is home to a racially and ethnically diverse group of persons. Because of the diversity of its residents, it has been described, appropriately, as a "rainbow community." While the majority of the residents are of Hispanic origin and speak Spanish, many different countries and cultures are represented in the community. There are some, but not a relatively large number of, black and African-American residents. The exact number is difficult to ascertain. No records are kept which keep track of such information. Persons of all ages, including approximately 500 children, reside in the Development. There are no age restrictions barring children from living in the Development. Petitioners are an African-American married couple with eight children. They have owned a two-bedroom, two-bath unit in the Development since approximately 1990. They resided in the unit from approximately 1990 until early July of 2002 when they were forced to vacate because the premises became uninhabitable as a result of an overflow of water and waste materials from within the unit's plumbing system. When they moved into the unit in 1990, Petitioners had only one child and Ms. Williams was pregnant with the couple's second child. At the time that they had to move out of the unit, Petitioners and their children had the following living arrangements: Petitioners and their two youngest children shared the master bedroom; three children (all girls) shared the second bedroom; two children (both boys) shared the living room; and the oldest child (a boy) lived on the balcony, which was enclosed. The Development is comprised of eight five-story multi-family, elevatored buildings having a total of 635 units (60 of which have three bedrooms and two baths, 510 of which have two bedrooms and two baths, and 65 of which have one bedroom and one and a half baths). First-floor units have porches. Units above the first floor have balconies. Most of the balconies, unlike the balcony in Petitioners' unit, are "open."3 Access to the units are by common exterior corridors and catwalks. Pursuant to Section 14A of the Development's Declaration of Condominium, "[e]ach Unit shall be used only as a single family residence" and "[n]o separate part of a Unit may be rented and no short term tenants (i.e., tenants for less than one month) may be accommodated in any Unit." The Development has two phases. Phase I consists of Buildings 1, 2, 3, and 4, which together contain 330 units. One of these units is Petitioners' unit, Unit 2314, which is on the third floor in Building 4. Phase II consists of Buildings 5, 6, 7, and 8, which together contain 305 units. The buildings in Phase I were constructed more than a quarter of a century ago (in or around 1976 or 1977). The buildings in Phase II were constructed sometime later, and, as a result, they are in better general, overall condition than those in Phase I. Each phase has its own swimming pool and clubhouse. Residents and their guests are free to use the swimming pool from 9:00 a.m. to 8:00 p.m. Children under 12 years of age must be accompanied by an adult when at the pool. Persons who use the pool are expected to wear appropriate attire and refrain from activities that endanger themselves or others or that otherwise unreasonably interfere with others' peaceful enjoyment of the pool. The rules and regulations regarding the use of the pool are posted. In addition, individual copies of these rules and regulations are given to the residents. The clubhouse is available for use by residents (for a fee) for parties and similar functions. Residents, if they want to rent the clubhouse, must fill out a form in the management office in the Development and put down a refundable $100.00 rental deposit at least seven days in advance of the date of the desired rental date. If the clubhouse is available on the requested date, the resident will be permitted to use it. There is a $150.00 rental charge. There are parking areas in the Development for residents and visitors. These parking areas include spaces reserved for the handicapped. The resident parking area is closer to the buildings than is the visitor parking area. Each unit is assigned one primary reserved parking space. Since there are not enough parking spaces for each unit to be assigned a second reserved parking space, secondary reserved parking spaces are assigned on a "first come, first served basis." Unit owners fortunate enough to have a secondary reserved parking space must pay $30.00 for a parking sticker (with a bar code), as well as a monthly fee of $20.00. If they do not make these payments, they forfeit the space. Unit owners desiring to obtain a secondary reserved parking space must go to the management office in the Development and make a request that their names be placed on a "waiting list." There are 50 to 60 names on the list at any one time. When a secondary reserved parking space becomes available, the unit owner at the top of the list is awarded the space, provided that the unit's account is current. If the unit owner is delinquent in paying any assessed common expenses, the unit owner will be bypassed and the space will be given to the next non-delinquent unit owner on the list. The Development has a gated, two-lane entrance, at which there is a guardhouse manned 24 hours a day, seven days a week by at least one member of the Development's in-house security staff4 (whose members also patrol the Development on foot and in golf carts). All vehicles must pass through this gated entrance to enter the Development. Hundreds of vehicles pass through each day. The lane farthest from the guardhouse is for residents with reserved parking spaces and current parking stickers (with bar codes) affixed to their vehicles. If the equipment (which includes a laser bar code reader) is working properly, the gate arm will automatically rise when a vehicle with a properly affixed parking sticker is approaching. If the equipment malfunctions, the security guard stationed at the guardhouse will let the resident in (after asking for the resident's name and apartment number and confirming, from a list of current residents, which all security guards are required to carry with them, that the resident lives in the Development). Once inside the gate, the resident must park in his or her unit's assigned space. The lane closest to the guardhouse is for visitors. Visitors must stop at the guardhouse to be cleared for entry and given a yellow visitor's pass (which expires at midnight that day and is good only for that visit) by the security guard on duty. There is a switch inside the guardhouse that the security guard moves to raise the gate arm in the visitor's lane and let properly screened and authorized visitors into the Development. The "post orders" that the security guards are given contain the following instructions regarding their dealing with visitors at the entrance to the Development: The security officer should fill in visitor's pass completely. The unit number, telephone number and the vehicle tag must be written. Do not tear identification numbers off passes. In the future, the security officer will be required to announce all visitors before allowing entry to the property. The only person that can grant a visitor entry, is the person they are visiting. Night & Day shifts should call when there is low traffic, or when suspicion exists. Security must verify the telephone number by: Using a residents telephone list. Do not ask the visitor for the telephone number. In the event that a telephone number is not [o]n the list, you may ask visitor for the number. The officer will thereafter obtain entry clearance from the resident. Place the new telephone number on the list. File an entry in the logbook for building manager. If telephone happens to be disconnected Make an entry in the log and highlight for future follow up. Entry will not be granted without authorization of resident or person being visited. NO PHONE NO ENTRY. After clearance, for the guest, has been obtained, the Security Officer is to: Give visitor a Guest Pass; the pass should be h[u]ng [on] front rear view mirror. Advise guest that pass needs to be visible at all times and th[at] he/she needs to park in visitors parking. Have guest sign the pass on the back, which authorizes us to tow after 2359. Visitors must proceed directly to the visitor parking area (which is to the left of the guardhouse as one enters the Development). The resident parking area is off limits to visitors, except when they are dropping off an infant or a handicapped or elderly person. Security guards on patrol inside the Development attempt to make sure that no persons have entered the Development who do not belong there. It is not unusual for them, particularly in the pool areas in the Development (where uninvited guests have been discovered in the past) to stop and question persons with whom they are unfamiliar to find out if they are residents or invited guests. If a security guard determines that the person is an uninvited guest, the security guard will call the police to obtain a trespass warning against the person. Respondent Samari Lake East Condominium Association, Inc. (Association), was incorporated in August of 1977. Pursuant to the Development's Declaration of Condominium, the Association is responsible for the operation of the Development and the maintenance, repair and replacement of the common elements (that is all parts of the Development except for the units themselves), and unit owners are obligated to pay assessments (regular and special) imposed by the Association for the costs and expenses incurred by the Association in the performance of its duties. The amount of a unit owner's regular assessment (or maintenance fee, as it is sometimes called) is based on the number of bedrooms in the unit and the unit's square footage. It includes charges for water and sanitary sewer services. (The Association is billed by the City of Hialeah Gardens for water and sanitary sewer services provided all of the units in the Development.5 The city does not bill individual unit owners.) According to Section 10B, C, and D of the Development's Declaration of Condominium: Assessments that are unpaid for over fifteen (15) days after the due date shall bear interest at a rate equal to the lesser of (i) eight percent (8%) per annum, or (ii) the maximum legal rate permitted under controlling law, from the due date until paid. In the sole discretion of the Board of Directors, a late charge, in an amount determined by the Board of Directors from time to time, for Assessments not paid when due may be assessed against a delinquent Unit Owner. Regular Assessments shall be due and payable monthly on the first (1st) of each month, unless the Board of Directors shall otherwise determine. The Condominium Association shall have a lien on each Unit for any unpaid Assessments, together with interest thereon, owed by the Unit Owner of such Unit. Reasonable attorney's fees (including fees in appellate proceedings) incurred by the Condominium Association incident to the collection of any Assessment or the enforcement of such lien (whether or not suit is instituted), together with sums advanced or paid by the Condominium Association in order to preserve and protect its lien, shall be payable by the Unit Owner upon demand and shall be secured by such lien. The Board of Directors may take such action as it deems necessary to collect Assessments by personal action, or by enforcing and foreclosing such lien, and may settle and compromise the same, if it shall so determine. Such lien shall be effective from and after the recording of a claim or lien as and in the manner provided by the Condominium Act. The Condominium Association shall be entitled to bid at any sale held pursuant to a suit to foreclose an Assessment lien, and to apply as a cash credit against its bid all sums due the Condominium Association covered by the lien enforced. In case of such foreclosure, the Unit Owner shall be required to pay a reasonable rental for the Unit, and the plaintiff in such foreclosure shall be entitled to the appointment of a receiver to collect such rental from the Unit Owner and/or Occupant. To assist it in discharging its responsibility to maintain the common elements in the Development, the Association employs a maintenance supervisor. Cosme Rodriguez has been employed by the Association as the Development's maintenance supervisor since 1993. He and his wife (who is black) live in the Development. Unit owners have been instructed to come to the management office if they have a maintenance-related complaint. After such a complaint is made, Mr. Rodriguez is sent out to investigate and determine what action if any, the Association should take to address the problem. On occasion, a "specialist," such as a plumber in the case of a plumbing problem, is hired to help. If it is determined that the problem is within the boundaries of the unit (which includes, among other things, according to Section 3B4(e), (f) and (l) of the Development's Declaration of Condominium, "[a]ll plumbing fixtures located within [the unit]," "[a]ll piping, ducts and wiring serving only [the] [u]nit," and "[t]he fresh water pipes, discharge pipes and all other plumbing, pipes and conduits serving only [the] [u]nit"), the Association will not take any action other than to tell the unit owner of its determination. The Development is a much more desirable place to live today than it was in the mid-1990's, when units were selling for less than a third of their present value.6 By the mid-1990's, conditions in the Development had become, in a word, "deplorable," so bad that condemnation proceedings had commenced and one of the buildings (Building 5) had been ordered to be demolished. There were a number of fire code and building code violations, some of which were "life-threatening." The fire alarm system was not operational, and replacement parts could not be found because the system was "obsolete." There were railings on the exterior corridors and catwalks above the first floor that had rusted and were loose. Some railings had already fallen off. The elevators did not work. There were cracks and spalls in the walkways, fire stairs, and building exteriors. Water was leaking into the buildings through the roofs. The swimming pools were closed because the water (which had turned green) was no longer safe to swim in, and they had become a dumping ground for used tires and other unwanted items. Crime was rampant in the Development. Two gangs considered the Development their turf. Light bulbs and fixtures in common areas in the Development were constantly being broken, largely due to gang activity. Consequently, "[t]he place was dark at night." The parking lot was littered with abandoned and stolen vehicles, as well the parts of vehicles. A "clandestine" car repair business was being operated out of the parking lot. When there was a significant rain event, the parking lot would flood because of poor drainage. Sometimes the water would be knee deep. Visitors commonly and, with impunity, parked in residents' reserved parking spaces or elsewhere where they did not belong (such as on the sprinklers). Overpopulation was a serious problem. Notwithstanding the mandate in the Development's Declaration of Condominium that "[e]ach Unit shall be used only as a single family residence," some units were shared by more than one family and had as many as 15 occupants. There were instances where a single room in a unit (either a bedroom or the living room) was rented out by the family living in the unit to another family (or families7), in violation of the prohibition in the Development's Declaration of Condominium that "[n]o separate part of a Unit may be rented " The large number of residents overwhelmed, not only the Development's facilities, but also the Association's financial resources. The cost of water and sewage usage was more than the Association was able to pay. The Association was in arrears to the City of Hialeah Gardens approximately $350,000.00 for water and sanitary sewer services. The Association also owed money for trash removal services. Making it even more difficult for the Association to meet its financial obligations was that some unit owners (particularly the younger ones) were not paying their assessments. With the Association paralyzed by debt, unable to meet its responsibilities, "chaos" reigned in the Development. Finally, in 1995, a group of unit owners, led by Maria Colson, went to court and requested that the Association be placed in receivership and that the court, through a receiver, administer the Association. The request was granted by Miami- Dade County Circuit Court Judge Rosemary Usher Jones, who, in or around September of 1995, appointed Stanley Tate to serve as receiver for the Association.8 In or around November of 1995, Mr. Tate was succeeded as receiver by a team of three persons, one of whom later became the sole receiver. The plight of the unit owners and the Association had not improved appreciably by May of 1996, when Judge Jones appointed Respondent Rafael Penalver to serve as receiver for the Association. Mr. Penalver is a Florida-licensed attorney who has been practicing law since 1976. He presently is a partner in the law firm of Penalver and Penalver, P.A. Since high school, Mr. Penalver has been actively involved in civil rights activities. Among the most notable of these activities was his service as a member of the Commission for four years. Mr. Penalver began actively serving in his capacity as receiver for the Association on July 1, 1996. A couple of months later, Mr. Penalver, on behalf of the Association, contracted with SPM Group, Inc. (SPM), an established community association management firm, to provide a site manager for the Development to oversee the Association's day-to-day operations. The site manager that SPM provided was Respondent Carlos Reyes, one of its employees. Mr. Reyes is a Florida-licensed community association manager. The Association is still in receivership today. Mr. Reyes continues to act as site manager. Mr. Penalver remains the receiver, however, he now serves at the pleasure, and under the supervision, of Miami-Dade County Circuit Court Judge Michael Chavies, who was assigned the case in 1999.9 Judge Chavies is "very involved" in administering the Association. He holds hearings once or twice a month. Unit owners are given the opportunity to address Judge Chavies at these hearings and to air their concerns. Notices of the hearings before Judge Chavies are posted at various places in the Development. These notices are in both English and Spanish, as are all other notices that are posted by Respondents in the Development.10 Unit owners also have the opportunity to attend meetings conducted from time to time by Mr. Penalver and Mr. Reyes (including the annual meeting of unit members, at which Mr. Penalver presents them with a copy of the annual report that he prepares.) Spanish is spoken at these meetings; however, both Mr. Penalver and Mr. Reyes are fluent in Spanish and English,11 and they have never refused any request to serve as interpreter for English-speaking attendees who do not understand or speak Spanish. (Ms. Williams is not someone who would need such help from Mr. Penalver or Mr. Reyes. As she testified at hearing, while she does not read or write Spanish "very well," she does "speak it and understand it."12) The Development has experienced a "turn[] around" in the time that Mr. Penalver and Mr. Reyes have been there. Many physical improvements have been made, and, as a result, the condemnation proceedings that had been initiated before their arrival have been "halted." New railings have been installed.13 There is a new sprinkler system. Fire extinguishers are now properly located (every 75 feet) in the common exterior corridors. A new fire alarm system (including mini-horns in each unit), financed by a special assessment imposed in July 1999, has been installed. The project began in or around late 1999 or early 2000. Efforts to complete the project in a timely manner were stymied by unit owners who did not allow the contractor into their units when asked to do so. In some instances, court orders were needed to gain access. (The contractor experienced some problem, initially, in gaining access to Petitioners' unit.) Four buildings, including Building 4, Petitioners' building, have new elevators, and the elevators in all of the buildings now operate reliably. New lighting has been installed. The swimming pools are open and safe to use. The parking areas have been repaved and equipped with a new storm drainage system, which has alleviated the previous flooding problems. This project (which was first approved in 1995 or 1996, before Mr. Penalver was appointed receiver) was finished in September of 2001. The project cost $377,000.00 and was paid for with federal funds obtained through the Community Development Block Grants program. The recipient of the funds was the City of Hialeah Gardens, not the Association. The funds were administered by Miami-Dade County. Acosta Constructors, which performed work on the project pursuant to a contract with the City of Hialeah Gardens, posted signs (on barricades) in the parking areas, in Spanish, advising motorists as to where there was construction work ongoing and where they therefore could not park. The Association was required by law, after the project had been completed, to increase the size and number of handicapped spaces and to locate these spaces closer to the buildings in the Development than the old handicapped spaces had been. To comply with this requirement, the parking areas had to be reconfigured. The reconfiguration has resulted in a reduction of the total number of parking spaces in the Development, making an already tight parking situation worse. Before the project, there were a total of 953 parking spaces (including resident, visitor, and handicapped spaces). There are now a total of approximately 920 parking spaces, 870 of which are for residents. Of the 870 resident parking spaces, 635 are primary reserved parking spaces (one for each unit) and the remaining spaces are secondary reserved parking spaces. Unit owners had to be assigned new primary reserved parking spaces following the reconfiguration. Mr. Penalver enlisted the assistance of a unit owners' advisory committee to help him determine how these reassignments should be made. Taking into consideration the input he received from the unit owners' advisory committee, Mr. Penalver recommended to Judge Chavies that new primary reserved parking spaces be assigned based on "proximity" (distance from the unit), with first floor unit owners given the opportunity to park directly behind their units, where possible, so as to minimize the noise and other disturbances they had to contend with due to the location of their units and for the additional purpose of enhancing the value of these first-floor units (which have a lower value than comparable units on the floors above them). Judge Chavies adopted Mr. Penalver's recommendation at a hearing held on the matter (of which unit owners were given written notification, in both English and Spanish). Thereafter, Petitioners were assigned a new primary reserved parking space (space number 503), which is farther away from their unit than was their old space (304). Others owning units above the first floor, including Petitioners' next door neighbors (whose new primary reserved parking spaces are next to Petitioners') now also have to walk a greater distance to get from their primary reserved parking space to their unit than they did prior to the reconfiguration of the parking areas. Petitioners' race and familial status played no role in the assignment of their new primary reserved parking space. While much progress has been made, there are still physical improvements that need to made by the Association. The buildings' roofs still leak and need to be repaired. Steps, however, have been taken to fix the problem. A special assessment of approximately $2,000.00 per unit (approved by Judge Chavies) has been imposed for a roof replacement project and a contractor to do the work has been hired. There are still cracks and spalls in the walkways,14 fire stairs, and building exteriors. There are such cracks and spalls in the area outside of Petitioners' unit15 and elsewhere in the Development, including, most notably, in Buildings 1 and 2, which have the greatest number, and in the fire stairs in the Phase II buildings. The next major project the Association intends to undertake (following the completion of the roof replacement project) is the replacement of these fire stairs. After all structural repairs have been made, the buildings will be painted. Petitioners' race and familial status have played no role in the Association's prioritization of physical improvements. The Association's efforts to make physical improvements have been hampered by the failure of some unit owners to pay their assessments when due. Initially, Mr. Penalver simply "begged" delinquent unit owners to pay the money they owed and took no other action. After three years of employing this strategy, he started sending cases to a collection attorney, Michael Chadrow, Esquire, of the law firm of Bakalar, Brough & Chadrow, P. A. (Bakalar law firm) to take appropriate legal action. Since March of 1999, Mr. Chadrow and others in the Bakalar law firm have filed 112 foreclosure actions on behalf of the Association. Once a matter is turned over to the collection attorney, Mr. Penalver takes a "hands off approach" and lets the attorney handle all communications with the delinquent unit owner regarding the unit owner's arrearage. Petitioners were among the unit owners who did not pay their assessments and whose cases were sent by Mr. Penalver to the collection attorney. Petitioners' case was one of the last to be sent,16 even though their outstanding unpaid balance was greater than most, if not all, other delinquent unit owners. They had made no payments from August 31, 1996, until the time Mr. Penalver turned their case over to the collection attorney. As a consequence of being behind in their payments, Petitioners were unable to obtain a secondary reserved parking space. They had requested that their names be placed on the "waiting list" for such a space and they were next on the list when a space became available, but were bypassed because they were in arrears at the time. Petitioners' race and familial status played no role in their not being able to obtain a secondary reserved parking space. Mr. Penalver delayed in turning Petitioners' case over to the collection attorney because he thought that it might be difficult for Petitioners, due to the large size of their family, to meet their financial obligations to the Association. Before sending their case to the collection attorney, Mr. Penalver made an effort to speak with Petitioners. He went to their unit several times and knocked on the door, but no one answered. Mr. Penalver was finally able to make contact with Mr. Williams, when he spotted Mr. Williams outside of Petitioners' unit. Mr. Penalver asked if Williams would be willing to work out a "payment plan." Mr. Williams responded by telling Mr. Penalver that he would be filing a harassment action against Mr. Penalver. Petitioners' race and familial status played no role in Mr. Penalver's decision to send their case to the collection attorney (although their familial status was a factor in his not sending it sooner). Mr. Penalver believed that not pursuing legal action against Petitioners after having waited as long he did for Petitioners to bring their account current would have been unfair to the ninety percent or so of the unit owners who were up-to-date in their assessment payments. On May 1, 2001, a Final Summary Judgment of Foreclosure and Order Taxing Costs and Attorney's Fees was entered against Petitioners and in favor of the Association in Miami-Dade County Circuit Court. As of June 29, 2001, Petitioners had not made any assessment payments since August 31, 1996, and their outstanding unpaid balance was $15,616.00. On that date, faced with the imminent public sale of their unit, they tendered payment to the Association, bringing their account current and satisfying the judgment that had been entered against them. By the next month, Petitioners were already in arrears again, and, in the following months, they continued to fail to make their assessment payments. A second foreclosure action was commenced by the Association against Petitioners in Miami-Dade County Circuit Court. A Final Judgment of Foreclosure was entered against Petitioners and in favor of the Association on October 18, 2002. A Clerk's Certificate of Satisfaction of Final Judgment of Foreclosure was issued on December 19, 2002. Petitioners corresponded in writing with the Bakalar law firm during the time the law firm was working on collecting the monies Petitioners owed the Association. In their correspondence to the law firm, after complaining about the conditions in the Development and the manner in which they and their family and friends had been treated by the Association and its agents, Petitioners expressed their willingness to "come to some type of agreement" with the Association. Following his routine practice, Mr. Penalver determined that the issues raised in the correspondence should be dealt with by the collection attorney handling the case. Despite not having the cooperation of all unit owners, the Association's financial situation is not nearly as bleak now as it was when Mr. Penalver became receiver. For example, the amount of the Association's indebtedness to the City of Hialeah Gardens is presently $35,000.00, a tenth of what it was at the start of Mr. Penalver's receivership. Like the Association's indebtedness, crime in the Development has also been reduced dramatically. A significant contributing factor to the reduction in crime in the community has been the Association's stepped-up efforts to prevent unauthorized persons from gaining entry to and loitering in the Development. The Association's first line of defense against intruders is the security guard stationed at the guardhouse, who is responsible for screening visitors seeking to enter the Development and instructing those permitted entry where to park. Ms. Williams' sister, Iris Thomas, was involved in an incident with security staff at the entrance to the Development on the evening of October 24, 2001. Ms. Thomas had been given a visitor's pass and allowed to enter the Development earlier in the day to pick up three of Petitioners' children. When she returned to the Development with the children,17 she got into a dispute with the security guard manning the entrance. She wanted to drive into the resident parking area closest to Petitioners' unit so she could quickly drop off the children and then leave. The security guard told her, however, that she had to park in the visitor parking area inasmuch as none of the children in the vehicle were infants. Ms. Thomas expressed her displeasure upon being told this. The security guard contacted his immediate supervisor (the shift supervisor that evening), Alexander Santiero, and asked him to come to the guardhouse to assist in dealing with Ms. Thomas. As he approached the guardhouse and started speaking with the security guard, Mr. Santiero saw one of the children in Ms. Thomas' vehicle exit the vehicle and go into the guardhouse. The child apparently touched the switch controlling the gate arm in the visitor's lane because the arm began to rise. Mr. Santiero reacted by getting a portable metal sign to drag over an "access sensor" on the pavement in front of Ms. Thomas' vehicle (on the other side of the gate) so that the arm would lower. As he moved in front of Ms. Thomas's vehicle with the sign in his hand, Ms. Thomas' vehicle lurched forward, hitting Mr. Santiero and injuring his ankle. In anger, Mr Santiero threw the sign that he was still holding onto at Ms. Thomas' vehicle. Police were called to the scene, but no arrests were made. The determination to deny Ms. Thomas access to the resident parking area was in keeping with reasonable Association policy and, like Mr. Santiero's reaction to being hit by Ms. Thomas' vehicle, was not based on racial or other impermissible considerations.18 The security guards who patrol the Development are responsible for checking to see that no unauthorized persons have been successful in gaining entry to the Development. It is also their responsibility to make sure that those who are authorized to be there (invited guests and residents) are acting in compliance with the Association's rules and regulations and, if they are not, to take appropriate action. Discharging these responsibilities frequently draw the security guards to the pool areas, which are magnets for uninvited outsiders who enter the Development by jumping over the fence that separates the Development from the property around it. Ms. Williams has had two encounters with security guards in the pool area (in Phase I) that have left her upset. The first encounter occurred in or around June of 1999. Ms. Williams was in the pool with her two-year old son, who was wearing only a diaper, when she was approached by a security guard asking that she change her son into shorts. Ms. Williams complied with the request. At no time was she told that she could not use the pool. The second encounter occurred in or around June of 2000. Ms. Williams was in the pool area with her children and other family members (her mother-in-law, her younger sister, and a nephew) when she got into a dispute with a security guard who had been dispatched to the area to investigate a complaint of excessive noise. Ms. Williams was unable to convince the security guard that she lived in the Development. Consequently, the security guard asked her and her family to leave. Ms. Williams became "outraged." The security guard contacted Mr. Reyes and asked him to come to the pool area. When he arrived on the scene, Mr. Reyes walked up to Ms. Williams, whom he recognized, and told her to calm down. He then spoke to the security guard and told him that Ms. Williams lived in the Development and that therefore she and her family were entitled to use the pool. The security guard responded by apologizing to Ms. Williams. After speaking with the security guard, Mr. Reyes turned his attention back to Ms. Williams. One of her sons, who appeared to Mr. Reyes to be between six and seven years of age, was naked. Mr. Reyes told Ms. Williams that she and her family could stay in the pool area, but that the young boy needed to have on appropriate attire. There is no indication in the evidentiary record in the instant case that the actions of the security guards and Mr. Reyes in the two pool area incidents related above involving Ms. Williams and her family were the product of any racial animus or any other illicit motivation. Petitioners and their family have not used the pool since the last of these two incidents. They have not done so, however, of their own choosing, not because they have been denied use of the pool. Another common facility that Petitioners have not used is the clubhouse. It cannot be said, though, that they have been unfairly denied use of the clubhouse inasmuch as, at no time, have they followed the established procedure to which all unit owners must adhere in order to be able to enjoy such use. The security guards are not the only ones who patrol the grounds of the Development. Mr. Penalver and Mr. Reyes do so as well. On the evening of March 22, 2001, at around 9:00 p.m., Mr. Penalver observed a young man in a ski cap pulled down to his eyes walking slowly on the "island" between two rows of parked vehicles in the resident parking area. It appeared to Mr. Penalver that the young man was looking inside the parked vehicles. This aroused Mr. Penalver's suspicion, particularly since there had been a car burglary in the Development a couple of nights before. Mr. Penalver approached the young man, whom he did not recognize, and asked him if he lived there. He asked no other questions, nor did he stop or detain the young man. The young man, it turned out, was Darrell Williams, Petitioners' teenage son. Darrell responded to Mr. Penalver's inquiry by calling Mr. Penalver a "racist." He then walked away, went up to his parents' unit, and told them about what had just happened. Mr. Williams decided to call the police "to put this on record" because he believed (erroneously) that Darrell had been unfairly harassed and discriminated against by Mr. Penalver. After contacting the police, Mr. Williams went downstairs to the resident parking area and confronted Mr. Penalver in a hostile manner. He informed Mr. Penalver that he had called the police and demanded that Mr. Penalver wait with him until the police arrived. Mr. Penalver remained with Mr. Williams, waiting for the police to respond to Mr. Williams' call. The police officer who responded to the scene spoke with Mr. Williams and Mr. Penalver, filled out paperwork, and then left. That evening, Mr. Penalver did not treat Darrell any differently than he would have treated anyone else, unfamiliar to him, doing what he observed Darrell doing. The reduction in the Association's indebtedness and in crime in the Development has coincided with a decrease in the number of persons residing in the Development. To address the overpopulation problem that plagued the Development at the time Mr. Penalver took over as receiver, the Association, in November of 1996, adopted, with court approval, the following reasonable occupancy limits, which are consistent with HUD guidelines: a maximum of two persons in a one-bedroom unit; a maximum of four persons in a two-bedroom unit; and a maximum of six persons in a three-bedroom unit. This policy was designed to reduce, not the number of families with children who lived in the Development,19 but the total number of persons of all ages who called the Development home. Notices of this policy are posted at the entrance to every building in the Development. The Association has issued anywhere from 50 to 100 notices of violation to unit owners in violation of this policy. In those instances where the unit having a greater number occupants than allowed is being used by more than one family, a fine has been imposed against the unit owner. The Association has not taken any other action to enforce its adopted occupancy limits. After receiving complaints from Petitioners' neighbors about the noise and the number of persons living in Petitioners' unit, Mr. Reyes, on March 29, 2001, sent Petitioners a notice of violation advising Petitioners that there were "too many people" in their unit. No fine was imposed, however. Although Petitioners continued to be in violation of the occupancy limit for a two-bedroom unit, no enforcement action was taken against them pursuant to Mr. Penalver's instructions. Mr. Penalver, however, did recommend to Petitioners, when there were three-bedroom units available, that they consider moving into such a unit,20 a recommendation Petitioners declined to follow. Mr. Penalver has been criticized by some unit owners for not strictly enforcing the Association's occupancy limits. He has endured this criticism since he "does not have the heart to force people out" due to the size of their families. In addition to the March 29, 2001, notice of violation for having "too many people" in their unit, Petitioners have received several other notices of violation during Mr. Penalver's receivership. Like the March 29, 2001, notice of violation, these other notices of violation were signed by Mr. Reyes (or for him, by his secretary) and contained the following advisement: If the above mentioned violation(s) is(are) true, then we respectfully request that you immediately correct them[.] [I]f you disagree [,] [p]lease notify us in writing within 7 days. If the violation(s) re- occurs, per Florida Statute 718.112[,] . . . you can be subjected to a fine of $50.00 per day up to $1,000.00. Your cooperation in observing the rules and regulations would be greatly appreciated[.] [T]his will help us in maintaining a peaceful and safe place to live. These other violations were based on reports received by Mr. Reyes of misconduct involving Petitioners' children. One notice of violation was dated January 24, 2000. It advised Petitioners that their "account ha[d] been fined $50.00." The violation alleged was "throwing a mustard bottle." Another notice of violation was dated February 7, 2000. The violation alleged was "breaking glass bottle, threatening other children." Mr. Reyes had been told about the incident by two or three young residents (approximately nine to 11 years of age). The children reported to Mr. Reyes that the incident took place on the grounds of the Development. The notice reflected that no fine was being imposed against Petitioners. A few days later, Petitioners received a notice of violation, signed by Mr. Reyes' secretary, advising them a second time of the violation that had been described in the February 7, 2000, notice of violation. This notice of violation, like the February 7, 2000, notice of violation, indicated that Petitioners were not being fined. There was a notice of violation dated February 10, 2000, advising Petitioners that their "account ha[d] been fined $100.00" for "threat[en]ing other kids, picking fights." Petitioners were fined because this was a repeat offense.21 Petitioners received another notice of violation dated February 10, 2000. The violation alleged was "jumping on vehicles." The notice reflected that Petitioners' "account ha[d] been fined $100.00." Earlier in the month, the Development's director of security, Pablo Diaz de la Rocha, had observed two of Petitioners' sons, Larry Williams, Jr., and Jordan Williams, jumping on the hoods of parked vehicles in the Development. Mr. de la Rocha took their names and wrote a report, which he subsequently sent to Mr. Reyes. He also entered into an agreement with Larry and Jordan, allowing them to perform "community service" (by taking to the bus bench, outside the Development's entrance, shopping carts that had been brought into the Development from a nearby supermarket) in lieu of their parents' having to pay a fine for their misconduct. To Mr. de la Rocha's knowledge, Larry and Jordan did not live up to their end of the bargain. It was only after being advised by Mr. de la Rocha of the brothers' noncompliance that Mr. Reyes sent Petitioners the notice of violation described above. Mr. Reyes has not issued a notice of violation every time he has received a complaint about the conduct of Petitioners' children. The notices of violation he has sent to Petitioners (which number no more than seven or eight) represent a very small percentage of the total number of notices he has issued since becoming site manager. Other families whose children have engaged in misconduct of which Mr. Reyes has been made aware have also received notices of violation. Petitioners have not been unfairly singled out. No notice of violation has been sent to Petitioners, nor has any fine been imposed upon them, based on racial considerations or on their familial status. Unfortunately, Petitioners are not able to enjoy the overall improved conditions in the Development because the conditions inside their unit are such that they can no longer live in it. The unit has been uninhabitable since on or about Saturday, July 6, 2002. On that day, Ms. Williams and her children, upon returning to their unit, discovered the unit "ankle deep" in water and waste materials. Ms. Williams telephoned the guardhouse and advised the security guard on duty of the situation. The family then left, taking with them what they could. That same day, Mr. Rodriguez was asked by Mr. Reyes to check out a "plumbing problem" in Petitioners' unit. Mr. Rodriguez went to Petitioners' unit to investigate. It was his routine practice, as maintenance supervisor, to check out all maintenance-related problems referred to him, regardless of who the unit owner was complaining about the problem. He treated Petitioners' complaints no differently than those made by other unit owners. Mr. Rodriguez knocked on the door to Petitioners' unit, but no one answered. He then went up to the roof. Using a motorized snake, he made sure that the main lines servicing Petitioners' unit and the units beneath and above Petitioners' unit (which main lines are common elements that the Association is responsible for maintaining) were unclogged. He then returned to his unit, thinking "everything was okay." The following Monday (July 8, 2002), Mr. Rodriguez was asked to look into a complaint from Petitioners' next door neighbor (in unit 2316) that water was leaking into her unit from Petitioners' unit. Mr. Rodriguez went back to Petitioners' unit. Mr. Williams was there. He let Mr. Rodriguez in and showed him the flooding in the unit. Mr. Rodriguez then returned to the roof. He put the snake down the main lines and found no obstructions. Mr. Rodriguez reported back to Mr. Reyes, telling him that the flooding in Petitioners' unit did not appear to be caused by any problem in the main lines. After obtaining Mr. Penalver's approval, Mr. Reyes hired a plumber to determine the cause of the flooding in Petitioners' unit. The plumber Mr. Reyes hired was Ricardo Frankie. Mr. Frankie has worked as a plumber for the past 23 years. Mr. Frankie came out to the Development the same day he was called (July 8, 2002). After conducting the tests he typically performs to determine the source of a overflow problem in a multi-story building, Mr. Frankie concluded that there was a blockage, not in the main lines, but in a pipe or pipes serving only Petitioners' unit. Before leaving, Mr. Frankie verbally advised Mr. Rodriguez of his conclusion. He subsequently provided a written report. Mr. Rodriquez informed Mr. Williams that, because the obstruction was within the interior boundaries of Petitioners' unit, it was Petitioners', not the Association's, responsibility to take care of the problem. On July 11, 2002, Mr. Williams contacted the Miami- Dade County Health Department complaining that there was "sewage backup throughout [his] building." A Health Department inspector, Paul Silvestri, was dispatched to the Development that same day, but Mr. Silvestri was unable to make contact with Petitioners. Another Health Department inspector, Seidel Sanchez, went to the Development the following day. Based on what he observed and the information he obtained from speaking with Mr. Rodriguez, with Mr. Williams, and with others, Mr. Sanchez decided to issue Mr. Williams an Official Notice to Abate a Sanitary Nuisance, which directed Mr. Williams to abate, within 48 hours, the "unsanitary condition existing on property under [his] control," to wit: "sewage water inside unit 2314, also [going] into unit 2316 closet and room." Petitioners had a plumber, Lee Allen, come to their unit that same day to look at the problem. The Association's failure to take any further action to address the flooding problem in Petitioners' unit was based on the reasonable belief that the Association was under no legal obligation to take such action. Petitioners' race and familial status played no role in the Association's failure to act. In summary, there has been no showing of any acts of commission or omission by Respondents the purpose or effect of which was to disadvantage Petitioners based on their race or familial status.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order finding that Respondents are not guilty of any "discriminatory housing practice" and dismissing Petitioners' Petition for Relief based on such finding. DONE AND ENTERED this 29th day of April, 2003, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2003.
The Issue There are two issues presented by Petitioner, as follows: Was the bid of Intervenor, BDC Deland Ltd., responsive? Was the Respondent, the Department of Health and Rehabilitative Services (HRS), decision to award the bid in this case arbitrary and capricious?
Findings Of Fact HRS issued an invitation to bid (ITB) competitively for Lease No. 590:2438 for approximately 17,568 square feet of office space in Deland, Florida. A three percent variance in the amount of space offered was permitted. The ITB required that all bidders attend a pre-proposal conference because valuable information and explanations would be provided to interest bidders at the conference which were to be complied with by the bidder. Paris and Procacci attended. The requirements included providing 140 assigned (reserved) parking spaces by the bidder for the office's use. See Bid Submittal Form, Page 9 of 25. The requirements contained two provisions directly relating to parking requirements, Paragraphs 11d and 21, and one which is tangentially related concerning compliance with zoning, Paragraph 6. Paragraph 11d provides as follows: Section 11: As part of the bid submittal, bidder are to provide: * * * (d) A scaled site layout showing present location of building(s), location, config- urations and number of parking spaces assigned to the Department, access and egress routes and proposed changes. This is to be drawn to scale. Final site layout will be a joint effort between the Department an lessor to meet the needs of the Department. (Emphasis supplied.) Paragraph 21 provides as follows: Section 21: Parking: For this facility the Department has determined that a minimum of 140 parking spaces are required to meet its needs. This parking is to be under the control of the bidder, off street, suitably paved and lined. This parking is to be provided as part of the lease cost to the Department. Lessor will grant to the lessee an exclusive right to use 140 parking spaces. Lessor shall submit with this bid submittal a letter certifying that the lessor agrees to the requested number of parking spaces on site, states the number of parking spaces per square foot of space as required by the local zoning jurisdiction and provides a site plan of the parking lot identifying the number of parking spaces assigned to specific other tenants. The purpose of this submittal is to assure parking spaces conform to local jurisdiction requirements of number and size, and that the number of parking spaces requested in this invitation can be achieved without infringing on or combining with the parking requirement of other tenants. (Emphasis supplied.) * * * Bidder Response: Parking Being Bid Exclusive spaces available on site. See attached site plan. Non-exclusive spaces available on site. Exclusive spaces off site located from the proposed facility (Distance) Bidder must provide recent evidence of control of all parking spaces being proposed. Permis- sion to park is not control. The provisions of Section 21 were included in the lease because HRS had previously had bad experiences with parking availability. Parking, as evidenced by the requirement for a site plan and certificate to be submitted with the proposal, was an important and material provision of the lease. Both Paris and Procacci submitted bid proposals, including site plans, which were deemed responsive by HRS. HRS considered the proposals of both Paris and Procacci, and performed site visits to both properties. In addition, the evaluators were familiar with both properties. Paris's bid was evaluated to be the lowest and best bid, and HRS noticed the bidders of its intent to award the bid to Paris. At that point, Procacci asserted to HRS that Paris' proposal was deficient because it did not meet the parking requirements in terms of the quantity of parking spaces Paris could provide based upon its submittal because of the zoning requirements and impact of the "out parcels" indicated on the site plan which had been submitted. After being contacted by Procacci, HRS inquired of Paris, pursuant to the terms of the RFP, if it was sure it could provide the parking as required and comply with local zoning. HRS also inquired about the status of the out parcels. Paris advised that, although it had intended to try and develop the areas marked as out parcels, it did not have contracts to develop these areas, and that Paris understood that it could provide the number of parking spaces required to HRS and current and future tenants within the local zoning provisions. HRS, through its counsel, checked with the local zoning official, and was advised that Paris had enough space on site to provide parking spaces complying with local codes for HRS, current tenants, and future tenants. The zoning official's estimates were based upon general assumptions about the nature of the future tenants which affected the space required for parking; however, these assumptions were generally consistent with Paris' development plan. HRS was also advised that in developing the out parcels, Paris would have to comply with existing codes including the provisions for parking. Paris was the owner in fee simple of the site upon which the proposed leasehold and parking lot were located. At the time the bid was submitted, the property contained 168,000 gross square feet of leasable space, of which, 66,000 gross square feet were leased to Belk Lindsey, Dollar General, Community Dialysis, a coin laundry, the DeMarsh Theatre, and the Department of Labor. The property had vacant 101,000 gross square feet of which 18,005 gross square feet were being offered to HRS. The existing leases included governmental uses, commercial uses, medical uses, and a theater. The total area of medical uses is limited to medical clinic and the Dialysis Center which had 5,184 square feet. (Only the portion of the Health Department which is clinic is treated as medical office space, and the remainder is treated as governmental use. See Volume IV, Page 568, line 4. The larger figure (5,184) for the clinic's area stated in Petitioner's Exhibit 9 is utilized for the volume of the clinic instead of Paris' figure of 4,200 square feet.) The total area of governmental uses is 71,336 square feet and includes the Department of Labor (5,000), HRS (18,000), Volusia County Environmental Health (22,277), and Volusia County Health Department (26,059). The total area of commercial uses is 49,016 square feet including Belks (41,490) and Dollar General (7,526). There was a total of 31,624 square feet vacant which Paris planned to lease for government offices. Under city code, the net square area was divided by a factor to arrive at the required parking for each type of use. The factor for the various uses are as follows: Governmental-200 square feet; Commercial-250 square feet; and Medical-100 square feet. The theater would require one space for every two seats and 5 for staff. See Petitioner's Exhibit 9. Utilizing the areas given above and the code's parking factors given above, the governmental offices less HRS would require 267 parking spaces. HRS would require 140 parking spaces. The clinic/dialysis center would require 52 parking spaces. The commercial uses would require 196 parking spaces, and the 232 seat theater would require 166 parking places. It is inferred that the vacant space was to be rented to governmental activities pursuant to the landlord's plan, and would require 188 parking spaces. A total of approximately 1,010 parking spaces would be required for the entire facility computed on gross areas assuming no future changes in the existing leaseholds and the lease of all the vacant space for government offices. The city code utilizes net area to compute parking excluding rest rooms, halls, etc. However, the estimation using gross figures results in a maximum estimate. Paris certified that the parking spaces were controlled by the bidder, that the parking spaces were on site and in the area indicated on the site plan submitted with the bid, and that 980 parking spaces could be accommodated. Paris' site plan also indicated the area in which the 140 parking spaces for HRS would be located. Other tenant parking was not indicated on the site plan; however, none of the other tenants had assigned parking. Paris calculated that a total of 840 spaces were required using the known data for current leases, 140 spaces for HRS, and a factor of one parking space for every 200 square feet of remaining vacant space. The building official opined that the completely leased facility would require between 750 and 1050 parking spaces, and that there was enough space on site to accommodate the required parking. Other competent evidence was received that between 880 and 1,077 parking spaces meeting code requirements could be placed on the site. Estimates by qualified, knowledgeable people varied based upon assumptions about occupancy and use, whether the lot could be "grandfathered in" and how the parking lot was laid out. There were enough spaces to provide parking for the HRS lease and all of the existing tenants at the time of submission of the bid proposal. However, under the existing code provisions, 140 parking spaces could not be accommodated in the rectangle indicated on Paris' site plan. This is not considered to be a material deviation from specifications because Paris had agreed to provide 140 spaces, the final arrangement and placement of the parking for HRS was subject to further negotiation, and the entire parking lot was subject to being relined. If spaces meeting code requirements would not have fit in the rectangle, Paris would have been required to adjust the size of the rectangle or design of the parking until they did fit. This was relatively easy because the other tenants did not have assigned parking. The RFP provided that the successful bidder would have time to remodel the property and to bring it into compliance with existing codes. This would include the parking facilities as well as the building. The HRS staff made a site visit, and were familiar with the property. They concluded that there was sufficient parking, and that Paris had made a valid, supportable offer. Their conclusion was reasonable given the opinion of the local building official and their personal knowledge of the property. The RFP calls for a performance bond, and permits HRS to cancel the contract if the successful bidder cannot perform under the terms of the bid. Minor deficiencies in the proposals of Procacci and Paris, which are not at issue in this case, were waived. The RFP contained no "fatal" deficiency provisions. The ITB stated that HRS reserved the right to waive minor informalities or technicalities, and seek clarification of bids received.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Petitioner's Petition be dismissed. DONE and ENTERED this 7th day of July, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, 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 7th day of July, 1995. APPENDIX All of the parties filed proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1 Paragraph 1. Paragraph 2 Irrelevant. Paragraph 3 Paragraph 5,6. Paragraph 4 Argument and conclusions. Paragraph 5 Paragraph 7. Paragraph 6 First sentence is contrary to best evidence. Second sentence subsumed in other findings. Third sentence is contrary to best evidence. Paragraph 7,8 Subsumed in Paragraph 8. Paragraph 9 Irrelevant. Paragraph 10 Subsumed in Paragraph 6, and Conclusions of Law. Paragraph 11 Subsumed in Paragraph 8. Paragraph 12 No confusion exists. The terms of the RFP are clear. Paragraph 13 Rejected. There is no requirement to indicate on the site plan "existing" parking, unless it is assigned to an existing tenant. There was no assigned parking for existing tenants. Paragraph 14 Rejected. Paris' letter is based upon assumptions regarding future occupancy and uses; however, the site plan is not based upon those assumptions. Paragraph 15 Irrelevant. Paragraph 16 See comments to Paragraph 14. Paragraph 17 It was confusion for Paris to include parking spaces in areas marked "Future out parcels" on his site plan; however, this was clarified by HRS in its discussions with Paris, which indicated that there were no planned uses for those areas. Paragraph 18 The figure of 937 spaces is not mentioned on either of the two pages referenced. See discussion in Paragraph 19, Findings of Fact. Paragraph 19 Paris did not certify 980 "existing" spaces. He certified that the parking lot could accommodate 980 parking spaces. Paragraph 20 Contrary to facts. The 813 figure was not "identified" by HRS. Further, it is unclear from the reference to what the figure referred. Paragraph 21 Subsumed in Paragraph 9 et seq. Paragraph 22 See discussion of Paragraph 17, above. Paragraph 23 Subsumed in Paragraph 9 et seq., and Paragraph 13-18. Paragraph 24 Subsumed in Paragraph 19. Paragraph 25 Rejected as argument. Use of gross figures increases the number of required spaces; therefore, is not misleading in making estimates of future needs. Paragraph 26 Rejected as argument, and contrary to facts which indicates that HRS did conduct site visits, was familiar with the facilities, and checked challenged information with city building officials. Paragraph 27-29 Irrelevant, and subsumed in Paragraph 8. Respondent's Recommended Order Findings Paragraph 1 Paragraph 1 Paragraph 2,3,4 Subsumed in Paragraph 8. Paragraph 5 Subsumed in Paragraph 4. Paragraph 6 Subsumed in Paragraph 8. Paragraph 7 Irrelevant. Paragraph 8 Subsumed in Paragraphs 8,13,19. Paragraph 9 Subsumed in Paragraphs 4,5. Paragraph 10 Subsumed in Paragraph 7. Paragraphs 11,12 Subsumed in Paragraphs 5,19. Paragraphs 13,14 Subsumed in Paragraph 13 et seq. Paragraphs 15,16 Subsumed in Paragraph 19. Paragraph 17 Subsumed in Paragraph 13 et seq. Paragraphs 18-21 Irrelevant. Paragraphs 22-24 Subsumed in Paragraphs 8,23. Paragraph 25 Subsumed 22,24. Paragraphs 26-28 Subsumed in Paragraph 6. Paragraph 29 Subsumed in Paragraph 2. Paragraphs 30,31 Subsumed in Paragraphs 8,19. Paragraph 32-34 Subsumed in Paragraph 13 et seq. Paragraph 34 Subsumed in Paragraph 19. Paragraph 35 Irrelevant. Paragraph 36,37 Subsumed in Paragraph 19. Paragraph 38 Subsumed in Paragraph 15. Paragraph 39 Subsumed in Paragraph 11. Paragraphs 40-42 Subsumed in Paragraph 13 et seq. Paragraphs 43,44 Subsumed in Paragraph 17. Paragraphs 45,46 Subsumed in Paragraphs 23-24. Paragraph 47 Paragraph 18. Paragraphs 48,49 Subsumed in Paragraph 19. Paragraphs 50,51 Under the terms of the RFP, Paris had the opportunity to bring the facilities into code compliance. Failure to do so was a basis for terminating the contract. See Paragraph 20. Paragraph 52 Subsumed in Paragraph 19. Paragraphs 53-60 Subsumed in Paragraphs 10-12. Paragraph 61 Paragraph 19. Paragraph 62 Paragraph 8. Paragraphs 63,64 Conclusions of Law. Intervenor's Recommended Order Findings Paragraphs 1-4 Paragraphs 1-4 Paragraph 5 Paragraph 2 6,7 Not necessary to determination of issues. Paragraphs 8i-vii Subsumed in Paragraphs 5,6,8,10,19,21. Paragraph 9 Paragraph 13. Paragraphs 10i-viii, 11i-iv,12i-vi Paragraphs 13-17,21 Paragraph 13 Paragraph 8. Paragraphs 13i-ii Ir-relevant. Paragraph 13iii Paragraph 8. Paragraphs 13iv,v Irrelevant. Paragraphs 15-15iii Paragraphs 8,23. Paragraphs 16i-ii,17 Paragraph 8. Paragraph 18 Paragraph 9. Paragraphs 19,20 Paragraphs 10-12. Paragraphs 21i-v Paragraph 19. Paragraphs 22i-vii Conclusions of Law. Paragraphs 23i-iv Paragraph 19. Paragraph 24 Irrelevant. Paragraph 25 Conclusions of Law. Paragraph 26i-viii Paragraph 19. COPIES FURNISHED: Robert A. Sweetapple, Esquire Sweetapple, Broeker, and Varkas 465 East Palmetto Park Road Boca Raton, FL 33432 Ellen Phillips, Esquire HRS District 12 Legal Office 210 North Palmetto Avenue, Suite 412 Daytona Beach, FL 32114 Robert W. Morrison, Esquire Wells, Allen, Lang and Morrison 340 North Orange Avenue Orlando, FL 32801 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact Petitioners own the Sea Cloud Motel with 11 rooms located at 540 South Gulf View Boulevard, Clearwater, Florida, in an area zoned CTF-28. CTF-28 is high density commercial-tourist and is dominated by motels, restaurants, and other businesses catering primarily to tourists. The Sea Cloud Motel has only ten parking spaces at present, with two of these spaces so located that with the space behind them occupied a car cannot get into or out of those spaces. Petitioners have leased five additional spaces from the Clearwater Point Deli on property adjacent to the Sea Cloud Motel (Exhibit 2). Adjacent to the Sea Cloud Motel is the Hibiscus Gift Shop owned and operated as part of the Red Carpet Resort Motel. Across the street from Petitioners' property is a convenience store with gas pumps and a car rental agency. Several realty offices are located in the general area of the Sea Cloud Motel in addition to restaurants and convenience stores. The principal objection to the special exception here requested came from adjacent property owners who fear the real estate office will aggravate the inadequate parking facilities presently existing on Clearwater Beach. The addition of the real estate office in a space less than 150 square feet will not require the addition of another parking space. The leasing of five additional parking spaces will more than adequately compensate for the additional traffic anticipated to be generated by a one-desk real estate office, particularly where the office is intended to concentrate on foreign visitors interested in real estate investments at Clearwater and will be operated by the co-owner of the motel, Kathleen M. Fuller, a registered real estate salesperson.
Findings Of Fact Petitioner, within the past year, purchased two tracts of property 50 feet by 100 feet located at 614-620 Mandalay Avenue on Clearwater Beach. This property is zoned "CG" or "General Business" and there are four buildings on this property comprising five dwelling units. The land use plan for this location is commercial/tourist facilities. Petitioner submitted an artist's drawing of what the site could look like if the variance requested was granted. No building permits have been requested; accordingly, no specific plans have been submitted to establish the use to which the property would be put if the variance requested is granted. The proposal of Petitioner (such as it is) contemplates converting the ground floors of the existing structures to commercial use. If the existing buildings were so converted, with the upper floors remaining residential, the zoning code requires provision be made for twenty-eight off-street parking spaces. Since the existing five dwelling units would be credited (grandfathered) for having eight such parking spaces due to the construction having occurred before the zoning code was enacted, Petitioner is requesting a variance for the remaining twenty off-street parking spaces that would be required. Actually, there are no off-street parking spaces on this property but five or six parking spaces exist in the right-of-way for Mandalay Avenue. There are no off-street parking spaces on Mandalay Avenue in the vicinity of Petitioner's property and none are proposed to be provided by Petitioner. Mandalay Avenue is the main north-south artery on Clearwater Beach and is four-laned in the vicinity of Petitioner's property, which lies near the northern terminus of "CG" zoning. At the hearing before the Board one witness spoke in favor of the variance requested because the proposal by Petitioner was better than if the property was used for the construction of a high-rise residential unit, which the zoning would permit. Since no specific proposal is before the Respondent for the issuance of a permit, there is no assurance that granting the requested variance would preclude the construction of high-rise residential units. The dwellings occupying this property were constructed some thirty years ago and are expensive to maintain and are not a very attractive investment. Petitioner referred to several other businesses where variances in parking requirements have been granted when bars and restaurants on Mandalay Avenue were rebuilt or expanded; however, little evidence was presented that parking variances have been granted when a new use for the property was proposed.
The Issue The issue is whether Respondent is guilty of committing a discriminatory housing practice against Petitioners, based on their national origin, in violation of the Florida Fair Housing Act, sections 760.20-769.37, Florida Statutes.
Findings Of Fact In 2006, Petitioners purchased the single-family detached residence located at 1360 Northeast 41st Place in Homestead, Florida. The home is located behind an access gate that requires a card to operate. The card is serviced by Respondent through its management company, The Continental Group. Petitioners claim that Respondent's harassment forced them to move out of their home in October 2012. It is likely, though, that the timing of their relocation was influenced by a foreclosure judgment entered on March 7, 2012. The foreclosure judgment calculated interest on the unpaid mortgage note from September 1, 2008, suggesting that Petitioners had not made mortgage payments for the four years immediately preceding their moving out of the house. Petitioners' residence is subject to a declaration of covenants and bylaws. Respondent and The Continental Group are responsible for enforcing the provisions of these homeowner documents. Petitioners have a long history of violations of the homeowner documents dating as far back as at least late 2008. A notice dated December 31, 2008, advised Petitioners of a noncompliant lease. Notices dated June 30 and December 15, 2009, advised Petitioners that their landscaping lacked mulch. Notices dated August 10 and 25, 2009, advised Petitioners of a vehicle blocking the sidewalk. A notice dated September 24, 2009, advised Petitioners of a driveway that required pressure- cleaning. The notices became more numerous in 2010 and 2011. Claimed violations included an oil stain on the driveway, mildew on one or more exterior walls, and more landscaping issues, almost all of which involved shrubs that needed trimming. On occasion, the inspector cited the failure to trim dead branches or small amounts of grass growing between driveway pavers, but, mostly, she cited the failure to trim live vegetation. The evidentiary record contains 18 citations for overgrown shrubs, even though the photographs that are part of the citations reveal only a conventional foundation planting under the front windows that at no time extends above the bottom of the window frame. There are seven citations for grassy driveway pavers, although only one photograph clearly reveals any such grass--perhaps one linear foot of a few blades of grass wedged between a few pavers immediately in front of the garage door. A similar pattern of citations extended into 2012. Petitioners do not ground their claim of discrimination of these violations, though. Respondent produced a thick written summation of citations and fines that it imposed on homeowners in 2011-12, and Petitioners do not stand out in this document. Respondent clearly enforced the homeowner documents closely, so all that can be gleaned from Petitioners' long citation history is that relations between Petitioners, on the one hand, and Respondent and The Continental Group, on the other hand, may have been strained at times. In any event, the evidentiary record discloses that Petitioners were fined 17 times for untrimmed shrubs and 11 times for failing to remove the mildew from exterior walls. This record of fines is illustrative, not exhaustive. Petitioners believe they have been fined about $10,000. Regardless whether this figure is correct, Petitioners have been fined a substantial amount of money, but they have never paid any of these fines. Petitioners also failed to stay current on their homeowner assessment and maintenance fees. By August 12, 2011, Petitioners overdue balance on these items totaled $1,145 plus another $1,000 in costs in connection with filing a lien against their residence. In mid-August 2011, Respondent sent a notice to all homeowners that their access cards would be deactivated, necessitating the reregistration of the vehicles and recoding of their cards. The notice warned that Respondent would recode only the cards of residents who were current with their maintenance fees. Shortly after receiving this notice, Petitioners visited the management office to reregister their two vehicles and have The Continental Group recode their two access cards. Petitioners first met Ivan Arguello, who is an administrative assistant for The Continental Group. Mr. Woolley presented his access card to Mr. Arguello, so he could recode it. Pursuant to Respondent's policy, Mr. Arguello checked Petitioners' account and found them delinquent, so, again pursuant to Respondent's policy, Mr. Arguello informed them that he could only activate one card, not both cards, unless they paid their balance in full or entered into a payment plan approved by Respondent or its attorney. Mr. Woolley was irate and retrieved his card from Mr. Arguello. Mr. Woolley proceeded to address the issue with Mr. Arguello's supervisor, Mr. Gonzalez, who, at the time of the hearing, no longer was employed with The Continental Group. Petitioners stepped into Mr. Gonzalez's office, which was near the desk occupied by Mr. Arguello. Mr. Woolley and Mr. Gonzalez became angry and argued loudly. Although Mr. Woolley was aware that he could have obtained the recoding of one card, he was unwilling to accept this offer and instead left without the recoding of either card. All of the evidence offered by Petitioners' witnesses of the inconvenience posed by having no access card was entirely attributable to Mr. Woolley's decision not to accept the offer to recode one of his and his wife's two cards. At no time after this confrontation in the office did either Petitioner ever ask an employee of The Continental Group or Respondent to recode one of their access cards; Mr. Woolley merely retained an attorney to pursue the matter. For their part, Mr. Gonzalez did not direct Mr. Arguello to recode one of Petitioners' cards, nor did Mr. Arguello choose to do so on his own. The policy of the management company or Respondent was to require that the resident produce the card to be recoded, and Mr. Woolley had done that when he had handed his card to Mr. Arguello. Although Mr. Woolley left with his card, the actual recoding required Mr. Arguello, who had noted the card number, only to enter some information on his computer. Under Respondent's policy, Petitioners were entitled to the recoding of one of their cards. Under Mr. Arguello's personal policy, which he testified that he has applied to other loudly confrontational residents, he would not recode a card of a vocally abusive resident. When asked if the resident had to return to the office "contrite," Mr. Arguello answered: "No, no. They just have to come back not yelling." Tr. 57-58. No evidence suggests that the failure of The Continental Group to recode the one card was due to discrimination based on national origin. Petitioners alleged that The Continental Group and Respondent selectively enforced these policies against Petitioners, but they produced absolutely no proof to support this claim, even as to Mr. Arguello's personal policy. At the time of the incident in the office, Petitioners had already incurred a number of unpaid fines and maintenance fees. When Mr. Woolley became irate at the prospect of being restricted to a single access card, despite his failure to meet all of his financial obligations to the community association, it is an easy inference that Mr. Gonzalez and Mr. Arguello found Mr. Woolley's attitude inappropriate and decided not go out of their way to help Mr. Woolley, such as by activating one of his cards, unless he asked again in a more civilized fashion. Essentially, the only evidence of discrimination in this case is that Petitioners are Haitian, they did not get two access cards when they visited the management company's office, and The Continental Group did not complete the recoding of one of their cards after they left the office. Respondent argues that none of the representatives of Respondent or The Continental Group knew that Petitioners are Haitian. Certainly, this is the testimony of these witnesses. Both petitioners are dark-complected and speak English with a French accent, but it is unnecessary to determine if these facts are sufficient to support an inference of a different national origin because two additional facts stand between Petitioners and a prima facie case. First, even if The Continental Group employees knew that Petitioners are Haitian, there is no evidence of discrimination based on this place of origin. There is no evidence that Mr. Arguello or Mr. Gonzalez treated Petitioners differently from other residents who did not pay their fines and fees when it came to recoding access cards. This is true as to Respondent's policies and Mr. Arguello's personal policy. Second, there is no proof of any harm to Petitioners that they did not cause to themselves. At any time, in a normal tone of voice, they could have obtained a single access card, but they chose not to do so. If Mr. Arguello had not implemented his personal policy, Respondent perhaps could have proved that Petitioners commenced this proceeding for an improper purpose--namely, to harass Respondent. Respondent's policies restricting the availability of access cards based on whether residents were current on their obligations to the community association was written and disseminated among the residents. Thus, if Petitioners' claim of discrimination had been based exclusively on the implementation of these sensible, written policies, they might have exposed themselves to paying Respondent's reasonable attorneys' fees and costs. However, Mr. Arguello's implementation of his personal policy--while understandable--raises a different issue in requiring the analysis of the intent and effect of another tier of decisionmaking by Respondent or, in this case, The Continental Group. Ultimately, as noted above, Mr. Arguello's implementation of his personal policy does not support a finding of a prima facie case of discrimination, but his policy's subjective standard makes the inference of an intent to harass on the part of Petitioners more difficult to make--to the point that such an inference cannot be made.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 30th day of January, 2013, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Margaret H. Mevers, Esquire Teresita M. Perez, Esquire Lydecker | Diaz 19th Floor 1221 Brickell Avenue Miami, Florida 33131 Pierre Woolley Emmanuella Woolley 2033 Northwest 178th Way Pembroke Pines, Florida 33029
Findings Of Fact At all times pertinent to the issues herein the Petitioner's, H. L. Albritton Transportation Company, Inc., and H. L. Albritton Transportation Management, Inc. were tenants occupying the premises affected by the Department's right-of-way Parcel No. 110.1/710.1; Section job No. 10040-2527, WPI No. 7113748, located at Pelwood Square on State Road 45 (U. S. 41), in Hillsborough County, Florida. The Department is the state agency responsible for the procurement of right-of-way for state highway construction and widening projects in this state. Petitioner, H. L. Albritton Transportation Company, Inc. is engaged in the freight brokerage business and Petitioner, H. L. Albritton Transportation Management, Inc. is engaged in brokering rail transportation. Both arrange for the transportation of goods, with the former primarily utilizing trucks and the latter primarily utilizing rail and air. Both companies are owned by the same individuals, Howard Lee Albritton and Curtis Miller. Mr. Albritton is the President of both companies and makes all decisions of major import regarding them. Sometime during 1993, Mr. Albritton was visited in his offices on State Road 45 by a representative of the Department who indicated a portion of the facility's parking lot was to be taken for the widening of the adjacent highway. The property was subsequently taken in an eminent domain proceeding. Petitioners were not advised by the Department that the project would require them to vacate the premises they were occupying for, in fact, it would not. Nonetheless, Mr. Albritton concluded that the widening project would have a substantial adverse impact on Petitioners' ability to do business at their the current location, and he began to look for a new site for the companies' offices. He looked at properties available both to rent, as he was doing at his then current site, or to purchase. He found several commercial rental locations in the Lutz, Florida area relatively near where he was located, which seemed to have the same features as the State Road 45 location he occupied, but Mr. Albritton rejected them as unsuitable because the buildings were not constructed of brick. After a search of the Lutz area for suitable property, in 1993, Mr. Albritton purchased a seven acre parcel on Crystal Grove Boulevard for $75,000. At the time of the purchase, this property had been approved for development with a single building. Mr. Albritton initiated action to have the property redesigned as a complex of several buildings. Within months of purchasing this property, Mr. Albritton formed HLA Properties, Inc. to own, develop and manage the property. He than transferred ownership of the property to HLA. Through HLA, Mr. Albritton spent approximately $375,000 to design, permit and build offices on the property. These costs were paid by Mr. Albritton with funds derived from the operations of H. L. Albritton Transportation Company, Inc. and H. L. Albritton Transportation Management, Inc. and his ownership of those companies, though neither of the companies actually paid the costs directly. Neither company has an ownership interest in HLA. On April 19, 1995, Petitioners moved their offices from the State Road 45 site to the Crystal Grove Boulevard site. The new company offices encompass an area more than twice the size of the State Road 45 offices, and the Petitioners are tenants of HLA under a written lease calling for a monthly rental payment of $2,250. The Petitioners' move was occasioned, they claim, by the Department's project which resulted in a net loss of 9 parking spaces in the facility's lot. The Department disputes this claim. Prior to the taking, the Pelwood Square property parking lot consisted of 41 parking spaces. This exceeded the requirements of the Hillsborough County Code which called for a minimum of 35 parking spaces. The taking of the 9 spaces by the Department left only 32 spaces which fell below the required minimum. In addition, 9 of the remaining 32 spaces were, in the opinion of Petitioners and their experts, rendered unusable because of a reduction in the turning path available for automobiles to enter and exit the remaining parking spaces. With that second 9 spaces removed, Petitioners contend, only 23 of the original 41 spaces remain usable. Even though this remaining figure falls below County Code requirements for 35 spaces by 12 spaces, this deficiency would not cause the building to close to tenants. If the Albritton companies were still tenants of Pelwood Square, assuming a 60 percent occupancy rate, a need would exist for 27 parking spaces. A one hundred percent occupancy rate would dictate a need for 45 spaces. As of the date of the Department's taking, the occupancy rate at Pelwood square was 70 percent with thirty-three people employed there. Studies done regarding this property indicate that at an occupancy rate of 70 percent, a need would exist for 29 spaces to provide for employee parking. This does not include a provision for customers of the tenants and visitors to the building who also would need parking spaces. The parking spaces remaining after the taking would be inadequate to accommodate the parking needs of the property, but this inadequacy could be cured by an alternative parking plan. Without the implementation of a cure for the facility's parking situation, the 23 remaining spaces can reasonable accommodate only a 50 percent occupancy rate at the property. It is not reasonable to assume that Pelwood Square will maintain no more than a 50 percent occupancy rate. There is some evidence that the average occupancy rate of comparable facilities in the area is 90 percent, but no evidence that Pelwood Square ever had or expected to achieve that rate in the future. Petitioners claim that they were not offered any guarantee of a cure to the parking problem by the facility owners. As tenants at the facility, they could not force a cure, but their claim that they had no influence over whether a cure would be implemented is not reasonable. The Department's expert, Mr. Doyle, demonstrated that by revising the parking area and by adjusting the entry to the parking lot, a total of 33 regular parking spaces and two handicap spaces, for a total of 35 spaces could be provided. This would more than meet the requirement for a 70 percent occupancy which is a reasonable estimate of an expected rate in the foreseeable future. This plan was submitted in September, 1995 to Hillsborough County authorities and it was found likely to be approved. The 35 proposed parking spaces also exceeds the requirements for 31 spaces indicated in a parking study conducted for the Department. The proposed cure plan described would cost approximately $10,000, a not-considerable sum. The Department follows the provisions of 49 CFR, Part 24, the requirements of which it has incorporated within the provisions of its Rule 14- Florida follows and tracks the Federal Highway Act for both state and federally funded projects. When the Petitioners' appeal was first filed with the Department, it did not include sufficient information relative to occupancy rates at Pelwood Square or information of how often the parking lots there were full. In addition, there was no information which indicated a necessity for Petitioners to leave that facility. Therefore, Department officials conducted, or caused to be conducted, a parking study of the Pelwood Square facility which indicated ample parking spaces remained with modification of the lot, even after the taking. In addition, the Department's District 7 relocation administrator, Mr. Johnson, upon the request of Petitioners' counsel for assistance with the denial process, went to the Pelwood Square site several times and at differing times of the day. Johnson never found the lot to be even half full. He concluded that the Department's determination that Petitioners were not displaced persons was correct. Displaced persons are described in Part 24.2(g) of the federal regulations as persons who move from real property as the result of "acquisition." Part 24.2(g)2(i)-(xi) defines "persons not displaced", and under that definition, the department has concluded that Petitioners do not qualify as displaced persons under the Act. It is so found. Assuming, arguendo, that Petitioners did qualify, however, only reasonable moving and related expenses are compensable. A qualifying displaced person is not prohibited from purchasing property as an alternative to leasing if such actions can be determined to be reasonable expenses. Petitioners claim to have incurred the following expenses relative to the move in issue: Claimed actual moving expenses: VENDOR EXPENSE AMOUNT Waldec Software repair $2,000.00 Waldec Phone comp. cable 1,065.00 Grabel Furniture move 587.00 ADT Security system 114.50 GTE Waldec Relocate phone syst. Phone comp. cable installation 522.60 764.00 Heidt and AssocEngineers - permit 2,485.00 County CommPermits 915.00 Heidt and AssocEngineers - permit 3,281.00 Heidt and Assoc. Engineers - permit 251.00 Heidt and Assoc. Engineers - permit 1,100.00 Cent. Fla. Lab Water testing 1,125.00 Brd. Co. Comm. Permit - Impact Fee 1,215.00 SWFWMD Water tax and permit 800.00 Heidt and AssocEngineers - permit 6,248.00 Heidt and AssocEngineers - permit 7,144.00 Hills. Co. Permit license 360.00 Hills. Co. Permit license 460.00 Brd. Co. Comm Permit license 500.00 DEP Permit 500.00 Brd. Co. Comm. Inspection costs 160.00 Heidt and AssocEngineers - permit 942.00 Heidt and AssocEngineers - permit 500.00 Heidt and AssocEngineers - permit 915.00 Heidt and Assoc. Engineers - permit 140.00 Heidt and AssocEngineers - permit 139.00 Heidt and AssocPlans 600.00 Heidt and Assoc. Engineers - permit 7.63 Heidt and Assoc. Engineering 58.00 Hills. Co. Util. Hookup/Impact costs 600.00 TECO Move and Inst elec. 968.00 TECO Move and Inst elec. 897.00 Sprinkle Eng. Permit assistance 442.00 Sprinkle Eng. Permit assistance 88.70 Brd. Co. Comm. License and permit 1,037.00 H.C.B.D. Permit and impact fee 9,110.93 Ed Scheid Land clearing 1,000.00 Waterford Const. Surveying 1,150.00 Design Circle Bank inspection 400.00 Design Circle Bank inspection 200.00 Bryan Gassaway Groundwork 3,907.00 Garner Asphalt Groundwork 2,500.00 Robert Cutoff Tree preparation 1,050.00 Sprinkle Eng. Permitting 1,888.00 Scott Gainsforth Landscaping 1,073.00 Creekside Nurs. Landscaping 3,249.00 Cypress Creek Landscaping 3,217.00 Bryan Gassaway Earthwork 522.00 Sprinkle Eng. Permitting 406.00 Sprinkle Eng. Permitting 2,278.00 Futzinger Pump construction 301.00 Atlantic Test. Ground density 380.00 Barnett bank Loan appl. fee 1,000.00 Sprinkle Eng. Permitting 130.00 Futzinger Well system 1,835.00 Surfaces of Fla. Const. materials 2,934.00 Barnett Bank Loan closing 10,276.00 Jolson Pipe Piping 1,671.00 SUBTOTAL $89,410.26 (Of the above costs, the amount of $587.00 to Grabel for the furniture move; the $114.50 to ADT for the security system move; the $552.60 to GTE for relocation of the phone system; and the $764.00 to Waldec for the phone computed cable installation, for a total of $1,988.20, can be classified as expenses for dismantling, packing, moving and reinstalling Petitioners' personal property. Also, of the above costs, the amount of $1,065.00 paid to Waldec for cable installation can be classified as a modification to the Crystal Grove Boulevard property during construction to accommodate their business.) Claimed reestablishment expenses - non- residential move: Garner Asphalt Paving materials 6,000.00 Taylor Precast Bldg. materials 3,105.00 Waterford Const. Bldg. materials 31,461.00 Garrison's Bldg. materials 1,300.00 Waterford Const. Gen'l Cntrctr. 89,237.00 Garrison's Bldg. materials 2,824.00 Tampa Brick Bldg. materials 1,592.00 Garner Asphalt Paving 18,567.00 Waterford Const. Gen'l Cntrctr 16,918.00 Waterford Const. Gen'l Cntrctr 36,476.00 Tampa Brick Bldg. materials 211.00 Waterford Const. Gen'l Cntrctr 5,000.00 $212,691.00 Subsequent to the taking of testimony, but before the hearing was adjourned, counsel for Petitioners modified their claim as follows: Twelve cost items relating to the cons- truction of Petitioner's new building, those totaling $212,619.00 and listed in paragraph 16b, supra, were combined and capped at $10,000.00. These included: (1) Garner Asphalt Ch 1011 $6,000.00 (2) Precast Ch 1022 3,105.00 (3) Waterford Constr. Ch 1025 31,461.00 (4) Garrison Ch 1038 1,300.00 (5) Waterford Constr. Ch 1042 89,237.00 (6) Garrison Ch 1044 2,824.00 (7) Tampa Brick Ch 1036 1,592.00 (8) Garner Asphalt Ch 1060 18,567.00 (9) Waterford Constr. Ch 1062 16,918.00 (10) Waterford Constr .Ch 1063 36,476.00 (11) Tampa Brick Ch 1073 211.00 (12) Waterford Constr. Ch 1201R 5,000.00 In addition, the claim for a thirteenth item in the amount of $75,000.00 for the purchase of the Crystal Grove Boulevard property was withdrawn. The total claim by Petitioners is now $98,569.48.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order denying the applications of both H. L. Albritton Transportation Company, Inc. and H. L. Albritton Transportation Management, inc. for reimbursement of moving and reestablishment expenses as a result of the Department's taking of a portion of the parking lot at Pelwood Square where Petitioners were tenants. DONE and ENTERED this 12th day of August, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 12th day of August, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0014 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted and incorporated herein. Accepted and incorporated herein. - 5. Accepted and incorporated herein. Accepted but not determinative of any material issue of fact. - 10. Accepted and incorporated herein. 11. - 18. Accepted and incorporated herein, but not determinative of any material issue. 19. and 20. Accepted. 21. - 24. Accepted that Petitioners were lessee's at Pelwood Square, but rejected that a cure was not possible or that Petitioners could not have influence over whether a cure would occur. 25. - 27. Rejected as not consistent with the evidence. Accepted as a restatement of witness testimony. and 30. Rejected as not consistent with the evidence. Accepted. and 33. Not proven. 34. Accepted that the stated charges were paid but rejected that they were required to be paid as a result of the taking. Respondent's Proposed Findings of Fact. 1. - 3. Accepted and incorporated herein. 4. and 5. Accepted and incorporated herein. 6. - 9. Accepted and incorporated herein. 10. - 12. Accepted and incorporated herein. Accepted and incorporated herein. - 17. Accepted and incorporated herein. 18. and 19. Accepted. COPIES FURNISHED: A. Kurt Ardaman, Esquire Fishback, Dominick, Bennett, Stepter, Ardaman and Bonus 170 East Washington Street Orlando, Florida 32801-2397 Ralph B. Fisher, Esquire Fisher's Law Office, P.A. 18125 Highway 41 North, Suite 109 Lutz, Florida 33549 Paul Sexton, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, Mail Station 58 Attention: Diedre Grubbs 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The issues are (1) whether the City of Lake Worth (City) followed required statutory and rule procedures in adopting the height restrictions on pages 22 and 23 of the Future Land Use Element (FLUE) of the Evaluation and Appraisal Report (EAR) amendments, and (2) whether the adoption of the EAR-based amendments by the City more than 120 days after receiving the Department of Community Affairs' (Department's) Objections, Recommendations, and Comments (ORC) report renders them not in compliance.
Findings Of Fact The Parties Sunset is a Florida limited liability company whose principal address is 5601 Corporate Way, Suite 111, West Palm Beach, Florida. It owns property located at 826 Sunset Drive South within the City. See Sunset Exhibit 3. The property is currently classified on the FLUM as County Medium Residential 5.1 There is no factual dispute that Sunset is an affected person and has standing to participate in this proceeding. Ms. Hayes-Tomanek owns property within the City. She submitted comments regarding the height restrictions during the public hearing on October 20, 2009, adopting the EAR amendments. See City Exhibit 6, Minutes, p. 7. The City is a local government that administers the City's Plan. The City adopted the EAR-based amendments which are being contested here. The Department is the state land planning agency charged with the responsibility of reviewing plan amendments of local governments, such as the City. The Amendments On October 1, 2008, the City's EAR-based amendments were passed on first reading and transmitted to the Department. See Joint Exhibit 2. These amendments did not include any height-based restrictions on the three categories of residential property in the Plan: Single-Family, Medium-Density, and High- Density. These three categories make up around 75 percent of the City's total land area. According to Sunset's expert, height restrictions for those categories (which are less stringent than those later adopted and being challenged here) were then in the City's zoning ordinances. On January 14, 2009, the Department issued its ORC report regarding the EAR-based amendments. See Joint Exhibit 3. Objection 4 in the report stated in part that the "City has not adequately established its mixed use districts . . . because the mixed used categories do not establish the types of non- residential uses or the appropriate percentage distribution among the mix of uses, or other objective measurement. In addition, the General Commercial, Industrial, Public, Public Recreation and Open Space Future Land Use categories do not include the densities and intensities of use for these categories." Id. Sunset's expert points out that the ORC report, and in particular Objection 4, did not recommend any changes to the residential categories of property. Accompanying the ORC report was a document styled "Transmittal Procedures," which stated, among other things, that "[u]pon receipt of this letter, the City of Lake Worth has 120 days in which to adopt, adopt with changes, or determine that the City will not adopt the proposed EAR-based amendments." Id. The 120-day period expired on May 14, 2009. See Sunset Exhibit 15. The City initially scheduled an adoption hearing on May 5, 2009. See Sunset Exhibit 8. For reasons not of record, the EAR amendments were not considered that day. On June 25, 2009, then City Commissioner Jennings wrote Bob Dennis, Department Regional Planning Administrator, and asked whether the City could incorporate certain substantive changes into its EAR amendments between the first (transmittal) and second (adoption) readings. Among others, she asked if the following change to the EAR amendments could be made: Establish or change the maximum building heights in various land use classifications. During the master plan process, the city received public input regarding maximum building heights . . . . The height changes vary from a 10' reduction to a 25' reduction in different land use categories. The letter included an outline of the proposed changes in seven land use categories, including the three residential categories. See City Exhibit 2. In her deposition, Commissioner Jennings stated that around the time of the transmittal hearing in January 2008 she had requested that new height restrictions be incorporated into the EAR amendments, but based on conversations with City staff, she was under the impression that these changes could not be made at that time. See City Exhibit 9. By letter dated July 29, 2009, the Department, through its Chief of Office of Comprehensive Planning, responded to Commissioner Jennings' inquiry as follows: The proposed maximum building height changes identified in your letter are for the Single Family Residential, Medium Density Multi-family Residential, High Density Multi-family Residential, Mixed Use, Downtown Mixed Use, Transit Oriented Development, and the General Commercial land use categories. Contrary to the [FLUM] revisions discussed above, the City did transmit proposed amendments to Future Land [Use] Policy 1.1.3, including new and revised Sub-policies 1.1.3.1 through 1.1.3.11 concerning these land use classifications. Height limitations were proposed for the Mixed Use and Downtown Mixed Use land use categories. In addition, the Department's ORC Report includes an objection that the Mixed Use, Downtown Mixed Use, Transit Oriented Development, General Commercial, Industrial, Public, Recreation and Open Space land use classifications do not establish adequate densities and intensities of use for these categories. In preparing this letter, the Department notes that an intensity standard of 0.1 F.A.R. (floor area ratio) was proposed for the Recreation and Open Space category. To address the Department's objection, the Department recommended the City include densities and intensities for the listed land use categories and specify the percentage distribution among the mix of uses in the mixed use categories. Appropriate intensity standards for non-residential uses include a height limit and maximum square footage or a floor area ratio. Because the City transmitted amendments that included revisions to the residential and several non- residential land use categories and because the Department's ORC Report identified the need to include density and intensity standards for the mixed use categories and several non-residential land use categories, it would be acceptable for the City to revise the proposed height limitations previously submitted or to include height limitations for the other land use categories. As noted above, height alone is not a density or intensity standard. (Emphasis added) City Exhibit 3. This determination by the Department was just as reasonable, or even more so, than the contrary view expressed by Sunset's expert. After receiving this advice, the City conducted a number of meetings regarding the adoption of the EAR-based amendments, including a change in the height restrictions. On September 2, 2009, a Board meeting was conducted regarding the proposed new height restrictions. The Board voted unanimously to adopt the changes. The Minutes of that meeting reflect that a "special workshop" would be conducted by the Commission at 6:00 p.m., September 14, 2009, "to address height and intensity" changes to the EAR amendments. See City Exhibit 4, Minutes, p. On October 11, 2009, a "special meeting" of the Commission was conducted. Finally, on October 20, 2009, the City conducted the adoption hearing. There is no dispute that Petitioners appeared and presented comments in opposition to the proposed changes. By a 3-2 vote, Ordinance No. 2008-25 was adopted with the new height restrictions described on Table 1, pages 22 and 23 of the FLUE.2 See Joint Exhibit 4; Sunset Exhibit 6. This was 279 days after the City received the ORC report. The adopted amendments were then submitted to the Department for its review. Notices for each hearing (but not the special workshop) were published in a local newspaper. See City Exhibits 4, 5, and 6. Each advertisement indicated that one of the purposes of the meetings was to consider the "City's EAR- Based Amendments." No further detail regarding the EAR amendments was given. Sunset's expert acknowledged that local governments do not always provide more specificity than this in their plan amendment notices but stated he considers it to be a good planning practice to provide more information. On December 30, 2009, the Department issued its Notice of Intent to find the amendments in compliance. See City Exhibit 5. The following day, a copy of the Notice of Intent was published in The Lake Worth Herald. On January 19, 2010, Sunset timely filed a petition contending that certain procedural errors were committed by the City during the adoption process. This petition was twice amended prior to hearing. A petition was filed by Ms. Hayes-Tomanek on April 5, 2010. Petitioners' Objections Petitioners first point out that the City did not follow the requirement in section 163.3184(7)(a) that it "shall" adopt the amendments no more than 120 days after receipt of the ORC report. They contend that because the City failed to do so, this requires a determination that the EAR-based amendments are not in compliance. At hearing, Sunset also relied upon (for the first time) Florida Administrative Code Rule 9J-11.009(8)(e), which provides that "[p]ursuant to Section 163.3191(10), no amendment may be adopted if the local government has failed to timely adopt and transmit the evaluation and appraisal report- based amendments." The parties agree that the City did not adopt the EAR- based amendments until 279 days after receipt of the ORC report. According to the Department's Regional Planning Administrator, Bob Dennis, the Department took no action after the 120 days had run because the statute "gives no guidance as to what happens when a local government does take more than the prescribed time in the statute." See City Exhibit 8. He also indicated that the Department has no policy relative to this situation. Sunset's expert agreed that there is no penalty in the statute in the event a local government takes more than the prescribed time. Richard Post, a Department Planning Analyst, noted that local governments sometimes take longer than the statutory time periods to "send in adopted amendments, and the Department has taken no particular posture regarding their tardiness." See City Exhibit 7. He further noted that if a filing is late, as it was here, it does not affect the Department's review. As a safeguard, if an adopted amendment is transmitted to the Department after the statutory time period, it is reviewed by a planner to determine whether the information is still relevant and appropriate or has become "stale" and out-of-date. In this case, the Department reviewed the adopted amendments and, notwithstanding the passage of 279 days since the ORC report was received by the City, the amendments were found to be in compliance. For the reasons expressed in Endnote 3, infra, rule 9J-11.009(8)(e) does not prohibit the City from adopting the challenged amendments.3 While Petitioners stated that they have suffered prejudice because the new height restrictions will adversely impact the use of their property, there was no evidence that the delay in adopting the amendments affected their ability to participate in the planning process. Petitioners also contend that the City failed to follow statutory and rule procedures when it added the height restrictions between the first and second readings of the amendments. By the City doing so, Petitioners argue that rule 9J-5.004 was violated, which requires that the City "adopt procedures to provide for and encourage public participation in the planning process, including consideration of amendments to the . . . evaluation and appraisal reports[,]" and procedures to assure that the public is noticed regarding such changes and has the opportunity to submit written comments. Petitioners further argue that subsections 163.3191(4) and (10) were violated by this action. The first subsection requires the local planning agency (the Planning & Zoning Board) to prepare the EAR report (as opposed to the amendments) in conformity with "its public participation procedures adopted as required by s. 163.3181[,]" while the second subsection requires that the City adopt the EAR-based amendments in conformity with sections 163.3184, 163.3187, and 163.3189. They also argue that the notice of the adoption hearing violated section 163.3184(15) because it failed to describe the changes being made to the original EAR-based amendments. Finally, they contend the new height restrictions were not responsive to the ORC report.4 Petitioners do not contend that the City has failed to adopt adequate public participation procedures, as required by rule 9J-5.004. Rather, they contend that the participation procedures were violated, and that members of the public and other reviewing agencies, such as the Treasure Coast Regional Planning Council, were not given an opportunity to provide input on the new height restrictions. The record shows that, notwithstanding the content of the notice in the newspaper, both Petitioners were aware of new height restrictions being considered by the City prior to their adoption, and both were given the opportunity to participate at the adoption hearing. There is no dispute that Sunset submitted written or oral comments to the Commission prior to the adoption of the new height restrictions. Likewise, Ms. Hayes-Tomanek has closely followed the planning process for years (mainly because she wants the density/intensity standards on her property increased) and became aware of the new height restrictions well before they were adopted. The record further shows that the new height limitations were discussed by City officials before June 2009, when Commissioner Jennings authored her letter to the Department, and that written input on that issue was received from 239 residents. See Sunset Exhibit 9; City Exhibit 9. It is fair to construe these comments from numerous citizens as "public input." Even if there was an error in procedure, there is no evidence that either Petitioner was substantially prejudiced in the planning process. Finally, Petitioners' assertion that the new height restrictions are not responsive to the ORC report has been considered and rejected. See Finding of Fact 9, supra; City Exhibits 7 and 8.5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the EAR-based amendments adopted by Ordinance No. 2008-25 are in compliance. DONE AND ENTERED this 24th day of March, 2011, in Tallahassee, Leon County, Florida. S 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 24th day of March, 2011.
Findings Of Fact At all times pertinent to the matters in issue herein, the Respondent, Department of Transportation, was the state agency responsible for the monitoring and control of vehicular access to and traffic control on the state highways of this state. Petitioner, Pablo Sanchez, owns the property in issue. This property is a 24 x 40 foot house located on a 70 x 103.62 foot lot located at the corner of East 8th Avenue (LeJeune Road) and East 7th Street in Hialeah, Florida. LeJeune Road, depending upon the location, both has and does not have a restrictive median. At this location it does not. Mr. Sanchez currently and historically, over the 3 years he has lived in the property in question, enters and exits the property, which has no formal driveway, from LeJeune Road. By the same token, guests who visit him enter and exit the property the same way. During this 3 year period there have been no accidents or traffic problems as a result of this use even though traffic on LeJeune Road, a main thoroughfare, is heavy. There is no obstruction on or near the property to hinder visibility of either an individual exiting the property onto LeJeune Road or a driver on LeJeune Road observing anyone coming off the property. In Mr. Sanchez' opinion, a permitted driveway practically would change nothing from the current situation. The area in which the property is located is rapidly changing from residential to commercial. Mr. Sanchez is trying to have the zoning of his property changed from residential to office use. His efforts in this regard are with the City of Hialeah. If his application for zoning change is approved, it is his intention to use the house as an office for his insurance business which is currently conducted at a different location at 24th Street and LeJeune Road. The current office is located on a corner lot from which Mr. Sanchez has access onto LeJeune Road and it is his contention there have been no traffic problems at that location either. No evidence to rebut this contention was forthcoming. There are currently commercial businesses in operation on both sides of LeJeune Road between the area now being used as a business by Petitioner and the area for which he submitted his application. The majority of these enter onto LeJeune Road. Mr. Sanchez contends that the use of the property in issue as an insurance office would not generate as much traffic as either the neighboring bank or service station in the area, and if he were to receive the driveway permit for this property, he claims, the amount of traffic onto LeJeune Road from it would not be increased by any significant amount. He submitted his application and paid the $1,000.00 fee. Most of Mr. Sanchez' time is spent at his business building because his parents live at that location and when he is not working, he spends a great deal of time with them. His experience has been that he can easily go from his home to his office on LeJeune Road at any time without difficulty, and he goes up and back each day expending 6 or 7 minutes for each trip. Petitioner introduced photographs of several businesses purported to be in the area which, he claims, have commercial entrances onto LeJeune Road. Respondent entered no evidence to contradict the identity or location of the sites reflected in the photos and they are, therefore, accepted as offered. One of them is a bank which, he contends, has been in operation for approximately 10 years. Another is a service station which has been in operation for "a considerable amount of time." This facility was there before Petitioner arrived in the area. Another business depicted, Marina Insurance, opened approximately two years ago. The facility used to be a residence and Mr. Sanchez does not know when or if a driveway permit was issued for that property. Another service station in the area was opened "many years ago" and a store for wedding gowns was opened "seven or eight years ago." The photographs fail to show any traffic, however, either in front of, exiting, or entering the properties. Mr. Sanchez claims they are active businesses and have been contributing to traffic on LeJeune Road for many years. In the absence of evidence to contradict that assertion, it is accepted. Mr. Sanchez' contentions were supported by his son, Joel, who is in business with his father and who used to live in the house in question with his father, his mother, his wife and his two children. With four adults living there, three cars were frequently in use, and all usually entered and exited the property from LeJeune Road. On occasion, they would come in or exit from 7th Street, but between 80 and 85% of the time the LeJeune Road access was utilized, primarily because the property faces on LeJeune Road. Visitors to the property usually park to the right of the front door, and so far there has been no problem getting on or off of LeJeune Road. The younger Sanchez confirms his father's testimony that entrance onto or exit from LeJeune Road from either the current residence or the current business property has not been a problem over the years, and he sees no traffic hazard. According to Joel Sanchez, LeJeune Road is no longer a residential street. He confirms his father's statement that new businesses are constantly going in and all seem to have been able to get driveway access onto LeJeune Road. The older businesses have had access to LeJeune for a long time and there appears to have been no problem with traffic. The property in issue here became a problem only when the Sanchezes tried to rezone it. Notwithstanding the fact that at the residence they already use an access onto LeJeune Road, according to the city zoning officials, if the property were to be converted into a business use property, a formal access onto LeJeune, to accommodate 8 parking spaces on the property, would be necessary. The only way 8 parking spaces could be placed onto the existing property would be to place the entrance and exit onto LeJeune Road. From a practical standpoint, the only change would be the actual paving of access ramps out to the highway instead of driving onto and off the property across the lawn as is the current practice. The number of the customers the business would bring to the new site would not be heavy, no more than 6 or 7 per day. This would be a maximum, Petitioner claims, because the nature of the insurance business he is conducting is changing to that which would reduce to an even lesser amount the traffic required. Most of the business customers are now renewals who deal with the company by mail, and the only traffic would be new business. In that regard, they are changing more to commercial lines of insurance, dealing with businesses, which does not have a large office visit rate. Neither of the Sanchez men have any training in traffic management or safety, but both sincerely feel their proposal will not increase traffic or pose a risk to traffic safety in the area. Debora Moran Rivera, a traffic engineer with the Department's Miami District is familiar with the instant permit application and, in fact, reviewed it when it was submitted. When first received by the District, the application was sent to the field for comments. It was determined that a 25 foot radius exit was required. Photographs were received along with the comments and based on the review by both the field office and the District office, it was determined that the application here was not consistent with the rules of the Department governing permits of this nature. As a result, on February 26, 1991, a Notice of Intent to Deny the application was sent to Mr. Sanchez in which the reason for denial was the availability of access to the State Highway from another public road, (East 7th Street). Sometime thereafter, Ms. Rivera was contacted by Joel Sanchez who asked for a formal denial which could be appealed and thereafter, a formal denial letter dated March 19, 1991 was sent. This letter indicated the Department rules limited access to a point at least 115 feet from the nearest connection, East 7th Street. The denial decision was based on information provided by the field operations office to whom the application was sent for verification. The decision to grant or deny is a joint one made by several individuals whose identity is dependant upon where the property in question is located. Mr. Pego, Ms. Rivera's supervisor and Ms. Rivera were the individuals who made this decision based upon the input from the staff in the field. In this case, the field information consisted of a statement based upon his visit to the site and two photographs. Based on this information along with that provided by the applicant, the decision to deny was made. Admittedly no traffic study of the area in question was made by either party. Further, in evaluating the application, however, Ms. Rivera did not look at any other driveway permits for property in the immediate area. She thinks she went out to visit the site before the official denial letter was sent out on March 19, 1991 but she does not recall what the business characteristics of the area were like. While she is generally familiar with the area, she does not recall the specifics. Based on the evidence presented, nothing was put before the undersigned to demonstrate the insufficiency or impropriety of the Department's evaluation and decision making process and it is accepted that the process was sufficient and adequate. There is some indication from the testimony of Petitioner that he had called the District office to request a Spanish speaking representative come out to the property. In response, the District sent out a Mr. Montez. According to Mr. Sanchez, Montez initially told him that the application would probably not be approved because the property fronted on LeJeune Road. However, Sanchez claims Montez later changed his mind and indicated the application would probably be granted because of the small nature of the business. The evidence on this point is unclear as to whether the visit by Mr. Montez is the site visit described by Ms. Rivera. No evidence was presented to clarify this, but in any case, there is no showing that Montez had any authority to commit the Department to a position. His opinions, therefore, are irrelevant.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case denying Petitioner's application for a connection from his property located at 700 East 8th Avenue, Hialeah, onto East 8th Avenue, (Lejeune Road). RECOMMENDED in Tallahassee, Florida this 29th day of January, 1992. ARNOLD H. POLLOCK 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 29th day of January, 1992. COPIES FURNISHED: Juan Carlos Perez, Esquire 4770 Biscayne Blvd. Miami, Florida 33137 Michael A. Bienstock, Esquire 25 SE 3rd Avenue, Suite 1240 Miami, Florida 33134 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Thornton J. Williams General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450
