The Issue Whether DOT has improperly excluded Western Waste Industries, Inc. from bidding by combining two Volusia County sites in a single invitation to bid?
Findings Of Fact A three-man maintenance crew works out of DOT's Daytona Beach construction office, which is 16 miles distant from DOT's principal Volusia County facility, the Deland maintenance yard. In the summer, when both mowing operations and littering are at their peak, 72 DOT field people and 14 convicts set out from the Deland yard daily to sweep the roadways, police, grade and seed the shoulders, cut the grass and do other bridge, pipe and concrete maintenance. At one time, as the work day ended, crews dropped litter and mown grass at the county dump on their way back to the sites at which they assembled mornings in Deland and Daytona Beach. The Daytona Beach crew still does. But somebody calculated that DOT could save 100 man hours a month by arranging for "dumpsters" at both its Volusia County yards. That way all workers can return to their work stations directly, and no side trip is required in order to dispose of litter and cut grass. On April 1, 1988, petitioner Western Waste Industries, Inc. (WWII) installed two dumpsters, each with a capacity of eight cubic yards, at DOT's Deland yard. Under a month to month agreement, WWII empties both containers twice weekly in exchange for $273 monthly. DOT is satisfied with its decision to use dumpsters, but is obliged to invite bids, because DOT cannot procure the services it needs for less than $3000 a year. Among the specifications set out in DOT's invitation to bid is the form of the contract the successful bidder is to sign, which includes the following: 1.00 The Department does hereby retain the Contractor to furnish certain services in connection with Central Point Refuse Pickup and Disposal Originating at the Department's Maintenance Office Located at 1655 North Kepler Road, Deland, Florida, with an Option to Include Similar Services for the Department's Construction Office Located at 915 South Clyde Morris Boulevard, Daytona Beach, Florida. DOT's Exhibit No. 1 (emphasis in original) In Exhibit A to the form contract, entitled "SCOPE OF SERVICES," the specifications call for "trash containment and removal of litter ... from specific offices located in the Department's District Five." Id. Exhibit A specifies both the Daytona Beach and the Deland offices by name and address. Attachment B indicates that the successful bidder is to remove 40 cubic yards of refuse weekly from DOT's maintenance yard in Deland and, at DOT's option, additional refuse from the Deland yard, from the Daytona Beach office, or from both. If DOT exercised both options, the contractor would haul ten percent of DOT's refuse from the Daytona Beach office, on an annual basis. In its letter of protest, dated June 14, 1988, WWII complains that it "operate[s] on the West Side [of Volusia County] only." But the two companies who submitted bids in response to DOT's invitation to bid are willing to collect refuse at both sites. No exclusive franchise or other legal impediment precluded WWII from bidding on collection at both sites By soliciting bids for service at both sites, DOT avoids the administrative costs of inviting and evaluating two sets of bids.
The Issue The issue is whether Respondents committed an act of discrimination based upon familial status against Petitioners in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioners own Unit L-105 at The Collins, located at 6917 Collins Avenue, Miami Beach, Florida 33141. Petitioners have a three-year-old daughter who resides with them and claim membership, for purposes of alleging discrimination under the Florida Fair Housing Act, in the class of familial status. Petitioners have exclusive use of their private patio, a limited common element, adjacent to their ground floor unit, subject to the terms and conditions, as well as the rules of the Association. This patio is in close proximity to the Association’s ungated common swimming pool. Unlike most of the condominiums on floors above the pool area, Petitioners’ unit does not have a glass protective barrier on their patio, or any barrier whatsoever installed outside their unit by the Association. All of the units located above Petitioners’ unit that have balconies that are raised from the pool’s surface in heights varying between the second floor and many floors above, without a glass barrier at the end of the balconies, would have a significant and dangerous drop to the pool level for anyone stepping over the edge. Petitioners owned Unit L-105 for 13 years before having a daughter, now three years old, which changed their status to familial for the past three years. Petitioners sought to have the Association allow them to install a glass barrier between their patio and the ungated pool in order to end their claim of discrimination based upon familial status and protect their daughter from accidentally falling into the pool if left unattended on the patio. Respondents refused to install or allow the installation of a glass barrier on Petitioners’ patio, citing that it would not conform with the rules and regulations of the condominium association concerning the common elements of the condominium. Petitioners installed what they called a “temporary” fence around their patio. The fence involved the drilling of holes into the concrete surface of the pool deck and installing posts and netting into the holes to create a fencelike barrier. Claiming this was not approved and not in conformance with the rules and regulations for the common elements of the condominium, the Association brought in workers who removed the fence, the posts, and filled in the holes that had been drilled into the concrete. The Association billed Petitioners $1,200 for having the removal and repair work done for the unapproved installation of the fence. At some point, after the fencing had been removed, Petitioners moved out of their condominium unit, but remain the owners of it. At the time of the hearing, Petitioners had pending in circuit court an action regarding the pool fence. No further details were given regarding the nature of the action and relief sought. Mr. Riveiro testified that he and his wife are willing to bear the cost, including any needed permits, parts, labor, and inspections for installing a temporary fence that will protect their daughter from accidentally falling into the pool. Mr. Blanco, the Association’s board president, who has served on the board of the Association for 15 or more years, testified that, during his tenure, the board has never discriminated against persons for any reason, including based upon their familial status. Respondents offered several solutions to Petitioners, including allowing a temporary fence that could be easily removed, but did not involve drilling holes in the common area of the pool deck. According to the local code enforcement officials, all that is required for garden or pool level doors that open to an “ungated pool” are door alarms to alert the occupants when the door is opened from inside or out. Mr. Riveiro testified that he could not use door alarms and keep his doors open to enjoy the breeze and fresh air because, after a time, the alarms sounded to remind the occupants the door has been left open. Because of this, Petitioners were not satisfied with setting up an internal fence that would keep their daughter from running out the door. An internal fence was superfluous since always keeping the doors closed avoids the need for a fence, but restricts Petitioners full use and enjoyment of their unit. If the residents wanted fences to be installed on the pool level, they would have to be uniform in design and function. Because this would be considered a material alteration to the common elements, 75 percent of the unit owners would have to vote in favor of such a change. A material alteration to the common elements was neither requested by Petitioners nor voted upon by the Association’s unit owners upon request from any individual, family, or the Association board itself.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding Respondents not liable for housing discrimination and dismissing Petitioners’ Petition for Relief. DONE AND ENTERED this 22nd day of April, 2021, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Darrin Gursky, Esquire Gursky Ragan, P.A. 141 Northeast 3rd Avenue Miami, Florida 33132 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Fernando Riveiro 14838 Southwest 35th Street Davie, Florida 33331 Mayelin Perez 4495 Southwest 67th Terrace, No. 207 Davie, Florida 33314
Findings Of Fact The upland property abutting the proposed marina is zoned CTF-28, which provides for the complete range of motel-hotel developments. Type A Marina facilities are permitted as a special exception in a CTF-28 district. The property owned by Petitioners is presently occupied by a 17-room motel (Exhibit 5) and there are 15 available parking spaces. Petitioners propose to remove the seaward 16 feet of the existing 20-year-old dock, extend the remaining portion of this dock from its present length of 62 feet to 112 feet, and construct four finger piers two feet wide by 24 feet long extending seaward from this dock so as to provide seven boat slips. As private slips this would constitute a Class A marina. Petitioners intend to convert the existing motel from sole ownership (husband and wife) to a cooperative association which will enter into long-term leases with proprietary lessees who purchase shares in the association. Specifically, the current owners will transfer title to the property to Tropical Palms Development Corporation, who in turn will transfer the property to The Bel Crest Beach Cabanas & Yacht Club, Inc., who will sell the leases (Exhibits 2 and 3). A copy of the Proprietary Lease proposed for use in this endeavor was not presented to the Board of Adjustment and Appeal on Zoning, nor was the By- Laws of The Bel Crest Beach Cabanas & Yacht Club, Inc. These documents were presented at this hearing as Exhibits 4 and 5. The Proprietary Lease (Exhibit 4) provides the dock is appurtenant to the unit and may not be conveyed, leased or subleased independent of the unit. Slips 1-7 are assigned to Units 7, 8, 9, 10, 11, 16 and 17, respectively (Exhibit 5). Petitioner Leonhardt testified that he would never allow the motel unit to be leased independent of the slip appurtenant to that unit. He also testified that the boat slips got little use from motel occupants. The existing dock, which is 62 feet long, contains berthing space for three or four boats, depending on the size of the boats. No evidence was presented concerning the parking problem, if any, resulting from the existing docking facilities. Respondent's primary concern and the reason this application was denied by the Board of Adjustment and Appeal on Zoning is the effect the proposed marina will have on parking on Clearwater Beach. Vehicular parking is a serious problem confronting Clearwater Beach at this time. Further aggravation of this problem will adversely affect the public interest. A special exception for a seven-slip, Class A marina was granted to the Sea Gull Motel located some 300 feet west of the Bel Crest motel less than one year ago. The Sea Gull converted to cooperative ownership in a plan similar to that proposed by Petitioners. At the Sea Gull hearing for a special exception the parking situation on Clearwater Beach was not raised. Item 40 of the Proprietary Lease (Exhibit 4) contemplates more than one person may be named as lessee and provides joint lessees have only one vote, are jointly and severally liable for lessees' obligations, etc. Nowhere does the Proprietary Lease or By-Laws of the Association specifically preclude one owner- lessee occupying the boat slip while another owner-lessee occupies the motel unit. Once converted to a cooperative, the Bel Crest will continue to operate as a motel run by the resident manager with the units owned by the shareholders in the Association. Currently, all units of the motel are owned by a single owner. The By-Laws and Proprietary Lease do not fully cover the situation regarding the boat slip when the unit appurtenant to that boat slip is rented by the usual overnight motel guest who has no use for a boat slip. The proposed slips present no hazard to navigation or interfere with the enjoyment of the waters adjacent thereto by the boating public.
Findings Of Fact On or about December 4, 1981, Respondent executed an Agreement with Daytona Sands Beach Club, Inc. (Beach Club), the developer of the project, which was back-dated to August 14, 1981. By the terms of this Agreement, Beach Club sold its interest in thirty-four units of a forty unit condominium time share development having a retail value of $150,000, to Respondent for fifteen percent of the retail value. Respondent testified that the Agreement was simply a financing arrangement whereby Beach Club assigned time-share periods in thirty- four units as collateral for a loan made by Respondent. He stated he received none of the indicia of ownership. However, this is not confirmed by the terms of the Agreement which specifically refer to a sale of Beach Club's interest to Respondent, and an arrangement by which Beach Club would then market and sell the units which Respondent had purchased from them. The Agreement also expressly provides that it "constitutes the entire agreement between the parties and there are no other terms, conditions, or agreements which are not set forth herein or referred to herein." Additionally, it was Respondent who had used this form Agreement previously in other projects and who provided this Agreement for execution by Beach Club. Of the thirty-four units involved in Respondent's Agreement with Beach Club time-share purchasers had acquired time-share periods in twenty-eight units prior to the execution of this Agreement. An Addendum to the Agreement expresses the intention of Beach Club and Respondent that "the present structure of the Sands Beach Club, Inc., contemplates right to use only and not fee simple title." This was a "right to use project" whereby time-share purchasers acquired no interest in the underlying real property and were simply leasing the right to use particular units for a specified number of weeks each year. Thus, Beach Club had an ownership interest in the project at the time the Agreement was executed with Respondent despite the fact that time-share purchasers had already acquired a right to use twenty eight of the thirty-four units referenced in the Agreement. Respondent knew this was a "right to use" project at the time the Agreement was executed. Several months after the execution of this Agreement and Addendum, Respondent had an Assignment prepared which he executed with Beach Club. Although this later executed Assignment specifically acknowledges the prior executed Agreement and Addendum, Respondent contends that this Assignment was prepared and executed for the sole purpose of providing him with additional security for his purported financing arrangement with Beach Club. However, by acknowledging the prior executed Agreement and Addendum which, by their terms refer to a sale of Beach Club's interest to Respondent, the Assignment confirms that Respondent was not simply providing financing in this transaction. Respondent did not execute any additional agreement in association with the transaction other than as set forth above. Specifically, there is no evidence that Respondent agreed in writing to honor fully the rights of time- share purchasers to occupy and use the facilities and to cancel their contracts and receive appropriate refunds, nor did Respondent agree in writing to comply with Chapter 721 or to assume all obligations of the seller to these purchasers. There is no evidence that notice of Respondent's Agreement with Beach Club was mailed to each purchaser.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order imposing a $5,000 civil penalty against Respondent. DONE and ENTERED this 10th day of September, 1985, at Tallahassee Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1985. COPIES FURNISHED: Thomas A. Bell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Robert E. Austin, Jr., Esquire Post Office Drawer 1930 Leesburg, Florida 32748 Richard B. Burroughs, Jr. Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 James Kearney, Director Division of Florida Land Sales Condominiums & Mobile Homes 725 South Bronough Street Tallahassee, Florida 32301 =================================================================
Findings Of Fact Petitioner, The Mills Development Group of Florida, Inc., owns a condominium project now under construction at 1660 Gulf Boulevard, Clearwater, Florida. The project is on the south end of Sand Key, a thin finger-like strip of land which runs in a north-south direction between the Gulf of Mexico and Clearwater Harbor. Gulf Boulevard is the principal road traversing the Key. The condominium project is situated on the west side of Gulf Boulevard and fronts the Gulf of Mexico. Petitioner proposes to construct a marina on the east side of Gulf Boulevard which fronts Clearwater Harbor. It will be used by the condominium residents and their guests. If the application is approved, Petitioner will construct a 683' x 6' boardwalk next to the seawall, which extends along the waterline on Clearwater Harbor. Extending outward from the boardwalk no more than 30 feet will be 20 catwalks providing slips for approximately 40 boats. Petitioner desires to build a boardwalk to have access to the deeper water which lies outward from the seawall and to avoid dredging activities. The boardwalk will also provide greater safety for the boaters. The proposed project lies within an area currently zoned by the City as District RM-28 (High Density Multi-Family Use District). This District was created to provide for high density apartment and condominium development use. Permitted uses and structures within the District include apartment houses, townhouse developments and accessory buildings, including recreational buildings and/or community meeting buildings. A number of special exceptions are authorized within a RM-28 District. These include, inter alia, a Type A Marina facility for pleasure craft docking. Accordingly, if the application is approved, the use will be consistent with the Land Use Plan and Zoning Ordinance. The City expressed concern that persons using the facilities may wish to park on the grassy strip which lies between Gulf Boulevard and the proposed marina which in turn will impede the traffic flow on the thoroughfare. However, adequate parking for guests and residents will be located at the condominium across the street. Further, no material change in the amount of traffic is expected to be generated by the facility. Moreover, City approval is required if Petitioner desires to provide improved parking facilities on the grassy strip in the future. Intervenor/Respondent, isle of Sand Key Condominium Association, is a condominium association located to the east of Petitioner and approximately 150 feet across the channel at the proposed marina's northern end. The Association does not object to the project itself but is concerned only with the proposed length of the boardwalk. The Association has its own marina facilities which run perpendicular with the waterway and Sand Key. If approved, the proposed boardwalk would lie directly across the waterway from the Association's facilities leaving insufficient space in the channel for expansion of its marina. The Association also contends the proposed marina, if constructed in its present design, will violate an Easement Agreement entered into in November, 1975, by the prior owner of Petitioner's property and the Association. However, this concern is beyond the scope of this proceeding.
The Issue The issues in this case are whether Respondent, Lakeview of Largo Condominium Association, Inc., et al. (Lakeview or Respondent), violated chapter 70, Pinellas County Code of Ordinances, as alleged in the discrimination complaint (Complaint) filed by Francis Dandrea (Mr. Dandrea or Petitioner); and, if so, what relief should be granted.
Findings Of Fact The following Findings of Fact are based on the relevant stipulated facts and the oral and documentary evidence adduced at the final hearing. The parties agree that the Federal Act (42 U.S.C. 3601 et seq.), the Florida Fair Housing Act (sections 760.20 through 760.37, Florida Statutes, (2019)),2 and “the Pinellas County Code mirror one another, so the same legal arguments apply to all counts of the Complaint.”(*) The Lakeview campus consists of 12 to 14 acres of land and six residential buildings with approximately 60 condominiums in each building, for a total of 312 units. There are laundry facilities (a washer/dryer unit) on each floor for residents to use. Residents are not allowed to use laundry facilities found on the different floors of each building, but must use the facilities on their floor. If the laundry facilities on their floor are in use, 1 At the hearing, the parties jointly offered an additional exhibit, Exhibit Q, which was admitted into evidence. 2 Unless stated otherwise, all Florida statutory citations will be to the 2019 version of the Florida Statutes. No legislative changes have been made to sections 760.20 through 760.37 since 2013. residents must wait until the laundry facilities are available. In 2004, Petitioner was 71 years old, and his wife, Dolores Dandrea, was 70 years old when they purchased Lakeview Condominium No. 6113. On April 13, 2004, Petitioner and Mrs. Dandrea executed the following statement: I have read the frequently asked questions and answer sheet and understand my responsibilities as an owner.3 Lakeview’s Rules and Regulations (the “Rules”), Section VIII, paragraph three provides: “No new washer or dryer installations will be permitted within the units as of January 1, 1994 Upon the sale of the unit, washers and/or dryers within the unit must be removed.”(*) The Rules do not provide who (buyer or seller) is to remove the washer and dryer upon sale of a condominium unit. (*) Petitioner and Mrs. Dandrea resided in Condominium No. 6113 for nine years. In those nine years, Petitioner testified he had never thought about the Rules, specifically about the washer/dryer unit, as they were “very close” or “right next door” to the first floor laundry facility. In 2013, Condominium No. 6110 was listed for sale. Petitioner either knew or became aware that there was a washer/dryer unit in that condominium, a main purchasing point for Petitioner. On March 29, 2013, Petitioner executed an “AS IS” residential contract for the sale and purchase of Condominium No. 6110. The contract clearly listed additional personal property included in the sale: refrigerator(s); microwave oven; washer; dryer; and blinds. It is undisputed that the washer/dryer unit was installed prior to the Dandrea’s purchase of Condominium No. 6110. (*) An “Estoppel Letter”4 requested by the title company provided there were no violations against Condominium No. 6110 at the time of the sale. 3 As part of Lakeview’s screening process, all new residents have to acknowledge a “55+ Community Frequently Asked Questions and Answer Sheet DBR Form 33-032.” 4 The “Estoppel Letter” provides that the buyers are “Francis and Dolores D’Andrea”. Petitioner and Mrs. Dandrea moved from Condominium No. 6113 into Condominium No. 6110 in late April or early May 2013. A washer/dryer unit was in Condominium No. 6110, as specified in the purchase agreement. Petitioner’s current unit (Condominium No. 6110) is a dwelling within the meaning of the Act, 42 U.S.C.§ 3602(b), because it is within a multi-unit building occupied as a residence by several families. (*) On October 24, 2018, Lakeview’s community association manager, Frank Fundora, notified Petitioner and Mrs. Dandrea of their non-compliance with the Rules regarding the presence of the washer/dryer unit in Condominium No. 6110. (*) On January 22, 2019, Mr. Fundora, on behalf of Lakeview, sent the Dandreas a letter that “required” them to attend a Lakeview Compliance Committee hearing to explain their position as it related to the washer/dryer unit in their condominium. The hearing was held on February 6, 2019.5 On February 21, 2019, Mr. Fundora, on behalf of Lakeview, advised the Dandreas that they were found in non-compliance of the Rules by the Compliance Committee. (*) That violation was reported to the Lakeview Board of Directors (Board), who requested the washer/dryer unit be removed from Condominium No. 6110 within 14 days of the letter. Additionally, the Dandreas were notified that the non-compliance (the failure to remove the washer/dryer unit) would lead to a monetary fine of up to $100 per day to a maximum of $1,000. (*) The Dandreas did not remove the washer/dryer unit from Condominium No. 6110. On March 14, 2019, Mr. Fundora, on behalf of Lakeview, notified the Dandreas of the fine assessment of $100 per day for the violation of the 5 The January 22, 2019, letter provided the hearing would be on February 5, 2019, however the February 21, 2019, Lakeview letter to the Dandreas provided the hearing took place on February 6, 2019. Rules, up to a maximum of $1,000 fine, consistent with chapter 718, Florida Statutes. The fine was placed on Petitioner's account in an amount of $1,000 on March 22, 2019. (*) Petitioner, via letter to the Board dated April 19, 2019,6 requested a reasonable accommodation from the Rules pursuant to the Act. (*) The letter provides7: Dear Sirs, I respectfully request a conversation with you asap [sic] about reasonable accommodations at our condo complex…[sic] I am enclosing letters from our doctors stating that we should not get rid [of] our washer/dryer due to our medical complications and conditions. Respectfully, Francis Dandrea Along with the April 19, 2019, reasonable accommodation request, Petitioner submitted supporting documentation from medical professionals setting forth the medical conditions of both Petitioner and Mrs. Dandrea as the basis for the reasonable accommodation request. (*) The parties stipulated that the medical documentation below was provided in Petitioner’s request for a reasonable accommodation. That documentation provided: 11/06/2018 To whom it may concern, Francis Dandrea suffers from generalized arthritis in addition to medical diagnoses of emphysema and intermittent atrial fibrillation. His wife is limited functionally by polymyalgia rheumatic. Removing the washer/dryer from their condo would creat [sic] a physical hardship and is not recommended. 6 The certified letter was “signed for” by Mr. Fundora on April 22, 2019. 7 This letter was written in all capital letters. The text is provided in sentence format. Please share this communication with the patient. Signed by: /es/ JOHN H HULL, MD GERIATRICS & EXTENDED CARE 11/07/2018 05:41 Analog Pager: [Omitted] Digital Pager: [Omitted] And: 12/12/2018 To Whom It May Concern: Mrs. Dolores D’Andrea is under my medical care for 5 years. She asked me to write this letter. She has multiple medical conditions. It came to my attention that recently washer and dryer was [sic] required to be removed from her unit. Patient has urinary incontinence. It is absolutely important for her to have washer and dryer nearby, so she can wash her clothes because of frequent accidents. Also she has polymyalgia rheumatica, and it is very difficult for her to walk down the hall to a washer and dryer units that located down the hall in apartment area. [sic] It would be medically necessary for her to have washer and dryer in her apartment. If any questions, please feel free to call my office 727-584-7706. Sincerely, Helen Brvenik, M.D. Petitioner testified to his multiple infirmities: osteoarthritis; atrial fibrillation; and a bulging disc. Petitioner also provided that he had had surgery on both knees (“not replacements”), and he had to give up golf three years ago. Petitioner also testified that his wife has neurological problems, including double vision for which she had surgery, and anxiety issues. On April 24, 2019, two days after receipt of Petitioner’s request for a reasonable accommodation, Mr. Fundora, on behalf of the Lakeview Board, informed the Dandreas that Lakeview had denied the requested accommodation. Further, the Board voted to give the Dandreas until May 8, 2019, to comply with the Rules by removing the washer/dryer unit. If the Dandreas refused to do so, their right to use the common recreational facilities would be suspended. (*) Petitioner did not remove the washer/dryer unit, and on May 8, 2019, Lakeview suspended Petitioner's rights to the common recreational facilities. (*) Petitioner filed the Complaint against Lakeview with the PCOHR on May 13, 2019. (*) On September 8, 2019, the PCOHR issued a Determination of Reasonable Cause and Charge of Discrimination. (*) Those individuals who testified at the hearing either are friends of Petitioner, serve (or have served) on Lakeview’s Board, or are employed by Lakeview. However, none of them are health care professionals, and their observations are just that, observations without any medical training or knowledge of Petitioner’s health issues. Mr. Fundora testified that Lakeview did not have a process in place for the type of reasonable accommodation requested by Petitioner. However, Lakeview had, in the past, received reasonable accommodation requests for emotional support animals, large vehicles, and motorcycles. Those requests have been handled on a case-by-case basis.8 A request for additional medical information to support or discredit the requested accommodation for Petitioner (or Mrs. Dandrea) was never sought. There is no dispute that Lakeview objected to the Dandreas retaining the washer/dryer unit. Lakeview’s denial of the request for a reasonable accommodation within two days of the request appears to be solely based on observations made by non-medically trained residents or Board members who 8 At least one request for an emotional support animal was approved, while another was denied when the supporting documentation was found to be fabricated. had seen Petitioner (and Mrs. Dandrea) walking around the Lakeview complex at some time. These witnesses attempted to give opinions from their observations, yet they were not qualified to do so as they did not know if the requested accommodation was medically necessary. Lakeview has not articulated a legitimate, non-discriminatory reason for withholding the reasonable accommodation request. The preponderance of the evidence demonstrates that having the washer/dryer unit within Petitioner’s condominium is a reasonable accommodation; and necessary to afford Petitioner (and Mrs. Dandrea) the opportunity to the use and enjoy their home.
Findings Of Fact James R. Gray owns Lots 10, 11, 12 and 13, Clearwater Beach Park, as recorded in Plat Book 10, p. 42, of the official Records of Pinellas County. These lots are located on Clearwater Beach in an area zoned CTF-28. For the past several years beach chairs, umbrellas and cabanas have been rented for use in the vicinity of these lots and a portable 4' x 8' building standing on these lots has been used to store the chairs, umbrellas and cabanas when not rented. Gray proposes to replace the 4' x 8' building with an 8' x 10' portable aluminum shed from which to operate the business of renting beach equipment and expand it to include the sale of suntan lotion, soft drinks, and related items. The business will be operated by Roy Pearl, a co-applicant with Gray in these proceedings. Gray and Pearl applied for a building permit to erect the portable shed and their application was rejected by the City of Clearwater Building Department on the basis that the proposed use of the property was not in conformity with the Building and Zoning Regulations and did not fit the special exceptions provided by Section 131.099 of the Zoning Regulations. The latter determination was made by the Clearwater Planning Department. Gray then submitted on a City of Clearwater form an Application-- Request for Special Exception to the Clearwater Board of Adjustment and Appeal on Zoning, which, as noted above, approved the application. The area in question comprises a private beach; and businesses in the vicinity consist of motels, hotels, apartments and restaurants. An 8-unit motel occupies part of the site involved. The location of the proposed portable aluminum shed is on Lots 12 and 13, approximately 150 feet seaward of the seawall which separates the beach from the business establishment seaward of Gulf View Boulevard. Approximately 150 feet south of this proposed location is a similar storage shed operated in conjunction with a sailboat rental business. Some of the hotels and motels on Clearwater Beach rent umbrellas, chairs and cabanas, some of which are stored when not in use in storage sheds located more than 100 feet from the main building. On the public beach the City of Clearwater operates a concession which provides the same services proposed by applicant. The chairs, umbrellas, and cabanas are utilized by guests of the motels and apartments located in the vicinity and by tourists who are using this area of the beach for sunbathing or swimming.
The Issue The ultimate issues to be resolved in this proceeding are whether the Respondent has committed violations of the Florida Condominium Act (Chapter 718, Florida Statutes) and, if so, whether a cease and desist order and/or civil fine should be imposed. Petitioner contends that the allegations of the Notice to Show Cause have been established and that a cease and desist order and civil fine are appropriate. The Respondent contends that to the extent any violations of the Act have been established, they are only of a technical sort, and do not justify the imposition of any sanction.
Findings Of Fact Nautico Bay Club, Inc., is the developer of the Nautico Bay Condominium, located at 6937 Bay Drive, Miami Beach, Florida. At all times material to this proceeding, Samuel Weintraub was the president of Nautico Bay Club, Inc., and was primarily responsible for conducting its day-to-day business activities. The Nautico Bay Club Condominium includes 48 residential units. The first units were sold on December 1, 1980. The final closing on the 48 units occurred on December 31, 1980. The Respondent failed to call an annual meeting of the unit owners at Nautico Bay Condominium during 1981. The Respondent was having some difficulty communicating with some of the unit owners because they lived outside of the country. Nonetheless, the Respondent did not give written notice to unit owners of an annual meeting during 1981, did not post notice of an annual meeting during 1981 on the condominium property, did not send a notice of an annual meeting during 1981 by mail to each unit owner, and did not retain a post office certificate of mailing as proof of mailing of notice to unit owners. No annual meeting of unit owners was conducted during 1981. As the developer who maintained control over condominium activities during 1981, the Respondent was obliged to call and conduct an annual meeting of unit owners. The Respondent retained a private public accounting firm to prepare a financial statement for the Nautico Bay Club Condominium for the year ending December 31, 1981. The statement was completed on February 10, 1982. The Respondent remained in charge of the administration of the condominium association at that time. The Respondent made no effort to provide copies of the financial statement by mail or personal delivery to each unit owner. While some unit owners may have obtained copies of the financial statement within 60 days of December 31, 1981, most did not. At least one unit owner did not receive a copy of the financial statement until sometime in November, 1982. On or about September 17, 1982, the Respondent turned over operation of the condominium association to the Nautico Bay Club Condominium Association. The Respondent's president, Mr. Weintraub, offered to have the financial records reviewed by the independent certified public accounting firm that he had utilized in the past. The unit owners protested and asked instead that he pay to have the documents reviewed by a firm of their choosing. The Respondent did not have the financial records and statements reviewed by an independent accounting firm. He offered to have them reviewed by the firm he had utilized in the past, but the unit owners declined that offer. In the prospectus that the Respondent offered to potential unit purchasers, an estimated monthly operating budget and an estimated annual operating budget for the condominium, and an estimated monthly operating budget and an estimated annual operating budget per unit were set out. No other proposed budget was issued for 1981, nor does it appear that one was required, since the first persons who purchased units did not do so until December, 1980. No proposed annual budget of common expenses was prepared for the 1982 calendar year. Instead, the Respondent merely utilized the estimated budgets that had been set out in the prospectus. These were never, however, presented as a proposed annual budget for 1982. The Respondent did not provide as a part of its budgets for 1981 or 1982 for reserve accounts for capital expenditures and deferred maintenance. Accounts were not established to reserve funds for roof replacement, building painting, pavement resurfacing, and the like. The estimated replacement costs of such items were not a part of any budget prepared by Respondent. The funds were neither established nor funded by the Respondent. Mr. Weintraub testified that the reason the accounts were not established is that he had difficulty collecting assessments from unit owners. It does not appear, however, that the Respondent made any effort to collect assessments from unit owners, nor that the accounts were established with such funds as could have been collected.
