Findings Of Fact On May 20, 1986, Petitioners submitted a request for two variances concerning property located at 761 Bruce Avenue, Mandalay Subdivision, Block 24, Lot 7 in the City of Clearwater. The property is zoned RS-8 (single family residential). The variances requested were for the construction of a garage 4.8 feet from the rear set-back line, rather than the required set-back of ten feet, and 4.2 feet from the side set-back line, rather than the required set-back of five feet. On June 12, 1986, the Development Code Adjustment Board granted the variance of the side set-back requirements, but denied the requested rear set- back line variance. The Petitioners own the property in question and also own the property directly behind the subject property which backs up to the rear property line. There is presently a one story frame house on the property, as well as a small cottage to the rear of the property. The cottage is 12.7 feet wide by 16.5 feet deep. Petitioners want to construct a garage next to the cottage on an existing concrete slab. The dimensions of the garage shown in their application are 12 feet wide by 16.5 feet deep. At one time a garage was attached to the cottage but now only the concrete slab remains. If the rear set-back line variance is granted, the Petitioners will be able to construct the garage with rear and front walls attached to, and flush with, the cottage. If the rear set-back variance is not granted, the garage will have to be moved forward on the property and will only partially connect to the cottage. The Petitioners will not be prevented from building the garage if the variance is denied, but will simply have to move it forward rather than attaching it fully to the cottage. It is the Petitioners' intent to use the garage primarily for storage. Yvonne Ulfers denied any intention of expanding the existing cottage, or using this variance to add another room on the cottage. If the rear set-back line variance is denied, Yvonne Ulfers testified that she would construct the garage anyway, but would move it forward on the property and would also make it deeper than the 16.5 feet proposed in her application. She stated repeatedly that she would deepen the garage by extending it all the way down the side line of her property toward the frame house in the front. The Petitioners offered no evidence concerning conditions unique to this property, or hardship that would result if the variance is not granted. There is also no evidence that this variance is the minimum necessary to construct the garage on the subject property. To the contrary, there is no dispute that the garage can be built without the rear set-back line variance.
Findings Of Fact In January, 1985, Petitioner acquired an existing retail florist business located at 416 Indiantown Road, Jupiter, Florida. Petitioner's business occupied one-half of the building located at that address. The remainder of the building housed La Casa Mexican Restaurant and a Metro Cellular Phone business. At the time that Petitioner acquired the business, the parking lot for the building consisted of 15 spaces and was shared by all three businesses. Six of those spaces were located behind the building and were accessible from an alley. Nine of those spaces, including the handicapped space, were located in front of the building and were accessible from Indiantown Road. The parking lot for the building constituted a legal non-conforming use, that is, it was permitted to exist without meeting current code requirements of the local government. The business lease entered into by the Petitioner on January 21, 1985, for a term of thirty months was essentially a "standard form" lease. However, Petitioner as Lessee and Petitioner's Lessor specifically added to the standard lease language a twenty-fourth clause which provided as follows: Twenty-Fourth: In the event Indiantown Road is widened during the term of this lease and the widening project results in a loss of more than two of the present ten [sic] parking spaces in front of the building, then the rental payments under this lease can be renegotiated by the parties, and if such renegotiations do not result in terms satisfactory to the tenant, the tenant will have the right to cancel this lease with thirty days notice to the landlord. Accordingly, Petitioner specifically retained the right to either stay or vacate the leased premises if the road-widening project resulted in a loss of more than two of the parking spaces in front of the building. The Department subsequently commenced its road-widening project which resulted in the Department's "taking" of two of the parking spaces in front of the building. The Department paid Petitioner's claim for business damages as a result of the loss of two parking spaces in the condemnation proceeding involving Petitioner and the property owner. After the loss of the two parking spaces, the front parking lot was re- designed so as to more closely comply with local code requirements. That re- design of the parking spaces reduced the number of spaces in front of the building by an additional two, resulting in a total reduction of parking spaces in front of the building by four. The re-design left a total of five spaces in front of the building, including a handicapped space. Although a local government can require a legal non-conforming use to be made conforming under certain circumstances, there is no evidence that the local government required the owner of the property leased by Petitioner to re- design the front parking lot according to code requirements. Accordingly, there is no showing that the deletion of the two additional parking spaces was a direct result of the road-widening project. On approximately July 1, 1991, Petitioner moved its retail florist business to 323 West Indiantown Road, Jupiter, Florida. Petitioner relocated its business at that time because Petitioner's president believed that business "...was at a point where it was just going to be falling off." (R. 37). The relocation of Petitioner's business was caused by Petitioner's decision to conduct its business from a different location. Petitioner did not move its business as a direct result of the Department's acquisition of two parking spaces. Accordingly, Petitioner is not eligible for relocation benefits.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for relocation benefits. DONE and ENTERED this 3rd day of November, 1993, at Tallahassee, Florida. LINDA M. RIGOT 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 3rd day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7265 The Department's proposed findings of fact numbered 5-8 and 10 have been adopted in substance in this Recommended Order. The Department's proposed findings of fact numbered 1 and 2 have been rejected as being subordinate to the issues involved herein. The Department's proposed findings of fact numbered 3, 4, and 9 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Attn: Eleanor F. Turner, Mail Station 58 Tallahassee, Florida 32399-0458 James R. Clodfelter Authorized Representative Acquisition Consultant Enterprises, Inc. Boca Bank Corporate Center 7000 West Palmetto Road, Suite 503 Boca Raton, Florida 33433 Charles Gardner, Esquire Department of Transportation 605 Suwannee Street, Mail Station #58 Tallahassee, Florida 32399-0458
Findings Of Fact On or about January 26, 1990, the Respondent sought competitive bids through Invitation to Bid Number 590:2123 for the lease of certain office space in Plant City, Florida. The bid opening occurred on March 1, 1990, and Intervenor was determined to have submitted the lowest responsive bid. In addition to Intervenor's bid, bids were received from Petitioner and Walden Investment Company, which is not a party in this case. On or about May 8, 1990, the Respondent notified all bidders of its intent to award this lease to Intervenor, and on May 10, 1990, the Petitioner filed its notice of protest concerning this award claiming that Intervenor's bid was not responsive to the parking requirements in the Invitation to Bid. Section 15 of the Invitation to Bid requires that a minimum of 65 parking spaces be provided, and that a minimum of 15 of these spaces must be full size and a minimum of 5 must meet ANSI standards for handicapped parking spaces. No definition or specification for full size parking spaces is provided in the Invitation to Bid. Petitioner did not establish that there is a commonly accepted standard for full size parking spaces in the construction or development industry, or that the Respondent uniformly requires all full size parking spaces to be of certain dimensions. The Intervenor certified in its bid that it would meet the parking space requirement of the Invitation to Bid. The Respondent does not require detailed site plans which would depict actual dimensions for each parking space to be submitted with each bid. Rather, Section 10(d) of the Invitation to Bid requires only a line drawing "drawn roughly to scale", and specifies that final site layout will be a "joint effort between the department and the lessor so as to best meet the needs of the department". The Intervenor did submit a rough line drawing with its bid which depicts 71 parking spaces. The Respondent routinely accepts a bidder's certification that it will meet the parking requirements in an Invitation to Bid, and if those requirements ultimately are not met, the Respondent may proceed against the performance bond which the successful bidder is required to post. The Petitioner presented evidence that there is not enough room on Intervenor's site to provide 15 full size parking spaces measuring 10 feet wide by 20 feet long. However, there is nothing in the Invitation to Bid, or in the City of Plant City's Code which requires full size parking spaces of this dimension. Based upon its certification and the inclusion of a rough line drawing showing space for parking in excess of the requirements in the Invitation to Bid on this site,, it is found that Intervenor was responsive to the parking requirements in this Invitation to Bid.
Recommendation Based on the foregoing, it is recommended that the Respondent enter a Final Order dismissing Petitioner's protest and awarding Lease Number 590:2123 to Intervenor. DONE AND ENTERED this 3rd day of August, 1990, in Tallahassee, Leon County, Florida. DONALD D. CONN 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 3rd day of August, 1990. COPIES FURNISHED: Jack Farley, Esquire District 6 Legal Office 4000 West Dr. Martin Luther King, Jr., Blvd. 5th Floor, Room 520 Tampa, FL 33614-9990 Alan Taylor P. O. Box 7077 Winter Haven, FL 33883-7077 Richard C. Langford, Esquire P. O. Box 3706 St. Petersburg, FL 33731-3706 R. S. Power, Agency Clerk 1323 Winewood Blvd. Building One, Room 407 Tallahassee, FL 32399-0700 John Miller, General Counsel 1323 Winewood Blvd. Tallahassee, FL 32399-0700
The Issue The issue for consideration in this case was whether Respondent's license as a registered real estate salesman in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.
Findings Of Fact 1. At all times relevant to the allegations in the Administrative Complaint, the Respondent, ROGER W. DART, was licensed as a registered real estate salesman in Florida under license number 0306123. This license, however, became involuntary inactive on March 31, 1980 and was, at the times involved in this case, delinquent. 2 On February 26, 1984, Respondent placed an advertisement in the Panama City, Florida, News-Herald, under the Condominiums for Sale section of the classified advertisements which read: GULFRONT CONDO., 2BR 2B, fully fur., $79,900 By owner. 243-5356. On February 26, 1984, Respondent was not the owner of the condominium apartment so advertised. The owner was Kendal Sanborn. Telephone number 243-5356, in Panama City, Florida, is the phone number of Respondent. Pursuant to the advertisement referenced above, Respondent procured James D. Hill and Lavanda H. Hill, his wife, as purchasers of the property in question, and as a result, after the closing on April 12, 1984, Respondent received a fee of $2,000.00 for arranging the purchase. This fee was paid by a check drawn on The Commercial Bank in Panama City, on the escrow account of Lawyer's Title Insurance Corporation, dated April 23, 1984, and references the file relating to James D. Hill. Respondent admittedly holds an inactive real estate salesman's license, but has not been active in the real estate business for several years. He is a licensed boat captain for off-shore fishing boats and in the winter season, when fishing is not active, he also captains cargo boats and off-shore tug boats. He also buys and sells boats on his own. He knows and is a close friend of Kendal Sanborn, the sale of whose property gave rise to this case. Mr. Sanborn is a real estate developer from Atlanta and Respondent works for him periodically as a fishing boat captain. When Mr. Sanborn comes to the Panama City area, he generally stays with or in quarters belonging to Respondent. At the time in question, Mr. Sanborn owed Respondent a considerable amount of money for fishing trips, tackle, and rental on the property he rents from Respondent. As a matter of fact, Mr. Sanborn currently is indebted to Respondent for the same type of things. The transaction in question here was the only one in which Respondent has been involved for anyone other than himself since his license became inactive. He has never submitted any other advertisement listing his telephone number for real estate transactions (just for boats) since that time. Respondent's involvement in the one transaction in issue took place because Mr. Sanborn was indebted to him at the time for a sum substantially larger than the $2,000.00 he received. He acted as he did here both as a favor to Mr. Sanborn, who wanted to sell his property, and, also, to facilitate getting the money which was owed to him.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Roger W. Dart's license as a real estate salesman in Florida be suspended for a period of six months and that he be ordered to pay an administrative fine of $250.00. RECOMMENDED in Tallahassee, Florida, this 26th day of September, 1985. ARNOLD H. POLLOCK 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 26th day of September, 1985. COPIES FURNISHED: James R. Mitchell, Esq. Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Glenn L. Hess, Esq. 9108 West Highway 98 Panama City, Florida 32407 Harold Huff, Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore Carpino. Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Appellant acquired the residence located at 1549 Levern Street approximately three years ago. The house was constructed some 30 years age and its outside dimensions have not been altered since construction. The house abuts the front setback line which is 25 feet from the front property line. The area is zoned RS-50, which is single family homes with up to 8.7 dwelling units per net acre. Minimum lot size for RS-50 is 5,000 square feet. Appellant resides in the home with his wife, and they are the only permanent occupants. He proposes to extend the front wall of his living room eight feet into the setback area the width of the living room which is 18 feet. This will increase the size of the living room by this amount. The existing living room is quite narrow and inadequate for Appellant's wife to comfortably entertain her church group. None of Appellant's neighbors oppose the variance of eight feet into the front setback requested by Appellant, and some support this request. Most of the other homes in the vicinity of Appellant's property are in conformity with the setback requirements of the building and zoning code. Appellant's lot is not unique or unusual but is similar to other lots in this section of the city. Some inference was made that when this home was constructed setback lines had not been established in this area and that, had the original owner so desired, the house could have been constructed closer to the front lot line than the 25 feet now prescribed by the zoning regulations. Even if this is assumed to be true, it is not relevant to the request for variance here under consideration.
Findings Of Fact The Petitioners, Dale K. Niemann and Janet R. Niemann, own property on Devon Drive, in Clearwater, Florida, which is approximately two houses down the street from the Respondent, John Blakely. On or about May 25, 1990, Mr. Blakely requested two variances from the Development Code Adjustment Board of the City of Clearwater. It was his intention to seek the variances in order to extend his present dock approximately twenty-five feet (to a length of eighty-nine feet) and to allow the dock to be positioned 8 feet from an extended side property line. The Petitioners oppose the requests and argue that the extension is not necessary to make reasonable use of Respondent's dock. Further, they claim that, if allowed, the dock extension, together with the boat lift the Respondent proposes, will interfere with their view of the water. The proposed dock extension will not obstruct navigational activities. The natural shoaling process has resulted in the accretion of sand and silt along the Respondent's property. As a result, during low tides it is difficult to utilize the existing dock and would be impossible to use it for the proposed boat lift. Also, there is a grass flat landward of the proposed boat lift site upon which the Respondent's construction will not infringe. The construction of the lift at the terminus of the existing dock might disrupt that grass bed. The Respondent will not financially gain from the granting of the requested variances. The approval of the variances will not impair an adequate supply of light or ventilation to the adjacent properties, nor substantially diminish or impair the value of the surrounding property. The approval of the variances will not adversely affect the public health, safety, order, convenience or general welfare of the community. The approval of the variances will not violate the general spirit and intent of the Development Code. While the approval of the variances may alter the Petitioners' view from the side window of their residence, such alteration should not materially detract or injure their property or the property or improvements of others in the neighborhood. Other structures which Respondent could construct without the approval of variances could be more detrimental to the neighborhood.
Findings Of Fact Respondent Pierson is the owner of a parcel of land located at 7 Heilwood Street, Clearwater Beach, Florida. This parcel consists of the North 1/2 of Lot 2 and all of Lot 3 in Block 6, Revised Map of Clearwater Beach, according to the plat thereof as recorded in Plat Book 11, page 5, of the Public Records of Pinellas County, Florida. The westwardly portion of the parcel is beach front property on a coastal barrier island. When the subdivision known as Clearwater Beach Subdivision was platted, fifteen lots were placed in Block 6. The three beachfront lots were smaller in area than the other twelve lots which were uniform in size and shape. However, when Lot 2 was divided and the northern half went to Lot 3 and the southern half to Lot 1, fourteen similar parcels were created in Block 6. Pierson purchased the parcel in question as unimproved property in Clearwater Beach Subdivision in 1962. This was nine years prior to the creation of Coastal Construction Control Lines by the Florida Legislature. The establishment of the Coastal Construction Control Line for Clearwater Beach in 1977, caused building setbacks previously established by the City of Clearwater for this unimproved parcel to become even further restricted. The Coastal Construction Control Line deleted the seaward 5/8ths of the Pierson property on which a building could have been erected previously on Clearwater Beach. Few parcels on this island were impacted as severely as Respondent Pierson's by the creation of the Coastal Construction Control Line because most of these parcels already contained permanent improvements. This parcel remained vacant until Respondent Pierson erected a duplex in 1986. This improvement was constructed according to the Land Development Code in effect at the time with the following exceptions: A variance of zero setback from the Coastal Construction Control Line and a 6 foot height variance to permit construction of a building 31 feet in height were granted by the Board. At the time the variances were granted, Respondent had the option to build either a duplex or a triplex at the site. Respondent seeks to expand this structure and to convert it into a triplex. In order to complete the planned expansion, a variance of 18 feet was requested from the Board to allow construction 7 feet from the Heilwood Street right-of-way. Currently, the Code requires a 25 feet setback from a street right-of-way. In addition, a variance of two feet from the eastward property boundary was requested to allow construction up to 6 feet from this side property line. Code provisions require an 8 feet setback. The existing structure is 6 feet from this side property line. The proposed addition to the current structure would continue with that eastern setback of 6 feet to the north, with an additional 25 feet of structure extending towards Heilwood Street. The expansion of the building to the west would terminate at the Coastal Construction Control Line. The property is zoned RM-20 with a land use plan designation as high density residential developed. The parcel is 95.12 feet in length and 87 feet in width, an area of 8,242.38 square feet. Ordinarily, a parcel with these dimensions is of sufficient size to build the structure proposed by Respondent Pierson without violating the street right-of-way setback and the side property line setback mandated by the Code. In this case, setback variances are required to complete the triplex because of the Coastal Construction Control Line's location on the parcel. In his application for variance, together with evidence presented, Respondent Pierson contends that the variance request arises from a condition unique to the property. The "unique" condition being that he did not build what he now wants to build on the property before the land use restrictions currently in place limited development of the parcel to such an extent. All other lot owners in the locale chose to develop their lots earlier than Respondent did, under less restrictive conditions. As a result, Respondent Pierson's duplex is setback further from Heilwood Street than the other buildings. Deciding when and what to build as a real property improvement is part of real estate ownership. Now that Respondent Pierson wants to change his previous development decision to reflect his current intended property use, he wants the same setback benefits as those acquired by other property owners on Heilwood Street who developed their parcels during past time periods with less restrictive setbacks. The Coastal Construction Control Line and the building setbacks have been placed on the property because of legitimate state and local concerns. A driveway was placed by Respondent Pierson in front of the duplex as it faces the water at the end of a dead-end street. The location of this driveway and the existing setback of the duplex from the road beyond all of the other property setbacks on this street, make this portion of Respondent's property a convenient area for traveling cars to turn around or to park while using the beach. Respondent Pierson contends that the variances he has requested will discourage the use of his land as a turnaround area, because it would be clear to those attempting to use his driveway that they were trespassing. His primary interest is to maintain his private interests in the property which should go beyond those currently enjoyed by the public. It is a desire for these rights that control his request for the variances as opposed to a desire to secure a greater financial return. The variances granted by the Board will not be materially detrimental or injurious to the Vasilaros property. The variances, however, could impair the present value of the Petitioner's property because the expansion of the Pierson duplex into a triplex would block a large amount of the Gulf view the Vasilaros building was designed to acquire. Petitioners' lot is in the same subdivision as the parcel owned by Respondent Pierson. Even before the Vasilaros lot was improved, the landowners knew or should have known that another parcel separated this lot from the beach. Respondent Pierson is under no statutory or contractual obligation to restrict his land use to allow Petitioners a view. The variances granted would result in a nonconforming building. All of the other structures in the immediate vicinity are nonconforming because these structures were built before current zoning regulations were adopted. Respondent Pierson seeks to blend with the neighborhood on the street and to have the same nonconforming advantages. Respondent Pierson could convert the current structure into a triplex. The apartments would be much smaller than the ones contemplated in the proposed plan. He seeks to create the third apartment for his own retirement home. On August 22, 1991, the Board granted a variance of 15 feet to permit construction of a triplex 10 feet from a street right-of-way and a second variance of 2 feet to allow construction up to 6 feet from the side property line to the south because the Board found that the applicant has substantially met all the standards for approval, as listed in Section 137.012(d) of the Land Development Code. More specifically, the Board found: a) The variances arise from a condition which is unique to the property and not caused by the applicant; b) The Coastal Construction Control Line restricts the use of two- thirds of the property, allowing only 19 percent use, c) The particular physical surroundings, shape, or topographical conditions involved and the strict application of the provisions of this Development Code would result in unnecessary hardship upon the applicant; and d) The variances granted are the minimum necessary to overcome the hardship created by the minimal use of the property subject to the requisite building permit being obtained within six months from the date of this public hearing.
Recommendation Accordingly, it is ORDERED that the variances granted by the Board be set aside and the application for the variances submitted be denied. DONE and ENTERED this 11th day of February, 1992, in Tallahassee, Leon County, Florida. COPIES FURNISHED: JOHN T BLAKELY ESQ PO BOX 1368 CLEARWATER FL 34617 GEORGE W GREER ESQ 600 CLEVELAND ST - STE 685 CLEARWATER FL 34616 MILES LANCE ESQ PO BOX 4748 CLEARWATER FL 34618 CINDIE GOUDEAU/CITY CLERK CITY OF CLEARWATER PO BOX 4748 CLEARWATER FL 34618 MICHAEL WRIGHT/CITY MANAGER CITY OF CLEARWATER 112 S OSCEOLA AVE CLEARWATER FL 34618 VERONICA E. DONNELLY 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 11th day of February, 1992.
The Issue The issue presented is whether Respondents are guilty of the allegations contained in the Administrative Complaint filed by Petitioner against them, and, if so, what disciplinary action should be taken, if any.
Findings Of Fact At all times material hereto, Respondent Richard Charles Weit has been a real estate broker licensed in the state of Florida, having been issued license numbered 0094418, and Respondent R C Properties International, Inc., has been a real estate broker licensed in the state of Florida, having been issued license numbered 0195105. At all times material hereto, Respondent Weit has been licensed and operating as a qualifying officer and broker of Respondent R C Properties. Jose Martinez met Respondent Weit in approximately 1986 as a result of a newspaper ad which had been placed by Weit. Weit personally owned a number of properties. At the time, Martinez was a construction worker, looking for real estate considered to be a "handyman special." Martinez wanted to buy property which was in need of repair so that he could make the repairs and then sell the property at a profit. Martinez purchased from Respondent Weit three such properties owned by Weit during 1986 and one during 1987. He bought them, repaired them, and sold them at a profit. On several occasions, Respondent Weit sold those properties for Martinez after Martinez had executed the necessary repairs. On all occasions, Respondent Weit sold those properties to Martinez for very small down payments since they both understood that Martinez needed his available cash to make the necessary repairs in order to be able to sell them at a profit. Respondent Weit was not acting as a real estate broker in any of those transactions or in the transaction involved in this proceeding. The properties which he sold to Martinez were owned by Weit. As the business relationship developed between Martinez and Weit, both men developed a trust for each other and worked together somewhat informally in that business relationship which resulted in a profit for both of them. By 1989 Martinez had gone into business with a partner, Jesse Deveras. As a licensed general contractor, Deveras was able to "pull permits" for the repairs which Martinez needed to make to the "handyman specials." In early 1989, Martinez and Deveras talked with Respondent Weit about purchasing an apartment building that Weit owned at 227 Northeast 26th Street, Miami, Florida. The apartment building was a three-story CBS structure containing 18 units. At the time, Martinez and Deveras were interested in purchasing that apartment building and another building located on the next street. Respondent Weit set the sale price for the apartment building at $190,000 and drafted a contract to that effect. Martinez and Deveras did not wish to pay that much for that building, and the contract was never executed. Martinez and Deveras thoroughly inspected that building at that time and fully understood that the building was in need of repair. Around that time, Respondent Weit received a letter from the Department of Housing and Urban Development of Metropolitan Dade County, Florida, notifying him that the apartment building was in need of repairs and was in violation of certain minimum housing standards. That letter gave Respondent Weit 60 days in which to remedy the violations. The violations were all clearly visible and involved such things as repairing windows and screens, replacing deteriorated door jambs and baseboards, replacing broken electrical switch cover plates, and repairing the damage from some "apparent water seepage." Respondent Weit showed Martinez and Deveras that letter. On November 13, 1989, Jorge Garcia, a police officer for the City of Miami Police Department, was dispatched to Respondent Weit's apartment building to check for "criminal elements." While there, he noticed a strong smell of gas. He notified the Fire Department, which responded to his call with fire engines and a fire inspector. The Fire Department subsequently summoned an inspector from the City of Miami Code Enforcement Section. A determination was made that there was a gas leak in the building. Accordingly, the remaining tenants were evacuated, and all utility service to the building was terminated. Officer Garcia obtained from a family living there the name and telephone number of Respondent Weit as the person in charge of collecting rent. He contacted Respondent Weit and spoke with him personally no later than the following day. He advised Weit that the building was going to be condemned, that the tenants needed to be relocated, and that the building was to be boarded up to prevent entry. Since the tenants had just made a rent payment, Officer Garcia told Respondent Weit that he should refund the rent payment so the tenants could move elsewhere. Respondent Weit went to the police station on Biscayne Boulevard where Officer Garcia worked and left the rent money he had collected so that it could be returned to the tenants. On November 14, when City of Miami officials returned to the apartment building, they discovered that Respondent had complied with their instructions. The doors and windows of the apartment building were locked and boarded up to prevent entry. Further, the iron gate at the front door was padlocked and chained. Maurice Majszak was the City of Miami fire inspector who responded to the property on November 13, 1989. During his inspection he found violations of the South Florida Building Code and the National Fire Protection Agency life/safety handbook, which the City of Miami was authorized to enforce. He returned to his office and drafted a letter to Respondent Weit on that same day, describing the violations which he had found and ordering Respondent Weit to correct those violations within 45 days. That violation letter was attached to a transmittal letter dated November 14, 1989. Respondent Weit had continuing problems with receiving his mail at the address of R C Properties. Accordingly, he had made arrangements with fire inspector Maurice Majszak so that whenever the City of Miami Fire Department needed to contact Respondent regarding any of the properties owned by him, rather than mailing notices to Respondent, Inspector Majszak would hand- deliver notices to Respondent after 2:00 p.m. That arrangement had worked well over the years, and Respondent Weit had always signed for any notices which the fire department hand-delivered to him. On November 14, 1989, Inspector Majszak attempted to hand deliver the two fire department letters to Respondent Weit-- the November 13 violation letter and the November 14 transmittal letter. Since he was unable to do so because Respondent Weit was not there, Inspector Majszak subsequently sent the letters to Respondent Weit by certified mail, but he failed to receive them. Pursuant to his inspection, the inspector from the Code Enforcement Section of the Building and Zoning Department of the City of Miami directed a letter to Respondent Weit dated November 22, 1989, advising him that the apartment building needed to be repaired or demolished. That letter was sent to Respondent Weit by regular mail but was not received by him. On December 9 or 10, 1989, Martinez and Deveras approached Respondent Weit about purchasing the apartment building. They advised Respondent Weit that they had again inspected the building approximately a week earlier. Since the apartment building was now vacant (not producing rental income) and due to the nature of the repairs needed, Respondent Weit agreed to reduce the purchase price by $40,000. On December 11, 1989, Martinez and Deveras entered into a contract with Respondent Weit whereby they agreed to purchase the apartment building from him. The new purchase price was $153,000, for which Martinez and Deveras put up a deposit of only $500. The contract recited that although Respondent Weit was a registered real estate broker, he was selling the property on his own account, that no commission would be paid by the purchasers, and that the property was being sold "as is." The contract further provided that the buyers would pay $8,500 in cash at the time of closing, of which the $500 deposit would be a part. Under the contract, Respondent Weit would take back a purchase money wrap-around mortgage. The contract specifically provided that the purchasers were taking title to the building on that same day although the closing would take place at a later date. It further provided that although interest on the mortgage would begin running from that same day, no mortgage payment would be due until 75 days later. Taxes, rent, and other revenue and expenses were to be prorated as of December 11, 1989, the date of the contract. The contract also specifically recited that the apartment building being purchased was vacant. It was understood by Respondent Weit, by Martinez, and by Deveras that Weit was requiring only a small down payment because Martinez and Deveras needed to have their cash available to effectuate repairs to the building in order to rent it and then sell it at a profit. Further, all three understood that the repairs needed to commence quickly so that the building could be rented. Although the three men considered Martinez and Deveras to be the "official owners" of the building as of December 11, 1989, the date they signed the contract for the purchase and sale of the building, they knew Martinez and Deveras would not be owners of record until the closing took place. They also understood that there might be some problem with the City of Miami insofar as Deveras "pulling permits" to begin the repair work prior to Deveras and Martinez becoming the owners of record. Accordingly, at the request of Martinez and Deveras, Respondent on December 11, 1989, executed an affidavit that he had just sold the property to Martinez and Deveras. The three men reasoned that the affidavit would be sufficient to allow Deveras to begin "pulling permits." The closing was scheduled for January 12, 1990. Martinez requested that Respondent Weit's attorney prepare all of the closing documents so that Martinez could avoid incurring additional expenses relative to acquiring title to the property. No title examination was performed by Martinez or Deveras or by anyone on their behalf, and they did not require one. Prior to the closing date, Martinez again approached Respondent Weit and explained that he could not pay the cash at closing because he needed to utilize all of his money for the necessary repairs. Respondent Weit agreed that Martinez and Deveras would pay him no cash at closing and that Martinez would give him a mortgage on a different property owned by Martinez instead. The closing did take place on January 12, 1990, using a closing statement computed as of December 11, 1989. Rather than receiving cash at closing, Respondent Weit received a mortgage in the amount of $8,500 on the other piece of property owned by Martinez. Accordingly, on January 12, 1990, Martinez and Deveras became owners of record of an 18-unit apartment building for a total expenditure of approximately $500 in closing costs. Thereafter, Martinez and Deveras went to the City of Miami to "pull permits" to begin the repair work. At that time, City of Miami officials showed Deveras and Martinez copies of the November letters which had been mailed to Respondent Weit. Respondent Weit had never told Martinez or Deveras about those November letters since he had not known about them. Deveras and Martinez never made any repairs to the apartment building. Further, they never made any mortgage payments to Respondent Weit pursuant to either the mortgage on the apartment building or the mortgage on the other property owned by Martinez which had been used to substitute for the cash owed to Respondent at closing pursuant to the purchase and sale contract. Instead, on April 23, 1990, Martinez and Deveras entered into a contract to sell the apartment building to Miguel Santiago for $165,000. That contract recited that the property was being sold "as is." The only specific disclosure regarding the condition of the building contained in that contract is as follows: "Buyer acknowledges that there exists code violations on the property which he agrees to correct at his own expense." The contract further required the buyer to begin repair work on the property within two weeks of closing. Respondent Weit agreed to the transfer of the mortgage and approved of the sale to Santiago. In approximately November of 1990 he voluntarily appeared before the Unsafe Structures Board of Metropolitan Dade County, Florida, to assist the subsequent owners of the apartment building to show cause why the building should not be demolished. Eventually, the City of Miami entered into a contract for the demolition of the building. The building was demolished in September of 1991. By 1990, Martinez had become licensed as a real estate salesman in the state of Florida. Since then, he has been employed part time as a real estate salesman working out of his own home. Respondent Weit eventually filed suit against Martinez and Deveras due to their nonpayment under the mortgages. In June of 1991 Martinez and Deveras filed a complaint with the Department of Professional Regulation alleging that Respondent Weit had sold them a building without them knowing its condition. That complaint resulted in the Administrative Complaint filed in this cause.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Respondents Richard Charles Weit and R C Properties International, Inc., not guilty and dismissing the Administrative Complaint filed against them in this cause. RECOMMENDED this 11th day of June, 1992, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1992. COPIES FURNISHED: Theodore Gay, Esquire Department of Professional Regulation 401 Northwest 2nd Avenue, Suite N-607 Miami, Florida 33128 Mr. Richard C. Weit 775 Northeast 79th Street, Suite B Miami, Florida 33138-4743 R C Properties International, Inc. 775 Northeast 79th Street, Suite B Miami, Florida 33138-4743 Darlene F. Keller, Division Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 APPENDIX Petitioner's proposed findings of fact numbered 1-11 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 12 has been rejected as not being supported by any competent evidence in this cause.
Findings Of Fact Petitioner owns a beachfront home at 816 Eldorado Avenue, Clearwater Beach, Florida. The property is zoned RS-50, which is single family residential. To the rear of the property is the Gulf of Mexico. Petitioner's house is located on the setback line 25 feet from the front property line abutting Eldorado Avenue. All other homes in the vicinity have been granted variances to encroach into the front setback area. The houses to the north and south of Petitioner's home have encroached into the setback area to within ten feet of the front property line abutting Eldorado Avenue. Storms in the past have taken approximately 25 feet from the rear of Petitioner's property (as well as from the rear of adjacent property). In 1978 Petitioner added a Florida room to the south side of her house. By this application Petitioner seeks to construct a single car garage on the southeast part of her home extending eastward to within eight feet of the property line. Accordingly, a variance of 17 feet is requested. Respondent concurs that a variance of 15 feet should be granted to allow Petitioner to encroach into the setback area as much as has been authorized for others in the district. As proposed the rear of the garage would be three feet west of the front of Petitioner's house. Moving the garage further back would block the windows of Petitioner's Florida room. A garage with overall length of 20 feet with the rear of the garage three feet west of the front of the house would extend 17 feet into the setback area abutting Eldorado Avenue. This same garage with an overall length of 20 feet would have an inside dimension of 19 feet if both front and rear walls were six inches thick. A smaller depth garage would preclude the closing of the garage door for a large car and be impractical for other than a subcompact car. Petitioner's purpose for constructing the garage is to protect her car from the salt spray to which it is now subject parked in the open at this residence. Salt spray accelerates the rusting of metal on which it falls. No objection to the granting of the requested variance was submitted by any property owner in the vicinity. One of these property owners, who has owned property in the area for 30 years, testified that variances have routinely been granted property owners in this area because erosion of the beach has reduced the lot sizes and such variances have become essential.
The Issue The issues are whether Respondent engaged in a discriminatory housing practice, in violation of the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2007),1 by refusing to grant an accommodation which would have allowed Ms. Rose Marie Owens to keep a comfort cat in her condominium, and, if so, the amount of damages suffered by Ms. Owens.
Findings Of Fact Ms. Owens was a resident owner of a condominium in Longboat Harbour Condominiums (Longboat Harbour) during the alleged unlawful housing practice. Ms. Owens was a seasonal resident of the condominium from sometime in July 1987 through March 2007. Ms. Owens still owns the condominium at Longboat Harbour with Mr. Hank Airth, her husband. However, Ms. Owens and Mr. Airth purchased a second condominium after the alleged unlawful housing practice, and Ms. Owens and Mr. Airth no longer reside in the Longboat Harbour condominium. Longboat Harbour is a covered, multifamily dwelling unit within the meaning of Subsection 760.22(2). The Longboat Harbour condominium owned by Ms. Owens and Mr. Airth was a dwelling defined in Subsection 760.22(4) at the time of the alleged unlawful housing practice. Respondent is the entity responsible for implementing the rules and regulations of the Longboat Harbour condominium association. Relevant rules and regulations prohibit residents from keeping cats in their condominiums. Sometime in May 2006, Ms. Owens requested Respondent to permit her to keep a comfort cat, identified in the record as “KPooh,” as an accommodation for an alleged handicap. Respondent refused the requested accommodation, and this proceeding ensued. In order to prevail in this proceeding, Petitioner must first show that Ms. Owens is handicapped. Neither Petitioner nor Ms. Owens made a prima facie showing that Ms. Owens is handicapped within the meaning of Subsection 760.22(7). Cross-examination of Ms. Owens showed that Ms. Owens suffers from a cardiovascular ailment, osteoarthritis, and a trigeminal nerve condition. Surgery performed sometime in the 1990s improved the nerve condition. After the surgery, all of the medical conditions of Ms. Owens have been successfully treated with various medications, with no significant modification of the medications before and after Ms. Owens acquired KPooh in 2000. The testimony of Ms. Owens during cross-examination shows that Ms. Owens has never been diagnosed as suffering from depression. Nor does that testimony show that Ms. Owens has ever been diagnosed with panic disorders or panic attacks. Finally, the testimony of Ms. Owens during cross-examination shows that Ms. Owens has never been diagnosed with an emotional or psychiatric condition. A preponderance of the evidence does not show that any of the health problems suffered by Ms. Owens substantially limits one or more major life activities. Nor does Respondent regard Ms. Owens as having a physical or mental impairment. Ms. Owens and others testified concerning the medical conditions of Ms. Owens. None of that testimony showed that the medical conditions substantially limit one or more major life activities for Ms. Owens. Mr. Airth drives the vehicle for Ms. Owens most of the time and prepares most of the meals at home. However, Mr. Airth performs both life activities because he wishes to perform them. Neither Mr. Airth nor Ms. Owens testified that Ms. Owens is unable to perform either life activity. Part of the therapy medically prescribed for Ms. Owens is a special bicycle for exercises that will improve some of the medical conditions of Ms. Owens. However, as Ms. Owens testified, “I have not submitted to that . . . [because] I hate exercise.” Ms. Owens admits that exercise therapy would improve some of her medical conditions. Ms. Owens first took possession of KPooh in 2000. KPooh was a stray cat that showed up at the primary residence of Ms. Owens and Mr. Airth in Maryland. KPooh was hungry. Ms. Owens gave KPooh food and adopted KPooh. Petitioner attempts to evidence the alleged handicap of Ms. Owens, in relevant part, with two letters from the primary care physician for Ms. Owens. Each letter was admitted into evidence without objection as Petitioner’s Exhibits 3 and 4. The first letter, identified in the record as Petitioner’s Exhibit 3, is dated May 4, 2006. The text of the letter states in its entirety: Mrs. Owens has been a patient of mine since 1990. I know her very well. It is my opinion that she would suffer severe emotional distress if she were forced to get rid of her cat. I request an exception to the “No Pet” rule in her particular case. I understand that the cat is confined to her home, and that it is not allowed outside to disturb other residents. Petitioner’s Exhibit 3 (P-3). The first letter contains no diagnosis of an existing physical or mental impairment. Nor does the first letter evidence a limitation of a major life activity that is caused by a physical or mental impairment. The first letter opines that Ms. Owens, like many pet owners, would suffer severe emotional distress if she were required to get rid of her pet. However, the letter contains no evidence that the potential for severe emotional distress, if it were to occur, would substantially limit one or more major life activities for Ms. Owens. The second letter, identified in the record as Petitioner’s Exhibit 4, is dated January 2, 2007. The text of the letter consists of the following three paragraphs: Mrs. Rose Marie Owens is my patient. She has been under my care since 1990. I am very familiar with her history and with her functional limitations imposed by her medical conditions. She meets the definition of disability under the various Acts passed by the Congress of the United States since 1973. Mrs. Owens has certain limitations related to stress and anxiety. In order to help alleviate these limitations, and to enhance her ability to live independently, and to use and enjoy fully the unit she owns at Longboat Harbour Condominium, I have prescribed her cat, K-Pooh, as an emotional support animal. This should assist Mrs. Owens to cope with her disability. I am familiar with the literature about the therapeutic benefits of assistance animals for people with disabilities. Should you have questions concerning my recommendation for an emotional support animal for Mrs. Owens, please contact me in writing. P-4. The second letter does not identify a specific physical or mental impairment. The letter does not disclose what health conditions comprise Ms. Owens “medical conditions.” The letter does not describe the “functional limitations” that the doctor concludes, as a matter of law, satisfy the legal definition of a disability. Nor does the letter specify what major life activities are limited by the patient’s medical conditions. The second letter opines that KPooh will enhance the ability of Ms. Owens to live independently. The letter does not opine that KPooh is necessary for Ms. Owens to live independently. There is no evidence that KPooh is trained as a service animal. The two letters from the primary care physician of Ms. Owens are conclusory and invade the province of the trier- of-fact. The two letters do not provide specific and precise factual accounts of the medical conditions of Ms. Owens and the limitations that those conditions impose on major life activities. The two letters deprive the fact-finder of the opportunity to review and evaluate the specific and precise facts underlying the medical and legal opinions reached by the doctor. The two letters deprive the ALJ of the opportunity to independently decide the legal significance of any medical findings, which are not disclosed in either of the letters.2 Petitioner called as one of its witnesses a member of the Board of Directors (Board) for Respondent who had recommended that the Board approve the accommodation requested by Ms. Owens. Petitioner presumably called the witness, in relevant part, to bolster the two letters from the treating physician for Ms. Owens. The witness testified that his recommendation placed great weight on the fact that the doctor who authored the two letters is a psychiatrist. The undisputed fact is that the doctor specializes in internal medicine, not psychiatry. Petitioner attempted to show that Respondent’s stated reasons for denial of the accommodation were a pretext. Petitioner relied on evidence that arguably showed Respondent did not adequately investigate the alleged handicap of Ms. Owens before denying her request for an accommodation. Respondent made adequate inquiry into the alleged handicap when Ms. Owens requested an accommodation. Respondent requested a letter from the treating physician, which resulted in the letter that became Petitioner’s Exhibit 3. Finding that letter less than instructive, Respondent requested a second letter that became Petitioner’s Exhibit 4. Respondent properly determined that letter to be inadequate. In any event, this proceeding is not an appellate review of the past conduct of Respondent. This proceeding is a de novo proceeding. Counsel for Respondent fully investigated the medical conditions and alleged handicap of Ms. Owens prior to the final hearing. The investigation included pre-hearing discovery through interrogatories and requests for medical records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 26th day of June, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 26th day of June, 2009.
