The Issue Whether the subject lease should be awarded and, if so, whether the award should be to Petitioner or to Intervenor.
Findings Of Fact State Road 5 (US Highway 1) runs through Windley Key, Monroe County, Florida. Florida Department of Transportation (FDOT) District 6, headquartered in Miami, has direct operational responsibility for this highway and its adjacent right-of-way. Holiday Isle Resort and Marina, Inc. (Holiday Isle) is a corporation that owns and operates various facilities located adjacent to one another on Windley Key which offer lodging, food, beverages, entertainment, and recreation. These facilities, located easterly of State Road 5, attract a large number of patrons in automobiles. Because of a lack of parking on the Holiday Isle properties, many people have, over the past few years, parked their vehicles across State Road 5 from the Holiday Isle properties on the right-of-way that was unimproved when the request for proposal was issued. Over this time, FDOT and Holiday Isle had an informal agreement giving Holiday Isle the use of this area for overflow parking. Upwards of 400 automobiles have been parked on this right-of-way area across from the Holiday Isles properties. FDOT knew that Holiday Isle patrons and others were parking on this right-of-way area and was aware that this parking arrangement had created a tremendous traffic hazard. Numerous accidents, including fatalities, have occurred over the years involving motor vehicles pulling on and off State Road 5 and pedestrians crossing the road to and from the Holiday Isle properties. In an effort to reduce the hazardous conditions in this area, FDOT decided to lease the right-of-way for motor vehicle parking pursuant to the authority given FDOT by Section 337.25, Florida Statutes. This was the first time that District 6 of FDOT had attempted to procure a lease of this type. On September 23, 1989, FDOT placed an advertisement in appropriate Monroe County newspapers under the heading "Call for Bids". The advertisement advised that sealed bids for the lease of certain described lands would be received by FDOT at 11:00 a.m. on the 29th day of December, 1989. The lands described by the advertisement was for a substantially larger tract of land than the final tract of land described in the Request for Proposal. The advertisement gave notice that "No bid will be considered unless it is submitted on the official Proposal Form provided by the Department of Transportation". The name and address of the person from whom bidders could obtain the forms and information about the project was provided. The advertisement also contained the statement: "The Department reserves the right to reject any or all bids and to waive technical errors as may be determined best for the interest of the State." This was the only advertisement that was published for this project. Petitioner Red & White Investments, Inc. (Red & White) is a corporation organized to make investments. Paul Brumm was one of the shareholders of Red & White and was authorized to act on behalf of the corporation in pursuing the lease that is the subject of these consolidated cases. Joseph Roth was an officer of Intervenor Holiday Isle and was authorized to act on behalf of the corporation in pursuing the lease that is the subject of these consolidated cases Red & White and Holiday Isle were the only two entities to contact FDOT in response to the advertisement. FDOT determined that the legal description it had. used in its published advertisement was incorrect, advised them of the error, and delayed the issuance of its RFP until after its corrected that erroneous legal description. In March, 1990, FDOT corrected the legal description and issued its RFP to Red & White and to Holiday Isle. The RFP contained a metes and bounds description and referred to the land to be leased as being "Parcel 6003.B" and as containing 3.596 acres, more or less. The RFP was a package of three separate documents. The first document was a standard "State of Florida Request for Proposal Contractual Services Acknowledgment Form" (RFP Form) with certain deletions and additions. The second document consists of four pages entitled "Information for Prospective Bidders" (Information Document) and contains information about the subject project and constitutes special conditions applicable to the procurement. The third page is a three-page document headed "Lease Agreement" (Lease Form). Attached to the Lease Form are two exhibits: Exhibit A being a revised legal description of the parcel to be leased and Exhibit B being the page to which the bidder was to attach its conceptual site plan. The RFP Form contained general and special conditions. Among the general conditions was the following: As the best interest of the State may require, the right is reserved to reject any and all proposals or waive any minor irregularity or technicality in proposals received. Proposers are cautioned to make no assumptions unless their proposal has been evaluated as being responsive. There was no restriction stated by the RFP as to the number of proposals a proposer could submit. The RFP Form contained the following statement: SEALED PROPOSALS: All proposal sheets and this original acknowledgment form must be executed and submitted in a sealed envelope. (DO NOT INCLUDE MORE THAN ONE PROPOSAL PER ENVELOPE.) The face of the envelope shall contain, in addition to the above address, the date and time of the proposal opening and the proposal number. ... In the special requirements section of the RFP Form, proposers were required to state the amount being offered to pay for the lease on an annual and on a monthly basis, and were told to submit a "Conceptual Site Plan" as part of the proposal. Proposers were also advised that the land to be leased was vacant and was to be leased "as is", without any representations as to its suitability for any particular use or its qualification for any permits or licenses. All development had to be in conformity with all local, state, and federal laws. The Information Document constituted special conditions applicable to this procurement. Among the special conditions found in the Information Document are the following: BID FORMS: The Department of Transportation will not consider a bid to lease subject land unless it is submitted on the official "Request For Proposal - Contractual Services" form provided by the Department of Transportation. * * * MINIMUM ACCEPTABLE BID: The minimum acceptable bid shall be $58,825.00 per annum. (This requirement was subsequently changed as discussed below.) TERMS: The bid proposal shall specify the amount of monthly rent the bidder is proposing to pay. Payment in full of that amount shall be due and payable at the Lessor's office mentioned above on the first day of May, 1990, and on the first day of each succeeding month for the term of the lease. * * * SUITABILITY: Subject parcel is leased "as is" and the Lessor makes no representation regarding the suitability of the subject land for any use. It is specifically understood that the Lessor makes no representation, guarantee or warranty that the subject land will qualify for any permits or licenses as may be required by any governmental agency having jurisdiction. * * * CONCEPTUAL SITE PLAN: Each bidder must submit with his bid documents a conceptual site plan indicating how they will use and develop the site. Such plan must show all proposed modifications, including all entrances and exits, lighting fixtures, pavement, drainage structures, fences and all other proposed improvements to State Road No. 5, including but not limited to traffic signals. The plan must state that overnight camping will be prohibited by Lessee. No bid will be considered if a conceptual site plan is not included as part of the proposal. The conceptual site plan document(s) will be referred to as Exhibit "B" of the bid proposal. The conceptual site plan submitted by the successful bidder will be incorporated into the final lease as Exhibit "B". CONSTRUCTION OF IMPROVEMENTS: It is specifically understood and agreed that the successful bidder will commence construction of improvements on the leased area, in conformity with the approved Conceptual Site Plan, on or before August 1, 1990. * * * PRE-BID CONFERENCE: All prospective bidders are invited to attend a meeting to be held at the Lessor's office listed above at 11:00 A.M. on Friday, April 6, 1990. The purpose of this meeting is to provide prospective bidders an opportunity to present any questions they may have concerning this bid. Representatives of the Lessor will be present to answer such questions. FORMS: Proposal, contract, and performance bond forms may be secured from this office. Corporate seals are required on bid proposals where applicable. BID AMOUNT: All bids received will be evaluated on the basis of the rental to be paid, and (sic) the merits of the conceptual site plan, and the impact on State Road 5. The RFP required only two specific pieces of information to be generated by the proposer - the statement of rents and the conceptual plan. These were the only portions of the responses evaluated for purposes of awarding the lease. The RFP does not explain the procurement other than to limit the use of the parcel to parking. Safety problems and the parking needs for the Holiday Isle properties are not specifically addressed by the RFP. However, both Mr. Brumm and Mr. Roth were familiar with the long standing problems that existed in the subject area and knew the purposes of the RFP. The pre-bid conference was held as scheduled on April 6, 1990, with only Red & White and Holiday Isle attending as interested bidders. One of the purposes of the pre-bid conference was to permit bidders to ask questions and seek clarification. Following discussions with FDOT officials, it was determined that the legal description included in the RFP package as Exhibit A to the Lease Form was erroneous and that not all of the proposed site was upland or usable as parking. This resulted in a letter from FDOT, dated April 8, 1990, changing the term related to the price by stating that "[u]sable land value for leasing purposes has been determined to be Thirty-Five Cents ($0.35) per square foot per year", and that "[a nominal value for unusable land has been set at One Tenth of One Cent ($0.001) per square foot per year." The legal description of the area to be leased was also changed to encompass 5.190 acres, more or less, rather than the 3.596 acres, more or less, set out in the original proposal package. The revised description included lands closer to the pavement edge of State Road 5 than did Exhibit A to the Lease Form. A portion of the designated area lies within environmentally protected wetlands, contains protected species of vegetation, or is otherwise not suitable for use as a parking lot. FDOT never attempted to calculate how much of the subject property was "usable" or "unusable" and it never instructed the potential bidders as how such calculation should be made. By its letter of April 8, 1990, FDOT effectively removed the requirement from the RFP that the minimum bid for the lease be $58,825.00. FDOT left it to each proposer to determine the amount of usable land and to apply a minimum rate of $0.35 per square foot for usable land and a minimum rate of $0.001 per square foot for unusable land. Red & White timely submitted its proposal, which consisted of a proposal to pay $42,000 per year in rent, a conceptual site plan, a cover letter, a cashier's check in the amount of $4,200 and a copy of a letter, dated April 11, 1990, from Andrew M. Tobin, counsel for Holiday Isle to Mr. and Mrs. Paul Brumm. Red & White's bid amount was based on its determination that there were 113,150 square feet of usable space, and that the balance of the area was unusable. In comparison, Mr. Cochrane estimated that the value of the lease, using the methodology employed by Red & White, was $40,000. This estimate was derived by Mr. Cochrane and was not an appraised value. There was no evidence that FDOT had performed a formal appraisal of this property. Holiday Isle timely submitted two proposals in two separately sealed envelopes marked, respectively, "No. 1" and "No. 2". On April 20, 1990, representatives of both Red & White and Holiday Isle attended at FDOT offices in Tallahassee the opening of the proposals submitted in response to the RFP. At this meeting to open the proposals, Mr. Cochrane, the FDOT employee responsible for the procurement of this project was handed two sealed envelopes on behalf of Holiday Isle. These envelopes were marked "No. 1" and "No. 2", respectively. Mr. Cochrane told Mr. Tobin and Joseph Roth, Holiday Isle's representatives, that he would only open one proposal from Holiday Isle. Holiday Isle's representatives, when asked by Mr. Cochrane which of the two envelopes Holiday Isle wanted him to open, selected the envelope marked "No. 2." FDOT then opened envelope No. 2. The other envelope submitted by Holiday Isle, envelope No. 1, was not opened for the purpose of evaluating the proposal. (At the formal hearing, Holiday Isle requested and received permission to have the previously unopened envelope opened for the purpose of retrieving the cashier's check submitted with the proposal.) When the proposals were submitted, Monroe County was in the process of conducting a "focal point plan" study, required by the Monroe County Comprehensive Plan, for a portion of Windley Key designated as the "Holiday Isle Area of Critical County Concern." The area encompassed the Holiday Isle properties as well as the subject right of way. The focal point planning was to address: Design and functional character of U.S. 1 within one-half mile of the area of critical county concern; The appropriate location, placement, and functionality of adequate off-street parking for patrons to access the Holiday Isle Resort to avoid stacking of vehicles on U.S. 1; and c. An ingress and egress plan for U.S. 1 that limited access to side roads that have adequate turning, acceleration and deceleration lanes. Because of the pending focal point. plan activity and objections expressed by the Florida Department of Community Affairs, FDOT, on May 8, 1990, decided to reject both proposals. In doing so, FDOT represented that it would begin a new solicitation process if the focal point plan approved by the County and by the Department of Community Affairs revealed that leasing the subject right-of-way would be appropriate. Holiday Isle initiated formal administrative proceedings to protest the Department's decision to reject all bids. As the result of negotiations involving Holiday Isle, FDOT and the Department of Community Affairs, Holiday Isle agreed to take over the focal point plan efforts. Holiday Isle also agreed that the conceptual plan it submitted to FDOT as part of its proposal could be used as part of the focal point plan. Thereafter, the conceptual plan that had been submitted by Holiday Isle with its proposal No. 2 was incorporated as part of the focal plan. FDOT agreed to recommence the procurement process. The formal bid protest was dismissed and FDOT notified Red & White and Holiday Isle on June 14, 1990, that it would make its decision as to the award of the lease on June 19, 1990. FDOT appointed a committee consisting of three of its employees to evaluate the merits of the conceptual site plan submitted by Red & White and the Holiday Isle proposal No. 2. Mr. Cochrane was responsible for doing the economic evaluation of the proposed rents. The evaluation committee that reviewed the conceptual site plans was unaware that the Holiday Isle proposal contained a modified lease agreement but Mr. Cochrane was aware that the lease had been modified. The Holiday Isle proposal that had been contained in envelope No. 2 was recommended on June 19, 1990, by FDOT to receive the lease. This proposal consisted of a proposal to pay a conditional sum of $60,000, plus 10% of gross revenues per year, a certificate of insurance, a conceptual site plan, a "Holiday Isle Traffic and Parking Study," a lease, a cover letter, and a cashier's check in the amount of $20,000. The proposal did not state how gross revenues would be determined. Mr. Cochrane had not gotten a legal opinion as to the import of the changes made to the lease by Holiday Isle prior to the award being announced. He evaluated the proposed rents upon the annual rental shown by each proposal. Mr. Cochrane did not consider that the amount of Holiday Isle's proposed rents could be affected by a modification Holiday Isle made to the Lease Form, and he did not know how much money 10% of gross revenue would entail. In evaluating the merits of the respective conceptual plans, the evaluation committee considered that Holiday Isle would run a shuttle service to include the leased area, but that shuttle service was not included in the Holiday Isle proposal. On June 21, 1990, Red & White filed a timely protest of FDOT's intended selection of the Holiday Isle proposal. Holiday Isle did not timely protest FDOT's decision to open only one of its proposals. The lease proposal submitted by Holiday Isle as part of its response to the RFP contained material revisions to the Lease Form contained in the RFP package. Mr. Cochrane, the FDOT employee responsible for procuring the subject lease and for communicating with potential proposers, was of the opinion that the terms of the Lease Form could not be varied. Mr. Cochrane recommended to a representative of Red & White that no changes should be made to the lease form and that a proposer would run the risk of being disqualified if the terms of the lease were revised. Counsel for Holiday Isle was advised by Barbara Hobbs, FDOT counsel, not to revise the lease because FDOT counsel did not have time to review a revised lease. The RFP package does not specifically address whether a proposer may submit a modified lease as part of its proposal. It is clear, however, that Red & White relied on the statement and recommendation of Mr. Cochrane in determining not to make revisions to the lease, while Holiday Isle submitted a lease with revisions that are to its advantage. The revisions made to the lease by Holiday Isle were not minor irregularities. The changes to the Lease Form are in paragraphs 1, 3, 5, and 6 and deal, respectively with the term of the lease, the time of commencement of improvements, the payment of consideration and the adjustment of the amount of consideration depending on a future determination of usable versus unusable area, and termination. In each instance, the terms of the Lease Form was revised by counsel for Holiday Isle. Paragraphs 1, 3, 5, and 6 of the Lease Form are as follows: 1. Lessor does hereby lease unto Lessee the lands described in Exhibit "A attached hereto and made a part hereof, for a period of five (5) years beginning with the date of this agreement. Renewal of this Agreement from year to year shall be automatic until such time as terminated. 3. The Lessee hereby agrees that he will commence improvement of the leased area in conformity with the approved Conceptual Site Plan on or before August 1, 1990. Lessee shall pay the rent to Lessor in advance on the first day of each month, beginning May 1, 1990. When this Agreement is terminated, the unearned portion of any rent payment shall be refunded to Lessee. This agreement may be terminated by either party upon thirty (30) days written notice to the `other party. Paragraphs 1, 3, 5, and 6 of the revised lease submitted by Holiday Isle are as follows: 1. Lessor does hereby lease unto Lessee the lands described in Exhibit "A," attached hereto and made a part hereof for a period of five (5) years beginning with the date of this agreement. The term of this Agreement shall be automatically renewed and extended for an additional five (5) year Thereafter, this agreement shall be renewed from year to year unless otherwise provided by law or terminated as provided herein. * * * 3. The Lessee hereby agrees that it will commence improvement of the leased area in conformity with the approved Conceptual Site Plan on or before August 1, 1990. Because the parties anticipate certain delays for permitting, the parties agree that the commencement date shall be extended provided that Lessee is exercising good faith and due diligence to obtain permits as required by paragraph 13 of this lease. In the event that Lessee fails to exercise good faith and due diligence to secure the permits, Lessor, at its option, may declare Lessee in default of this agreement. * * * 5(a). Lessee shall pay to Lessor, as fixed annual rent, the sum of $59,941.90 for 3.860 acres +/- [more or less] of property designated "usable for parking" and $58.10 for 1.330 acres +/- [more or less] of property designated "unusable for parking" for a total annual rent of $60,000. Annual rent shall be payable to Lessor in equal monthly payments in advance on the first day of each month, beginning May 1, 1990. When this agreement is terminated, the unearned portion of any rent payment shall be refunded to Lessee. * * * 5(b). In addition to minimum fixed annual rent, Lessee shall pay Lessor a sum equal to 10% of the gross revenues from Lessee's parking lot operation, hereinafter "percentage rent." Payment of the percentage rent shall be paid on or before the twentieth day of each month for the preceding month's revenue. Lessee shall keep separate and accurate records of the gross revenues and it will give Lessor the right at any and all reasonable times to inspect such records. Beginning on the first anniversary date of this Lease, and on the anniversary date each year thereafter during the term of this Lease and all extensions and renewals, percentage rent shall be increased 1% each year until a maximum of 20% is reached. * * * 5(c). The parties acknowledge that the designation between "usable" and "unusable" property may be subject to correction based on actual field conditions, biological reports, or Lessee's inability to obtain required permits far part of the property. Either party shall have the right to notify the other of any incorrect designation (between usable and unusable) and to request a correct designation. A detailed and accurate survey showing the basis for the request for correction shall accompany any notification. If property has been incorrectly designated, the parties agree to adjust the annual rent to reflect the corrected designation of property based on $.35 per square foot for "usable" property and $.001 per square foot for "unusable" 6. In the event Lessor is required to utilize all or part of the lands described in Exhibit "A" for construction or additional lanes or for highway expansion, Lessor may terminate that portion required upon thirty (30) days written notice. If less than all of the property is terminated, the rental fee for the remaining property will be recalculated on a pro rata basis. The modifications to the lease by Holiday Isle were not contemplated by FDOT and gave Holiday Isle a competitive advantage not enjoyed by Red & White. On June 28, 1990, FDOT issued a special permit to Holiday Isle to improve the subject right-of-way area to make the right-of-way area safer until the bid dispute could be resolved. Under the auspices of that permit, Holiday Isle has constructed a chain-link fence to control ingress and egress to and from the parking area and has made other improvements to the right-of-way area. The chain-link fence has different gates far vehicles and pedestrians to pass through. Holiday Isle has placed fill material throughout the area. The Florida Department of Environmental Regulation has determined that the fill material is unauthorized. Holiday Isle has also placed railroad ties to serve as parking abutments and has installed lights. The parking abutments and lighting are not covered under the subject permit. The permit enables Holiday Isle to control and use the area for the parking needs of the Holiday Isle properties without having to pay rent for the right-of way area. The fence is a permanent improvement that will not necessarily be removed when the permit is terminated by FDOT. The primary purpose of this project was to make automobile traffic, parking, and pedestrian traffic safer. The RFP stated that proposals would be based on rent, the merits of the conceptual site plan, and the impact to State Road 5. The merits of the conceptual plans were evaluated based on internal circulation of traffic in the parking area, the planned ingress and egress to the parking area, planned pedestrian traffic, and improvements to State Road 5. The conceptual site plan submitted by Red & White was not prepared by professional engineers and was deficient in several material areas. Red & White's plan shaded the area to be reserved for parking, but it provided no information as to how traffic would circulate within the designated area. Red & White failed to provide information as to how State Road 5 would be impacted and failed to show what improvements, such as deceleration lanes or turn lanes, would have to be made to State Road 5. Further, Red & White's plan failed to make adequate provision for pedestrian traffic. Red & White's plan proposed two driveways, one into the parking area and one out of the parking area. The proposed exit driveway was unsafe because it was designated as a right turn only and was located too close to Whale Harbor bridge. Red & White conceptual plan provided for uses that were not contemplated by the RFP, such as an area reserved for recycling and the provision of parking areas for not-for profit groups. The conceptual plans were evaluated based on the following criteria: "access management", "internal circulation", and "traffic control litigation" "Access management" considered the location of driveways and the ease of ingress to and egress from the parking area. "Internal circulation" involves the actual development and use of the site, including parking layout and traffic flow within the designated parking area. "Traffic control mitigation" addresses safety considerations for and handling of cars and pedestrians. Although these criteria were not specified by the RFP, a conceptual site plan meeting minimum transportation engineering standards would have addressed those criteria in detail. The RFP did not set any minimum standard which would make a proposal "non-responsive" and ineligible for evaluation, and FDOT did not disqualify Red & White's conceptual plan. FDOT contemplated that minor changes could be made to the conceptual plan with its approval after the award of the lease. On June 19, 1990, FDOT announced its intention to award the project to Holiday Isle. On July 31, 1990, after the formal hearing had been convened in Case No. 90-4326BID, FDOT delivered to the parties a notice that it had decided to reject all bids. This change of position was based, in part, on the determination by FDOT that there had been confusion throughout the bid process and that the overall process was not absolutely fair.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered in Case No. 90-4326BID that rejects the proposal submitted by Intervenor, Holiday Isle, and which further rejects the proposal submitted by Petitioner, Red & White. IT IS FURTHER RECOMMENDED that a Final Order be entered in Case No. 90- 4326BID that dismisses the bid protest filed by Red & White. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of November, 1990. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-4326BID AND IN CASE NO. 90-5103BID The following rulings are made on the proposed findings of fact submitted on behalf of Red & White Investments, Inc. The proposed findings of fact in paragraphs 1-5 and 42-47 are rejected as being preliminary matters that are unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 6-17, 19-32, 34-36, 38-41, 48-52, 56-57, 62, 64-67, 74-77, 80, 86, 91, 93-95, 101-108, 111, 119-121, 123, 125-126, 130, 134, 144-145, 155, 157, 163, 165, and 174-177 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 18, 37, 81-82, 96-100, 110, 124, 127-129, 132-133, 135-136, 143, 153, 158-162, 166, and 173 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 54-55, 60, 68-72, 87-88, 90, 92, 102, 115-118, 122, 137-142, 146-152, 154, 156, 167-172, and 179-182 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraphs 33, 79, and 178 are accepted in part and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 53, 61, 73, and 83-85 are rejected as being, in part, subordinate to the findings made and as being, in part, unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 58-59 and 131 are accepted in part and are rejected in part as being legal conclusions. The proposed findings of fact in paragraphs 89, 109, 164, and 183-184 are rejected as being argument or as being contrary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted on behalf of Florida Department of Transportation: The proposed findings of fact in paragraphs 1-9, 9, 12, and 14-15 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 10 are rejected as being preliminary matters that are unnecessary to the conclusions reached. The proposed findings of fact in paragraph 13 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 16 and 17 are accepted in part and are rejected as being contrary to the findings made. The following rulings are made on the proposed findings of fact submitted on behalf of Holiday Isle Resort & Marina, Inc. The proposed findings of fact in paragraph 1 are rejected as being legal conclusions. The proposed findings of fact in paragraph 2-3, 6- 9, and 11 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 4 and 5 are adopted in part by the Recommended Order and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 10 and 12-13 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraphs 14 and 15 are rejected as being recitation of testimony and as being subordinate to the findings made. The proposed findings of fact in paragraphs 16 and 17 are adopted in part by the Recommended Order and are rejected in part as being contrary to the conclusions reached. The proposed findings of fact in paragraphs 18-19 and 22 are adopted in part by the Recommended Order and are rejected in part as being unnecessary to the conclusions reached or as being subordinate to the findings made. The proposed findings of fact in paragraphs 20 and 21 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: James S. Mattson, Esquire MATTSON, TOBIN & VETRICK Post Office Box 586 Key Largo, Florida 33307 Michael J. Cherniga, Esquire ROBERTS BAGGETT, LAFACE & RICHARD 101 East College Avenue Post Office Drawer 1838 Tallahassee, Florida 32301 Susan P. Stephens, Esquire Senior Litigation Attorney Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 ATTN: Eleanor F. Turner Robert Scanlan, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 James W. Anderson, Esquire Lewis & McKenna, P.A. Post Office Box 10475 Tallahassee, Florida 32302 Lauchlin T. Waldoch, Esquire Messer, Vickers, Caparello, French, Madsen & Lewis, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876
The Issue The issues to be determined in this case are whether Respondent discriminated against Petitioner based upon a disability in violation of section 760.10(a), Florida Statutes (2017); and, if so, what remedies are appropriate.
Findings Of Fact The original complaint filed with FCHR states in pertinent part: “I am a disabled female. I have been discriminated against based on disability. On 8/17/2017, I told my CEO (Mr. David Yokeum) that I had to leave the office due to my disability. I was feeling dizzy and needed to take my medication. . . . Respondent knew I had a previous injury on my arm/hand and that I couldn’t use my hand in an excessive amount. I re-injured my hand while cleaning and went to the Emergency Room. I was placed on medical leave until I was cleared by Hand Surgeon. . . . I was told I was no longer needed because I couldn’t clean. The Petition for Relief filed after the FCHR’s Determination of No Cause states in pertinent part: “discriminated, treated unfairly due to anxiety disorder; wrongfully demoted to cleaning person resulting in further aggravation of an injury.” No mention of the anxiety disorder appears in the original complaint. Melissa Bruno is a single mother with two sons. Her father, Thomas Tegenkamp, owns a local business in the Sunrise area. Mr. Tegenkamp has enjoyed a long-standing friendship with David Yokeum, the chief executive officer of WCA USA, Inc. (WCA). There was little, if any, evidence presented about WCA, except that Mr. Yokeum was the chief executive officer and that, at the time of Petitioner’s employment, there were approximately 25 employees. At some point, Mr. Yokeum mentioned to Mr. Tegenkamp that his company was looking for an employee for the office.1/ Mr. Tegenkamp told Mr. Yokeum that his daughter was looking for a job. No evidence was presented regarding her qualifications for the job at WCA-–her past training and job experience was as a cosmetologist. It appears from the evidence that she was hired primarily because of her father’s friendship with Mr. Yokeum. Petitioner was hired by WCA in July 2014 as a receptionist. Initially, her duties included answering the phone and the door, ordering supplies, and helping around the office. Her position was a salaried, as opposed to an hourly, position. About four months after Petitioner was hired, she was given responsibility for the UPS program. The UPS program is a billing function that needed to be completed each week, and involved downloading approximately 20,000 lines of data regarding shipping charges, separating the lines by “members,” and invoicing those members for their shipping costs. Matthew West is the regional director of North America for WCA, and has been with the company for approximately six years. He performed the duties related to the UPS program previously, in addition to several other responsibilities, and performed these duties after Petitioner’s departure. He believes that the UPS program can be completed by one person and is not a full-time job. He was not informed by Petitioner or anyone else that Petitioner had any type of disability. Sudkhanueng Bynoe has worked for WCA for 16 years in a variety of capacities, and currently serves as the company’s office manager. She participated in Petitioner’s hiring, and performs the company’s human resources functions. She remembered that, at some point, Petitioner told her that Petitioner had G.A.D. (generalized anxiety disorder), but she was not familiar with the acronym, and Petitioner did not explain what G.A.D. meant. Petitioner did not ask for any modification of her work based on her anxiety. She acknowledged that she did not advise Ms. Bynoe that her generalized anxiety disorder limited her ability to perform tasks, and did not ask for an accommodation. Both Petitioner’s brother and father testified at hearing. When asked at hearing, neither identified any disability from which Petitioner suffered while working at WCA. Both knew she took medication, but did not know what kind of medication or the basis for taking it. Neither identified any activity of daily life that was impaired by any type of disability. In late 2014, Petitioner was arrested for driving under the influence (DUI). She claimed that the reason for the arrest was that she was overmedicated for her anxiety disorder. She notified her employer about the DUI, and had a conference with Mr. Yokeum and Ms. Bynum about the legal requirements she needed to fulfill with respect to the DUI. None of the documents related to the DUI were admitted into evidence, and the specific requirements were not identified. However, it is undisputed that WCA allowed her time off to attend whatever court dates she had, and that she was allowed to come in late and leave early for an unspecified length of time because she needed to get a ride from her father to and from work. Mr. West described Petitioner as someone who tried very hard, and put in a lot of hours. However, her performance was not up to par. The UPS program needed to be completed each week, and her timeline for completion was way too long. She was often as much as a week behind. He recalled her having a couple of “meltdowns” while with the company, but was never informed that she had a disability. In addition to the length of time that it took Petitioner to complete her work each week, she developed a problem with attendance. When she did come to work, she was frequently late, and took lengthy breaks during the day. Mr. West testified that employees started with five vacation days at the beginning of employment, which would progress to ten days. He testified that there was no specific time allotted for personal time in addition to the vacation days. Ms. Bynoe indicated that employees were allotted ten days each year for vacation, and ten PTO (personal time off) days. Respondent believed that she had ten days for vacation and ten days for PTO, for a total of 20 days each year. Assuming that the attendance policy in fact allowed both vacation days and PTO days, Petitioner’s absences exceeded what was allowed. For example, in 2015, Ms. Bruno took nine days of sick leave, 15.5 days of PTO, and nine days of vacation, for a total of 33.5 days. She was allowed to work from home an additional five days, although working from home meant that someone else had to perform her receptionist duties. In 2016, she took 14 days of sick leave, 10.5 of PTO, and nine days of vacation, again for a total of 33.5 days. She came in after 10:00 a.m. an additional six days and worked from home an additional three days (two full days and two half days).2/ Petitioner had hand surgery in June 2016, which accounted for at least some of her absences. In 2017, from January 1 until August 31, Petitioner took six days of sick leave, 6.5 days of personal leave, and one day of vacation. She worked from home on 8.5 days, and was late (coming in after 10:00 a.m.) 13 times. She was also absent from the office an additional 11 days, of which ten were attributed to her suspension as of August 17, 2017. There were two occasions, although the dates were not specified, where Petitioner did not come into work and did not call to say that she would not be coming in. In short, Petitioner was late or absent more times than anyone else in the company. Because of her absenteeism, there was a meeting at some point in 2017 with Ms. Bynoe and another employee, where Ms. Bynoe requested that Petitioner sign in when she came to work and sign out when she left. She was the only employee required to sign in and out, but the procedure was implemented because of her excessive absences that other employees did not share. Petitioner’s absences were related to a variety of problems, including her mother’s passing, an anxiety disorder, dental work, hand surgery in June 2016, a partial hysterectomy, and ovarian cysts. Petitioner also had some issues with one of her sons, which increased her stress. However, the greater weight of the evidence does not indicate that she had a disability as is contemplated under the Americans with Disabilities Act. The evidence also does not establish that Petitioner ever asked for an accommodation based upon a disability. The greater weight of the testimony established that WCA made several attempts to assist her, by having people help her with carrying supplies and allowing her to occasionally work from home, even though that impeded her ability to perform her receptionist duties. In 2017, issues related to Petitioner’s performance came to a head. Mr. West had several discussions with Petitioner during the last six months of her employment, because she was often as much as a week late completing each week’s invoices. She was also often late in the mornings, and while she testified that when she came in after 10:00 a.m., it was because she was picking up supplies for the office, she did not notify her supervisor at the time that that was what she was doing. As noted above, she was allowed to work from home several times during her last year of employment. A few months before her termination, Petitioner came to work with a cast on her arm, and told Mr. West that she had dropped a couch on it at home. She had broken her wrist. However, she did not ask for a less strenuous job because of her hand, and did not ask for help with the UPS program. Other employees helped her with carrying supplies and other manual tasks. Petitioner was aware that she was behind in her work. On August 16, 2017, she spoke directly with Mr. Yokeum and told him she needed additional help. The next morning Petitioner reported to work, but had to leave for the day shortly after she started, because she was dizzy and “twitching,” and was afraid it would evolve into a panic attack. Once again, Petitioner texted Mr. Yokeum to advise him of her absence and the reason she had to leave the office. Mr. Yokeum was not her direct supervisor. On August 17, 2017, Petitioner was advised by letter from Mark Mairowitz, WCA’s Executive Vice President, that she was being suspended from the office until at least September 1, 2017, due to her office attendance. The letter she received states in part: Hello Melissa David Yokeum called me to his office this morning to express his displeasure at your office attendance record as he has grown very concerned. Because of his relationship with your father, he has asked me, as WCA Executive Vice President, to interact with you and to let you know that you are NOT to contact David from now on. He has no desire to hurt your family and so he has turned all matters regarding your employment over to me. Again, you are NOT to contact David in any way. Doing so will jeopardize your continued employment at WCA. You are only to deal with me from this day forward. Your attendance record has been examined by David and myself and we find a disturbing pattern of absence, with far more days/hours out of the office than other WCA employees. We are concerned for your health and your safety in getting to and from the office and before you can return to the office, you will be required to undergo a complete medical evaluation/examination and obtain a “clean bill of health” letter from a physician before you can return to work. Furthermore, as David will be out of the office until September 1st, he prefers you NOT be in the office until his return. So, consider yourself on suspension until that date. Mr. Mairowitz’s letter also requested that Ms. Bruno return her office computer and cell phone until she was reinstated, and advised her that her salary would be unaffected by the suspension. However, it is unclear from the letter what health issue Mr. Mairowitz is referencing. In early September 2017, Ms. Bruno returned to the office. At this time, she was relieved of her responsibilities related to the UPS program and reassigned to cleaning in addition to stocking the office and breakroom. The cleaning consisted of vacuuming, mopping the floor, and taking out the trash. From management’s point of view, this assignment would allow her to have flexible hours and less responsibility, while not suffering any reduction in pay. From Petitioner’s point of view, the change in job responsibilities was demeaning and humiliating, and meant to embarrass her. Ms. Bruno cleaned the office once, over Labor Day weekend, and did not do so again. She testified that after cleaning the office that weekend, she experienced significant pain in her hand and had to go to the emergency room to have it examined. While she testified that the emergency room sent her home with a work release for two days or until cleared by her hand surgeon, no documentation from the emergency room was submitted at hearing, and no evidence was submitted to demonstrate that the emergency room records were provided to WCA.3/ Ms. Bruno advised Mark (presumably Mark Mairowitz) that she hurt her hand and could not clean the office the way it needed to be cleaned. She did not report back to work at WCA. There was some testimony that the office was closed for a period in September related to a hurricane that hit the area, but there was no evidence as to how many days the office was closed. Petitioner’s employment was terminated as of September 29, 2017. Petitioner saw her hand surgeon on or about September 26, 2017. She submitted documentation from the Vanguard Aesthetic Plastic Surgery which is, for the most part, illegible, but is clear enough to confirm that she was seen as a patient and received some instructions. She did not report to Ms. Bynoe that she had gone to the emergency room, and did not inform her that she was unable to perform work cleaning and organizing the office because of her hand or because of any other disability. Petitioner did not testify that she was unable to perform the duties of cleaning and organizing the office because of her G.A.D. Petitioner did not establish by the greater weight of the evidence that she has a disability. However, she did establish that toward the end of her employment, WCA perceived her as having some sort of disability, as evidenced by Mr. Mairowitz’s letter to her requesting that she get a doctor’s clearance to return to work. Despite evidence that there were concerns, it is not at all clear whether WCA’s perception is based upon problems with her hand or problems caused by her anxiety disorder. Petitioner did not establish by the greater weight of the evidence that she requested an accommodation from her employer based on a disability. Likewise, she did not establish that WCA ever denied a request from Petitioner for an accommodation. Petitioner did not establish that WCA treated persons without a disability differently. No evidence was presented regarding any employee with a similar position and a similar attendance history, much less that such a person was treated differently than Petitioner. If anything, the evidence supports the view that WCA went to great lengths to accommodate Petitioner, in large part because of her father’s relationship with Mr. Yokeum.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner’s Petition for Relief be dismissed. DONE AND ENTERED this 30th day of January, 2019, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 2019.
The Issue Whether Respondent, Eve Management, Inc./KA and KM Development, Inc., denied Petitioners full and equal enjoyment of the goods and services offered at its place of public accommodation, in violation of sections 509.092 and 760.08, Florida Statutes (2011).1/
Findings Of Fact Parties and Jurisdiction Petitioners are African Americans who reside in the State of Ohio, who visited Orlando, Florida, in June 2011 and stayed at Lake Eve Resort beginning on June 21, 2011. Respondent, Eve Management, Inc./KA and KM Development, Inc., was the owner of Lake Eve Resort, located at 12388 International Drive, Orlando, Florida, at all times relevant hereto. Each Petitioner filed a Complaint of Discrimination with the Commission as follows: Jessica Austin – July 20, 2012 Denise Austin – July 21, 2012 Tracie Austin – January 18, 2013 (Amended Complaint)2/ Bonlydia Jones – July 11, 2012 James Austin – July 31, 2012 Dionne Harrington – August 1, 2012 Esther Hall – January 28, 2013 (Amended Complaint)3/ Boniris McNeal – March 27, 2013 Summer McNeal – March 27, 2013 Derek McNeal – March 27, 2013 In each Complaint, the Petitioner alleges that the most recent date of discrimination is June 22, 2011. On June 21, 2012, Petitioners Esther Hall, Summer McNeal, Boniris McNeal, Derek McNeal, and Dionne Harrington, each filed a Technical Assistance Questionnaire (TAQ) with the Commission. Each TAQ is signed by the named Petitioner, is stamped received by the Commission on June 21, 2012, and contains the specific facts alleged to be an act of discrimination in the provision of public accommodation by Respondent. Allegations of Discrimination On or about May 23, 2011, Petitioner, Boniris McNeal, entered into a Standard Group Contract with Lake Eve Resort (the Resort) to reserve 15 Resort rooms for five nights at a discounted group rate beginning June 21, 2011.4/ The rooms were to accommodate approximately 55 members of her extended family on the occasion of the Boss/Williams/Harris family reunion. Petitioners traveled from Ohio to Orlando via charter bus, arriving at the Resort on the evening of June 21, 2011. Erika Bell, a relative of Petitioners, drove a rental car from Ohio to Orlando. She did not arrive in Orlando until June 22, 2011. Petitioners checked in to the Resort without incident. However, one family member, John Harris, was informed that the three-bedroom suite he had reserved for his family was not available due to a mistake in reservations. He was offered two two-bedroom suites to accommodate his family. Petitioner, Boniris McNeal, dined off-property on the evening of June 21, 2011, to celebrate her wedding anniversary. Petitioner, Bonlydia Jones, left the Resort property shortly after check-in to shop for groceries. Petitioners, Dionne Harrington and Esther Hall, were very tired after the long bus trip and went to bed early on June 21, 2011. Petitioner, Denise Austin, arrived in Orlando with the family on June 21, 2011. On the morning of June 22, 2011, Ms. Jones received a call from Mr. Harris, informing her that the Resort management wanted to speak with them about his room. That morning, Ms. Jones and Mr. Harris met with two members of Resort management, Amanda Simon and Marie Silbe. Mr. Harris was informed that he needed to change rooms to a three-bedroom suite, the accommodation he had reserved, which had become available. Mr. Harris disputed that he had to change rooms and argued that he was told at check-in the prior evening he would not have to move from the two two-bedroom suites he was offered when his preferred three-bedroom suite was not available. After some discussion, it was agreed that Mr. Harris would move his family to an available three-bedroom suite. The Resort provided an employee to assist with the move. Following the meeting with management, Ms. Jones went to the pool, along with Ms. Harrington and other members of the family. After a period of time which was not established at hearing, Mary Hall, one of Ms. Harrington’s relatives, came to the pool and informed Ms. Harrington that the family was being evicted from the Resort. Ms. Harrington left the pool and entered the lobby, where she observed police officers and members of Resort management. She approached a member of management and was informed that she and her family were being evicted from the Resort and must be off the property within an hour. Ms. Harrington left the lobby and returned to her room, where her mother, Ms. Hall was sleeping. Ms. Harrington informed Ms. Hall that the family was being evicted from the Resort and instructed Ms. Hall to pack her belongings. Ms. Jones’ cousin, Denise Strickland, came to the pool and informed her that the family was being evicted from the Resort. Ms. Jones entered the lobby where she was approached by a member of management, who introduced herself as the general manager and informed her that the family was being evicted. Ms. Jones requested a reason, but was informed by a police officer that the owners did not have to give a reason. In the lobby, Ms. Jones observed that an African- American male was stopped by police and asked whether he was with the Boss/Williams/Harris reunion. He was not a family member. Ms. Jones observed that no Caucasian guests were approached in the lobby by management or the police. Ms. Austin was on a trolley to lunch off-property on June 22, 2011, when she received a call from her cousin, Ms. Strickland. Ms. Strickland informed Ms. Austin that the family was being evicted from the Resort and she needed to return to pack her things. Ms. Austin returned to the property, where she was escorted to her room by a security guard and asked to pack her belongings. Ms. McNeal was en route to rent a car and buy groceries on June 22, 2011, when she received a call from Ms. Strickland informing her that the family was being evicted and that she needed to return to the Resort to pack her belongings. Upon her arrival at the Resort, Ms. McNeal entered the lobby. There, she was approached by Resort staff, asked whether she was with the Boss/Williams/Harris reunion, and informed that the Resort could not honor the reservations and the family was being evicted. Ms. McNeal observed that Caucasian guests entering the lobby were not approached by either the police or Resort management. Ms. McNeal was escorted to her room by both a police officer and a member of management and instructed to be out of the room within 30 minutes. Ms. McNeal inquired why they were being evicted, but was told by a police officer that the Resort was not required to give a reason. Erika Bell received a call from her mother, Ms. Austin, while en route to the Resort on June 22, 2011. Ms. Austin informed Ms. Bell that the family was being evicted from the Resort and asked her to call the Resort and cancel her reservation. Respondent gave no reason for evicting Petitioners from the property. Respondent refunded Petitioners’ money.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order: Finding that Respondent, Eve Management, Inc./KA and KM Development, Inc., committed an act of public accommodation discrimination in violation of sections 509.092 and 760.08, Florida Statutes (2011), against Petitioners Jessica Austin, Denise Austin, Tracie Austin, James Austin, Bonlydia Jones, Esther Hall, Boniris McNeal, Derek McNeal, Summer McNeal, and Dionne Harrington; and Prohibiting any future acts of discrimination by Respondent. DONE AND ENTERED this 28th day of May, 2014, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 28th day of May, 2014.
The Issue Whether the Florida Commission on Human Relations and the Division of Administrative Hearings have jurisdiction pursuant to Section 760.34, Florida Statutes, to consider Petitioner's Petition for Relief; and Whether Petitioner timely filed his Petition for Relief with the Florida Commission on Human Relations.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Facts are made: Petitioner contracted to purchase a condominium, "unit 206 in Building 425 at Serravella at Spring Valley" from Respondent. For reasons not relevant to the issues presented for determination, closing was deferred; and on December 22, 2006, Petitioner signed and submitted an "Addendum to Contract" to Respondent that sought "to revise contract closing date to 2/28/2007." Sometime in late December 2006, a telephone conversation took place among Steve Myers, a realtor for Serra Villa, Petitioner, and Barefield. Barefield was in Alabama, and Myers and Petitioner were in Florida on a speakerphone. Barefield advised Petitioner that the addendum would not be accepted by Respondent. Barefield and Petitioner did not speak to each other after this December telephone conversation. All communication was accomplished through third parties. Subsequent to Respondent's refusal to accept Petitioner's addendum, there is lengthy correspondence and litigation involving the parties. For some time after Respondent rejected Petitioner's addendum, Petitioner desired to purchase the condominium and, apparently, indicated so in various offers communicated by his attorneys to Respondent. If an unlawful discriminatory act occurred, the determination of which is not an issue presented for determination, the act occurred in December 2006. Petitioner's Housing Discrimination Complaint dated September 17, 2008, and signed by Petitioner on September 22, 2008, was filed with United States Department of Housing and Urban Development more than one year after the alleged act of discrimination. On November 6, 2008, Petitioner sent a four-page fax transmission to Lisa Sutherland, a FCHR employee, which included a Petition for Relief. On November 13, 2008, Petitioner sent a second fax transmission of seven pages to Lisa Sutherland. Apparently, this second transmission included a Petition for Relief. On December 4, 2008, Petitioner sent a third fax transmission addressed to "Mrs. Crawford/Lisa Sutherland." While the fax transmission cover sheet is dated "11-13-08," the report of transmission shows that this 11-page transmission was sent on "12/04 15:24." The Petition for Relief forwarded by FCHR to DOAH was date-stamped "2008 DEC-4 PM 3:25."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR dismiss the Petition for Relief as being time-barred as a result of the late filing of Petitioner, Ricardo Vega's, Housing Discrimination Complaint. DONE AND ENTERED this 27th day of April, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 27th day of April, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Richard S. Taylor, Jr., Esquire 531 Dog Track Road Longwood, Florida 32750-6547 Barbara Billiot-Stage, Esquire Law Offices of Barbara Billiot-Stage, PA 5401 South Kirkman Road, Suite 310 Orlando, Florida 32819
The Issue Whether Respondent, Eve Management, Inc./KA and KM Development, Inc., denied Petitioner full and equal enjoyment of the goods and services offered at its place of public accommodation, in violation of sections 509.092 and 760.08, Florida Statutes.1/
Findings Of Fact Parties and Jurisdiction Petitioner is an African-American female who resides in the State of Missouri, who visited Orlando, Florida, in June 2011, and who had a reservation for accommodations at Lake Eve Resort beginning on June 24, 2011. Respondent, Eve Management, Inc./KA and KM Development, Inc., was the owner of Lake Eve Resort, located at 12388 International Drive, Orlando, Florida, at all times relevant hereto. Petitioner arrived in Orlando on June 17, 2011, where she stayed at the Hilton Grand International Resort (Hilton Grand) with her immediate family. Her reservation at the Hilton Grand ended on June 24, 2011, when she had reservations at the Lake Eve Resort (Resort) to join her extended family on the occasion of the Boss-Williams family reunion. On June 22, 2011, Petitioner traveled to the Resort to visit with her extended family who had arrived the previous day. When Petitioner entered the lobby of the Resort, she was met by two police officers and two women who did not immediately identify themselves. One of the police officers asked her if she was with the Boss-Williams family reunion. Petitioner inquired why she was being asked if she was with the family reunion, and was told that her party was being evicted. One of the two women with the officers, later identified as Lisa Catena, a Resort manager, asked Petitioner her name, and instructed her staff to cancel Petitioner’s reservation. Thereafter, Petitioner made several calls to members of her extended family to inform them of this turn of events. She first called her sister, Boniris McNeal, who was not on-property at the time, informed her of the eviction, and told her to return to the Resort. Next, Petitioner called her cousin, Denise Austin, who was also off-property at the time, informed her of the eviction, and told her to return to the Resort. Petitioner spent the next several hours in the lobby of the Resort talking with various family members as they returned to the Resort, or came through the lobby from other parts of the Resort, and were told they were being evicted, and waiting with family members while Resort staff worked to reverse credit-card charges and refund monies paid for room reservations. During this time period, Petitioner observed the two police officers, Ms. Catena, and the other unidentified woman, as they approached each African-American person who entered the lobby and asked whether they were with the Boss-Williams reunion. Petitioner observed that the police officers and Resort managers did not stop any non-African-American persons. Petitioner contacted a Westgate resort property in Orlando and was able to secure rooms for the family members who were evicted from the Resort. Respondent provided Petitioner no reason for canceling her Resort reservation and evicting her family from the premises. Petitioner filed a Complaint of Discrimination with the Commission on January 3, 2014. The Complaint alleges that the most recent date of discrimination was June 22, 2011. In a related case, the undersigned has found that some members of Petitioner’s family timely filed complaints of discrimination related to and arising out of the same incidents as those alleged by Petitioner. See Harrington v. Eve Management, Inc., Case No. 14-0029 (Fla. DOAH May 28, 2014). The undersigned, sua sponte, officially recognizes the Recommended Order in that matter, pursuant to Florida Administrative Code Rule 28-106.213(6).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order: Finding that Respondent, Eve Management, Inc./KA and KM Development, Inc., committed an act of public accommodation discrimination in violation of sections 509.092 and 760.08, Florida Statutes (2011), against Petitioner Denise Strickland; and Prohibiting any future acts of discrimination by Respondent. DONE AND ENTERED this 24th day of June, 2014, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2014.
Conclusions The Director, Division of Hotels and Restaurants, Department of Business and Professional Regulation (the Division), after consideration of the complete record of this case on file with the Division, enters this Final Order. 1. On July 24, 2013, the Department issued an Administrative Complaint, a copy of which is attached as Exhibit wie, 2. On October 1, 2013, a hearing in this cause was held before the Honorable Suzanne Van Wyk, Administrative Law Judge, Division of Administrative Hearings. 3. On December 11, 2013, the Honorable Suzanne Van Wyk issued a Recommended Order, a copy of which is attached as Exhibit "2". The Statement of the Issues, Preliminary Statement, Filed January 6, 2014 1:48 PM Division of Administrative Hearings Findings of Fact, Conclusions of Law, and Recommendation contained in the Recommended Order are hereby adopted in toto and incorporated herein by reference. Based upon the foregoing, and being otherwise fully advised in the premises it is, hereby ORDERED that: for Respondent's violations of Section 509, Florida Statutes, and/or the rules promulgated thereto the following penalty is imposed: 1. Respondent shall pay a fine in the amount of $100.00, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within thirty (30) calendar days of the date this Order is filed with the Agency Clerk. 2. This Final Order shall become effective on the date of filing with the Agency Clerk. DONE AND ORDERED this 3st day of “Pecen Axe , 20/3. Bele Wer fp Dusan S, Weep Diann S. Wordéalla, Director Department of Business and Professional Regulation Division of Hotels and Restaurants 1940 North Monroe Street Tallahassee, Florida 32399-1015
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by Rules 9.110 and 9.190, Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Department of Business and Professional Regulation, Attn: Ronda L. Bryan, Agency Clerk, 1940 North Monroe Street, Suite 92, Tallahassee, Florida 32399-2202 and a second copy, accompanied by the filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Florida Appellate District where the party resides. The Notice of Appeal must be filed within thirty (30) days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Certified U.S. Mail to Holland Apartments, c/o Cindy Holland, 162 Rainbow Drive, Fort Walton Beach, Florida 32548; by regular U.S. Mail to the Honorable Suzanne Van Wyk, Administrative Law Judge, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060; and by hand delivery to Marc Drexler, Chief Attorney, Division of Hotels and Restaurants, Department of Business and Professional Regulations, 1940 North Monroe Street, Tallahassee, Florida 32399-2202, this Go day of anvary , 2014 For the Division of Hotels | Hotels and Restaurants “Certified Article Number | oy 71596 4008 9411 516 1790 SENDERS RECORD.“ cory
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner because of handicap in violation of the Florida Fair Housing Act.
Findings Of Fact At all relevant times, Petitioner Shelley M. Wright ("Wright") was a graduate student at Florida International University ("FIU") in Miami, Florida. Wright has a physical disability that affects her mobility, and, as a result, she uses a wheelchair or scooter to get around. There is no dispute that Wright falls within a class of persons protected against discrimination under the Florida Fair Housing Act ("FFHA"). Respondent Servitas Management Group, LLC ("SMG"), manages Bayview Student Living ("Bayview"), a privately owned student housing community located on FIU's campus. Bayview's owner, NCCD — Biscayne Properties, LLC, leases (from FIU) the real estate on which the project is situated. Bayview is a recently built apartment complex, which first opened its doors to students for the 2016-2017 school year. On November 20, 2015, Wright submitted a rental application for a single occupancy efficiency apartment in Bayview, fitted out for residents with disabilities. She was charged an application fee of $100.00, as were all applicants, plus a "convenience fee" of $6.45. Much later, Wright would request that SMG refund the application fee, and SMG would deny her request, although it would give her a credit of $6.45 to erase the convenience fee on the grounds that it had been charged in error. Wright complains that this transaction was tainted with unlawful discrimination, but there is no evidence of such, and thus the fees will not be discussed further. Wright's application was approved, and, accordingly, she soon executed a Student Housing Lease Contract ("First Lease") for a term commencing on August 20, 2016, and ending on July 31, 2017. The First Lease stated that her rent would be $1,153.00 per month, and that the total rent for the lease term would be $12,683.00. Because Wright was one of the first students to sign a lease, she won some incentives, namely $500.00 in Visa gift cards and an iPad Pro. The First Lease provided that she would receive a $200.00 gift card upon lease execution and the balance of $300.00 upon moving in. As it happened, Wright did not receive the gift cards in two installments, but instead accepted five cards worth $500.00, in the aggregate, on August 20, 2016. There were two reasons for this. One was that SMG required lease holders to appear in-person to take possession of the gift cards and sign a receipt acknowledging delivery. Wright was unable (or unwilling) to travel to SMG's office until she moved to Miami in August 2016 to attend FIU. The other was that SMG decided not to use gift cards as the means of paying this particular incentive after integrating its rent collection operation with FIU's student accounts. Instead, SMG would issue a credit to the lease holders' student accounts in the amount of $500.00. Wright, however, insisted upon the gift cards, and so she was given them rather than the $500.00 credit. Wright has alleged that the untimely (or inconvenient) delivery of the gift cards constituted unlawful discrimination, but the evidence fails to sustain the allegation, which merits no further discussion. In May 2016, SMG asked Wright (and all other Bayview lease holders) to sign an amended lease. The revised lease made several changes that SMG called "improvements," most of which stemmed from SMG's entering into a closer working relationship with FIU. (One such change was the aforementioned substitution of a $500.00 credit for gift cards.) The amended lease, however, specified that Wright's total rent for the term would be $13,836.00——an increase of $1,153.00 over the amount stated in the First Lease. The explanation was that, in the First Lease, the total rent had been calculated by multiplying the monthly installment ($1,153.00) by 11, which did not account for the 12 days in August 2016 included in the lease term. SMG claimed that the intent all along had been to charge 12 monthly installments of $1,153.00 without proration (even though the tenant would not have possession of the premises for a full 12 months) and thus that the First Lease had erroneously shown the total rent as $12,683.00. As SMG saw it, the revised lease simply fixed this mistake. Wright executed the amended lease on or about May 10, 2016 (the "Second Lease"). Wright alleges that this rent "increase" was the product of unlawful discrimination, retaliation, or both. There is, however, no persuasive evidence supporting this allegation. The same rental amount was charged to all occupants of the efficiency apartments, regardless of their disabilities or lack thereof, and each of them signed the same amended lease document that Wright executed. To be sure, Wright had reason to be upset about SMG's revision of the total rent amount, which was not an improvement from her standpoint, and perhaps she had (or has) legal or equitable remedies available for breach of lease. But this administrative proceeding is not the forum for redressing such wrongs (if any). Relatedly, some tenants received a rent reduction through the amended leases SMG presented in May 2016, because the rates were reduced therein for two- and four-bedroom apartments. As was made clear at the time, however, rates were not reduced on the one-bedroom studios due to their popularity. Wright alleges that she subsequently requested an "accommodation" in the form of a rent reduction, which she argues was necessary because she leased a more expensive studio apartment, not by choice, but of necessity (since only the one- bedroom unit met her needs in light of her disabilities). This claim fails because allowing Wright to pay less for her apartment than every other tenant is charged for the same type of apartment would amount to preferential treatment, which the law does not require. Wright makes two claims of alleged discrimination that, unlike her other charges, are facially plausible. She asserts that the handicapped parking spaces at Bayview are unreasonably far away for her, given her limited mobility. She further asserts that the main entrance doors (and others in the building) do not afford two-way automatic entry, and that as a result, she has difficulty exiting through these doors. The undersigned believes it is possible, even likely, that the refusal to offer Wright a reasonable and necessary accommodation with regard to the alleged parking situation, her problems with ingress and egress, or both, if properly requested, might afford grounds for relief under the FFHA. The shortcoming in Wright's current case is the absence of persuasive proof that she ever presented an actual request for such an accommodation, explaining the necessity thereof, for SMG's consideration. There is evidence suggesting that Wright complained about the parking and the doors, perhaps even to SMG employees, but a gripe, without more, is not equivalent to a request for reasonable accommodation. Determinations of Ultimate Fact There is no persuasive evidence that any of SMG's decisions concerning, or actions affecting, Wright, directly or indirectly, were motivated in any way by discriminatory animus directed toward Wright. There is no persuasive evidence that SMG denied a request of Wright's for a reasonable accommodation at Bayview. In sum, there is no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of any sort of unlawful housing discrimination could be made. Ultimately, therefore, it is determined that SMG did not commit any prohibited act.
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 SMG not liable for housing discrimination and awarding Wright no relief. DONE AND ENTERED this 27th day of September, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 27th day of September, 2017.
The Issue The issues in this case are, one, whether Respondent unlawfully discriminated against Petitioner on the basis of her alleged handicap in violation of the Florida Fair Housing Act; and, two, whether Respondent subjected Petitioner to acts of coercion or retaliation as a result of Petitioner's exercise, or attempted exercise, of a protected housing right.
Findings Of Fact Petitioner Maria Thornhill ("Thornhill") owns and lives in a unit in the Admiral Farragut Condominium Apartments. Respondent Admiral Farragut Condominium Association, Inc. ("AFCA"), manages the property of which Thornhill's condominium is a part. This case continues a dispute between Thornhill and AFCA which began in 1997, when Thornhill——without first securing AFCA's permission——installed three wooden steps leading from her rear balcony down to a patio located about 30 inches below. AFCA disapproved of the steps and directed Thornhill to remove them, which was done long ago. In the past, Thornhill has alleged, among other things, that AFCA and its individual directors unlawfully discriminated against her in denying her many requests to reinstall the steps, which she claims are needed as a reasonable accommodation for her handicap.2 Consequently, the parties have been pitted against each other for years in one legal proceeding after another, in various forums including DOAH. Thornhill has lost many battles in this protracted litigation——and consequently been ordered to pay tens of thousands of dollars in sanctions, court costs, and attorney's fees. Still, she presses on. In this case, Thornhill argues, as she has for more than a decade, that she needs to attach steps to her rear balcony because she is physically unable to traverse the 30 inches which separate the balcony from the ground and hence would be trapped if a fire were to block both of the unit's two doors to the outside. Not for the first time, Thornhill alleges here that AFCA discriminated against her on the basis of handicap when it denied her request(s), the most recent of which was made in January 2004, for approval of the steps. In addition to her claim involving the steps, Thornhill alleges that AFCA has discriminated or retaliated against her, in some unspecified way(s), in connection with a boat slip, which she is, evidently, "next in line" to rent, once the lease expires under which another unit owner currently enjoys the right to use the slip. Finally, Thornhill contends that, in its efforts to collect the various money judgments it has been awarded, AFCA has retaliated against her unlawfully. Determinations of Ultimate Fact With regard to the steps, Thornhill presented no evidence suggesting that such a modification is reasonable, nor any proof that installation of such steps is necessary to ameliorate the effects of her particular handicap. There is no evidence that any of AFCA's decisions concerning the boat slip were motivated in any way by discriminatory animus directed toward Thornhill. There is likewise no evidence that AFCA ever undertook to execute or otherwise enforce the judgments it has obtained against Thornhill because of discriminatory animus. In sum, there is not a shred of competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of any sort of unlawful housing discrimination, coercion, or retaliation could possibly be made. Ultimately, therefore, it is determined that AFCA did not commit any prohibited act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding AFCA not liable for housing discrimination and awarding Thornhill no relief. DONE AND ENTERED this 20th day of January, 2010, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 2010.
