Findings Of Fact Barkwood Square Condominium was developed by Mr. John Nell (Respondent). The declaration of condominium was filed on May 23, 1980, and transfer of control from Respondent to the condominium association took place at a meeting held on June 30, 1981. At the time of turnover, Bieder Management Company was Respondent's agent for the operation, maintenance and management of Barkwood Square. Bieder was accepted as the association's agent at turnover and continued in this capacity until February, 1982. No documents were produced at the transfer meeting, and all records and accounts then in existence remained in the hands of Bieder. In February, 1982, the condominium association became dissatisfied with Bieder and replaced it with Hotz Management Company. The records turned over to Hotz by Bieder at that time were incomplete, and the association then sought the assistance of Petitioner to obtain complete records and a financial accounting. Through its investigation in 1982, Petitioner and the condominium association obtained all records available. The testimony of Petitioner's investigator and two of the unit owners (who are also condominium association directors) established that no review of the financial records of the association had ever been conducted by an independent certified public accountant (CPA). The testimony of the unit owners-directors established that Respondent had not delivered any of the following items to the association within 60 days of turnover: Original or certified copy of the declaration of condominium. A certified copy of the articles of incorporation of the association. A copy of the bylaws. Minutes of association meetings. Resignation of officers and directors resulting from change of control. The investigation revealed that Respondent owes $4,138.32 in contributions to the condominium association. Respondent concedes that he owes this amount, which is based on common expenses incurred in excess of assessments to unit owners between July and October, 1980. Respondent paid certain association expenses with personal funds and was later reimbursed. Respondent concedes this procedure was not in keeping with good accounting practices. Respondent also failed to keep or turn over to the association the financial records pertaining to the period when he did not employ a management agent.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order directing Respondent to take the corrective action discussed herein as authorized by Subsection 718.501(1)(d)(2), F.S., and assessing a civil fine in the amount of $1,500 as authorized by Subsection 718.501(1)(d)4, F.S. DONE and ENTERED this 27th day of July, 1983, in Tallahassee, Florida. R. T. CARPENTER, 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 27th day of July, 1983. COPIES FURNISHED: Helen C. Ellis, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 N. Staten Bitting, Jr., Esquire 3835 Central Avenue Post Office Box 15339 St. Petersburg, Florida 33733 E. James Kearney, Director Division of Florida Land Sales and Condominiums Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Background Respondent, Edgewater Condominium Association, Inc., is a nonprofit corporation and association of unit owners of Edgewater Beach Towers, a condominium project with sixty residential units located at 420 North Surf Road, Hollywood, Florida. It is subject to the regulatory requirements of petitioner, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Division). The project was initially constructed as a sixty five unit project. During the construction phrase, the original developer, K.S.L. Building Corporation, was unable to financially complete the project, and the project went into receivership under the auspices of the primary lender, Home Federal Savings and Loan Association of Florida. Eventually the project was completed and its declaration was filed on January 15, 1971. The respondent took over the active operation of the project that same date. An association such as respondent is subject to various Division requirements, including those relating to the levying of monthly assessments on unit owners for common expenses, and the adherence to certain association election procedures. This case stems from a complaint filed with petitioner by an attorney who represented certain unit owners. The complaint related to the manner in which respondent levied both monthly and special assessments over the years, and respondent's use of write-in ballots at annual meetings. This complaint precipitated the instant proceeding. Count I Under Division requirements, an association must levy all monthly and special assessments against unit owners in the proportions or percentages provided in the declaration. In this case, the association's declaration identifies five different classes of units, the number of each, and their percentage of ownership in the common elements. They are as follows: Type of Unit Percentage No. of Units one bedroom, one bath .01204453 1 one bedroom, one and one half bath .01475458 38 two bedroom, two bath .01927130 21 two bedroom, two bath deluxe .02205365 1 recreational units and areas .00013262 4 Paragraph 6 of the declaration specifically provides that the four recreational units "shall not contribute to the common expenses" of the association. This is also confirmed in paragraph 15(a) of the same document. Moreover, at the time the association took control of the project in January 1971, the association was required by order of the circuit court to purchase these four units for $236,000 in order to pay off subcontractor bills still owed at that time. Since their purchase, these units have remained common elements, and therefore no assessments could be properly levied on them. Unit 303 is the one bedroom, one bath unit referred to in the declaration, and has served as the manager's unit since the receiver relinquished control to the association in 1971. It, too, is characterized as a common element and is exempt from assessment requirements. The original floor plan of the twelfth floor of the structure reflects five penthouse (PH) units, of which unit PH 2/3 is the two bedroom, two bath deluxe unit referred to in the declaration. Uncontradicted testimony established that approximately one-half of that unit's floor space has been dedicated to common use and has served as the swimming pool equipment room. Consequently, the remaining portion of the unit has been properly classified as a one bedroom, one and one-half bath unit for assessment purposes. However, the declaration has never been amended to reflect this change. After taking into account the above changes, there are now and have been since 1971 only two classes of units in the project: one bedroom, one and one-half baths, and two bedroom, two baths. They number 39 and 21 units, respectively. Since its inception, the association established monthly assessments for only the above two classes of units. The monthly assessments are set forth on respondent's exhibit 1 received in evidence and reflect increases in April 1972, April 1976, October 1980, October 1984, September 1985 and May 1986. In all cases, the two bedroom, two bath monthly assessment has exceeded the smaller unit assessment by at least $10 per month, and most recently the spread increased to $16 per month. However, the assessments have not been calculated using the precise square footage of the units as dictated by the declaration. More specifically, section 15(a) of the declaration provides that "each unit owner . . . shall be liable for a proportionate share of the common expenses." This provision has not been strictly followed. Although the association amended its bylaws in February 1984 to eliminate the word "proportionately" and substitute the word "equally" when referring to future maintenance and special assessment fees, no such change was made to the declaration, and the latter document remains controlling. Through its president, respondent asserts it has, in good faith, previously charged the foregoing assessments due to financial and budgetary problems caused by the original developer being forced into receivership. However, she represented that all future assessments will be strictly assessed in accordance with the declaration. The notice to show cause alleges, and respondent concedes, that on April 13, 1985, respondent imposed a one-time special assessment of $350 on all unit owners, regardless of the size of the unit, for common element roof repairs made in April 1985. This assessment was calculated in a manner consistent with the way in which all other special assessments have been calculated in the past. According to testimony, the board of directors derived this amount by dividing the roofing contractor's bill of $21,680 by sixty units to arrive at a special assessment of $350 per unit. 1/ This was contrary to the declaration which required that such an assessment be based upon each unit owner's "percentages in the common elements," as well as section 3 of Article VII of the by-laws which states that "special assessments . . . shall be levied and paid in the same manner as hereinabove provided for regular assessments." The association opposes any requirement that it retroactively recalculate any assessment on the ground it is now impractical to do so since ownership of units may have changed hands. It also points out that it is willing to strictly adhere to all declaration requirements in the future. Count II It has been the practice of the association since 1972 to allow persons absent from annual meetings to participate by write-in vote without going through the formality of preparing a written proxy. This practice was confirmed through testimony of a unit owner who had cast a write-in vote on behalf of another unit owner at the 1985 annual meeting. Section 6 of Article V of the association's bylaws requires that voting to transact business matters at meetings shall be done "in person" or "by written proxy." This is also confirmed in Section 2 of Article IV. There is no provision for "write-in" votes in either the bylaws or the declaration. Therefore, this practice was contrary to section 8(d) of respondent's declaration, which provides that "the administration of the condominium shall be in accordance with the bylaws." Respondent has agreed to strictly adhere to this requirement in the future.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 718.115(2), Florida Statutes (1985), in two respects and Subsections 718.112(2)(b)1. and (2)(d)3., Florida Statutes (1985), in one respect as discussed in the Conclusions of Law Portion of this order. It is further recommended that a $500 civil fine be imposed, that in the future respondent cease and desist from such unlawful activities, and that it recalculate all monthly assessments on and after May, 1986, and make such additional collections or refunds (credits) as may be required. DONE and ORDERED this 15th day of July 1986, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 15th day of July 1986.
Findings Of Fact The following findings of fact are made upon the stipulation of the parties in the Prehearing Stipulation and in the course of the hearing: Respondents are developers of a condominium as defined by Section 718.103(14), Florida Statutes. Respondents are developers of The Somerset, a condominium located in Naples, Florida. The declaration of condominium for The Somerset was recorded in the public records of Collier County on or about August 27, 1979. No turnover review as prescribed by Section 718.301(4)(c), Florida Statutes (1985), was provided by the developer to the association within 60 days after the date of transfer of control of the association to non-developer unit owners, or has yet been provided to the association. On or about January 29, 1985, unit owners other than the developer had elected a majority of the members of the board of administration for The Somerset condominium. Letters of annual financial reports of actual receipts and expenditures were not furnished to unit owners following the end of the calendar years 1980, 1981, 1982, 1983, and 1984. No vote of the unit owners was taken to waive reserve accounts for capital expenditures and deferred maintenance for each of the years 1980, 1981, 1982, 1983 and 1984. The following findings of fact are made upon the evidence adduced at hearing. The turnover review and report mandated by Section 718.301(4)(c), Florida Statutes, must be prepared by a certified public accountant. Respondents sought the necessary review from the firm of Rogers, Hill and Moon, which had done the association's accounting prior to the turnover. However, Rogers- Hill was unable to perform the review in the required time. Respondents consulted with two other accounting firms, but neither could provide the turnover report. Respondents suggested to the President of the association that they would pay $1,000 to the association in lieu of the turnover report. The association accepted the offer. Respondents paid $1,000 to the association and gave the association all of Respondents' books, ledgers and receipts. Respondents did not promulgate and mail to unit owners proposed budgets of common expenses for the fiscal years 1982, 1983 and 1984. Respondents guaranteed that the assessments for common expenses imposed upon each unit owner would not exceed $75.00 per month from the date of recording the declaration of condominium until the date of turnover of control of the association. There were no meetings of unit owners of The Somerset condominium until time of the turnover. According to the original proposed budget, the items designated as reserve items were roof replacement, resurfacing, and painting. While Respondents maintain that they properly waived the funding of the reserve account for 1980, 1981, 1982, 1983, and 1984, the only evidence offered to support their testimony is the minutes of the annual meeting for each year. However, the credibility of these documents is suspect. The minutes were admittedly all prepared by Respondents in 1985, well after the supposed annual meetings. For the years 1982, 1983 and 1984, David Davis II was a director. His name appears on the minutes as offered by Respondents. Yet, Davis says he did not attend an annual director's meeting in those 3 years. Davis also says that he never attended a director's meeting at which the funding of reserves was waived. In fact, Davis never attended a director's meeting at which a proposed budget was adopted. The minutes are inherently unreliable because they were created much later in time and appear to directly conflict with the testimony of Davis. The minutes are also self-serving. Accordingly, it is found that Respondents did not properly waive the funding of the reserve account for the years 1980, 1981, 1982, 1983, and 1984. Respondents never disclosed to the unit owners that reserves were not funded. The reserve liability is $8,890.00, calculated at $8.75 per month per unit in Phase I (eight units) from August 31, 1979, and in Phase II (12 units) from November 13, 1981, plus all twenty units for the first quarter of 1985. The original budget allocates $8.75 of the assessments to reserves and the original documents (Section 8.2) specify that assessments are to be paid quarterly on January 1, April 1, July 1, and October 1. Since the turnover occurred on January 29, 1985, the assessments for the first quarter had already been paid to Respondents. Respondents expended money for reserve-type expenses. Their Exhibit 5 shows reserve-type expenditures totalling $8,164.78. However, certain of these expenditures do not qualify as reserve-type expenses and must be excluded. Specifically, payments of $485.00 to David Chalfant for repairs to leaking windows, of $560.00 to Roy Hutchinson for repairs to doors which rotted out from the rain, and of $470 Bayside Sandblasting to repair steel doors and to sandblast stains on the sidewalk, are not reserve items (roof replacement, resurfacing and painting). Therefore, Respondents established that they paid $6,649.78 for reserve-type expenses. Petitioner argues that other items should be eliminated because they are not reserve-type expenses or because they were paid after turnover. These arguments are rejected and it is found that $6,649.78 for reserve-type expenses is accurate and should be offset against the reserve liability. Respondents owe the Association $2,240.22 in reserve funds. Paragraph 8.3 of the declaration of condominium for The Somerset provides: The Board shall, in accordance with Bylaws of the Association, establish an annual budget in advance for each fiscal year, which shall correspond to the calendar year, which shall estimate all expenses for the forthcoming year required for the proper operation, management and maintenance of the condominium. . . . Upon adoption of each annual budget by the Board, copies thereof shall be delivered to each unit owner, and the assessment for each year shall be based upon such budget. . . The unit owners were not notified of any Board of Directors meeting at which a proposed annual budget would be considered or adopted. Further no unit owner received copies of proposed annual budgets, except for the budget set forth in the prospectus with the original condominium documents. In fact, no formal meeting of the Board was held to adopt an annual budget.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business Regulation, Division of Florida Land Sales, Condominium and Mobile Homes, enter a Final Order and therein order Respondents to take the following actions: Obtain and furnish to the Association a turnover review as required by Section 718.301(4)(c), Florida Statutes (1985). Pay to the Association the sum of $2,240.22 for Respondents' liability for reserves. Pay to the Petitioner a civil penalty of $5,000.00, pursuant to Section 718.501(1)(d)4, Florida Statutes. DONE and ORDERED this 10th day of December, 1986, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1986.
Findings Of Fact Respondent, Graystone Fairways Corporation (GFC), is wholly owned by Louis Wingold, a Canadian developer. He is also its president. In January, 1979, GFC entered into a five-year joint venture with Tamway Corporation (Tamway), whose president was Harvey Kaliff. The agreement provided that GFC and Tamway would construct, develop and market a two phase condominium project in Tamarac, Florida known as Fairways of Tamarac III (Fairways or project). Each phase of the project was intended to have thirty units. To date only the first phase of the project has been constructed. Building permits for the second phase have been obtained, but no construction work has commenced. The project was apparently subject to registration requirements with petitioner, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Division). It is that agency which has initiated the complaint herein, of which two of three counts therein remain pending. Under the foregoing joint venture agreement, GFC generally provided the financing for the project while Tamway provided the site construction and sales of units. The agreement further designated Tamway as the managing partner to conduct the day-to-day business of the joint venture. Among other things, Tamway was authorized to enter into purchase and sale contracts for the sale of individual units in the project. Accordingly, Wingold had no active participation in the management of the project's day-to-day business, for the agreement provided that Kaliff would have that responsibility. After Fairways of Tamarac III was constructed, Kaliff hired Ron Settler and Victoria Falzone as salespersons to market and sell the individual units. The first unit was sold by Settler to Irving A. Goodman in November, 1982. Goodman was represented by counsel at the closing and, through counsel, received a packet of documents. In the summer of 1984 Goodman learned that he should have received a prospectus prior to closing, but did not. He was given a prospectus by the present project manager, Joan Nathanson, after asking for a copy. Two other units were purchased in July and September, 1983, respectively, by Sidney G. Resnick and Morton Tolmack. Both were sold by either Settler or Falzone. Tolmack was represented by counsel at closing while Resnick had no attorney. Although both executed receipts for condominium documents which reflected a prospectus was included in their packet of documents, their oral testimony to the contrary is accepted as being more credible and persuasive, and it is found that neither received a prospectus at or before closing. When they discovered at a later date they were supposed to have received one, they were given one by Nathanson. Wingold had no knowledge of Tamway's failure to give a prospectus to Goodman, Resnick and Tolmack. He first learned of this when the complaint herein was filed. Sometime in 1983 or early 1984, Wingold discovered that Kaliff was not fulfilling the terms of his obligation under the joint venture. Beginning in February, 1984, three circuit court actions were filed, and a settlement, the joint venture was dissolved, and GFC was given exclusive title and rights to the project by Tamway/Graystone. According to Wingold, Settler was convicted on 22 counts of theft from the project. He was dismissed from employment around May, 1984. During the course of the above litigation, no units could be sold because Kaliff would not agree to sign any documents conveying clear title to the purchaser. Consequently, no sales efforts could be made during this period of time. Except for the time when the litigation was pending, the unsold project units were being offered for sale by the developer in the ordinary course of business. When the settlement was executed on September 5, 1984, thirteen out of thirty units had been sold by Kaliff and Tamway. The last closing under Kaliff's management occurred in May, 1984. Wingold hired a new project manager that same month, and after the litigation was settled, began advertising in local newspapers in an effort to sell the remaining units. This included periodic advertising in two Fort Lauderdale newspapers in September and October, 1984 and January, 1985. This effort met with little or no success due to the then-existing "glut" of condominiums in South Florida. Wingold then searched for a broker to sell the units. Although he had a difficulty in finding a broker who was interested in marketing the units, in February, 1985 he executed a six-month agreement with Condovest, Inc., a firm in Miami that specializes in such sales. Since September, 1984 the developer has closed on six units and has four more under constract at the present time. This leaves seven unsold units, all of which are now rented except one which is used as a model apartment and office. The office is open only on week-days except by special appointment. The unsold units were rented by Wingold due to a large monthly payment ($15,000) on the construction loan. Such units were offered for rent in local newspaper advertisements and at one time on a sign appearing at the front entrance to the property. The rents are used to cover the debt service until the units are sold. The oldest lease agreement expires in May, 1986. Therefore, only the model unit is immediately available for occupancy by a buyer. All others must be sold subject to the lease. Even so, four units are now under contract subject to the leases, and Wingold continues to seek buyers for the remaining rented units. Subsection 718.503(2), Florida Statutes (Supp. 1984), requires that a prospectus be given to purchasers of condominium units prior to closing. Goodman, Resnick and Tolmack were not given such documents as required by law. This finding is based upon the testimony of the three unit owners which is accepted as being the more persuasive evidence on this issue. However, there is no evidence that any of the three was harmed or disadvantaged by their failure to receive copies of the prospectus until 1984 or 1985, particularly since two were represented by counsel at closing. Subsection 718.301(2), Florida Statutes (Supp. 1984), also requires that a meeting be called to allow unit owners to elect a majority of the members of the board of administration when none of the unsold units in the project are being "offered for sale by the developer in the ordinary course of business." There is no evidence of record as to how the agency construes that term, or what is the generally accepted meaning within the condominium industry. It is undisputed that no meeting has yet been called by Wingold. However, Wingold has not done so nor is he required to do so since units have been and are still being offered for sale in the ordinary course of business. Besides this, he fears that he cannot fulfill the terms of the four pending purchase and sell contracts if control of the project is turned over to the present unit owners.3 But this concern is irrelevant to a determination of the issue presented herein.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in Count II of the amended notice to show cause, and that it be fined $500.00 to be paid within thirty days from date of the Final Order in this Cause. Count I should be DISMISSED, with prejudice. DONE and ORDERED this l6th day of December, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER 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 16th day of December, 1985.
Findings Of Fact The Declaration of Condominium for Oaks of Broward was filed by Margen, a Florida Partnership, in May, 1974 in the Public Records of Broward County and with the Petitioner. All documents required to be filed by Margen with Petitioner were filed and the fees paid. Simultaneously a recreational lease was filed of property adjacent to the condominium in which Barnett Bank of Hollywood was named as Trustee and Lessor, and The Oaks Condominium Association, Inc. of Broward as Lessee. Between May 1974 and early 1976 Margen sold to individuals 39 condominium units at Oaks of Broward. In early 1976, Housing Investment Corporation, mortgagee, began foreclosure proceedings which resulted in title to all of the Oaks condominium property, except for the 39 units previously sold, being taken by The Oaks of Broward, Inc., Respondent. Thereby Respondent became successor in title to the previously unsold 75 units in the building and to the position of the Lessor on the long-term recreational lease. On or about August 1977, Respondent offered for sale the 75 condominium units pursuant to prospectus admitted into evidence as Exhibit 2. In addition thereto and as part of the sales effort Respondent executed and recorded the Declaration Waiving Rents, a copy of which was admitted into evidence as Exhibit Neither of these documents was filed with Petitioner. The 75 units owned by Respondent were sold with the recreational lease rents waived. Pursuant to the terms of the recreational lease the original 39 buyers pay $20 per month, either to the Association or directly to the Lessor. This lease is a net/net lease, which means the Lessor performs no services except to provide the premises themselves. The Condominium Association is responsible for and pays all maintenance, taxes, upkeep and expenses for the operation of the Recreation Area. All condominium units, the original 39 as well as the remaining 75, pay to the Association, as part of the common expenses, their pro rate share of those operating expenses. It is this disparate treatment of the two groups of unit owners with respect to the recreational lease rent payment of $20 per month that is one subject of Petitioner's request for a cease and desist order. The second subject of the Petition for a cease and desist order is Petitioner's contention that Respondent is a Developer and is required to file documents and pay a $10 filing fee for each of the 75 condominiums sold, regardless of whether fees for these 75 units were paid by Respondent's predecessor in title.
Findings Of Fact Eden Isles Condominiums are residential condominiums consisting of 7 identical buildings with 52 units in each building. Each building has a separate Declaration of Condominium which declaration is identical with the other 6 Declarations of Condominiums except as to the identification of the condominium. There are 4 swimming pools, parking areas, etc., the expenses for which are shared by the 7 condominiums. The Declarations of Condominiums provide for the percentage of the common ownership and expense associated with each unit in the condominium. The Declarations provide that the affairs of each condominium will be managed by the Eden Isles Condominium Association, Inc., Respondent. Duties of the Association include the preparation of budgets, collection of assessments for expense of maintaining common elements from each unit owner, maintenance of all common elements and generally conducting all of the business dealings associated with the common elements. From the inception of the Association in 1972 a common budget has been prepared for the 7 condominiums which is assessed against unit owners by taking total expenses for the common elements of the 7 buildings, dividing this by 7 and then allocating to each of the 52 unit owners in each building his pro rata share of those expenses. This has the effect of requiring the unit owners housed in Building D to share the cost for the replacement of an elevator in Building P or the replacement of a roof on Building C. The net result of the consolidated budget is to treat the 7 condominiums as one for the purpose of maintaining the common elements. When built and the Declarations of Condominiums recorded, Eden Isles was not a phased development.
The Issue The issue in this case is whether Respondent committed a discriminatory housing practice in violation of chapter 760, Florida Statutes (2010). All statutory references will be to Florida Statutes (2010), unless otherwise indicated.
Findings Of Fact On or about November 18, 2010, Petitioner filed a Housing Discrimination Complaint. The complaint was the second or third of such complaints filed encompassing the same or similar issue: Petitioner's desire to have a laundry within his personal condominium unit. Pursuant to FCHR procedure, an investigation of the matter was completed that resulted in a Notice of Determination of No Cause. Essentially, FCHR found that based upon the allegations raised by Petitioner, there was no cause from which it could be found that Respondent had violated the Florida Fair Housing Act. Thereafter, Petitioner elected to file a Petition for Relief to challenge the determination and to seek administrative relief against Respondent for the alleged violation. FCHR then forwarded the matter to DOAH for formal proceedings. Petitioner and his wife own and reside in a condominium unit on the second floor of the Ocean Park Condominium complex. The property is located in Brevard County, Florida, and is subject to covenants and restrictions adopted at the time the unit was converted from an apartment to a condominium. There is no elevator to service Petitioner's second-story unit. Previously, the building and all units therein were designed and occupied as rental apartments. Although the property was converted several years ago, the basic structure of the building was not materially changed. The condominium complex has amenities that include a commonly owned laundry facility. At all times material to the allegations of this case, Petitioner knew or should have known that a laundry could not be located within his unit as no owner may lawfully have a laundry. Further, it was evident to Petitioner that his unit was located on the second floor accessed only by stairs at the time he purchased the condominium. Although Petitioner's unit is plumbed and wired for a washer and dryer, the laundry connections were not constructed in accordance with, or approved by, condominium rules and regulations. Should Petitioner attempt to connect a washer and/or dryer within the unit, Respondent would take legal action to enforce the condominium rules and seek an injunction prohibiting the use of the appliances. Respondent does not believe the units were constructed so that each unit could have laundry facilities. Additionally, Respondent will take legal action to remove laundry facilities found in any unit of the complex. Petitioner is 90+ years old and announced that hauling laundry from his second-story unit to the common laundry facility is difficult, if not impossible for him to continue to do. Petitioner has numerous medical conditions that make climbing stairs and carrying laundry very difficult. Additionally, Petitioner's wife has medical issues that preclude her from transferring the laundry down and back to the condominium unit. Although the medical evidence submitted by Petitioner is hearsay, it is accepted that Petitioner and his wife have great difficulty navigating to their second-story unit. It is also accepted that carrying laundry to and from the laundry facilities would be a great burden to them. Petitioner previously filed a complaint against Respondent and asked for relief based upon disability or handicap, since neither he nor his wife can do laundry as prescribed by the condominium. In settlement of the prior complaint with FCHR, Respondent agreed to provide an aide to Petitioner who will carry the laundry down from Petitioner's unit to the condominium laundry, and return the laundry up to the apartment. Petitioner must do the actual work of loading, unloading, and preparing the laundry for return to the unit. The parties voluntarily executed a Conciliation Agreement that provided, in pertinent part: It is understood that this Agreement does not constitute an admission on the part of the Respondent that it violated the Fair Housing Act of 1983, as amended. Complainant agrees to waive and release any and all claims against the Respondent with respect to any matters which were or might have been alleged in the complaint filed with the Commission or with the United States Secretary of Housing and Urban Development, and agrees not to institute a lawsuit based on the issues alleged in these complaints under any applicable ordinance or statute in any court of appropriate jurisdiction as of the date of this Agreement. Said waiver and release are subject to Respondent’s performance of the premises and representations contained in 1a, 1b, and 2b herein. After entering into the conciliation agreement, Petitioner, his wife, and Respondent executed a Settlement of Laundry Complaint. Petitioner did not employ a lawyer to give him legal advice before signing the conciliation agreement or the settlement agreement. The settlement outlines the terms upon which Respondent is to provide assistance to Petitioner to facilitate laundry duties. Petitioner claims the only acceptable remedy at this time, is to allow Petitioner to connect a washer and dryer within his unit so that he and his wife may do laundry without leaving their home, and at such times as they may wish to perform the laundry. Petitioner maintains that this remedy will eliminate the expense of paying the aide to assist him and will be an overall savings to the condominium association. Respondent maintains that it is willing to abide by the terms of the settlement agreement previously reached with Petitioner and that the terms of the settlement control the instant case. Further, Respondent asserts no facts support a legal basis for setting aside the agreement. The only changes in circumstances since the execution of the settlement are: Petitioner is older, Petitioner and his wife are more infirm, and Petitioner does not want to have to schedule the laundry as previously agreed, due to medical appointments. With the exception of the number of medical appointments, all of the "changed circumstances" were reasonably foreseeable at the time the settlement was signed.
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 dismissing Petitioner's claim of discrimination, but reminding Respondent of the terms of the parties' agreement regarding accommodation for Petitioner's laundry needs. DONE AND ENTERED this 3rd day of May, 2011, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 3rd day of May, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Sebastian Barbagallo 311 Taylor Avenue, Apartment G19 Cape Canaveral, Florida 32920 Joe Teague Caruso, Esquire The Law Offices of Caruso, Swerbilow & Camerota, P.A. 190 Fortenberry Road, Suite 107 Merritt Island, Florida 32952 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
