Findings Of Fact On August 13, 1984, Mary E. Willis, Respondent, ran an advertisement in the Palm Beach Post Times to which a member of the public responded on August 14, 1984, by phone call. During that phone conversation Respondent offered personal services as defined in Chapter 400, Part II, Florida Statutes, to the caller for care of the caller's mother at 4837 Badger Road, for a specified monthly charge. At the time, Respondent had no valid current license to operate an Adult Congregate Living Facility. On August 18, 1984, Respondent offered to provide personal services as defined in Chapter 400, Part II, Florida Statutes, to two members of the public at 4837 Badger Road, West Palm Beach, Florida. Respondent had no valid current license on this date. On August 18, 1984, two members of the public responded to an invitation by Respondent pursuant to the above advertisement and observed Respondent operating an Adult Congregate Living Facility without a valid current license at 4837 Badger Road, West Palm Beach, Florida.
Recommendation Based upon the above findings of fact and conclusions of law, and also based upon agreement of the parties, it is recommended that a fine of $1500 be assessed against Respondent. DONE and ENTERED this 4th day of April, 1985 in Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1985. COPIES FURNISHED: K. C. Collette, Esquire HRS District Nine Legal Counsel 111 Georgia Avenue, 3rd fl. West Palm Beach, Florida 33401 Dorothy M. Walker, Esquire 349 SE 3rd Street Belle Glade, Florida 33430 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301
The Issue The ultimate issues to be resolved in this proceeding are whether the Respondent has committed violations of the Florida Condominium Act (Chapter 718, Florida Statutes) and, if so, whether a cease and desist order and/or civil fine should be imposed. Petitioner contends that the allegations of the Notice to Show Cause have been established and that a cease and desist order and civil fine are appropriate. The Respondent contends that to the extent any violations of the Act have been established, they are only of a technical sort, and do not justify the imposition of any sanction.
Findings Of Fact Nautico Bay Club, Inc., is the developer of the Nautico Bay Condominium, located at 6937 Bay Drive, Miami Beach, Florida. At all times material to this proceeding, Samuel Weintraub was the president of Nautico Bay Club, Inc., and was primarily responsible for conducting its day-to-day business activities. The Nautico Bay Club Condominium includes 48 residential units. The first units were sold on December 1, 1980. The final closing on the 48 units occurred on December 31, 1980. The Respondent failed to call an annual meeting of the unit owners at Nautico Bay Condominium during 1981. The Respondent was having some difficulty communicating with some of the unit owners because they lived outside of the country. Nonetheless, the Respondent did not give written notice to unit owners of an annual meeting during 1981, did not post notice of an annual meeting during 1981 on the condominium property, did not send a notice of an annual meeting during 1981 by mail to each unit owner, and did not retain a post office certificate of mailing as proof of mailing of notice to unit owners. No annual meeting of unit owners was conducted during 1981. As the developer who maintained control over condominium activities during 1981, the Respondent was obliged to call and conduct an annual meeting of unit owners. The Respondent retained a private public accounting firm to prepare a financial statement for the Nautico Bay Club Condominium for the year ending December 31, 1981. The statement was completed on February 10, 1982. The Respondent remained in charge of the administration of the condominium association at that time. The Respondent made no effort to provide copies of the financial statement by mail or personal delivery to each unit owner. While some unit owners may have obtained copies of the financial statement within 60 days of December 31, 1981, most did not. At least one unit owner did not receive a copy of the financial statement until sometime in November, 1982. On or about September 17, 1982, the Respondent turned over operation of the condominium association to the Nautico Bay Club Condominium Association. The Respondent's president, Mr. Weintraub, offered to have the financial records reviewed by the independent certified public accounting firm that he had utilized in the past. The unit owners protested and asked instead that he pay to have the documents reviewed by a firm of their choosing. The Respondent did not have the financial records and statements reviewed by an independent accounting firm. He offered to have them reviewed by the firm he had utilized in the past, but the unit owners declined that offer. In the prospectus that the Respondent offered to potential unit purchasers, an estimated monthly operating budget and an estimated annual operating budget for the condominium, and an estimated monthly operating budget and an estimated annual operating budget per unit were set out. No other proposed budget was issued for 1981, nor does it appear that one was required, since the first persons who purchased units did not do so until December, 1980. No proposed annual budget of common expenses was prepared for the 1982 calendar year. Instead, the Respondent merely utilized the estimated budgets that had been set out in the prospectus. These were never, however, presented as a proposed annual budget for 1982. The Respondent did not provide as a part of its budgets for 1981 or 1982 for reserve accounts for capital expenditures and deferred maintenance. Accounts were not established to reserve funds for roof replacement, building painting, pavement resurfacing, and the like. The estimated replacement costs of such items were not a part of any budget prepared by Respondent. The funds were neither established nor funded by the Respondent. Mr. Weintraub testified that the reason the accounts were not established is that he had difficulty collecting assessments from unit owners. It does not appear, however, that the Respondent made any effort to collect assessments from unit owners, nor that the accounts were established with such funds as could have been collected.
Findings Of Fact In May 1979, Respondent issued invitation for bids for office space in West Palm Beach, Florida, for the purpose of establishing a combined claims, tax, and appeals unemployment compensation office in the West Palm Beach area. The lease on the present office in West Palm Beach expires in December, 1979. Two prior invitations for bids on the required office space had failed to result in the receipt of any bids. The invitation for bids provided that Respondent reserved the right to reject any and all bids and to make the award deemed to be in the best interests of the State of Florida. (Testimony of Bradner, Exhibit 15) On May 30, 1979, Petitioner Richard S. Weinstein submitted the sole bid in response to the May 1979 invitation. He proposed to lease his building located at 1814 North Dixie Highway, West Palm Beach, and to meet all bid specifications and requirements. At the time of bid submission, Petitioner was leasing the building in question to a tenant who operated a used furniture store on the premises. In order to meet the specifications of the bid, the property required considerable renovation and improvement which Petitioner agreed to accomplish. (Testimony of Petitioner, Exhibit 2) A bid selection committee composed of four departmental employees in Respondent's Tallahassee headquarters was appointed to consider Petitioner's bid and arrive at appropriate recommendations. On June 7, 1979, one of the committee members, accompanied by several officials of the West Palm Beach Office, inspected Petitioner's building and the surrounding area to determine its suitability for the proposed unemployment compensation office. Based upon statements made by those officials and the building's tenant that the area was unsafe and subject to frequent vandalism and theft, the committee member thereafter recommended to the selection committee that the bid be rejected and that the Department should readvertise for new bids. The committee unanimously accepted the recommendation and, on June 13, 1979, Petitioner was advised in a letter from the Respondent's support services director that his bid had been rejected based on the "inability of the building to meet our programmatic needs." Petition thereafter protested the decision and, as a result, the Secretary of the Department, Wallace E. Orr, directed the entire committee to make an on-site evaluation of the property and surrounding area. Thereafter, on July 18, 1979, the committee visited the site. At this time, each committee member, together with one of the officials of the local office, inquired of various businessmen in the surrounding area as to local criminal activity and solicited their opinion as to safety and security problems. One of the committee members also telephoned a city police desk sergeant concerning crime statistics in the area. (Testimony of Petitioner, Lowhorn, Orr, Bradner, Exhibits 3-4, 12) Petitioner gave the committee members a petition from a number of local businessmen supporting his bid, and a letter from the nearby Good Samaritan Hospital advising that it may construct a medical office building adjacent to the hospital in the future. Letters were also sent to the Department by the manager of an apartment building adjacent to Petitioner's premises stating that the area was safe and that there had been no break-ins in more than four years, and from the Mayor of West Palm Beach to the Secretary of the Department describing the area and asserting that it was making a resurgence in character as a result of city improvements and that it was no more unsafe than most of the areas of the city. Another letter, dated July 20, 1979, was sent to the Department from the West Palm Beach Downtown Development Authority Executive Director stating that the area was growing, new buildings were being developed, and that the downtown area generally was becoming a "hub" for governmental facilities. Upon return to Tallahassee, each member of the bid committee rendered a report and recommendations concerning Petitioner's bid. They applied weighted criteria in its consideration, and concluded that the bid was unacceptable because it failed to meet the two criteria of "condition of immediate vicinity of location" and "security of the facility." In these respects, they basically found that (a) the various businesses in the area were essentially "fortified" against burglary and vandalism, (b) the proposed office would be subjected to break-ins and possible loss of valuable office equipment and unemployment compensation checks, (c) the local departmental employees would be fearful of working in an unsafe area and (d) an office located at Petitioner's premises would be "depressing" to members of the public who utilized the departmental services. No mention was made in the various reports of the petition or letters sent to the Department by civic officials. The committee again recommended rejection of the bid and, by letter of August 1, 1979, Petitioner was advised of this fact and that new calls for bids would be made in the near future. Secretary Orr had viewed the premises himself and agreed with the committee recommendations that the site was unsuitable for the establishment of a local office. He felt that placement of the office in the area where Petitioner's building was located would be inconsistent with departmental goals to upgrade their state offices and improve their "image." He had not been made aware of most of the various letters and the petition provided to the committee, but had considered the letter of the West Palm Beach Mayor prior to arriving at his decision. (Testimony of Butler, Frisch, Radner, Baker, Orr, Lowhorn, Renfroe, Quigg, Petitioner, Exhibits 6-10, 11-12, 16) The street on which Petitioner's building is located is commercial in nature, although it is on the fringe of a residential community. It is an older part of the city and, until about five years ago, was in a rundown and depressed condition. In recent years, however, there has been an upgrading of the character of the downtown area of West Palm Beach which extends northerly to encompass the businesses in Petitioner's vicinity. The establishment of governmental facilities in the downtown and adjacent areas have been encouraged and a state office building is located in the area. A Department of Health and Rehabilitative Services "halfway house" has been erected approximately two blocks from Petitioner's building. Additionally, a branch banking facility, professional offices, several quality restaurants, and other modern business establishments are in the near vicinity. A laundry plant is across the street from Petitioner's building and at the present time presents an unsatisfactory appearance. It is intended, however, by the owners to expand and remodel the building in the near future. The City of West Palm Beach has the second highest crime incident rate in the state based on population. The city is divided into ten zones for police purposes, and during 1978, the zone in which Petitioner's building is located was average from the standpoint of crime statistics. In the opinion of the City Chief Police Inspector, it is typical of the various commercial areas located along U.S. Federal Highway No. 1, and as safe an area in the daytime as any in the city. He is of the further opinion that a burglar alarm would be a sufficient security precaution for nighttime safety, and that with such protection, a building would have adequate security. The highest crime rate in the city is located in the zone where the city hall, police station and other governmental buildings are located. Although business and professional individuals in the area near Petitioner's building have experienced minor vandalism and occasional illegal entries in the past, they uniformly are of the opinion that the area is safe with normal security precautions, such as a burglar alarm. A local boat sales establishment has a fence around the premises and a watch dog, but no burglar alarm. These precautions are designed to protect the expensive boats which are located out- side the building. The apartment building next to Petitioner's premises has not experienced break-ins in recent years although some of its elderly patrons have been exposed to occasional purse snatching on the street. The laundry plant across the street from Petitioner's building experiences various window breakage by youths on the weekends, and had a break-in recently in the nighttime through a poorly secured door in the rear of the premises. (Testimony of Lowhorn, Stackhouse, Hauser, Hodges, Lee, Lunney, Eddy, Ring, Eaton, DeSanti, Witt (Deposition - Exhibit 1), Exhibits 12-14).
Recommendation That Petitioner's bid be accepted by Respondent and recommended for approval to the Department of General Services. DONE and ENTERED this 17th day of December, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: John C. Moyle, Esquire 707 North Flagler Drive Post Office Box 3888 West Palm Beach, Florida 33402 Kenneth H. Hart, Jr. and Chad J. Motes, Esquires Department of Labor and Employment Security 2561 Executive Center Circle E. Suite 131 Tallahassee, Florida 32301
Findings Of Fact At all times relevant hereto Susanne Bennington was licensed as a real estate broker and active firm member of Bennington & Associates, Inc., a corporate real estate broker; and Kathleen P. Archangeli was licensed as a real estate salesman in this firm. Susanne Bennington, while working as a broker/salesman for another real estate broker in 1979, sold Margaret S. Purvance a condominium at La Concha Condominium. She also negotiated the sale of land on which Beach Cottage Condominiums were subsequently built, and thereafter opened her own office of Bennington & Associates, Inc., the corporate respondent herein. Bennington & Associates became the sales agents for Beach Cottage Condominiums. Following the sale of the condominium to Purvance in 1979, Bennington and Purvance saw each other frequently, as Bennington owned the condominium next to the one she had sold to Purvance. When the sale of Reservations to Purchase Beach Cottage Condominiums was commenced, Bennington told Purvance about the project and that she thought it would be one of the better condominium projects on the Gulf Coast. During the summer of 1930 Purvance worked at the Bennington office for one week as a receptionist. She met the developer of Beach Cottage Condominiums and became aware of the enthusiasm displayed in the Bennington real estate office regarding this project. She also became aware that Bennington and Archangeli were sufficiently impressed with the potential of Beach Cottage Codominiums as an investment that both bought reservations and expected to make a profit before the time came to complete the transaction by going through the closing. On November 1, 1980, Purvance executed a Reservation Deposit (Exhibit 1) to reserve Unit 1109 A for purchase upon completion at a purchase price of $191,900 and gave Respondent Archangeli $5,000 to deposit in escrow. This contract provided that the $5,000 deposit would be applied to the purchase price at closing, that upon receipt of condominium documents, purchase agreements, and other papers, the buyer had fifteen (15) days to review the condominium documents and accept or the option to cancel the Reservation Agreement and get the full deposit returned. Construction on Beach Cottage Condominiums was commenced after the developer arranged his financing. Thereafter, Purvance, on August 31, 1981, executed a contract dated August 8, 1981, to purchase Condominium 1109 A in the Beach Cottage Condominiums for the total purchase price of $191,900 (Exhibit 4) and made an additional deposit of $14,190 which was to be held in escrow until closing at which time the balance of $172,7l0 was due from buyer. This contract provided the contract was voidable by buyer giving seller written notice to cancel within 15 days of signing the contract or receipt of all condominium documents. Upon cancellation all deposits were refundable to buyer. Purvance is a widow whose husband died in 1968 leaving her a home in Countryside free and clear, bank accounts, and a widow's portion of his pension from U.S. Steel Corporation. Although not wealthy by many standards, Purvance has sufficient income (approximately $1 ,800 per month) to live comfortably. The condominium she purchased at La Concha at a price of $135,000 with $80,000 down had obviously turned out to be a good investment and a tax shelter prior to the signing of the contract to purchase Condominium 1109 A, Beach Cottage Condominiums. Purvance read all of the documents she signed, employed an accountant to prepare her taxes, had purchased the La Concha condominium from information received from her attorney, saw this attorney socially and took him to an open house at Beach Cottage Condominiums, executed the contract to purchase in her broker's office where the contract was witnessed and the $14,190 check was written, was told by her broker that the condominium was not a wise investment; but now contends that she relied on the representations of the Respondents that the Beach Cottage Condominiums was a good investment, that she could double her money, that she would not have to close, but could sell her contract before closing, and that she believed the statements rather than the written contract provisions. Ms. Purvance actually believed the Beach Cottage Condominiums development was a good investment and that she was privileged to be in on this condominium project. She was fully aware of her option to cancel the contract to purchase within 15 days after she executed the contract. Before executing the contract, she discussed the purchase with her accountant and showed him the financing figures she had received. Her accountant inquired of her about taxes and advertising costs to operate the condominium as rental property. Purvance was aware in April, 1982, before the final contract was executed, that she could lease the condominium to the developer as a model for $1,500 pear month. She was also aware, before she executed the contract on August 31, 1933, that she could not qualify for conventional financing. This contract had been forwarded to Purvance in mid-July, 1982, with instructions that she had only 15 days in which to execute or reject the contract. She did not execute the contract at the end of that 15-day period but waited until August 31, 1982. To keep within this 15-day period she dated the contract August 8, 1982. In her testimony Purvance acknowledged that her purchase was motivated by the fact that she expected to make a lot of money out of her Beach Cottage condominium. When she ended up losing money, she complained to the Real Estate Commission and brought civil suit against the developer and the Respondents herein. She characterized her complaint as she lost a lost of money relying on Respondents' false representations that Beach Cottage Condominiums could be sold before closing, that she did not feel Respondents should make false promises, and that Respondents had a duty to keep a buyer away from a improvident investment. Respondents never saw a financial statement on Purvance. They only knew that she owned a home in a well-to-do neighborhood, that she had purchased a condominium at La Concha, that she had been audited by the IRS, that she was interested in acquiring another condominium, and that she appeared financially capable of purchasing the Beach Cottage condominium. Both of these Respondents purchased a Reservation to Buy a condominium at Beach Cottage Condominium, neither could qualify for financing, one executed a contract and lost her additional deposit of $15,000, one never got to the contract stage and had to wait until the unit sold before her initial deposit was refunded. Both categorically denied they ever told Purvance that she could make $20,000 in one year on the project, that either told her that she would never have to close, or that under no circumstances would she ever lose her deposit. Neither Respondent had any reason to believe that Purvance did not know what she was doing when she signed the reservation form and when she signed the contract to purchase.
The Issue The issue is whether Petitioner must forfeit his vested benefits in the Florida Retirement System (FRS), pursuant to section 112.3173(3), Florida Statutes, due to Respondent's commission of an act of extortion, as defined in section 836.05, Florida Statutes.
Findings Of Fact Petitioner has lived for much of his life in West Palm Beach. Petitioner's family owned a Pepsi-Cola bottling company in West Palm Beach until selling it five or six years ago. Petitioner started with the company as a truck driver and eventually served as a vice-president. Petitioner served as a locally elected official in West Palm Beach for nearly 20 years. Petitioner was elected commissioner of the Board of Commissioners of the City of West Palm Beach and served for 12 years. Subsequently, he was elected and reelected commissioner of the Board of County Commissioners of Palm Beach County. Petitioner was prevented by term limits from serving beyond his second four-year term, which was due to end in December 2010. However, Petitioner resigned from the county commission five months earlier after he pleaded guilty to, and was adjudicated guilty of, the extortion that is described below. Petitioner had planned to retire from public office after finishing his term in December 2010. In his early 60s and evidently secure financially, Petitioner looked forward to retirement, during which he planned to volunteer in the community and play with his grandchildren. In the final year of his final term in public office, Petitioner busied himself with--or, perhaps more aptly, obsessed over--one major piece of unfinished business: the South Cove Restoration Project. The South Cove Restoration Project is an ecological restoration project in the Lake Worth Lagoon in downtown West Palm Beach. The Lake Worth Lagoon is a 20-mile long body of water in central Palm Beach County. Located just east of Flagler Drive and north of the Royal Park Bridge, the South Cove Restoration Project's primary sponsor is Palm Beach County, although the state has provided funds and the City of West Palm Beach and the Florida Inland Navigation District are also identified as project "partners." The project consists of the creation of two acres of mangrove/spartina habitat, 3.5 acres of potential seagrass habitat, and one acre of rock revetment/oyster reef. The project also includes a 565-foot elevated boardwalk running from the sidewalk along Flagler Drive to the largest mangrove island and a 16-foot square observation deck. Lastly, the project includes the capping of an old dredge hole with clean sand. This will reduce turbidity in the adjacent water column by preventing the continual resuspension of fine-grained particles that tend to collect in the dredge hole. For many years, water-quality issues in the Lake Worth Lagoon have received the attention of state, regional, and local officials, including Petitioner. For a couple of years, Petitioner had served as the county representative to, and chair of, a consortium of governmental entities that had formed the Lake Worth Lagoon Initiative (Initiative). Members of the Initiative have been drawn from the Florida Department of Environmental Protection, the South Florida Water Management District, the Palm Beach County chapter of the League of Cities, and Palm Beach County. The mission of the Initiative is to restore water quality in the lagoon by obtaining and providing funding from various sources for projects to address such issues as water quality, habitat, and pollution-control. The Initiative has supported the South Cove Restoration Project, which is located to the south of a larger project recently undertaken by the City of West Palm Beach to dredge the Intracoastal Waterway adjacent to Flagler Drive as part of extensive renovations of an old city marina. The dredge spoil from the city marina project will provide the fill for the dredge hole in the South Cove Restoration Project. The South Cove Restoration Project was first identified in 1997 as a Surface Water Improvement and Management project. In August 2008, the Department of Environmental Protection proposed to issue the permits necessary for the project's construction and operation. Trump Plaza challenged the proposed permits in DOAH Case No. 08-4752, and Flagler Center Properties, LLP, intervened on the side of Trump Plaza. Trump Plaza is the owner- association of two 30-story condominium buildings, and Flagler Center Properties is the owner of two eight- or nine-story office buildings. Due to the proximity of their buildings to the South Cove Restoration Project, both parties challenged the project on the grounds of, among other things, the potential obstruction of their view and the unreasonable infringement on their qualified rights to a dock. These properties and the uplands adjoining the South Cove Restoration Project are all entirely within the city limits of the City of West Palm Beach. This litigation delayed the issuance of the permits by 15 months. However, in September 2009, an Administrative Law Judge issued a recommended order approving the permits, and, in November 2009, the Department of Environmental Protection issued the final order issuing the permits. Members of the Johnson family own Flagler Center Properties. Like the Koonses, the Johnsons have lived in West Palm Beach for many years. The eldest Johnson is of the age of Petitioner's parents, and Petitioner knew the next generation of Johnsons, as they grew up together in West Palm Beach. The third generation of Johnsons and Koonses even attend the same school. But all of these relationships notwithstanding, at least certain members of the Johnson family with ownership interests in Flagler Center Properties have opposed at least certain aspects of the South Cove Restoration Project. The extortion occurred late in the approval process for the South Cove Restoration Project. The two acts of extortion took place in the six weeks before a vote by city commissioners to allow a fourth wheelchair-ramp access to be constructed from the existing sidewalk, over the seawall, and onto the boardwalk. The city commission vote took place on June 17 or 19, 2010. As expected, the city commissioners unanimously approved the fourth wheelchair ramp. Within a few days after the city vote, the last project sponsor to commit funds--the board of the Florida Inland Navigation District--approved its $1.5 million contribution. Evidently, the District vote was even more of a certainty that the city vote because--to the extent that Petitioner's extortion was designed to ensure final passage of the South Cove Restoration Project--Petitioner's concern, at the time of the extortion, was the city vote, not the District vote. In anticipation of the city vote, on May 6, 2010, at 9:14 a.m., Petitioner called the Johnson family attorney to discuss the Johnson family's continued objection to the project, especially the boardwalk. Petitioner failed to reach the attorney, so he left a voicemail. After a brief greeting, Petitioner demanded that the attorney send Petitioner immediately a memo outlining the remaining objections of the Johnson family to the South Cove Restoration Project. And if you don't--then I'm going to do a Public Records Request to the City of West Palm Beach on this. Dean, just for the heads up, good friend of mine, I'm going to work as hard as I've ever worked in twenty years of public service to take the Johnsons through the ringer on this if they don't support the City of West Palm Beach. I'll have kids picketing at the building and what I'm going to say is they want [a] marina instead of an island. I told you, this is very personal for me. Okay. This is something I really, really want. After twenty years I want the Johnsons to step away and congratulate me personally on all the work I've done. Okay? I have no idea why they're trying to fuck me on the deal but this is very personal. I'm going to work five [sic] hours a day for the next six weeks. I'm going to leverage every possible person, program--I have to get a five-oh vote out of the City Commission. It's very personal, Dean. So, I can't understand why they want to do it ultimately, I want them to say we've [sic] love to have this project. I'm going to door to door at every tenant in the building and throw them under the fucking bus. I'm going to say they want a marina out here versus a public island. I'm going to the FBI--I'm going to the Foundation. I'm going to every tenant in the building. I'm going to see if I have a banking relationship with anybody in there. I want this done and it's a personal thing for me. Shortly after this voicemail, Petitioner instructed a county employee to visit the Flagler Center Properties' site and photograph dead trees and the property's stormwater outfall. The record is not reliably developed on these points, except to the extent that these two issues are mentioned in Petitioner's next voicemail to the Johnson family attorney, which took place after the photographs were taken. To dispel any doubt of his seriousness, Petitioner called the Johnson family attorney again on June 9, 2010, at 6:18 pm: Hey, it's Koons. Just wondering, are the Johnsons still fighting that island on the maintenance issue? I was just wondering because I don't know if you noticed the dead trees that they have in their building in downtown West Palm Beach. Can't even take care of their own property with the dead trees. I don't know why they're worrying about maintenance on something else [the South Cove Restoration Project]. Anyway, also, do you have a map of where their stormwater goes? I was just trying to think if they were ever under a pre- treatment of their stormwater that goes off, I think, right where that island is going to be. Anyway, just let me know. Let me know if you want me to call Code Enforcement or what you want me to do. Thanks. By Information dated August 3, 2010, the State of Florida alleged that Petitioner "on or between May 6, 2010, and June 17, 2010, . . . did either verbally or by a written or printed communication, maliciously threaten an injury to the reputation of [the Johnson family] with intent to compel the persons so threatened . . . to do any act or refrain from doing any act against their will, contrary to Florida Statute 836.05 (2 DEG FEL)". The Information also alleges two misdemeanors that are irrelevant to this case. After three interviews with the authorities, Petitioner resigned from the county commission on August 3, 2010. The next day, Petitioner pleaded guilty to extortion and the two misdemeanors, and the court adjudicated Petitioner guilty of all three offenses and sentenced him to five years' county probation for the extortion and fined him $10,000 for the extortion. There is no evidence whatsoever that Petitioner extorted the Johnson family for personal financial gain. He had already declined to run for another elected office, so the record does not support a finding that he engaged in this extortion for his personal political gain. There is no evidence whatsoever that Petitioner engaged in this extortion for any other personal purposes, including obtaining wheelchair access for a family member or obtaining improper sexual advantage. It is difficult to find that Petitioner engaged in this extortion to cement some sort of personal legacy. The South Cove Restoration Project is not an exceptionally large project, in terms of water quality impacts. It appears to have already been named, so general naming rights--to paraphrase a theater critic, the graffiti of the political/philanthropic class--do not seem to be involved. (Charles Isherwood, "The Graffiti of the Philanthropic Class," N.Y. Times, December 2, 2007, http://www.nytimes.com/2007/12/02/theater/02ishe.html). As noted above, the sole practical concern of Petitioner, at the time of the acts of extortion, was the city vote on the fourth wheelchair ramp. But this vote was a near certainty and concerned an inconsequential matter--a fourth wheelchair ramp--that would not have prevented the project from going forward. Some proponents of the project even believed that the city vote was unnecessary, and a fourth ramp could have been located nearby at a location not within the jurisdiction of the city. Almost all that is left to explain the extortion is Petitioner's characterization of his acts, which he admitted were driven by anger, frustration, and stupidity. The narcissistic demands in the first voicemail that the Johnson family pay public homage to Petitioner and the eerie passive- aggressive nature of the second suggest pride to the point of hubris. But nothing else--except, of course, anger and stupidity. At all material times, Petitioner was in FRS-covered employment, owned vested FRS benefits, and had not filed for FRS retirement benefits. By letter dated November 8, 2010, Respondent advised Petitioner that he had forfeited his FRS benefits when he entered a guilty plea to the felony of extortion. He timely requested a hearing.
Recommendation It is RECOMMENDED that the Division of Retirement Services enter a final order determining that Petitioner's acts of extortion, described above, do not constitute grounds for forfeiture of his FRS pension. DONE AND ENTERED this 9th day of August, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 2011. COPIES FURNISHED: Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Jason Dimitris, General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Mark A. Emanuele, Esquire Panza, Maurer and Maynard, P.A. Bank of America Building, Third Floor 3600 North Federal Highway Fort Lauderdale, Florida 33308
Findings Of Fact James R. Gray owns Lots 10, 11, 12 and 13, Clearwater Beach Park, as recorded in Plat Book 10, p. 42, of the official Records of Pinellas County. These lots are located on Clearwater Beach in an area zoned CTF-28. For the past several years beach chairs, umbrellas and cabanas have been rented for use in the vicinity of these lots and a portable 4' x 8' building standing on these lots has been used to store the chairs, umbrellas and cabanas when not rented. Gray proposes to replace the 4' x 8' building with an 8' x 10' portable aluminum shed from which to operate the business of renting beach equipment and expand it to include the sale of suntan lotion, soft drinks, and related items. The business will be operated by Roy Pearl, a co-applicant with Gray in these proceedings. Gray and Pearl applied for a building permit to erect the portable shed and their application was rejected by the City of Clearwater Building Department on the basis that the proposed use of the property was not in conformity with the Building and Zoning Regulations and did not fit the special exceptions provided by Section 131.099 of the Zoning Regulations. The latter determination was made by the Clearwater Planning Department. Gray then submitted on a City of Clearwater form an Application-- Request for Special Exception to the Clearwater Board of Adjustment and Appeal on Zoning, which, as noted above, approved the application. The area in question comprises a private beach; and businesses in the vicinity consist of motels, hotels, apartments and restaurants. An 8-unit motel occupies part of the site involved. The location of the proposed portable aluminum shed is on Lots 12 and 13, approximately 150 feet seaward of the seawall which separates the beach from the business establishment seaward of Gulf View Boulevard. Approximately 150 feet south of this proposed location is a similar storage shed operated in conjunction with a sailboat rental business. Some of the hotels and motels on Clearwater Beach rent umbrellas, chairs and cabanas, some of which are stored when not in use in storage sheds located more than 100 feet from the main building. On the public beach the City of Clearwater operates a concession which provides the same services proposed by applicant. The chairs, umbrellas, and cabanas are utilized by guests of the motels and apartments located in the vicinity and by tourists who are using this area of the beach for sunbathing or swimming.
The Issue Whether DOT has improperly excluded Western Waste Industries, Inc. from bidding by combining two Volusia County sites in a single invitation to bid?
Findings Of Fact A three-man maintenance crew works out of DOT's Daytona Beach construction office, which is 16 miles distant from DOT's principal Volusia County facility, the Deland maintenance yard. In the summer, when both mowing operations and littering are at their peak, 72 DOT field people and 14 convicts set out from the Deland yard daily to sweep the roadways, police, grade and seed the shoulders, cut the grass and do other bridge, pipe and concrete maintenance. At one time, as the work day ended, crews dropped litter and mown grass at the county dump on their way back to the sites at which they assembled mornings in Deland and Daytona Beach. The Daytona Beach crew still does. But somebody calculated that DOT could save 100 man hours a month by arranging for "dumpsters" at both its Volusia County yards. That way all workers can return to their work stations directly, and no side trip is required in order to dispose of litter and cut grass. On April 1, 1988, petitioner Western Waste Industries, Inc. (WWII) installed two dumpsters, each with a capacity of eight cubic yards, at DOT's Deland yard. Under a month to month agreement, WWII empties both containers twice weekly in exchange for $273 monthly. DOT is satisfied with its decision to use dumpsters, but is obliged to invite bids, because DOT cannot procure the services it needs for less than $3000 a year. Among the specifications set out in DOT's invitation to bid is the form of the contract the successful bidder is to sign, which includes the following: 1.00 The Department does hereby retain the Contractor to furnish certain services in connection with Central Point Refuse Pickup and Disposal Originating at the Department's Maintenance Office Located at 1655 North Kepler Road, Deland, Florida, with an Option to Include Similar Services for the Department's Construction Office Located at 915 South Clyde Morris Boulevard, Daytona Beach, Florida. DOT's Exhibit No. 1 (emphasis in original) In Exhibit A to the form contract, entitled "SCOPE OF SERVICES," the specifications call for "trash containment and removal of litter ... from specific offices located in the Department's District Five." Id. Exhibit A specifies both the Daytona Beach and the Deland offices by name and address. Attachment B indicates that the successful bidder is to remove 40 cubic yards of refuse weekly from DOT's maintenance yard in Deland and, at DOT's option, additional refuse from the Deland yard, from the Daytona Beach office, or from both. If DOT exercised both options, the contractor would haul ten percent of DOT's refuse from the Daytona Beach office, on an annual basis. In its letter of protest, dated June 14, 1988, WWII complains that it "operate[s] on the West Side [of Volusia County] only." But the two companies who submitted bids in response to DOT's invitation to bid are willing to collect refuse at both sites. No exclusive franchise or other legal impediment precluded WWII from bidding on collection at both sites By soliciting bids for service at both sites, DOT avoids the administrative costs of inviting and evaluating two sets of bids.
The Issue The issue is whether Respondents committed an act of discrimination based upon familial status against Petitioners in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioners own Unit L-105 at The Collins, located at 6917 Collins Avenue, Miami Beach, Florida 33141. Petitioners have a three-year-old daughter who resides with them and claim membership, for purposes of alleging discrimination under the Florida Fair Housing Act, in the class of familial status. Petitioners have exclusive use of their private patio, a limited common element, adjacent to their ground floor unit, subject to the terms and conditions, as well as the rules of the Association. This patio is in close proximity to the Association’s ungated common swimming pool. Unlike most of the condominiums on floors above the pool area, Petitioners’ unit does not have a glass protective barrier on their patio, or any barrier whatsoever installed outside their unit by the Association. All of the units located above Petitioners’ unit that have balconies that are raised from the pool’s surface in heights varying between the second floor and many floors above, without a glass barrier at the end of the balconies, would have a significant and dangerous drop to the pool level for anyone stepping over the edge. Petitioners owned Unit L-105 for 13 years before having a daughter, now three years old, which changed their status to familial for the past three years. Petitioners sought to have the Association allow them to install a glass barrier between their patio and the ungated pool in order to end their claim of discrimination based upon familial status and protect their daughter from accidentally falling into the pool if left unattended on the patio. Respondents refused to install or allow the installation of a glass barrier on Petitioners’ patio, citing that it would not conform with the rules and regulations of the condominium association concerning the common elements of the condominium. Petitioners installed what they called a “temporary” fence around their patio. The fence involved the drilling of holes into the concrete surface of the pool deck and installing posts and netting into the holes to create a fencelike barrier. Claiming this was not approved and not in conformance with the rules and regulations for the common elements of the condominium, the Association brought in workers who removed the fence, the posts, and filled in the holes that had been drilled into the concrete. The Association billed Petitioners $1,200 for having the removal and repair work done for the unapproved installation of the fence. At some point, after the fencing had been removed, Petitioners moved out of their condominium unit, but remain the owners of it. At the time of the hearing, Petitioners had pending in circuit court an action regarding the pool fence. No further details were given regarding the nature of the action and relief sought. Mr. Riveiro testified that he and his wife are willing to bear the cost, including any needed permits, parts, labor, and inspections for installing a temporary fence that will protect their daughter from accidentally falling into the pool. Mr. Blanco, the Association’s board president, who has served on the board of the Association for 15 or more years, testified that, during his tenure, the board has never discriminated against persons for any reason, including based upon their familial status. Respondents offered several solutions to Petitioners, including allowing a temporary fence that could be easily removed, but did not involve drilling holes in the common area of the pool deck. According to the local code enforcement officials, all that is required for garden or pool level doors that open to an “ungated pool” are door alarms to alert the occupants when the door is opened from inside or out. Mr. Riveiro testified that he could not use door alarms and keep his doors open to enjoy the breeze and fresh air because, after a time, the alarms sounded to remind the occupants the door has been left open. Because of this, Petitioners were not satisfied with setting up an internal fence that would keep their daughter from running out the door. An internal fence was superfluous since always keeping the doors closed avoids the need for a fence, but restricts Petitioners full use and enjoyment of their unit. If the residents wanted fences to be installed on the pool level, they would have to be uniform in design and function. Because this would be considered a material alteration to the common elements, 75 percent of the unit owners would have to vote in favor of such a change. A material alteration to the common elements was neither requested by Petitioners nor voted upon by the Association’s unit owners upon request from any individual, family, or the Association board itself.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding Respondents not liable for housing discrimination and dismissing Petitioners’ Petition for Relief. DONE AND ENTERED this 22nd day of April, 2021, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Darrin Gursky, Esquire Gursky Ragan, P.A. 141 Northeast 3rd Avenue Miami, Florida 33132 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Fernando Riveiro 14838 Southwest 35th Street Davie, Florida 33331 Mayelin Perez 4495 Southwest 67th Terrace, No. 207 Davie, Florida 33314
