The Issue The issue in this case is whether credit underwriting reports associated with applications for funding submitted by the developer of an apartment complex in Brevard County, Florida, met applicable requirements, and whether acceptance and approval of such reports by the Respondent, Florida Housing Finance Corporation (FHFC), was appropriate.
Findings Of Fact The FHFC is a public corporation organized under Chapter 420, Florida Statutes (2008), to administer a state program through which, insofar as is relevant to this proceeding, developers obtain funding for construction of rental apartments to provide housing to persons of low, moderate, and middle income. The funding is provided through various mechanisms, including the State Apartment Incentive Loan (SAIL) program. The Petitioner owns and operates Madalyn Landing, a 304-unit, affordable housing complex in Palm Bay, Brevard County, Florida, located approximately one-half mile from the Malabar Cove apartment complex. Madalyn Landing was constructed in 2000. The Petitioner has consistently asserted that the Malabar Cove apartment complex will negatively impact the Petitioner’s ability to obtain and retain tenants for Madalyn Landing and has objected to the receipt by Malabar Cove of financial assistance available through local and state programs for affordable rental housing construction developers. To participate in the programs administered by the FHFC, developers submit applications for project funding during an annual process identified as the "universal cycle." Each application is evaluated, scored, and competitively ranked against other applications filed during the same cycle. Applicants are provided with an opportunity to review and comment on the evaluation and scoring of all proposals. Defects in application may be cured during this initial review process. After the period for comment ends, the FHFC issues a revised competitive ranking of the proposals. Developers may challenge the second ranking through an administrative hearing. After the second ranking process is final, developers achieving an acceptable score receive a preliminary funding commitment and proceed through an evaluation process performed by an independent credit underwriter. The underwriter reviews each proposal according to the provisions of Florida Administrative Code Rule 67-48.0072. The credit underwriting reports are eventually submitted to the FHFC Board for approval. The developer of Malabar Cove is Atlantic Housing Partners (AHP), which develops and operates affordable housing projects in Florida, including others within Brevard County. Malabar Cove is a multifamily apartment complex located in Palm Bay, Florida, which was proposed by AHP in two phases. Phase I of the project included 76 three-bedroom, two-bath apartment units. Phase II of the project included 72 additional units designated as follows: eight three-bedroom, two-bath units; 32 two-bedroom, one-bath units; and 32 four-bedroom, three-bath units. The Malabar Cove units are designated for tenants earning 60 percent or less of the Area Median Income (AMI) as determined by the U.S. Department of Housing and Urban Development. Madalyn Landing Apartments are likewise designated for tenants earning 60 percent or less of the AMI. AHP applied for approximately $4 million in SAIL funds and $680,000 in supplemental loan funds for Malabar Cove Phase I during the 2007 universal cycle. The project received a preliminary funding commitment letter during the 2007 cycle and proceeded into the credit underwriting process. AHP applied for approximately $2 million in SAIL funds and $680,000 in supplemental loan funds for Malabar Cove Phase II during the 2008 universal cycle. The project received a preliminary funding commitment letter during the 2008 cycle and proceeded into the credit underwriting process. Malabar Cove obtained tax-exempt bond financing from the Brevard County Housing Authority (BCHA). Madalyn Landing was constructed with $14 million in tax-exempt bond financing from the FHFC. Developers constructing affordable housing projects with tax-exempt bond financing are eligible to receive low- income housing tax credits. The credits are approximately 4 percent of the development costs for a period of ten years. Such tax credits are typically sold to institutional investors and generate equity for the developer. The tax credits obtained by the Petitioner for Madalyn Landing and by AHP for Malabar Cove were sold to generate equity for construction of the properties. Construction of the Malabar Cove project commenced prior to this litigation and was projected to be complete as of April 2009. The receipt of funding from the BCHA obligates Malabar Cove to provide the affordable rental housing as identified herein. Because the Malabar Cove project includes supplemental loan funds from the FHFC, 10 percent of the units must be held for tenants making 33 percent or less of the AMI, assuming that the FHFC ultimately approves the Malabar Cove request. There is no evidence that Madalyn Landing or any other competing affordable housing apartment complex is required to, or has, set aside units for tenants making 33 percent or less of the AMI. The credit underwriting reports for both phases of Malabar Cove were prepared by the Seltzer Management Group, Inc. (SMG), and were submitted to the FHFC Board in December 2008. SMG retained a certified public accounting firm, Novogradac & Company, LLP (Novogradac), to prepare the market studies referenced in the credit underwriting reports. References herein to the Novogradac market study are as reported by SMG in the credit underwriting report. The Novogradac market study determined that construction of the Malabar Cove development would have a negative impact on Madalyn Landing, as well as on a second affordable housing rental complex not at issue in this proceeding. According to the SMG report, Novogradac determined that "there are ample eligible renters in the sub-market," but noted that Malabar Cove, a newer housing complex, would have "a competitive advantage as it relates to age, condition, amenities, and unit size." The report stated that Malabar Cove's competitive advantage could result in occupancy at competing apartment complexes "at below break even levels once the market stabilizes." As reflected in the SMG report, the Novogradac study included a projection of affordable housing demand in the market area through analysis of a "capture rate,” a projection of the percentage of tenants an affordable housing project must achieve from the pool of appropriately-qualified tenants in order to be financially feasible. A capture rate of 10 percent or less is regarded as a positive indicator of financial feasibility. The Malabar Cove capture rate was projected to be between about 3 and 6 percent, depending on the type of rental unit. Accordingly, the Malabar Cove project is regarded as financially feasible. According to the SMG report, Novogradac noted that the relevant housing market had experienced declining occupancy rates in the last few years, while the number of available affordable rental units had remained stable. Novogradac attributed the situation to the general economic downturn and "to the decline in the single family home market specifically" as unoccupied single-family residences have become available at rental rates competitive with affordable housing units. The SMG credit underwriting report states as follows: Novogradac believes the current situation to be temporary and that single family home values will recover in the future. As home values recover, single family homes will revert to home ownership and no longer be available to the rental market or rents for the single family homes will rise to historical levels and no longer directly compete with the traditional affordable housing apartment units. Novogradac concludes that when the supply of competing single family homes is reduced to normal levels, affordable housing occupancy levels will increase to levels just below . . . those experienced between 2004 and 2006. Neither the credit underwriting report nor the market study established a time frame during which single-family housing values were expected to improve. Although testimony was offered at the hearing as to what the phrase "in the future" was intended to signify, the testimony on this point reflected little more than speculation (albeit informed), and none of the testimony was persuasive. The credit underwriting report included a substantive review of the Malabar Cove financing package and the ability of the developer to proceed through the construction process to the point of project completion and unit occupancy. The referenced information in the credit underwriting report on this issue was not credibly contradicted. The credit underwriting report adequately and accurately determined that the developer could proceed with the project through completion. The credit underwriting report recommended that the FHFC Board approve the Malabar Cove applications for funding. On December 12, 2008, the FHFC Board unanimously voted to accept the credit underwriting reports for the relevant phases of Malabar Cove and to approve the applications for funding. It is unnecessary to include herein a detailed recitation of the discussion during the Board's meeting on December 12, 2008. Review of the meeting transcript establishes that the Board's decision followed discussions with representatives of the Malabar Cove project and the Madalyn Landing apartment complex as well as the credit underwriter. The Board was aware of the affordable housing market conditions in Brevard County and elsewhere in the state. The Board was clearly aware that the construction of the Malabar Cove project would likely have an impact on competing affordable housing providers, specifically Madalyn Landing, and there was reference to the fact that such competition could potentially reduce housing costs for the populations being served by the FHFC programs. The Board additionally considered the present and future availability of state funds. There is no evidence that the Board acted inappropriately or unreasonably in approving the credit underwriting reports for the Malabar Cove project and proceeding to commit the funds at issue in this proceeding, or that the decision was an abuse of the Board’s discretion. The Petitioner has asserted that the Board's recent decision in the “Pine Grove” project (wherein the Board declined to follow the credit underwriter's recommendation for approval of an affordable housing project located in Duval County) requires that the Petitioner's project be denied, particularly because the perceived viability of the Pine Grove project was regarded as superior to that of Malabar Cove. The FHFC Board's denial of the Pine Grove application is the subject of a separate administrative proceeding, and this Recommended Order sets forth no findings of fact applicable to the Pine Grove project or the Board’s decisions related to the Pine grove application. The evidence establishes that the Board discussed the Pine Grove decision during their consideration of the Malabar Cove applications. Prior to the Board's denial of the Pine Grove application, the FHFC Board had apparently never rejected a credit underwriter's recommendation for approval. However, there was uncontradicted testimony that, because the Board's rules provides an opportunity for both the FHFC and an applicant to review a draft credit underwriting report prior to the issuance of the final report, underwriting problems are routinely resolved prior to the issuance of the report and that, where a problem cannot be sufficiently resolved for the credit underwriter to recommend approval, developers routinely withdraw applications rather than attempt to seek Board approval for projects over the negative evaluation by the credit underwriter. There was consideration at the December 12 Board meeting about the relevance of the Pine Grove application denial (over the credit underwriter’s recommendation) to the Board’s presumable intention to approve the Malabar Cove applications; however, the evidence fails to establish that the Board’s decision on the Pine Grove application has any relevance to the instant case. The Board was advised that the affordable housing markets in Duval County and Brevard County, although currently troubled, are not similar, with the Duval County market for affordable housing being described as historically weak and the Brevard County market weakness attributed to the recent economic downturn. Additionally, the Board was aware that, in the Pine Grove application, the FHFC has obligated itself to satisfy the mortgage of an affordable housing development competing with Pine Grove through a "Guarantee Fund" program. Simply stated, if the developer of the FHFC-guaranteed project defaults on payment, the FHFC is essentially “on the hook” for the debt, and the Board was apparently sufficiently concerned of the default prospect to include such consideration in rendering a decision on the Pine Grove application. The FHFC has no similar obligation to any competitor of the Malabar Cove apartment complex. Not insignificantly, the Board’s consideration of the Malabar Cove project included the fact that construction of the Malabar Cove apartment complex had commenced and was projected to be complete by April 2009, while construction of the Pine Grove project had not commenced. There is no credible evidence that the Board's decision to accept the credit underwriter's recommendation to approve the Malabar Cove applications was improper or inappropriate for any reason related to the Pine Grove decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order dismissing the petition for hearing filed in this case. DONE AND ENTERED this 2nd day of June, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 2nd day of June, 2009. COPIES FURNISHED: Hugh R. Brown, Esquire Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 M. Christopher Bryant, Esquire Oertel, Fernandez, Cole & Bryant, P.A. 301 South Bronough Street, Fifth Floor Post Office Box 1110 Tallahassee, Florida 32302-1110 Donna E. Blanton, Esquire Elizabeth McArthur, Esquire Radey, Thomas, Yon & Clark, P.A. 301 South Bronough Street, Suite 200 Post Office Box 10967 Tallahassee, Florida 32301 Wellington Meffert, General Counsel Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 Sherry Green, Corporation Clerk Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329
The Issue May Petitioner be excluded from participating in the Florida Retirement System for the academic/fiscal year 1978-1979?
Findings Of Fact Petitioner was hired by the University of Florida in 1975 and has been employed with the University of Florida from 1976 to the present. Petitioner believed himself to be a member of the Florida Retirement System from 1976 to the present. There is no dispute that he is entitled to Florida Retirement System benefits from 1976 to 1978 and from 1979 to the present, during which years Petitioner was paid from State salaries allocations and worked in a regularly established State position. Petitioner was paid during the years 1976-1980 with a combination of funds from several sources: the State salary budget, the federal Veterans Administration (VA), and a University of Florida practice funding account. The allocation of these funds in the year 1978-1979 created the current problem. During the years 1976-1980, Petitioner performed work for both the University of Florida (State of Florida) and the VA. The Federal Retirement System was a defined plan from 1976 to 1980. Petitioner was an employee of the VA from 1976 to 1980. Petitioner was a participant in the Federal Retirement System as an employee of the VA from 1976 to 1980. Petitioner received retirement credits in the Federal Retirement System as an employee of the VA from 1976 to 1980. Petitioner's employment during the State fiscal year 1978-1979 included job duties and work performed as an employee of the University of Florida (State of Florida) and did not change from previous years. Petitioner's salary during the State fiscal year 1978- 1979 should have included an allocation from State funds. Due to an administrative error, Petitioner's entire salary was paid only with federal VA funds for the State fiscal year 1978-1979. State funds did not contribute to Petitioner's salary during the State fiscal year 1978-1979 solely due to the administrative error in the allocation of funds for Petitioner's salary, and even though the State presumably benefited from his labor. For the 1978-1979 fiscal year, Petitioner received retirement credits in the Federal Retirement System and none have been taken away. Contributions were made to the Federal Retirement System on Petitioner's behalf as an employee of the VA from 1976 to 1980, and Petitioner received retirement credits in the Federal Retirement System as a VA employee for that period. Petitioner earned $2,072.50, in federal retirement contributions in 1977; $2,256.52, in federal retirement contributions in 1978; and $1,931.56, in federal retirement contributions in 1979. When Petitioner discontinued work for the VA in 1980, his federal contributions were paid to him in a lump sum by the federal government. Petitioner placed this money in a private retirement account.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division of Retirement enter a final order which: Finds Petitioner was a federal employee during the 1978-1979 academic/fiscal year and at this time is not entitled to credit therefor in the Florida Retirement System; Provides for his participation in the Florida Retirement System for the 1978-1979 academic/fiscal year if he elects to participate pursuant to Rule 60S-2.007(3) Florida Administrative Code; and Establishes, pursuant to the formula provided in Rule 60S-3.008(3), Florida Administrative Code, the amount by which Petitioner may "buy back" that year of State service, if he elects to do so. DONE AND ENTERED this 31st day of July, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 31st day of July, 2000. COPIES FURNISHED: Esteban F. Scornik, Esquire McDonough & Wieland, P.A. Post Office Drawer 1991 Orlando, Florida 32802 Thomas E. Wright, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Ron Poppell, Interim Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Bruce Hoffman, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue Whether Respondents committed the unlawful employment practices alleged in the Charges of Discrimination filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
Findings Of Fact Petitioner is an African-American male. Randstad is an employment services provider that assists clients with the placement of qualified candidates for available employment positions. BOA is a national financial institution. Randstad Petitioner applied for a Mortgage Customer Service Position that Randstad posted in August 2012. Petitioner was not hired for the position. Minda Hampel, an assistant branch manager for Randstad, testified that Randstad does not place candidates in every job that it posts. Ranstad's business records show a Mortgage Customer Service position was posted in August 2012; however, there are no facts or information contained in Randstad's business records to demonstrate that it assisted the hiring employer in filling or placing a candidate in that position. Ms. Hampel credibly testified that she had never met or spoken with Petitioner, and, therefore, was unaware of his race when the Mortgage Customer Service position was posted in August 2012. In October 2012, Randstad assisted one of its clients, MDVIP, with filling an available Purchasing Specialist Position. Petitioner applied for the position. Josh Rabine, a Randstad employee, credibly testified that, when Petitioner applied for the position, Mr. Rabine was unaware of Petitioner's race. Mr. Rabine further testified credibly that Petitioner did not meet the minimum qualifications for the position and that another applicant, who possessed over ten years of experience in purchasing management, was qualified for the position. Mr. Rabine did not decide which candidate would be awarded the position, and, ultimately, the position was filled by one of MDVIP's internal candidates. In November 2012, Ranstad assisted one of its clients, CWB Home Solutions, with filling an available position as an Outside Sales Manager. The position required prior experience with sales of audiovisual equipment and home systems. Petitioner applied for the position. Chelsea Arnold, a staffing manager for Randstad, credibly testified that Petitioner did not meet the minimum qualifications for the position. Ms. Arnold further testified that of the 12 applicants for the position, another individual was chosen who possessed over ten years' experience selling audiovisual and video equipment and home integrating security systems. Ms. Arnold credibly testified that she was unaware of Petitioner's race and that the client, CWB Home Solutions, ultimately made the decision to hire the alternative candidate. Bank of America On November 2, 2012, and January 4, 2013, Petitioner submitted online applications for Mortgage Loan Specialist ("MLS") positions with BOA in Boca Raton and Palm Beach Gardens. BOA's online application system is race-neutral. Petitioner did not identify his race on his online applications. Jorge Trujillo, the BOA corporate recruiter for the above-referenced positions, credibly testified that he has never met nor spoken with Petitioner. Mr. Trujillo testified that BOA was seeking candidates with sales experience, mortgage sales experience, and relational ties to the respective communities. Additionally, as the positions were located in South Florida, it was desirable for the candidate to be bilingual. The 2012 position was not filled because BOA cancelled the requisition.1/ Concerning the remaining MLS position, 31 candidates applied. Petitioner was not hired for the position. Petitioner had never worked in the Boca Raton or Palm Beach area and did not possess any mortgage sales experience. Mr. Trujillo testified that the candidate who was hired was an internal BOA candidate who had progressed from teller to personal banker and possessed relational connections with existing customers, as well as in the surrounding market. The hired candidate was bilingual (Creole), and African- American. Mr. Trujillo credibly testified that neither he nor anyone else involved in the hiring process was aware of Petitioner's race or that Petitioner had previously asserted a discrimination claim against BOA. Petitioner Petitioner failed to present any persuasive evidence that Respondents were aware of his race during the application process for any of the above-referenced positions. Petitioner failed to present any evidence regarding his employment qualifications in general or as specifically related to the above-referenced positions. Indeed, Petitioner's only evidence in this regard is his bald assertion that he was qualified for the positions to which he applied. Petitioner failed to present any evidence that he was equally or more qualified than the candidates hired for the above-referenced positions. Petitioner also failed to present any evidence that the above-referenced positions that he applied for remained open or were filled with individuals outside his protected class. The entirety of Petitioner's evidence in support of a retaliatory motive is set forth below: . . . it's been two years since I've been unemployed, seeking employment, and every position that I applied for or that I'm qualified for for different companies have pretty much sent automated response stating that we filled the position, and, for one person to apply for that many jobs for a long period of time, I feel that I'm being retaliated against, and I also was abused. Randstad and Bank of America refused to hire me and denied me of a job opportunity for positions that I'm qualified for. Ranstad also stated that there are other qualified applicants more qualified and they hired them instead of me, which is the statement that I'm making that I'm being retaliated against for full-time jobs that I'm qualified for. And, again, like I said before, a two-year gap in my employment is a sign of retaliation. The undersigned finds that Petitioner failed to present any credible evidence of a causal connection between BOA's failure-to-hire Petitioner and his previously asserted claim of discrimination.
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 adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the respective Petitions for Relief against Respondents. DONE AND ENTERED this 12th day of December, 2013, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 12th day of December, 2013.
Findings Of Fact Petitioner, Frank A. Orlando, was employed as a teacher in Dade County, and enrolled as a member of the Teachers' Retirement System (TRS), Chapter 238, Florida Statutes, in 1957. In September, 1960, Petitioner was granted a leave of absence from his employment to attend law school at the University of Florida. To maintain his tenured status with the Dade County School Board, it was incumbent that Petitioner remain current in his profession by working in the field of education within one year from the grant of his leave of absence. Consequently, in February, 1961, while enrolled as a full-time law student at the university, Petitioner applied for, and was employed as, a resident assistant at Hume Hall, a university residence facility. Petitioner's employment apparently satisfied the requirements of the Dade County School Board, since he retained his tenured status until his resignation in late 1962 or early 1963. 1/ In June, 1963, Petitioner graduated from law school, and left his employment with the university. Petitioner's Retirement Account In November, 1981, Petitioner requested that the Division of Retirement (Division) audit his retirement account and advise him whether he had been accorded credit for the period he had been employed at the university. By memorandum dated November 12, 1981, the Division advised Petitioner that for $179.82 he could purchase: . . . service not contributed on during the following periods of employment with the ... (univer- sity) ...; May 1961; March 1962 to June 1962; and September 1962 to June 1963. By claiming this service, you would be increasing your service credit by 1.33 years. This service has not been included in previous audits. By check dated March 9, 1982, Petitioner paid the designated monies, and the service was credited to his account. In August 1983, Petitioner requested that the Division provide an updated audit of his retirement account. By memorandum of August 30, 1983, the Division advised Petitioner that, as of June 30, 1983, he had 25.59 years of service credited to his account. In December, 1985, Petitioner telephoned the Division and requested that it calculate a retirement date for his at 30-years service, as well as provide an estimate of his retirement benefits. By memorandum of December 19, 1985, the Division provided Petitioner an estimate of his retirement benefits, and advised him that he could retire on December 1, 1987, with 30.01 years of service. On March 31, 1986, Petitioner again called the Division regarding credit for the period he had been employed by the university. Petitioner apparently felt he was entitled to more credit than previously accorded, and requested that the Department review its records to be sure he had retirement credit for the periods from February 1961 to June 1961, September 1961 to June 1962, and September 1962 to June 1963. The Division's review of its records, with respect to Petitioner's specific request, resulted in its determination that the memorandum of December 19, 1985, which had established an estimate of benefits for an effective retirement date of December 1, 1987, was in error, and that Petitioner was not entitled to credit for the periods he was employed in 1962 and 1963 by the university. Succinctly, the Division wrote that: On March 31, 1986, you called our office and spoke with Mrs. Stanley Colvin. You asked that she check your file to make sure you had retirement credit for the periods from February 1961 to June 1961, September 1961 to June 1962, and September 1962 to June 1963. To check this service for you, she looked at the Comptroller's Quarterly Social Security Records (referred to as Quarter Check Tapes). When these records were reviewed, she noted that the salaries listed for this service were paid from an Other Personal Services (OPS) account. Thus it is not creditable for retirement purposes under the FRS. * * * When your estimate of benefits dated December 19, 1985 (with an effective retirement date of December 1, 1987) was calculated, this OPS service was used in error. A record of the earnings had been furnished to this office by the University of Florida and the service was erroneously used since there was no mention that the payment was from an OPS account. Enclosed is a corrected estimate of retirement benefits effective March 1, 1989, at which time you will complete 30 years creditable service required for normal retirement under the FRS. By copy of this letter, I am advising Mr. Robert Buttons, Personnel Director, University of Florida, of our findings and requesting that he research the payroll records at the University and advise this office if his findings agree with ours. I am also enclosing state warrant #1982675 for $177.07 which represents the amount you paid to claim this service. 2/ A subsequent review of the records available at the University revealed that its records agreed with the Division's findings. Petitioner's Employment Status With The University Petitioner avers that he was employed by the university from February 1961 through June 1963, as a resident assistant for Hume Hall. The proof establishes that the resident assistants employed by the university were full- time graduate students or candidates for professional degrees and that they supervised 6-8 undergraduate resident assistants, assisted their superior in the administration of Hume Hall, and were available for student counseling on an as needed basis. 3/ While Petitioner avers that it was his understanding that he held a regular full-time position, he offered no proof that he received annual leave, sick leave, insurance or other employee benefits during the term of his employment, or that he had withheld from his salaries any social security deductions. In sum, petitioner offered no persuasive proof to establish that he was employed by the university as a regular employee filling an authorized position, as opposed to being an OPS employee, at any time subsequent to July 1961. The quarterly check tapes from the Office of the Comptroller, which the Division uses in carrying out its functions, show that Petitioner received two salary checks in May 1961, one on May 10, 1961 for $18.90 and one on May 24, 1961 for $12.60 for having worked 2 days and one day, respectively. 4/ No other payments to Petitioner for the year 1961 are reflected by the quarterly check tapes. The records of the university, to the extent they exist, corroborate the payments reflected by the Comptroller's records but reveal that the May 10, 1961, payment was for services rendered in April, 1961. Consequently, the Division agreed at hearing to give Petitioner retirement credit for April, as well as May, 1961. The university was unable to locate its remaining records for 1961, and Petitioner did not produce any documentary evidence to substantiate his employment for the remaining months of 1961 or any evidence to establish his salary for any other month in 1961. For the years 1962 and 1963, the Comptrollers' quarterly check tapes reflect that Petitioner was paid as a "other personal services (OPS) employee for 15 months. According to those records, Petitioner was paid $83.33 a month for February 1962 through May 1962; $41.66 in June 1962 for one-half months salary; and $80.00 a month for September 1962 through June 1962. 5/ The records of the university corroborate the payments reflected by the Comptroller's records, and Petitioner did not produce any documentary evidence to demonstrate that he was employed in any capacity other than as an OPS employee or any evidence to demonstrate be received any salaries other than as reflected by the Comptroller's tapes. 6/ Based on the proof, I conclude that Petitioner was employed by the university in an OPS position for all months which he received compensation, except for April and May, 1961. Petitioner's employment in April and May, 1961, which predated the establishment of the "other personal services" category of employment by the legislature, is, however, creditable under the Florida Retirement System. Petitioner's Claim Of Estoppel Petitioner is currently a circuit court judge in Broward County, Florida. He was re-elected in 1985, and his term of office expires in 1992. Petitioner desires, however, to retire from the bench, and enter the private practice of mediation, but to date he has not resigned or taken any action which would jeopardize his current employment. In response to the Division's memorandum of December 19, 1985, which established a retirement date of December 1, 1987, Petitioner began to attend workshops and seminars to train himself as a mediator to conciliate cases involving divorce and complex civil litigation. This training, which encompasses 200-300 hours, was undertaken in reliance upon the retirement date projected by the Division. Additionally, Petitioner has a moral commitment, although not contractual, to teach a course in mediation at the university of Minnesota during the summer of 1988. Mediation is a relatively new field within the practice of law, which is designed to reduce the courts' case load by resolving disputes without the necessity of trial. Petitioner is highly regarded by his peers, and possesses those attributes which would accord him a recognized expertise in the field. Petitioner offered proof that if he is to be successful as a mediator, it is essential that he enter the practice immediately after December 1, 1987. According to Petitioner, persons who enter this new field early will effectively preempt later entrants by earning a reputation as recognized leaders in the field. Petitioner's offer of proof is rejected as speculative and unpersuasive. While Petitioner's entry into the field may be 15 months later than expected, or desired, there is no reason to believe that the regard with which he is held by his peers will not enable him to succeed at his new profession.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Administration, Division of Retirement, enter a Final Order granting the petition of Frank A. Orlando for creditable service under the Florida Retirement System for the months of April and May 1961, but denying any credit for any other months during the period of February 1961 through June 1983. DONE AND ORDERED this 15th day of April, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 April, 1987.
The Issue The issue in this case is whether Petitioner, Affordable Home Ownership Corporation, is eligible for a consumer certificate of exemption as a charitable institution pursuant to Section 212.08(7)(o), Florida Statutes.
Findings Of Fact Petitioner, Affordable Home Ownership Corporation (hereinafter referred to as "AHO"), is a Florida nonprofit corporation. Respondent, the Department of Revenue (hereinafter referred to as the "Department"), is an agency of the State of Florida. Among other things, the Department is charged with responsibility for implementing and administering Florida tax laws, including Chapter 212, Florida Statutes. During 1996, AHO submitted an application for an exemption under Chapter 212, Florida Statutes, as a charitable organization. According to the Articles of Corporation of AHO, its purpose is: To raise the economic, educational and social levels of the underprivileged residents of Lake City (Columbia County), Florida, and its trade area, who are substantially underemployed and have low income, by fostering and promoting community-wide interest and concern for the problems of such residents, and to that end; Racial tension, prejudice, and discrimination of economic and otherwise may be eliminated; Sickness, poverty and crime may be lessened and; Educational and economic opportunities may be expanded among the residents of Lake City (Columbia County), Florida, and its trade area. To expand the opportunities available to said residents to own, manage, and operate business enterprises in economically underprivileged or depressed areas; to assist said residents and groups in developing management skills necessary for the successful operation of business enterprises; to provide financial support for the successful operation of business enterprises by said residents and to assist said residents in obtaining such financial support from other sources. To aid, support and assist by gifts, contributions or otherwise, other corporations, community chests, funds and foundations organized and operated exclusively for charitable, religious, scientific, literary or educational purposes, no part of the net earnings of which inures to the benefit of any private shareholders or individuals, and no substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation. To do any and all lawful activities which may be necessary, useful or desirable for the furtherance, accomplishment, fostering or attainment of the foregoing purposes, either directly or indirectly, and either along or in conjunction or cooperation with others, whether such others be persons or organizations of any kind or nature such as corporations, firms, associations, trust, institutions, foundations, or governmental bureaus, departments or agencies. The Department conceded in its proposed recommended order that AHO meets the requirement for exemption in this matter that it be designated a Section 501(c)(3) charitable organization by the United States Internal Revenue Service. The services provided by AHO are provided without charge to its clients. Those services include recruiting families who are qualified for federal home loans who are committed and able to provide their time and labor to construct their own housing. AHO brings several such families together to share the labor and effort necessary to build housing for each family. Each family shares in the labor of constructing the home of each other family in the group. AHO assists the families prepare mortgage applications necessary to receive federally subsidized loans and provides credit counseling necessary for families to qualify for such loans. Once a family qualifies for a loan, AHO assists in the selection of house plans, the selection of construction materials, the organization of the family groups, teaches general construction techniques and assists with all aspects of completing construction of housing. AHO also assists in bookkeeping necessary to administer mortgage loans. AHO does not act as a general contractor. Nor does AHO provide construction labor or materials, or the funds necessary for construction. AHO receives administrative grants through the state's Housing Finance Agency as a Community Housing Development Organization. AHO's expenses in providing its services are entirely expenses of the organization. AHO's total expenditures are for its day-to-day operations. No funds are expended directly for clients.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Revenue denying the certificate of exemption sough by Affordable Home Ownership Corporation. DONE AND ORDERED this 2nd day of June, 1997, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this this 2nd day of June, 1997. COPIES FURNISHED: Rufus L. Smith Executive Director, A.H.O.C. Affordable Home Ownership Corporation Post Office Box 7347 Lake City, Florida 32055 Kevin J. ODonnell Assistant General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Linda Lettera General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue The issue addressed in this proceeding is whether Respondent's life and health insurance agent's licenses should be suspended, revoked, or otherwise disciplined for alleged violations of Chapter 626, Florida Statutes and whether Respondent is eligible for renewal of his life insurance agent's license.
Findings Of Fact Respondent, Lemar Bonne Hall, is a licensed life and health insurance agent in the state of Florida. He has been so licensed for more than 10 years. Respondent has made application for the renewal of his life insurance agents license pursuant to Chapter 626, Florida Statutes. In the early 1980's, Respondent and his wife began experiencing credit difficulties due to some inaccurate information on their individual credit reports. The nature of the inaccuracy was not disclosed by the evidence presented at the hearing. Respondent and his wife could not get the inaccurate information removed from their credit reports and in 1983 sought the help of a credit repair service located in Houston, Texas. After paying the credit repair service $1,800.00, the service advised the Halls to create alternate credit reports through the use of different social security numbers. The credit repair service represented that this tactic was legal as long as there was no intent to defraud a financial institution. The credit repair service gave the Hall's a list of social security numbers to use. The social security numbers were numbers of various relatives of the Halls and included Mr. Hall's military identification number. It was not until 1988 that the Halls implemented the repair service's program of creating alternate credit reports. In 1988 the Halls made application to several financial institutions for loans of differing amounts. The loan officers Mr. Hall dealt with had been acquainted with him for several years. Mr. Hall testified that he gave these various officers all of his social security numbers. However, when the loan officer's secretary typed in the information on the loan application, the secretary only inserted one of the many numbers he had given. No substantial evidence was submitted to rebut Mr. Hall's testimony. The Halls made regular payments on the loans until they filed for bankruptcy in 1989. Payments on the loans eventually resumed. The bankruptcy was filed because of a potential judgment which might result from tort litigation involving Mr. Hall. At that time the bankruptcy trustee discovered the anomalous social security numbers and contacted the FBI. Mr. Hall cooperated with the FBI in every respect and is one of the government's witnesses in a nationwide investigation of credit repair services advising people to use the file segregation method of credit repair. However, on August 3, 1989, Respondent was indicted on seven (7) counts of violating Title 18, United States Code, Section 1014, and with seven (7) counts of violating Title 42, United States Code, Section 408(g)(2). All the counts involved felonies, punishable by more than one year imprisonment, and were generally related to obtaining or attempting to obtain a loan from a federally insured financial institution by the use of false social security numbers, misrepresentation or fraud with the intent to defraud such institution. Respondent's wife was also indicated on similar counts. Throughout the FBI investigation and in particular after the Halls' indictment, Ms. Hall's health began to seriously fail her due to the embarrassment and pressure she felt from the criminal charges she and her husband were facing. Therefore, on November 29, 1989, Respondent sacrificed himself for the sake of his wife and entered a plea of guilty to three (3) counts of violating Title 18, United States Code, Section 1014, and three counts of violating Title 42, United States Code, Section 408(g)(2), as charged in the indictment in Case No. TCR-04036. As part of the plea agreement entered into by Mr. Hall, all charges were dropped against Ms. Hall. The plea of guilty, involved in this case, was entered for the convenience of the Halls and not because Mr. Hall had committed any crimes involving moral turpitude. In fact, the evidence did not demonstrate that the Halls had any intent to defraud the financial institutions they dealt with and did not demonstrate that Mr. Hall was untrustworthy or lacked the fitness necessary to engage in the business of insurance. However, the evidence did demonstrate that Mr. Hall violated Section 626.621(8), Florida Statutes, by pleading guilty to a felony or a crime punishable by more than one year imprisonment. Respondent is, therefore, subject to discipline for the violation outlined above.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the Respondent be found guilty of the violating Section 626.621(8), Florida Statutes, and that his licenses and eligibility for licensure be suspended for a period of six (6) months, after which Respondent's licenses and eligibility for licensure be reinstated without prejudice. DONE and ORDERED this 14th day of January, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1991. APPENDIX TO RECOMMENDED ORDER 1. The facts contained in paragraphs 1, 2, 3, 4, 5 and 6 are adopted in substance, in so far as material. COPIES FURNISHED: Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 David D. Hershel, Esquire Department of Insurance Division of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Mark Zilberberg, Esquire 217-19 East 6th Avenue Tallahassee, Florida 32302 Don Dowdell General Counsel The Capitol, Plaza Level Tallahassee, Florida 32399-0300 =================================================================
The Issue The issue in this proceeding is whether Petitioner is entitled to retirement service credit for the time period in which he was not employed with the State of Florida.
Findings Of Fact The Department of Management Services (DMS) is responsible for the administration of the Florida Retirement System (FRS) under Chapter 121, Florida Statutes. The Department of Transportation (DOT) is an agency of the State of Florida whose employees qualify for membership in FRS. Petitioner Richard L. Duley is an honorably discharged veteran. He began employment with DOT in 1991. At the same time, he became a member of FRS. Prior to 2001, then-Governor Jeb Bush directed state agencies to reduce their workforce by 25 percent over a five- year period beginning in 2001. The directive was known as the "Service First Initiative." In response to the Governor’s directive, DOT developed an Agency Organizational Efficiency Plan. On January 18, 2005, Petitioner was notified that his position was designated to be deleted under the Agency’s Organizational Efficiency Plan; his position was abolished on June 30, 2005. As a result, Petitioner was dismissed from state employment and was no longer receiving retirement service credit for FRS. However, Petitioner did not receive a clear point of entry to challenge either his termination or whether he was entitled to a veteran's preference by DOT. After his dismissal, Petitioner was hired by a private firm who had contracted with the State to perform the functions that Mr. Duley had previously provided as an employee of the state. The contract terminated in June or July of 2007, and was not renewed. As such, Mr. Duley became unemployed. On July 30, 2007, Petitioner filed a complaint with the Department of Veterans’ Affairs (DVA) alleging that DOT had denied him veteran’s preference in retention during the 2005 layoff. The DVA found that Petitioner's complaint had merit. On November 19, 2007, Petitioner filed a complaint with the Public Employees Relations Commission (PERC), which held an evidentiary hearing on the complaint. PERC is the administrative body that has jurisdiction to determine issues and remedies under the veteran's preference statute. In its Final Order issued April 8, 2007, PERC found that Petitioner was an honorably discharged veteran and was entitled to preferential treatment in employment. PERC also found that DOT violated the veteran’s preference law by not affording Petitioner special consideration in finding alternative employment after the layoff. As a remedy for its violation of the veteran's preference law, PERC ordered DOT to make Petitioner an offer of employment to an existing position comparable to that which he held prior to his layoff. PERC also awarded Petitioner attorneys’ fees and costs. However, and most importantly, PERC did not reinstate Petitioner to his former position because it had been abolished. Similarly, PERC did not rescind Petitioner's termination. Finally, PERC did not award back pay or benefits to Petitioner. As a consequence of the Final Order, neither Petitioner nor DOT paid contributions towards the Retirement Systems Trust Fund for the period that Petitioner was not employed with the State. Additionally, Petitioner was offered and hired into a new position by DOT and again began to accrue retirement service credit in FRS when he was hired by DOT in May of 2008. The PERC Final Order was not appealed and became res judicata on the issues litigated therein. Therefore, since Petitioner's termination was not rescinded and Petitioner was not reinstated by PERC and did not pay contributions into FRS, he is not entitled to receive credit for the time he was not employed by the State and this action should be dismissed.
Recommendation Based upon the foregoing, Finding of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Management Services, Division of Retirement, enter a Final Order dismissing this action. DONE AND ENTERED this 23rd day of December, 2010, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 23rd day of December, 2010. COPIES FURNISHED: Richard L. Duley 5432 Pinderton Way Tallahassee, Florida 32317 Larry D. Scott, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 Kristin M. Klein, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue Whether Petitioner, One Watergate Association, Inc. ("One Watergate"), as a prevailing small business party in an adjudicatory proceeding, initiated by a state agency, should be awarded attorney's fees and costs pursuant to the Florida Equal Access to Justice Act, Subsection 57.111(4)(a), Florida Statutes (2002).
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: The Commission is the state agency charged with investigating complaints of discriminatory housing practices and enforcing the Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2002). The Commission is charged with investigating fair housing complaints filed with the Commission and with the federal Department of Housing and Urban Development under the Federal Fair Housing Act, 42 U.S.C. Section 3601, et. seq. One Watergate is the duly-incorporated owners' association for the One Watergate condominium building in Sarasota. The Board is the governing body of One Watergate and is responsible for the approval or denial of potential residents and purchasers of units in the One Watergate building. One Watergate is a "prevailing small business party," as that term is employed in Section 57.111, Florida Statutes (2002). Prior to May 2002, prospective buyers or residents at One Watergate were required to complete an application that asked for character references, but did not require the applicant to provide bank references or other financial information. In early 2001, the Board commenced a search process to find a third-party investigative firm to conduct more detailed screenings of potential residents and purchasers at One Watergate. In April 2002, the Board reviewed detailed information regarding one such firm, Renters Reference of Florida, Inc. ("Renters Reference"), an investigative consumer reporting agency operating under the Federal Fair Credit Reporting Act. On April 16, 2002, the Board met in a duly-noticed, regularly scheduled meeting and voted to pursue a contract with Renters Reference to conduct applicant screenings. The minutes of the April 16, 2002, Board meeting also indicated that the Board approved an amendment to the Renters Reference motion to the effect that no new applicants would be rejected until the Board voted on the repeal of the "buy back" provision of the One Watergate by-laws. The "buy back" provision stated that if the Board rejected a bona fide purchaser, the owner of the unit in question could demand that One Watergate itself purchase the unit. On May 2, 2002, One Watergate and Renters Reference entered into an "Agreement for Service" for the conduct of confidential background checks, credit checks, and other screenings of potential One Watergate residents. In cooperation with the Board, Renters Reference established form applications to be completed by potential residents and by potential unit purchasers. The forms required applicants to sign an authorization to release their banking, credit, residence, employment, and police record information to Renters Reference. The forms also required applicants to disclose their Social Security numbers to Renters Reference, which would allow Renters Reference to obtain credit reports directly from the three national credit reporting agencies, TransUnion, Experian, and Equifax. The purchase application form also contained a provision that required the applicant to agree to "hold harmless" Renters Reference and the Board from any claim in connection with the use of information obtained through the Renters Reference investigation. The forms advised applicants that a failure to complete any portion would result in the application being "returned, not processed and not approved." Renters Reference advised One Watergate to strictly enforce the requirement that applicants complete all portions of the forms on the ground that a waiver of application requirements for any one applicant would necessitate such a waiver for any subsequent applicant or else invite a discrimination claim by the subsequent applicant. After completing the investigation, Renters Reference would send a report to One Watergate with its findings. Renters Reference was not authorized to approve or deny the application, and it made no recommendations as to approval of the application. The Board established a screening committee to act upon the applications. The two-person screening committee consisted of Janis Farr, One Watergate's resident manager, along with the sitting Board president. The screening committee's decision to approve or disapprove the application was later subject to a ratification vote by the full Board. On May 16, 2002, potential unit purchaser Marcia Lang submitted a completed form Application for Occupancy/Approval and a completed form Application for Purchase. The application was forwarded to Renters Reference, which performed a background screening that included obtaining a TransUnion credit report dated May 24, 2002. Renters Reference completed its investigation on May 29, 2002, and made its report to One Watergate. The screening committee approved the application and issued an undated Certificate of Approval. Ms. Lang closed on her unit in One Watergate in August 2002. Because the Board does not meet during the months of May through August, the Board did not ratify the screening committee's approval until its October 15, 2002, meeting. On May 29, 2002, Derrick Bhayat, a Sarasota realtor, entered into a contract with Janey and Paul Hess to purchase their One Watergate unit for $315,000. Mr. Bhayat was originally from Capetown, South Africa, where he was considered "colored." His ancestry is Malaysian, Zulu, and French. No party to the underlying proceeding disputed that Mr. Bhayat was a person of color. On May 30, 2002, Mr. Bhayat telephoned Ms. Farr and requested that he not be required to complete the application forms. Mr. Bhayat explained that he had always been cautious about providing personal information, such as his Social Security number to businesses. This general cautiousness became alarm in 2001 when his wife, Nancy Bhayat, was the victim of an identity theft. The thief used Mrs. Bhayat's Social Security number to obtain a Visa card and make $12,000 worth of purchases. Ms. Farr responded that the application would not be accepted unless all the requested information was provided. Nevertheless, on May 31, 2002, Mr. Bhayat submitted to the One Watergate office an application to occupy a unit and an application to purchase a unit. On these applications, Mr. Bhayat did not provide his or his wife's Social Security number. He did not sign the authorization to release his banking, credit, residence, employment, and police record information to Renters Reference, and he struck through the hold harmless provision. Mr. Bhayat's application to purchase was not accepted because One Watergate deemed it incomplete. This event triggered a series of negotiations between One Watergate's attorneys and the lawyer for Mr. Bhayat, the details of which are recited in the Recommended Order in Case No. 04-0816. The parties finally agreed that One Watergate would accept an application from Mr. Bhayat that reinstated the hold harmless provision, include his driver's license number in lieu of his Social Security number for conduct of the Renters Reference background check, and also include a credit report provided by Mr. Bhayat. Pursuant to this agreement, Mr. Bhayat re-submitted his application on or about June 12, 2002. On June 14, 2002, One Watergate's lawyer wrote a letter to Mr. Bhayat's lawyer that stated, in relevant part: It has come to my attention that the credit report submitted by Mr. and Mrs. Bhayat is not a credit report from a national credit reporting bureau but, in fact, is a consumer report which apparently is used quite often by mortgage brokers and realtors to compile only the positive aspects of an individual's credit reports. As a result of Mr. and Mrs. Bhayat's misrepresentation and attempt to deceive the Association, at this point only a complete and accurate application will be accepted by One Watergate Association. A complete and accurate application shall include both applicant's [sic] date of birth and social security numbers, as well as all other information requested on the application. . . . Mr. Bhayat made no further attempts to submit applications to One Watergate. Neither the screening committee, nor the full Board, ever took official action because the application was never deemed complete. Mr. Bhayat's purchase of the unit fell through. On July 19, 2002, Mr. Bhayat filed the Complaint with the Commission, alleging that One Watergate discriminated against him on the basis of national origin and color. The Commission assigned an investigator to the case. In support of his Complaint, Mr. Bhayat submitted a copy of his One Watergate application, including a 13-page credit report generated by MSC Mortgage, a joint venture of Wells Fargo Bank and Mr. Bhayat's employer, Michael Sanders and Company. The credit report was a "tri-merge" report, meaning that it combined information from all three major reporting services into a single report. In response to the investigator's request, One Watergate submitted a position statement on August 22, 2002. One Watergate generally denied Mr. Bhayat's allegations of discrimination and set forth a statement of facts in support of its position. One Watergate explained that Mr. Bhayat's final application was not considered complete because the credit report came from MSC Mortgage, rather than a credit reporting agency, which rendered it unacceptable. In response to Mr. Bhayat's allegation that he was required to provide information not asked of other applicants, One Watergate pointed out that Marcia Lang had applied and been accepted as a unit purchaser, using the Renters Reference application, two weeks before Mr. Bhayat submitted his first application. The Commission's investigator interviewed Jan Gillett, a former resident and Board member of One Watergate. Ms. Gillett told the investigator that the Renters Reference form applications had not been approved at the time Mr. Bhayat applied because the Board had yet to resolve the "buy back" controversy. Ms. Gillett also mentioned that a former Board member, now deceased, believed that Arab terrorists were planning to come into high rise condominiums, such as One Watergate, and blow them up. Ms. Gillett asserted that this former Board member had also stated that Mr. Bhayat's reluctance to disclose his Social Security number indicated that he had something to hide. The Commission's investigator interviewed Ms. Hess, co-owner of the unit Mr. Bhayat attempted to purchase. Ms. Hess told the investigator that Larry Farr, the husband of Janis Farr and "a member of management," had made remarks to her about Mr. Bhayat that could only be interpreted as referring to his skin color. According to Ms. Hess, Mr. Farr stated, "I knew the minute I saw that guy he was going to be trouble." Given that Mr. Bhayat did not have an intimidating physical presence, Ms. Hess assumed that Mr. Farr was referencing Mr. Bhayat's skin color or national origin. The Commission's investigator requested One Watergate to produce copies of all applications submitted by prospective residents during the period May 2002 through December 2002. When One Watergate declined to provide the applications, the Commission issued a subpoena seeking their production. One Watergate again declined on the ground that its residents' privacy interests precluded production of these applications absent a court order setting forth the type and dates of documents to be produced and the information that could be redacted from the documents prior to their production. One Watergate ultimately produced the redacted applications pursuant to an Order of the Circuit Court of the Twelfth Judicial Circuit entered on July 18, 2003. On September 22, 2003, the Commission's investigator produced a Final Investigative Report listing all the witnesses interviewed and documents reviewed during the investigation. The report lists Mr. Bhayat, Ms. Hess, and Ms. Gillett as the only substantive interviewees. On the same date, the investigator also produced a document entitled, "Determination" that set forth his findings and his recommendation that there was cause to believe that a discriminatory housing practice had occurred. On November 14, 2003, the Commission issued a document entitled, "Legal Concurrence: Cause." As the title suggests, this document represented the concurrence of the Commission's legal counsel with the investigator's conclusion that there was reasonable cause to believe that a discriminatory housing practice had occurred. The legal analysis, prepared by the Commission's attorney Vicki Johnson, stated as follows, in relevant part: The Complainant has satisfied all the requirements of a prima facie case. The Complainant has a dark complexion and is from South Africa, therefore he is protected on the basis of color and national origin; he submitted an application to purchase the condominium and had obtained mortgage approval. Once his application was rejected, the condominium remained available for sale. Respondent articulated a non-discriminatory reason for denying the Complainant's application; however, this reason is determined to be pretext. To show pretext, the Complainant need only show that his color and national origin were in some part, the basis for the denial of the sale. . . A landlord has the right to request information about the financial status of prospective tenants; an inadequate or incomplete application form may act as a defense to a discrimination charge by providing a legitimate basis for the action taken. . . However, a violation of the Fair Housing Act can be found even where formal requisites of a contract/application are not satisfied, if the motivation behind rejection of the contract was discriminatory. . . . Respondent states that the Complainant did not submit a complete application because he failed to provide his and his wife's social security number[s]. The Complainant explained that he did not provide the social security numbers because his wife had recently had her identity stolen and was afraid to disclose her social security number. The application which the Complainant was asked to complete was not to take effect until July 1, 2002, when Respondent entered into a contract with Renter's [sic] Reference, who was to provide a credit report for applicants applying to purchase a condominium. The Renter's Reference application form is more detailed than the previous application. While it is true that the Complainant did not disclose his social security number, which would permit Renter's Reference to obtain his credit report, the Complainant did provide a copy of a credit report that was obtained by his mortgage company. This credit report included both positive and negative credit issues and provided similar information as that which would have been generated by Renter's Reference. Moreover, the minutes of the April 2002 meeting of the One Watergate Board of Directors indicates [sic] that the board approved a motion that "no new applicants be turned down until the revision of documents with reference to the obligation of the Association to purchase the unit where an applicant has been rejected." The Complainant's application was submitted after this decision by the board, but was turned down. In addition, Mrs. Hess stated that when she inquired about the Complainant's application, Mr. Farr (the building manager) told her that "I knew from the minute I saw that guy that he was going to be trouble . . . when you see him, you'll know what I mean." This statement is clearly referencing the Complainant's physical appearance. Mr. Farr was acting as an agent for the Respondent, therefore, the Respondent is vicariously liable for his actions and statements. [Citations omitted.] Also, on November 14, 2003, the Commission's executive director issued a Notice of Determination and Administrative Charge finding that there was reasonable cause to believe that a discriminatory housing practice had occurred. Prior to filing the Petition for Relief that initiated the underlying proceeding, the Commission afforded One Watergate an opportunity to submit additional information in its defense. On February 23, 2004, counsel for One Watergate submitted several documents to the Commission. The first was a signed statement by Mr. Farr denying that he made the remarks alleged by Ms. Hess. The second document was the contract between Renters Reference and One Watergate, indicating an effective date of May 6, 2002, not July 1, 2002, as alleged by the Commission. Counsel for One Watergate also included Ms. Farr's version of the sequence of events concerning Mr. Bhayat's application and the minutes of a June 25, 2002, Board meeting at which the Board voted to return the application to Mr. Bhayat for completion, thus indicating that the Board did not "disapprove" that application. Finally, One Watergate included a letter from Warren Plant, the president of Renters Reference, explaining why he considered the credit report submitted by Mr. Bhayat to be unacceptable: At this time in 2002, we could not pull a credit report without an individual's Social Security Number. We obtain our credit reports directly from the national credit bureaus and provide our customer with an exact copy of this credit report. We do not obtain our credit reports from third-party consumer reporting agencies. The credit report submitted by Mr. Bhayat was a concoction put together by a third-party consumer reporting agency, not an exact copy of a credit report from a national credit bureau. A consumer reporting agency takes information from different sources and they make up their own credit report, including or excluding whatever information they want. On March 10, 2004, the Commission filed the Petition for Relief that initiated Case No. 04-0816. At the hearing in that case, it was established that Mr. Farr had nothing to do with management of One Watergate; rather, he was the building's maintenance man. The undersigned credited his denial of the statements attributed to him by Ms. Hess, but also found that even if Mr. Farr made those statements, they could not be attributed to One Watergate because Mr. Farr played no role in the application process and had not discussed Mr. Bhayat with any Board member or with his wife. At the hearing, it was also established that Renters Reference never received the full credit report prepared by MSC Mortgage and submitted by Mr. Bhayat with his last application. Mr. Bhayat produced a 13-page report at the hearing, but witnesses for One Watergate and Renters Reference credibly testified that they received only the first two pages, which summarized the information in the full report. The undersigned credited Mr. Plant's testimony that even the full report did not meet Renters Reference's criteria for a credit report, and thus, the result would have been the same even if Mr. Bhayat had submitted the full credit report. The undersigned also credited Mr. Plant's testimony that his company does not "mess around" with the Fair Housing Act and that he would have immediately canceled the contract with One Watergate if he had had the least suspicion that the Board was basing its actions on Mr. Bhayat's race, color, or national origin. The Recommended Order in Case No. 04-0816 did not directly address the issue of the minutes of the April 16, 2002, Board meeting because the evidence produced by One Watergate at the hearing rendered that issue irrelevant. The undersigned credited the testimonial and documentary evidence produced by One Watergate to show that the referenced minutes were not accurate. No motion was made or adopted regarding the effect of the "buy back" provision on the new applicant screening process. The issue was discussed at the meeting, but no action was taken by the Board. The undersigned found no evidence that any member of the Board or the screening committee discriminated against Mr. Bhayat due to his race, national origin, or for any other reason. Most of them never met Mr. Bhayat and were unaware of his race or national origin during the period in dispute. Mr. Bhayat simply declined to submit a complete application to One Watergate, which, in turn, declined to consider his incomplete application. Prior to filing its Petition for Relief, the Commission did not interview either of the Farrs or any Board member aside from Ms. Gillett. Such interviews might have caused the Commission to question the credibility and/or accuracy of the information provided by Mr. Bhayat, Ms. Gillett, and Ms. Hess. However, nothing that the Farrs or the Board members stated would necessarily have led the Commission to conclude that it lacked cause to proceed. The Commission would have had to make a judgment as to the credibility of the witnesses, as did the undersigned at the final hearing. A more detailed investigation might have revealed that there was a dispute as to whether Mr. Bhayat submitted the full credit report or merely the first two pages. However, at the time the Commission found cause, neither the Commission nor One Watergate apparently realized there was an issue regarding the report. The Commission assumed that One Watergate received the full 13-page report and had no reason to believe otherwise. One Watergate assumed that the two pages it received constituted the full report until Mr. Bhayat produced the full report at the hearing. The matter was resolved at the hearing, essentially as a matter of witness credibility. Mr. Bhayat was adamant that he submitted the full report, but Ms. Farr and Mr. Plant convincingly testified that they received only the first two pages. It is not clear how extensive the Commission's investigation would have to have been in order to learn that the published minutes of the Board's April 16, 2002, meeting were not accurate. According to the published minutes, no applicant would be rejected until the Board voted on the repeal of the "buy back" provision of the One Watergate by-laws, yet Mr. Bhayat was rejected (or more precisely, his application was not considered) prior to any such vote being taken. Thus, the published minutes were a very significant factor in the Commission's judgment that One Watergate was treating Mr. Bhayat differently than other applicants, and the Commission continued to rely on the minutes throughout the underlying proceeding. The Commission argued, strenuously and not unreasonably, that the undersigned should not credit One Watergate's self-serving testimony and documentary evidence indicating that the minutes were inaccurate. An interview with Mr. Farr would have revealed that he disputed Ms. Hess' account of their conversation, but this again would have been a matter of witness credibility and the weighing of corroborating evidence to determine the facts. The Commission had Mr. Farr's written statement of denial in its possession at the time the Petition for Relief was filed indicating that the Commission did not find Mr. Farr persuasive. The mere fact that Mr. Farr denied the allegation would not render the Commission's reliance on Ms. Hess' testimony unreasonable per se. From the outset of the underlying proceeding, the Commission made it clear that it did not intend to rely solely on the alleged statement of Mr. Farr, or the hearsay statements of Ms. Gillett, to establish that One Watergate had discriminated against Mr. Bhayat. Counsel for the Commission acknowledged in her opening statement that this would be a case based on circumstantial evidence of discriminatory motive on the part of One Watergate. The Commission's theory of the case, in a nutshell, was that Renters Reference's "bread and butter" lay in assisting organizations such as One Watergate to keep out "undesirables," and that Renters Reference was always going to find some reason not to accept Mr. Bhayat's application because One Watergate had labeled him an "undesirable." Because Mr. Bhayat was a successful realtor, was financially able to purchase the condominium in question, and lacked a criminal record or other disqualifying attribute, the Commission concluded that the reason for not accepting his application must have been his color or national origin, which was the only obvious distinction between Mr. Bhayat and those applicants whose applications were accepted and approved by Renters Reference and One Watergate. Based on the information before it at the time it found reasonable cause to believe that an act of discrimination occurred, the Commission had a reasonable basis in law and fact to proceed with the case. The Commission's investigation was not perfect, but the overriding factor in the underlying case was witness credibility. The Commission was substantially justified in finding the statements and testimony of Mr. Bhayat, Ms. Hess, and Ms. Gillett credible during its investigation, despite the fact that the undersigned ultimately chose to credit the testimony of One Watergate's witnesses, in light of all the evidence produced at the hearing.
