Findings Of Fact Petitioner, within the past year, purchased two tracts of property 50 feet by 100 feet located at 614-620 Mandalay Avenue on Clearwater Beach. This property is zoned "CG" or "General Business" and there are four buildings on this property comprising five dwelling units. The land use plan for this location is commercial/tourist facilities. Petitioner submitted an artist's drawing of what the site could look like if the variance requested was granted. No building permits have been requested; accordingly, no specific plans have been submitted to establish the use to which the property would be put if the variance requested is granted. The proposal of Petitioner (such as it is) contemplates converting the ground floors of the existing structures to commercial use. If the existing buildings were so converted, with the upper floors remaining residential, the zoning code requires provision be made for twenty-eight off-street parking spaces. Since the existing five dwelling units would be credited (grandfathered) for having eight such parking spaces due to the construction having occurred before the zoning code was enacted, Petitioner is requesting a variance for the remaining twenty off-street parking spaces that would be required. Actually, there are no off-street parking spaces on this property but five or six parking spaces exist in the right-of-way for Mandalay Avenue. There are no off-street parking spaces on Mandalay Avenue in the vicinity of Petitioner's property and none are proposed to be provided by Petitioner. Mandalay Avenue is the main north-south artery on Clearwater Beach and is four-laned in the vicinity of Petitioner's property, which lies near the northern terminus of "CG" zoning. At the hearing before the Board one witness spoke in favor of the variance requested because the proposal by Petitioner was better than if the property was used for the construction of a high-rise residential unit, which the zoning would permit. Since no specific proposal is before the Respondent for the issuance of a permit, there is no assurance that granting the requested variance would preclude the construction of high-rise residential units. The dwellings occupying this property were constructed some thirty years ago and are expensive to maintain and are not a very attractive investment. Petitioner referred to several other businesses where variances in parking requirements have been granted when bars and restaurants on Mandalay Avenue were rebuilt or expanded; however, little evidence was presented that parking variances have been granted when a new use for the property was proposed.
The Issue The issue is whether Respondents are guilty of housing discrimination against Petitioner based on disability, in violation of Section 760.23, Florida Statutes (2003).
Findings Of Fact Petitioner suffered a stroke in September 1997 and was consequently disabled. His right side was impaired. Petitioner's right foot drags when he walks, and his right arm is of limited use. Petitioner is unable to walk long distances or stand for a significant period of time. To walk at all, Petitioner requires the use of a cane or a walker. Petitioner has been in this condition from September 1997 through the date of the final hearing. At all material times, Petitioner has possessed a handicapped parking sticker due to these disabilities. For many years, Petitioner's wife has lived in unit 102 at the Majestic Gardens Condominium, Building "C," Lauderhill, Florida. Petitioner married his wife shortly before suffering the stroke and moved into her condominium unit at Majestic Gardens in December 1997. Petitioner and his wife resided together at unit 102 until April 2001, when they rented the unit and moved to a house in Miramar. All of the buildings at Majestic Gardens Condominiums comprise 238 units. Building "C" is a three-story building with 41 units. Each unit in Building "C" is assigned one parking space. The assigned parking spaces are in close proximity to the entrances of the units. Building "C" provides nine guest parking spaces, but the parking is limited at Majestic Gardens, and these spaces are routinely unavailable. In the case of Petitioner's unit, the assigned space is less than 15 feet from the front door to the ground-floor unit. At all material times, Petitioner's wife has parked her car in this space. The two spaces to the left of Petitioner's assigned space, as one faces the unit, are slightly closer to Petitioner's unit and are designated as guest spaces. Both Respondents are jointly responsible for operating and assigning the parking spaces immediately adjacent to Building "C." From 1998 through 2001, Petitioner and his wife tried unsuccessfully to convince Respondents to designate a parking space in front of their unit as handicapped, so that Petitioner, who can still drive, could park his car directly in front of his unit. Respondents refused to designate a handicapped space because the effect of such a designation would have been that Petitioner and his wife would have had two spaces in front of their unit, when all of the other unitowners had only one space. Respondents have not designated any handicapped parking adjacent to Building "C." They have designated three handicapped spaces at a nearby clubhouse, but, after Petitioner started parking his car in one of these spaces, Respondent Majestic Gardens Condominium Association, Inc., informed Petitioner that these spaces were reserved for use by persons using the recreation facilities. Because Petitioner was not using the recreation facilities, he could not park in one of these handicapped spaces. Later, Respondent Majestic Gardens Condominium Association, Inc., painted over the blue lines and removed the handicapped-parking sign, thus allowing all users of the recreation facilities to park in the three spaces previously reserved for handicapped users of the recreation facilities. At that point, the entire eight-building Majestic Gardens complex lacked any parking designated exclusively for handicapped use. Relations between the condominium management and Petitioner and his wife became strained at times. Petitioner received cautionary notes and threats of towing whenever he parked his car in a guest space. However, Respondents gave Petitioner's wife the names of persons who might be willing to rent their assigned parking spaces. Despite several efforts, Petitioner and his wife were unable to secure another space by this means.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 19th day of November, 2003, 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 19th day of November, 2003. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Stewart Lee Karlin Stewart Lee Karlin, P.A. 315 Southeast 7th Street, Second Floor Fort Lauderdale, Florida 33301 Roosevelt Walters Qualified Representative 1509 Northwest 4th Street Fort Lauderdale, Florida 33311 Florida Donaldson Majestic Gardens Condominium 4045 Northwest 16th Street, Building C Lauderhill, Florida 33313
Findings Of Fact Petitioner owns Lot 70, Gates Knoll 1st Addition, which abuts a medical office complex of eighteen offices west of Lot 70. Off-street paved parking for the medical offices presently abuts Lot 70, but additional parking is needed. Lot 70 fronts on Barry Street, which is the only east-west through street in the immediate vicinity and is heavily travelled. Zoning for Lot 70 is "RS 50," which is single family residential. West of Lot 70 to Highland Avenue is zoned "PS," which would allow multiple family dwellings or business and professional services such as those for which the property is presently used. South of the area zoned "PS" the property adjacent to Gates Knoll 1st Addition is zoned "RM 28," which provides for high density multi-family use and just west of "RM 28" between that zoning and Highland Avenue the property is zoned "CS" for General Commercial use. A bowling alley is located in this area a short distance south of Barry Avenue. Lot 70 is currently fenced and the southern and western part of this lot is used for parking a few automobiles during business hours. The north side of Lot 70 is part of a drainage easement or ditch which occupies approximately 35 feet of this property. Lot 70 is 100 feet wide on Barry Street and 105 feet deep. The north 35 feet of this lot is unusable for construction due to the drainage easement. Adjoining property owners across Barry Street from Lot 70 oppose the special exception primarily because they want the lot to remain vacant to serve as a buffer zone between their property and the commercial development. Others oppose the application because they fear use of the property for anything except a single family residence will reduce their property values, increase the traffic in the neighborhood, and increase the noise and pollution from automobiles. Mr. Huff, the adjoining property owner whose home is immediately east of Lot 70 on Lot 71, is concerned about the proximity of the parked vehicles to his home. The existing fence is some ten feet from Huff's home.
The Issue There are two issues presented by Petitioner, as follows: Was the bid of Intervenor, BDC Deland Ltd., responsive? Was the Respondent, the Department of Health and Rehabilitative Services (HRS), decision to award the bid in this case arbitrary and capricious?
Findings Of Fact HRS issued an invitation to bid (ITB) competitively for Lease No. 590:2438 for approximately 17,568 square feet of office space in Deland, Florida. A three percent variance in the amount of space offered was permitted. The ITB required that all bidders attend a pre-proposal conference because valuable information and explanations would be provided to interest bidders at the conference which were to be complied with by the bidder. Paris and Procacci attended. The requirements included providing 140 assigned (reserved) parking spaces by the bidder for the office's use. See Bid Submittal Form, Page 9 of 25. The requirements contained two provisions directly relating to parking requirements, Paragraphs 11d and 21, and one which is tangentially related concerning compliance with zoning, Paragraph 6. Paragraph 11d provides as follows: Section 11: As part of the bid submittal, bidder are to provide: * * * (d) A scaled site layout showing present location of building(s), location, config- urations and number of parking spaces assigned to the Department, access and egress routes and proposed changes. This is to be drawn to scale. Final site layout will be a joint effort between the Department an lessor to meet the needs of the Department. (Emphasis supplied.) Paragraph 21 provides as follows: Section 21: Parking: For this facility the Department has determined that a minimum of 140 parking spaces are required to meet its needs. This parking is to be under the control of the bidder, off street, suitably paved and lined. This parking is to be provided as part of the lease cost to the Department. Lessor will grant to the lessee an exclusive right to use 140 parking spaces. Lessor shall submit with this bid submittal a letter certifying that the lessor agrees to the requested number of parking spaces on site, states the number of parking spaces per square foot of space as required by the local zoning jurisdiction and provides a site plan of the parking lot identifying the number of parking spaces assigned to specific other tenants. The purpose of this submittal is to assure parking spaces conform to local jurisdiction requirements of number and size, and that the number of parking spaces requested in this invitation can be achieved without infringing on or combining with the parking requirement of other tenants. (Emphasis supplied.) * * * Bidder Response: Parking Being Bid Exclusive spaces available on site. See attached site plan. Non-exclusive spaces available on site. Exclusive spaces off site located from the proposed facility (Distance) Bidder must provide recent evidence of control of all parking spaces being proposed. Permis- sion to park is not control. The provisions of Section 21 were included in the lease because HRS had previously had bad experiences with parking availability. Parking, as evidenced by the requirement for a site plan and certificate to be submitted with the proposal, was an important and material provision of the lease. Both Paris and Procacci submitted bid proposals, including site plans, which were deemed responsive by HRS. HRS considered the proposals of both Paris and Procacci, and performed site visits to both properties. In addition, the evaluators were familiar with both properties. Paris's bid was evaluated to be the lowest and best bid, and HRS noticed the bidders of its intent to award the bid to Paris. At that point, Procacci asserted to HRS that Paris' proposal was deficient because it did not meet the parking requirements in terms of the quantity of parking spaces Paris could provide based upon its submittal because of the zoning requirements and impact of the "out parcels" indicated on the site plan which had been submitted. After being contacted by Procacci, HRS inquired of Paris, pursuant to the terms of the RFP, if it was sure it could provide the parking as required and comply with local zoning. HRS also inquired about the status of the out parcels. Paris advised that, although it had intended to try and develop the areas marked as out parcels, it did not have contracts to develop these areas, and that Paris understood that it could provide the number of parking spaces required to HRS and current and future tenants within the local zoning provisions. HRS, through its counsel, checked with the local zoning official, and was advised that Paris had enough space on site to provide parking spaces complying with local codes for HRS, current tenants, and future tenants. The zoning official's estimates were based upon general assumptions about the nature of the future tenants which affected the space required for parking; however, these assumptions were generally consistent with Paris' development plan. HRS was also advised that in developing the out parcels, Paris would have to comply with existing codes including the provisions for parking. Paris was the owner in fee simple of the site upon which the proposed leasehold and parking lot were located. At the time the bid was submitted, the property contained 168,000 gross square feet of leasable space, of which, 66,000 gross square feet were leased to Belk Lindsey, Dollar General, Community Dialysis, a coin laundry, the DeMarsh Theatre, and the Department of Labor. The property had vacant 101,000 gross square feet of which 18,005 gross square feet were being offered to HRS. The existing leases included governmental uses, commercial uses, medical uses, and a theater. The total area of medical uses is limited to medical clinic and the Dialysis Center which had 5,184 square feet. (Only the portion of the Health Department which is clinic is treated as medical office space, and the remainder is treated as governmental use. See Volume IV, Page 568, line 4. The larger figure (5,184) for the clinic's area stated in Petitioner's Exhibit 9 is utilized for the volume of the clinic instead of Paris' figure of 4,200 square feet.) The total area of governmental uses is 71,336 square feet and includes the Department of Labor (5,000), HRS (18,000), Volusia County Environmental Health (22,277), and Volusia County Health Department (26,059). The total area of commercial uses is 49,016 square feet including Belks (41,490) and Dollar General (7,526). There was a total of 31,624 square feet vacant which Paris planned to lease for government offices. Under city code, the net square area was divided by a factor to arrive at the required parking for each type of use. The factor for the various uses are as follows: Governmental-200 square feet; Commercial-250 square feet; and Medical-100 square feet. The theater would require one space for every two seats and 5 for staff. See Petitioner's Exhibit 9. Utilizing the areas given above and the code's parking factors given above, the governmental offices less HRS would require 267 parking spaces. HRS would require 140 parking spaces. The clinic/dialysis center would require 52 parking spaces. The commercial uses would require 196 parking spaces, and the 232 seat theater would require 166 parking places. It is inferred that the vacant space was to be rented to governmental activities pursuant to the landlord's plan, and would require 188 parking spaces. A total of approximately 1,010 parking spaces would be required for the entire facility computed on gross areas assuming no future changes in the existing leaseholds and the lease of all the vacant space for government offices. The city code utilizes net area to compute parking excluding rest rooms, halls, etc. However, the estimation using gross figures results in a maximum estimate. Paris certified that the parking spaces were controlled by the bidder, that the parking spaces were on site and in the area indicated on the site plan submitted with the bid, and that 980 parking spaces could be accommodated. Paris' site plan also indicated the area in which the 140 parking spaces for HRS would be located. Other tenant parking was not indicated on the site plan; however, none of the other tenants had assigned parking. Paris calculated that a total of 840 spaces were required using the known data for current leases, 140 spaces for HRS, and a factor of one parking space for every 200 square feet of remaining vacant space. The building official opined that the completely leased facility would require between 750 and 1050 parking spaces, and that there was enough space on site to accommodate the required parking. Other competent evidence was received that between 880 and 1,077 parking spaces meeting code requirements could be placed on the site. Estimates by qualified, knowledgeable people varied based upon assumptions about occupancy and use, whether the lot could be "grandfathered in" and how the parking lot was laid out. There were enough spaces to provide parking for the HRS lease and all of the existing tenants at the time of submission of the bid proposal. However, under the existing code provisions, 140 parking spaces could not be accommodated in the rectangle indicated on Paris' site plan. This is not considered to be a material deviation from specifications because Paris had agreed to provide 140 spaces, the final arrangement and placement of the parking for HRS was subject to further negotiation, and the entire parking lot was subject to being relined. If spaces meeting code requirements would not have fit in the rectangle, Paris would have been required to adjust the size of the rectangle or design of the parking until they did fit. This was relatively easy because the other tenants did not have assigned parking. The RFP provided that the successful bidder would have time to remodel the property and to bring it into compliance with existing codes. This would include the parking facilities as well as the building. The HRS staff made a site visit, and were familiar with the property. They concluded that there was sufficient parking, and that Paris had made a valid, supportable offer. Their conclusion was reasonable given the opinion of the local building official and their personal knowledge of the property. The RFP calls for a performance bond, and permits HRS to cancel the contract if the successful bidder cannot perform under the terms of the bid. Minor deficiencies in the proposals of Procacci and Paris, which are not at issue in this case, were waived. The RFP contained no "fatal" deficiency provisions. The ITB stated that HRS reserved the right to waive minor informalities or technicalities, and seek clarification of bids received.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Petitioner's Petition be dismissed. DONE and ENTERED this 7th day of July, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1995. APPENDIX All of the parties filed proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1 Paragraph 1. Paragraph 2 Irrelevant. Paragraph 3 Paragraph 5,6. Paragraph 4 Argument and conclusions. Paragraph 5 Paragraph 7. Paragraph 6 First sentence is contrary to best evidence. Second sentence subsumed in other findings. Third sentence is contrary to best evidence. Paragraph 7,8 Subsumed in Paragraph 8. Paragraph 9 Irrelevant. Paragraph 10 Subsumed in Paragraph 6, and Conclusions of Law. Paragraph 11 Subsumed in Paragraph 8. Paragraph 12 No confusion exists. The terms of the RFP are clear. Paragraph 13 Rejected. There is no requirement to indicate on the site plan "existing" parking, unless it is assigned to an existing tenant. There was no assigned parking for existing tenants. Paragraph 14 Rejected. Paris' letter is based upon assumptions regarding future occupancy and uses; however, the site plan is not based upon those assumptions. Paragraph 15 Irrelevant. Paragraph 16 See comments to Paragraph 14. Paragraph 17 It was confusion for Paris to include parking spaces in areas marked "Future out parcels" on his site plan; however, this was clarified by HRS in its discussions with Paris, which indicated that there were no planned uses for those areas. Paragraph 18 The figure of 937 spaces is not mentioned on either of the two pages referenced. See discussion in Paragraph 19, Findings of Fact. Paragraph 19 Paris did not certify 980 "existing" spaces. He certified that the parking lot could accommodate 980 parking spaces. Paragraph 20 Contrary to facts. The 813 figure was not "identified" by HRS. Further, it is unclear from the reference to what the figure referred. Paragraph 21 Subsumed in Paragraph 9 et seq. Paragraph 22 See discussion of Paragraph 17, above. Paragraph 23 Subsumed in Paragraph 9 et seq., and Paragraph 13-18. Paragraph 24 Subsumed in Paragraph 19. Paragraph 25 Rejected as argument. Use of gross figures increases the number of required spaces; therefore, is not misleading in making estimates of future needs. Paragraph 26 Rejected as argument, and contrary to facts which indicates that HRS did conduct site visits, was familiar with the facilities, and checked challenged information with city building officials. Paragraph 27-29 Irrelevant, and subsumed in Paragraph 8. Respondent's Recommended Order Findings Paragraph 1 Paragraph 1 Paragraph 2,3,4 Subsumed in Paragraph 8. Paragraph 5 Subsumed in Paragraph 4. Paragraph 6 Subsumed in Paragraph 8. Paragraph 7 Irrelevant. Paragraph 8 Subsumed in Paragraphs 8,13,19. Paragraph 9 Subsumed in Paragraphs 4,5. Paragraph 10 Subsumed in Paragraph 7. Paragraphs 11,12 Subsumed in Paragraphs 5,19. Paragraphs 13,14 Subsumed in Paragraph 13 et seq. Paragraphs 15,16 Subsumed in Paragraph 19. Paragraph 17 Subsumed in Paragraph 13 et seq. Paragraphs 18-21 Irrelevant. Paragraphs 22-24 Subsumed in Paragraphs 8,23. Paragraph 25 Subsumed 22,24. Paragraphs 26-28 Subsumed in Paragraph 6. Paragraph 29 Subsumed in Paragraph 2. Paragraphs 30,31 Subsumed in Paragraphs 8,19. Paragraph 32-34 Subsumed in Paragraph 13 et seq. Paragraph 34 Subsumed in Paragraph 19. Paragraph 35 Irrelevant. Paragraph 36,37 Subsumed in Paragraph 19. Paragraph 38 Subsumed in Paragraph 15. Paragraph 39 Subsumed in Paragraph 11. Paragraphs 40-42 Subsumed in Paragraph 13 et seq. Paragraphs 43,44 Subsumed in Paragraph 17. Paragraphs 45,46 Subsumed in Paragraphs 23-24. Paragraph 47 Paragraph 18. Paragraphs 48,49 Subsumed in Paragraph 19. Paragraphs 50,51 Under the terms of the RFP, Paris had the opportunity to bring the facilities into code compliance. Failure to do so was a basis for terminating the contract. See Paragraph 20. Paragraph 52 Subsumed in Paragraph 19. Paragraphs 53-60 Subsumed in Paragraphs 10-12. Paragraph 61 Paragraph 19. Paragraph 62 Paragraph 8. Paragraphs 63,64 Conclusions of Law. Intervenor's Recommended Order Findings Paragraphs 1-4 Paragraphs 1-4 Paragraph 5 Paragraph 2 6,7 Not necessary to determination of issues. Paragraphs 8i-vii Subsumed in Paragraphs 5,6,8,10,19,21. Paragraph 9 Paragraph 13. Paragraphs 10i-viii, 11i-iv,12i-vi Paragraphs 13-17,21 Paragraph 13 Paragraph 8. Paragraphs 13i-ii Ir-relevant. Paragraph 13iii Paragraph 8. Paragraphs 13iv,v Irrelevant. Paragraphs 15-15iii Paragraphs 8,23. Paragraphs 16i-ii,17 Paragraph 8. Paragraph 18 Paragraph 9. Paragraphs 19,20 Paragraphs 10-12. Paragraphs 21i-v Paragraph 19. Paragraphs 22i-vii Conclusions of Law. Paragraphs 23i-iv Paragraph 19. Paragraph 24 Irrelevant. Paragraph 25 Conclusions of Law. Paragraph 26i-viii Paragraph 19. COPIES FURNISHED: Robert A. Sweetapple, Esquire Sweetapple, Broeker, and Varkas 465 East Palmetto Park Road Boca Raton, FL 33432 Ellen Phillips, Esquire HRS District 12 Legal Office 210 North Palmetto Avenue, Suite 412 Daytona Beach, FL 32114 Robert W. Morrison, Esquire Wells, Allen, Lang and Morrison 340 North Orange Avenue Orlando, FL 32801 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact Appellant owns the property located at 1430 Palmetto Street, Clearwater, Florida. The area is zoned RS-50, a zoning for single family residents. The house located thereon is a three-bedroom, two-bath home with a garage and carport. Appellant proposes to enclose the garage to provide two additional bedrooms and a bath. The lot on which this house is sited contains 13,000 square feet. The minimum lot size for RS-50 zoning is 5,000 square feet. The structure exceeds all setback requirements of the Code. Most of the homes in this neighborhood have driveways to the garages while Appellant's property has a circular drive in front of the house. The structure meets the City of Clearwater's fire code and to be licensed as an Adult Congregate Living Facility (ACLF) must meet all requirements of the Department of Health and Rehabilitative Services. Appellant has a housekeeper on the premises at all times to prepare the meals and take care of the residents. Appellant's son manages the property and the son's wife visits the premises daily to do the necessary shopping, take the residents to doctor appointments, shopping, or for outings. Only one automobile remains at the premises on a 24-hour basis. Some residents do not have any family locally and visitors average one every two weeks per resident. Use of this property as an ACLF is reasonably compatible with the neighborhood. Excessive traffic will not be generated by use of this property as requested and the requirements for on-site parking is satisfied. Although an ACLF is a business, it is operated similar to a home in that business hours are not such that any disturbance of the neighborhood will occur and insignificant additional traffic will be generated as a result of granting this special exception. Neighbors generally have no complaints regarding the operation of the existing ACLF with a total of five residents but strongly oppose any increase in the number of residents. As grounds for opposing the increase these witnesses cited expected decrease in property values, anticipated increase in traffic and traffic hazards to the elderly residents of the ACLF who may walk along the street, excessive numbers of vehicles at the premises for which off-street parking is not available, a general dislike for any business activity conducted in the neighborhood, their opinion that an ACLF is incompatible with the neighborhood, and that Appellant will reap a financial bonanza if the special exception is granted. No statistical evidence was presented to support any of these contentions.
The Issue The issues are whether the Department of Children and Family Services should impose an administrative fine on Petitioner because children at Petitioner’s child care facility were playing in an area that did not comply with the Department’s rule governing outdoor play areas, and if so, how much should the fine be.
Findings Of Fact Petitioner operates a licensed child care facility located in Lake Wales. The facility’s license number is C14PO0223. Petitioner’s facility, which is owned by James and Vivian Loydd, has a licensed capacity of 25 children. The facility only serves “school age” children, ages five through The Loydds own another child care facility in Lake Wales that serves younger children. Petitioner’s facility is operated on the grounds of a church located on the northeast corner of Scenic Highway and Sessoms Avenue. Scenic Highway is a busy two-lane commercial road that is used as a “cut-through” to get to a main highway. The posted speed limit on Scenic Highway is 35 miles per hour. Sessoms Avenue is a residential street. It is not heavily-traveled. The church grounds include a fellowship hall, classrooms, and an office in one building and a worship auditorium in another building.2 The church also includes a fenced playground area adjacent to the office.3 The worship auditorium building and the fellowship hall/classroom/office building are separated by a paved parking area, which is approximately 50 feet wide and 160 feet long. The parking area includes approximately six handicapped parking spaces.4 Access to the handicapped parking area is provided by a narrow, one-way driveway off of Sessoms Avenue. The driveway runs through a covered breezeway between the church office and the worship auditorium.5 The main parking area for the church is located adjacent to Scenic Highway.6 That parking area can be accessed from either Scenic Highway or Sessoms Avenue. The Sessoms Avenue entrance to the main parking area is not the same driveway that is used to access the handicapped parking area. There are no barriers between the handicapped parking area and the main parking area or Scenic Highway; however, the handicapped parking area is more than 90 feet from Scenic Highway. On March 11, 2004, the Department conducted a routine investigation of Petitioner’s facility. The inspection was conducted by Glynnis Green. Ms. Green arrived at Petitioner’s facility at approximately 3:00 p.m. She turned into the church grounds by way of the driveway off Sessoms Avenue. Ms. Green was driving very slowly along the driveway through the breezeway because she was unfamiliar with the layout of the facility. As Ms. Green was driving through the breezeway, she saw a child chasing after a ball that had rolled across the path of her car. Ms. Green stopped her car and the child ran in front of her car, retrieved the ball, and then ran back in front of her car to the handicapped parking area where he was playing with other children.7 Ms. Green was only driving three to five miles per hour at the time she first saw the child, and she was able to stop her car in plenty of time to avoid hitting the child. The child crossed approximately ten to 15 feet in front of Ms. Green’s car. The child who crossed in front of Ms. Green’s car was playing ball with seven other children in the handicapped parking area.8 Another three children were sitting on the step outside of the classroom building with Stephanie Pride, the teacher who was supervising the children at the time.9 A total of 11 children were at Petitioner’s facility on the day of Ms. Green’s investigation. All of the children were “school age,” and all of the children were outside with Ms. Pride. Ms. Pride was the only teacher at the facility at the time. The other teacher, “Miss Tina,” left approximately 10 minutes before Ms. Green arrived. The facility’s director was on maternity leave, and the Loydds were at their other child care facility. Ms. Pride and the Loydds acknowledged at the hearing that it was inappropriate for the children to be playing outside in an unfenced area with only one supervisor. They acknowledged their unfamiliarity with the Department’s rule requiring two supervisors under such circumstances, and they accepted responsibility for their lack of familiarity. After Ms. Green parked her car, she directed Ms. Pride to take the children inside. Ms. Pride did so, and Ms. Green commenced her inspection of Petitioner’s facility. After completing her inspection, Ms. Green filled out the Department’s standard inspection checklist form. On the form, Ms. Green cited Petitioner’s facility for six violations,10 including a violation of Florida Administrative Code Rule 65C- 22.002(4)(e) for the children playing in the unfenced handicapped parking area. Ms. Green described that violation on the checklist as follows: The center did not have fencing for the outdoor play area that was safe from traffic. They were allowing the children to play in the parking lot and a child was witnessed running after a ball into the path of a car entering the parking lot. The center did not have an additional staff member present in the unfenced outdoor play area used for school-age children. The center did not have written authorization from the department to operate without a fence. All of the violations cited by Ms. Green were corrected at the time of the inspection or within the time set by Ms. Green for her follow-up inspection. The violation related to the children playing in the handicapped parking area was corrected at the time of the inspection by Ms. Pride taking the children inside. Ms. Green explained the results of her inspection to Ms. Pride and the Loydds, who had come to the facility at some point during Ms. Green’s inspection. She did not indicate what action the Department might take based upon the cited violations, because she did not know. Mr. Loydd asked Ms. Green what could be done to remedy the violation related to the outdoor play area. Ms. Green suggested that the facility could erect barricades around the handicapped parking area while the children were playing in that area in order to keep the children in and the cars out. On March 12, 2004, the day after Ms. Green’s inspection, Mr. Loydd purchased $272.63 of materials to implement Ms. Green’s suggestion. The materials included four orange traffic cones, four orange posts with reflectors on top, and two rolls of four-foot high orange plastic fencing.11 Mr. Loydd planned to place two cones on the driveway in front of the breezeway and two cones at the end of the handicapped parking area. He also planned to place two posts at each end of the handicapped parking area and then run fencing between each set of posts in order to enclose the handicapped parking area.12 The cones, posts, and fencing will be set out when the children are playing in the handicapped parking area, and will be removed when the children are playing inside. After Ms. Green returned to her office, she provided the completed inspection checklist to her supervisor, Patricia Hamilton, for further action. After reviewing the checklist and discussing the matter with Ms. Green, Ms. Hamilton determined that a fine should be levied against Petitioner based upon the children's playing in the unfenced handicapped parking area. Ms. Hamilton considered the violation to be serious because the children could have been seriously injured if they were struck by a car while playing in the unfenced parking area. Ms. Hamilton determined that a $250.00 fine would be appropriate under the circumstances. She testified that the “objective” of the fine was to impress upon Petitioner the seriousness of the violation so as to ensure that it would not happen again. The proposed $250.00 fine was based solely on the violation related to the children playing in the handicapped parking area. Ms. Green and Ms. Hamilton each testified that the other violations had been promptly resolved to the Department’s satisfaction and that the proposed fine was not based upon those violations.13 A certified letter was sent to Petitioner on April 9, 2004, under Ms. Hamilton’s signature advising Petitioner of the Department’s intent to impose a $250.00 fine. The letter advised Petitioner of its right to request a hearing on the Department’s intended action. The Loydds responded to the Department’s letter through a letter dated April 28, 2004. In that letter, the Loydds requested a hearing, and also stated that they had “purchased cones and barrier protection at the cost of $275.00 to keep traffic out of the drive thru so we are requesting the department to rescind the fine and to grant the use of the drive through as part of the play area.” Ms. Hamilton did not take any action on the Loydds' request that they be allowed to use the handicapped parking area as an outdoor play area. She did not recall seeing the Loydds’ letter, and because the letter requested a hearing on the proposed fine, it is likely that Ms. Hamilton’s assistant sent it directly to Tallahassee for processing. The Loydds did not follow up with Ms. Hamilton regarding their request for approval of their use of the handicapped parking area as an outdoor play area. Mr. Loydd spoke to another Department inspector, Vicki Richmond, about using the cones and fencing to enclose the handicapped parking area, but Ms. Richmond told him that she did not think that the Department would approve that plan. The Department and the Loydds are equally at fault for the Department’s failure to take prompt action on the request for approval of Mr. Loydd’s proposal to use the handicapped parking area as an outdoor play area. The Department is at fault because, as it acknowledged in its PRO (at pages 7-8), it did not closely review the April 28, 2004, letter from the Loydds that clearly requested approval of that area as an outdoor play area, and the Loydds are at fault for not formally following up with Ms. Hamilton after she failed to respond to the letter and/or after Mr. Loydd received conflicting information from Ms. Green and Ms. Richmond regarding the viability of his proposal. The decision to approve an unfenced outdoor play area is made by Ms. Hamilton and a “team” of inspectors and supervisors. It typically takes approximately one week for such a decision to be made once a formal request is received.14 Petitioner has not used the handicapped parking area as an outdoor play area since Ms. Green’s inspection. No children have been observed playing in that area during the Department’s follow-up inspections. None of the violations cited by Ms. Green were repeat violations. Petitioner has not been cited for any previous violations by the Department relating to the safety of children at its facility.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order imposing an administrative fine on Petitioner in the amount of $100.00. DONE AND ENTERED this 16th day of August, 2004, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 16th day of August, 2004.
The Issue Pursuant to section 120.56(1)(a), the issues are whether Petitioner and Intervenor are substantially affected by rules requiring that covered insurers report their policyholders' street addresses on Form FHCF-D1A Rev. 05/15 (2015 Data Call), as incorporated by reference in Florida Administrative Code Rule 19-8.029(4)(e), and, if so, whether these rules are an invalid exercise of delegated legislative authority.
Findings Of Fact Insured losses from Hurricane Andrew in 1992 revealed that numerous property and casualty insurers had over-insured certain exposures. After the storm, worldwide insurance capacity contracted, which eliminated an important means by which insurers could address the problem of over-exposure. These conditions forced many insurers to reduce their Florida exposure to preserve their solvency. § 215.555(1)(b), Fla. Stat. (2013). Finding that many insurers were unable or unwilling to maintain the reserves, surplus, and reinsurance sufficient to pay all claims following catastrophic insured losses, § 215.555(1)(d), Fla. Stat., the Legislature in 1993 created FHCF to be administered by SBA. The purpose of FHCF is "to provide a stable and ongoing source of reimbursement to insurers for a portion of their catastrophic losses . . . ." § 215.555(1)(e), Fla. Stat. The Legislature structured FHCF as "a state trust fund under the direction and control of the [SBA to operate] exclusively for the purpose of protecting and advancing the state's interest in maintaining insurance capacity in this state." § 215.555(1)(f), Fla. Stat. To maintain insurance capacity in Florida, each insurer issuing an insurance policy on residential property in Florida is required to enter into a reimbursement contract with FHCF. § 215.555(2)(c) and (4)(a), Fla. Stat. In general, the reimbursement contract provides that, in the event of covered losses, FHCF shall pay a specified reimbursement amount in return for the payment of an annual premium by the insurer. Id. An insurer's covered losses in excess of its non- reimbursable retention amount will be reimbursed at one of three percentages--45%, 75%, or 90%--that the insurer selects for the reimbursement contract year, although reimbursements are subject to a specified maximum payout on all reimbursement contracts in a single contract year. § 215.555(2)(e) and (4)(b)1. and (c)1., Fla. Stat. SBA annually retains an independent actuarial consultant to develop a formula for determining the reimbursement premium to be paid by each insurer to FHCF. § 215.555(5)(a) and (b), Fla. Stat. The formula "shall specify, for each zip code or other limited geographical area, the amount of premium to be paid by an insurer for each $1,000 of insured value under covered policies in that zip code or other area." § 215.555(5)(b), Fla. Stat. By September 1 of each year, "each insurer shall notify [SBA] of its insured values under covered policies by zip code, as of June 30 of that year." § 215.555(5)(c), Fla. Stat. SBA then calculates a reimbursement premium by applying the reported insured values, by zip code, to the premium formula developed by the actuarial consultant. Id. Reimbursement premiums are a major source of revenue for FHCF. Other sources of revenue may include investment income, pursuant to section 215.555(3); emergency assessments on all premiums paid for any property and casualty insurance in Florida, pursuant to section 215.555(6)(b); interest on certain advances made to insurers likely to be due reimbursements, pursuant to section 215.555(4)(e); and certain fees that FHCF may impose on insurers filing untimely or incorrect exposure data, pursuant to section 215.555(7)(e). FHCF may also anticipate revenues and maintain cash flow by issuing post-loss revenue bonds, pursuant to section 215.555(6)(a), and borrowing money by other means, such as by issuing pre-event bonds, pursuant to section 215.555(7)(b). Allowable expenditures of FHCF are reimbursements to insurers, debt service, costs of legislatively authorized hurricane-loss mitigation programs, reinsurance costs, and administrative costs. § 215.555(3), Fla. Stat. Section 215.555(7)(a) specifically authorizes FHCF to enter into reinsurance contracts with reinsurers acceptable to OIR "consistent with the prudent management of the fund." FHCF purchases reinsurance to manage its loss exposure and maintain its ability timely to reimburse Florida insurers for covered losses. FHCF's reinsurance contracts are unique due to a variety of factors, such as the loss amounts retained by individual insurers, the three tiers of reimbursement rates, and the limits on total reimbursements in a reimbursement contract year. FHCF's reinsurance contracts thus require customized pricing, which places a premium on careful negotiations to ensure that FHCF is purchasing reinsurance contracts at favorable prices. For a variety of reasons, including the emergence of pension funds, hedge funds, and wealthy individuals as reinsurers, reinsurance costs have declined in recent years. For instance, FHCF was quoted, in 2008, 25 cents for each dollar of reinsurance, but was quoted, in 2015, 6.78 cents for each dollar of reinsurance, presumably for comparable loss exposures. In recent negotiations, FHCF representatives were concerned that some reinsurers may have had access to more detailed loss-exposure data than was available to FHCF-- specifically, to covered properties' street addresses or other locational coordinates, rather than merely zip codes. Knowledge of street address data would permit more accurate pricing of reinsurance because, for the past ten to fifteen years, loss- projection models have been able to analyze street address data to produce more accurate projections of covered losses from specified wind events. It is unnecessary to determine whether the concern of the FHCF representatives was well-founded. Regardless of whether the possession of more-detailed data by FHCF would restore parity with reinsurers or confer an advantage over reinsurers, access to this more-detailed data would improve FHCF's bargaining position when negotiating for the purchase of reinsurance. For these reasons, SBA and FHCF decided to obtain from insurers their street address data with the 2015 Data Call. Rule 19-8.029, which incorporates the 2015 Data Call by reference, cites as rulemaking authority section 215.555(3) and cites as the law implemented sections 215.555(2), (3), (4), (5), (6), (7), and (15) and 627.351(6). The rule-amendment process did not take long. On January 22, 2015, SBA published notice of development of the proposed street address and other rules. By January 28, 2015, FHCF had prepared the street address rules. FHCF provided notice of a rule development workshop for the morning of February 5, 2015, and the FHCF Advisory Council provided notice of a meeting to consider the proposed rules for the afternoon of the same day. Pursuant to section 215.555(8), the advisory council is a nine- member body that includes one representative of carriers, one representative of reinsurers, one representative of insurance agents, and representatives of other industries and consumers. At the workshop, a FHCF representative explained the street address rules, asked for questions or comments, and received none. At the advisory council meeting, which was attended by five of its members, a FHCF representative explained the street address data and, again, received no questions or comments. On March 24, 2015, the SBA Trustees met to authorize FHCF to file the proposed rule changes. The Trustees approved the filing without discussion, and, on March 25, 2015, FHCF published the proposed rules, including the street address rules. On May 12, 2015, the proposed rules became final. The silence of participating carriers during the rulemaking process undermines the claim of the chief witness of Petitioner and Intervenor that each carrier's street address data represents its "crown jewels." Nonetheless, there is ample evidence of the importance of street address data to insurers. Street address data is the foundation of the carrier's relationship with its policyholders. Unlike zip code data, street address data facilitates communications with policyholders and access to other databases for policyholder information that an insurer may use to generate additional revenues, not limited to insurance. In this era of Big Data, the growth in the amount of information accessible through a person's street address has increased in the past year by an amount in excess of the increase of this information in the preceding 30 years. Presently, over 500 pieces of additional information is available to the possessor of street address data, obviously presenting marketing opportunities across many industries, not just insurance. And this data retains much of its value even after a policyholder has moved to another residence. This data is less valuable to an insurer to the extent that it is available from sources other than the insurer. In particular, if an insurer's street address data is obtained by a competitor, the competitor may target the insurer's customers, sparing itself much of the customary costs of obtaining new business. Thus, when transferring rights to their confidential data, insurers include within the transfer agreement various provisions ensuring the proper and secure use of the data and providing for relief in the event of a breach of the agreement. Property and casualty insurers also protect their street address data from unauthorized disclosure by implementing data-security technology. The ongoing threats posed by hackers and advances in their technology requires constant updating of insurers' data-security technology. The importance of policyholders' locational data has long been recognized. In 1993, when creating FHCF, the Legislature enacted section 215.557, which treats as confidential and exempts from public records laws insurers' reports of covered property by zip code, which the statute acknowledges is "proprietary and trade secret information" that, if revealed, "could substantially harm insurers in the marketplace and give competitors an unfair economic advantage." Ch. 93-413, § 2, Laws of Fla. For its part, FHCF has implemented data-security technology to safeguard insurers' confidential information. The reinsurance contracts and SBA Policy 10-043 preserve the confidentiality of all information submitted under a claim of confidentiality. SBA and FHCF have imposed contractual provisions requiring their consultants to preserve the confidentiality of all data identified as confidential by SBA or FHCF, strictly limiting access to such data, and directing the destruction of any such data received by the consultants after the completion of their work. However, in the event of a breach of an agreement between SBA or FHCF and a contractor, Petitioner's members would have no effective relief against SBA, FHCF, or the contractor of SBA or FHCF. To transmit their 2015 Data Calls to SBA, insurers upload the data, including the street address data, onto an SBA server using FHCF's Web Insurer Reporting Engine (WIRE). First used for the 2014 data call, WIRE is a "secure web-based program." Fla. Admin. Code R. 19-8.029(2)(k). WIRE transfers the data to an SBA server, where it is stored. In general, SBA and FHCF prohibit the removal of confidential data stored on an SBA server; consultants, including the actuarial consultant, may use their software to analyze this data, but may not remove data from an SBA server. FHCF's chief operating officer testified that, in connection with the premium-setting process, he intends to share only the zip code data with the actuarial consultant. Access to the street address data is further limited by the fact that SBA and FHCF do not presently have programs to access the data; someone trying to access this data would have to write code to remove this data. Of course, FHCF write such code when it uses the street address data to support its negotiations with reinsurers. Based on these and perhaps other security precautions, FHCF's chief operating officer testified that the SBA server on which the street address data is stored cannot be hacked. Computer-related crime, such as that prohibited by sections 815.01, et seq., may be perpetrated by an unknown third party or by an employee or consultant, with access to the data, who acts with an intent to enrich himself, embarrass Respondents, harm insurers, or cause panic among policyholders. It is impossible to credit completely the blanket assurance of FHCF's chief operating officer, whose range of expertise spans insurance and loss modeling, but not computer security. The ongoing nature of data-security efforts suggests that the security risks posed by hackers and malevolent insiders are themselves dynamic. Section 815.02(1) and (3) finds as much in acknowledging that "[c]omputer-related crime" is a "growing problem" in the public and private sectors, and the "opportunities for computer-related crimes in financial institutions, government programs, government records, and other business enterprises . . . are great." These risks to the among the most closely guarded collections of data would not be "growing" and "great," if absolute protection of data were technologically feasible. Prior to transmitting its street address data to FHCF, each carrier's street address data is exposed to the risks associated with its storage on the insurer's server or servers and its accessibility by the insurer's employees and consultants. New risks attach when the data is transmitted by internet to FHCF and when the data is then stored on an SBA server; multiple storage points create multiple sets of risks. Petitioner is a trade association comprising 16 property and casualty insurers required to participate in the FHCF. Petitioner's insurer members include Intervenor, as well as four insurance industry consultants, who are irrelevant to this case and are not included in references to Petitioner's "members." Established in 1997, Petitioner's purpose is to promote a healthy, competitive insurance market in Florida. By the September 1, 2015, filing deadline for the 2015 Data Call, all of Petitioner's members, except Intervenor, had timely filed their 2015 Data Calls with the information required by fields 13 and 14. Intervenor timely filed its 2015 Data Call, but omitted the information called for in fields 13 and 14 to avoid Respondents' mootness argument against Intervenor's standing, as discussed below. By letter dated September 17, 2015, a copy of which was sent to OIR, FHCF advised Intervenor that, as a result of this omission, it was not in compliance with rule 19-8.029. The letter warns that possible consequences include FCHF's withholding of reimbursement payments or advances from Intervenor until it becomes compliant.
The Issue The issue in this case is whether Respondent discriminated against Petitioner because of her disability in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner, Bernice Buchanan, an 81-year-old female, lives in a condominium at 700 Seabrook Court, Unit 103, Altamonte Springs, Florida. The condominium unit was purchased by Petitioner and is within the Key West Condominiums complex. Respondent, Key West Condominium Association, Inc. ("Key West Association"), a not-for-profit corporation, is responsible for the operation of Key West Condominiums, which consists of 60 units. Petitioner has a meniscus tear in her right knee, arthritis in her right knee and right shoulder, and degenerative discs in her lumbar and cervical spine. As a result of the degenerative discs, there are no ligaments between Petitioner's bones in the affected area, thereby causing the degenerated discs to push on her muscles and nerves. Moreover, because there are no ligaments in the affected areas, Petitioner has a problem with balance and must walk very slowly. Finally, because of Petitioner's degenerative disc condition, Petitioner has severe pain when she walks, sits, or lies down. Petitioner's physician, John F. Ryan, M.D., submitted documentation which stated that Petitioner is not allowed to lift more than 15 pounds due to her degenerative discs and severe knee pain. Also, Dr. Ryan indicated that because of the severe pain in Petitioner's right knee, she is limited in walking, even moderate distances. Petitioner's degenerative disc condition and knee pain are permanent disabilities. Petitioner anticipates having surgery that may reduce or alleviate the pain caused by the degenerative discs. She is also contemplating having knee replacement surgery which should help the right knee. However, unless and until Petitioner has the surgeries, it is impossible to know if those procedures will alleviate her pain and/or otherwise improve her impaired mobility issues. While surgery may possibly improve some of Petitioner's medical conditions, that is not an option with regard to her arthritis. Petitioner is not aware of any surgery or other medical procedure that will improve and/or alleviate the pain she is experiencing due to the arthritis in her knee and shoulder. Furthermore, there is no evidence that any of her physicians have recommended any such procedure. Although Petitioner's ability to walk is impaired, she does not presently use any walking devices such as a cane or walker. Petitioner's ability to drive is not impacted by her medical conditions and associated physical impairments. In fact, Petitioner regularly drives to places such as the grocery store, church, and to visit family. The Key West Condominium complex has three types of parking spaces: (1) assigned garage spaces1; (2) unassigned uncovered non-handicap parking spaces ("regular parking spaces"); and (3) unassigned uncovered handicap parking spaces ("handicapped parking spaces"). Petitioner has an assigned garage space which is located in a bank of four garages. That assigned parking space is about ten feet wide. The regular parking spaces are not assigned and may be used by homeowners, residents and visitors on a "first come, first serve basis." The handicap parking spaces are not assigned and may be used by the homeowners and residents of Key West Condominiums and their visitors who have appropriate handicap decals. There is one handicap parking space located to the left of the bank of garages where Petitioner's garage space is located. Also, there are several regular parking spaces to the right of that garage bank. Because Petitioner's assigned garage is only ten feet wide, it is difficult for her to enter and exit her small Toyota sedan when it is parked in the garage. Nonetheless, provided Petitioner does not have groceries or packages to remove from her car, the garage space is "adequate." Due to the width of Petitioner's assigned garage, when Petitioner parks her car in that space, the car doors cannot be opened wide enough to allow her to remove groceries or packages from her vehicle. Thus, when Petitioner has groceries or packages to unload from her vehicle, in order to unload them, she must park in a space other than her assigned garage space. When Petitioner has groceries and/or other packages to unload and carry into her unit, she usually parks in a regular parking space in front of and close to her condominium unit. When Petitioner parks in the regular parking spaces, it is easier for her to unload the groceries from her car and carry them to her unit. If all of the regular parking spaces in front of her building are occupied by other vehicles, Petitioner has sometimes double-parked behind those vehicles. In those instances, Petitioner would unload the groceries or packages from her car, take them into her condominium unit, and then return to her car and park it in her assigned garage. Petitioner no longer double parks behind vehicles parked in the regular parking spaces when she has groceries and/or packages to unload from her car and take to her condominium. The reason is that Petitioner found that double parking and walking behind parked vehicles to unload her groceries was dangerous. When Petitioner has groceries or packages to take into her condominium and no regular parking spaces are available, she must park across the street and wait until a space becomes available. In such instances, Petitioner reported that she sometimes had to wait for up to 25 minutes for an available space. Petitioner's decreased mobility and impaired ability to walk, even moderate distances, and her lifting restrictions significantly impair her ability to retrieve groceries and packages from her car and carry them into her unit. Petitioner's assigned garage is 47 feet and nine inches from the front door of her unit. The handicap space to the left of the garage bank is 90 feet from the front door of Petitioner's unit. The regular parking space to the right of the garage bank, which Petitioner sometimes uses, is 38 feet from Petitioner's front door. In a letter dated May 15, 2007, Petitioner requested that the Key West Association provide her with a parking space close to her unit marked "Handicapped Parking" and designated only for her. Petitioner noted that she did not need space for a wheelchair. Finally, Petitioner advised Key West Association that the request was based on medical reasons. At the time Petitioner wrote the May 15, 2007, letter, there was a handicap parking space with the painted markings of a handicap parking space. However, that handicap parking space did not have a "handicap parking" sign designating that space as such. In her May 15, 2007, letter, Petitioner advised the Key West Association that the handicap parking space referenced in paragraph 29 would not meet her needs because it was too far for her to carry her groceries. In June 2007, the Key West Association Board of Directors ("Board"), denied Petitioner's request for the regular parking space closest to her unit to be designated as a "handicap parking" space reserved for her use only.2 Instead, the Board directed Petitioner to use the handicap parking space to the left of the garage bank. The Board also notified Petitioner that it would reinstall the "Handicapped Parking" sign"3 at the above-referenced handicap parking space. The Board did not designate the handicap parking space for Petitioner's exclusive use. Therefore, it could be used by any Key West Condominium homeowner or resident or their visitors with a handicap decal. The handicap parking space that the Board made available for use by Petitioner is located between two garage banks so that the handicap space is bordered on each side by a wall of the abutting garage bank. As noted above, the handicap parking space that the Board told Petitioner to use is 90 feet from the front door of Petitioner's condominium; this is 52 feet farther than the regular parking space in front of Petitioner's building. The Board's June 2007, denial letter expressed concern about the cost of constructing the handicap parking space. Additionally, the Board noted that construction of a new handicap parking space would result in the loss of two non-handicap parking spaces. (This was because two non-handicap parking spaces were needed to construct one handicap parking space.) By letter dated September 12, 2007, Petitioner advised the Key West Association that she was still having problems with parking. Petitioner reiterated that the handicap parking space, which the Board had opened for use (by re-installing the handicap parking sign), was too far for her to carry her groceries and other items (90 feet from the front door of her unit). Petitioner also noted that she had the following problems with the handicap parking space: (1) The handicap parking space was often occupied by a vehicle with no handicap decal; (2) Petitioner was required to exit her vehicle on the side of the parking space next to the wall of the garage bank; and (3) After exiting the handicap space, she could only access the sidewalk to her unit by stepping over a curb into the grass or walking around her car to the other side.4 Based on the problems enunciated in her September 12, 2007, letter, Petitioner again requested a "handicapped parking space closest to [her] building without having to walk in between cars." Petitioner wanted the requested handicap parking space to be for her exclusive use. Along with Petitioner's letter was a note from her physician, Dr. John Ryan, which supported her request for a handicap parking space. Dr. Ryan's note stated, "[d]ue to her [Petitioner's] medical condition, I request that [Petitioner] be assigned a parking area closest to her building. She requires a handicap space." There is no evidence that the Key West Association ever responded in writing to Petitioner's September 12, 2007, request or asked for additional information about her medical condition. Reggie Caruso, the deputy building official, is the principal plan reviewer for new and large construction projects, including condominium complexes, for the City of Altamonte Springs, Florida. Mr. Caruso is familiar with the parking requirements for condominium complexes, and his office enforces the laws and regulations applicable thereto. Unless otherwise exempt, condominium complexes are required to have a certain number of handicap parking spaces. However, except for the public areas, the Key West Association has the discretion to place the handicap parking spaces wherever it chooses and/or where such spaces are needed. Section 553.5041, Florida Statutes (2008),5 regulates parking spaces for persons with disabilities (i.e., handicap parking spaces) and applies to Key West Condominiums. Subsection 553.5041(5)(c)1., Florida Statutes, provides that: (1) handicap parking spaces be no less than 12 feet wide; (2) the parking access aisle be no less than five feet wide and be placed adjacent to the handicap parking space; and (3) the access aisle be part of an accessible route to the building or facility entrance. Also see Sections 11-4.6.2(1) and 11-4.6.3, Florida Building Code.6 Subsection 553.5041(4), Florida Statutes, provides that the number of "accessible parking spaces" (handicap parking spaces) must comply with the parking requirements in Section 4.1.2(5)(a) of the Americans With Disabilities Act ("ADA") Accessibility Guidelines. These requirements have been adopted and are in Section 11-4.1.2(5)(a) of the Florida Building Code. The number of handicap parking spaces in the Key West Condominium complex complies with applicable law, if the handicap parking space discussed below that does not meet minimum legal requirements, is counted. Subsection 553.5041(4)(c), Florida Statutes, provides that "[t]he number of parking spaces for persons who have disabilities must be increased on the basis of demonstrated and documented need." In or about mid-November 2008, Mr. Caruso inspected the handicap parking space that the Board advised Petitioner to use. That inspection revealed two areas in which that handicap space and the adjacent access aisle were not in compliance with Subsection 553.5041(5)(c)1., Florida Statutes, and the Florida Building Code.7 The first area of non-compliance involves the width of the handicap parking space and adjacent access aisle. Here, the handicap parking space, including the adjacent access aisle, is tapered and has a width that ranges from 16 feet to 18 feet. Accordingly, at certain points, the handicap parking space, including the adjacent access aisle, is only 16 feet wide, not 17 feet, the prescribed minimum width. During the inspection, Mr. Caruso observed that a "fixed" building (a bank of garages) was on each side of the handicap parking space, including access aisle. Thus, Mr. Caruso determined that there is no reasonable way to change the space so that the minimum width of the handicap parking space and adjacent access aisle is 17 feet at all points as prescribed in Subsection 553.5041(5)(c)1., Florida Statutes.8 The second area of non-compliance concerns the requirement that the access aisle be connected to an accessible route. During his inspection of the handicap parking space, Mr. Caruso observed that there is no direct route from the handicap parking space's adjacent access aisle to a sidewalk. Instead, there is a five-inch high curb which obstructs the accessible route. Consequently, the access aisle is not connected to the access route (sidewalk) to the building in which is located Petitioner's unit or any other building in the complex. Mr. Caruso testified credibly that to establish an accessible route from the access aisle (adjacent to the handicap parking space), part of the five-inch high curb would have to be removed and the concrete would have to be extended from the access aisle to the sidewalk. The removal of the curb would result in compliance with the requirement in Subsection 553.5041(5)(c)1., Florida Statutes, that the access aisle connect with and is "part of an accessible route to the building." Also, the removal of the curb would make the space safe because persons using the space would no longer have to step over the five-inch high curb to get to the accessible route. Even if the curb is removed, the parking space, including access aisles, would still not be in compliance with law because the space does not meet the minimum width requirement of 17 feet prescribed in Subsection 553.5041(5)(c)1., Florida Statutes. Moreover, as noted above, because the handicap parking space is bordered on each side of a "fixed" building, it cannot reasonably be brought into compliance. Marty Boble is a planning and development review specialist for the City of Altamonte Springs. In that position, he determines compliance as it relates to the number of parking spaces on-site. In November 2008, Mr. Boble went to the Key West Condominium complex and inspected the property, including the above-referenced handicap parking space. He also reviewed the Key West Condominium plans, which showed the buildings and parking spaces in the complex. The Florida Building Code requires the Key West Condominium complex to have two parking spaces per dwelling. Key West Condominium, which counts its garage spaces as parking spaces, not only meets the requirement as to number of spaces per unit, but exceeds it by 20 spaces. To construct a new handicap parking space that complies with the legally prescribed width requires that two non-handicap parking spaces be used. Thus, the result of constructing a new handicap parking space would result in the loss of two existing regular parking spaces. Nonetheless, Key West Association would still be in compliance with the Code requirement of two parking spaces per unit because it currently has 20 more spaces than required.9 Petitioner's request for a handicap parking space near her condominium unit is reasonable. In light of her impaired ability to walk, even moderate distances, and her lifting restrictions, Petitioner is unable to retrieve groceries and other packages from her vehicle and take them to her unit. Without an accommodation for her handicap, Petitioner cannot have an equal opportunity to use and enjoy her condominium unit. In this case, Petitioner has a disability which significantly impairs her ability to walk. Thus, Respondent is required to provide her with a reasonable accommodation. As of the date of this proceeding, Respondent has not provided any accommodation to Petitioner. The reasonable accommodation that Respondent should provide is to convert non-handicap or regular parking spaces into a handicap parking space. This remedy is required due to the non-compliance issue of the handicap space which cannot be corrected.10 By converting two non-handicap or regular parking spaces to one handicap parking space, Respondent will be able to construct and provide a handicap parking space that complies with applicable law and regulations. The accommodation offered by the Key West Association and its Board is not a reasonable one. As noted above, the handicap parking space offered to Petitioner did not comply with the provisions of Subsection 553.5041(5)(c)1., Florida Statutes. Moreover, the Key West Association failed to take steps to bring that parking space into partial compliance and to make it safe for Petitioner's use, although it had more than a year to do so. Finally, even though it was clearly established that Petitioner needed a space closer to her unit, the Key West Association and its Board offered her a space that was not only unsafe and non-compliant with law, but was further away from her unit. The Declaration of Condominium for Key West provides that material alterations of common elements, such as regular parking spaces, require approval of two-thirds of the owners at a properly noticed meeting. Despite the Key West Association's position, use of two regular parking spaces to construct a handicap space is a material alteration, it never called a meeting for that purpose.
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 that Respondent, Key West Condominium Association, Inc., discriminated against Petitioner, Bernice Buchanan, under the FFHA by refusing to make a reasonable accommodation for her handicap; Ordering Respondent to cease the discriminatory practice; and Ordering Respondent to provide a handicap parking space close to Petitioner's condominium unit. DONE AND ENTERED this 29th day of May, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 29th day of May, 2009.
The Issue Whether the construction activity was begun within the 45 day period within which the issuance of the permit by the city could have been challenged and was not in compliance with local codes and ordinances.
Findings Of Fact The Department of Community Affairs is the state land planning agency empowered to enforce the provisions of Chapter 380, Florida Statutes, and the rules promulgated thereunder. (Section 380.031-.032, F.S.). Billy Marlar owns and operates the Rainbow Motel, located at 123 Water Street, Apalachicola, Florida. (R. 9) Petitioner Marlar is the record title holder of wharf lots 13 and 14 in the City of Apalachicola according to the map or plat commonly used. Lots 13 and 14 are held in the name of Rainbow Motel and Marina. Lots 13 and 14 are located within the Riverfront District, as identified in the Land Development Code of the City of Apalachicola. (R. 57) Old plats reflect that the dimensions of wharf lots 13 and 14 are 206.54 feet wide and approximately 70 feet deep, or 14,250.75 square feet. Over the years, sand has accreted to the eastern boundary of these wharf lots and for the past 35 years there have been improved structures on the eastern boundary of the property. Although the Franklin County tax rolls reflect wharf lots 13 and 14 as being approximately 200 feet wide by 180 feet deep, the Rainbow Hotel is built on pilings over water or land which is tidal. Inspection of the property reveals that the water line of the Apalachicola Bay lies approximately at the western edge of the main portion of the hotel. On May 13, 1988, Billy Marlar applied for a permit to construct a concrete parking lot on wharf lots 13 and 14 in the City of Apalachicola. (Rainbow Exhibit 2) On May 16, 1988, the Apalachicola Planning and Zoning Commission considered Mr. Marlar's application at a special meeting, and granted the permit application. (Rainbow Exhibit 9). On May 25, 1988, Permit No. 1172 was forwarded to the Department of Community Affairs for consideration as a development order. (Rainbow Exhibit 2). Prior to the permit being forwarded to DCA, construction of the parking lot commenced. A portion of the parking lot was poured on May 23, 1988, and the remainder of the parking lot was completed within 2 - 3 weeks of that date. (R. 50-51, 53). The Land Development Code provides that lot coverage within the Riverfront District shall contain a minimum of 50 percent pervious surface. The term "pervious surface" means that water will percolate through that surface that covers the earth. (R. 59). The concrete parking lot constructed by Billy Marlar on wharf lots 13 and 14 is not a pervious surface. (R. 70). The dimensions of the portion of the parking lot on lots 13 and 14 are 78 feet along the northern boundary, 205 feet along the eastern boundary, 78 feet along the southern boundary and 205 along western boundary. There is a planter in the southwestern corner which has approximately 704 square feet. The proposed finding submitted by the Department states that the parking lot contains 12,589.87 square feet, which will be the area used. (DCA Exhibit 1 and R. 71). The dimensions of the pervious surface of the property are based upon the area of the non-tidal portion of the two lots. The dimensions of the non- tidal area of the two lots are determined from resolution of the conflicts in the testimony and evidence presented and an examination of the property. The western boundary is 215 feet; northern boundary is 112 feet; eastern boundary is 215 feet; and southern boundary is 122.5 feet. The total non-tidal area of the two lots based upon these dimensions is 25,208 square feet. (Rainbow Exhibit 3). Although the records of the Franklin County Property Appraiser's Officer indicated the dimensions of wharf lots 13 and 14 were 200 feet wide by 180 feet deep, a substantial portion of the eastern boundary of that area is submerged. (Rainbow Exhibit 3 and 5, R. 32). Conflicting evidence was presented as to the dimensions of the non-tidal property from the street frontage to the mean high water line. The drawings show a meander line along the mean high water line; however, observation revealed water under the majority of the hotel, particularly on the northeast corner. Based upon those observations, the eastern boundary on non-tidal land is computed as a straight line parallel to the western edge of the longest portion of the hotel and five (5) feet to the east of longest portion of the hotel running from southern boundary to the northern boundary. See pencil additions to Rainbow Exhibit 3 made by fact finder after observation of the property pursuant to motion. A portion of the Rainbow Motel and the Pot Restaurant extend over the water. (R. 32 and Rainbow Exhibit 3). A portion of the hotel approximately 21.9 feet by 17.3 feet and 5 feet by 136.32 feet is located on the pervious surface of lots 13 and 14. Approximately 33% of the restaurant, the dimensions of which are 47 by 46 feet, is located on the pervious surface of lot 13. The buildings cover a total of 1,781 square feet. The total impervious surface on lots 14 and 13 is 14,371 square feet. The total non-tidal area of the two lots is 25,209 square feet. The impervious surface must be reduced by 1767 square feet. (R. 76).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered requiring Billy Marlar and Rainbow Hotel to bring the project into compliance within 30 days by removal of 1767 square feet of impervious surface from the non-tidal portions of lots 13 and 14. DONE and ENTERED in Tallahassee, Leon County, Florida, this 18th day of August, 1989. STEPHEN F. DEAN 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 18th day of August, 1989. ANNEX A Consideration of Proposed Findings of Fact The proposed findings of the Department of Community Affairs were read and considered as follows: Paragraphs 1-10 Adopted. Paragraph 11 The proposed dimensions are rejected as being contrary to the best evidence of the dimensions of the non-tidal area of the two lots. Paragraphs 12 & 13 Adopted. The proposed findings of Marlar and Rainbow Hotel were read and considered as follows: Paragraphs 1 & 2 Adopted. Paragraph 3 The existence of non-tidal land to a depth of 180 feet is rejected as contrary to the best evidence. Paragraph 4 & 5 Substantially adopted. Paragraphs 6 & 7 Rejected as a finding, although included as portions of the conclusions of law or statement of case. Paragraph 8 Some land has accreted; however, that the accretion is all pervious surface is rejected as contrary to best evidence. Paragraph 9 The stormwater management plan is irrelevant to how much of the pervious area of the two lots is covered with impervious structures. Paragraph 10 The city map is rejected as the best evidence of the area of the non-tidal area of the two lots. COPIES FURNISHED: L. Kathryn Funchess, Esquire David L. Jordan, Esquire C. Laurence Keesey, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Thomas G. Pelham, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Deborah Hardin-Wagner, Esquire Governor's Legal Office The Capitol, Room 209 Tallahassee, Florida 32399-0001 J. Ben Watkins, Esquire 41 Commerce Street Apalachicola, Florida 32 320 J. Patrick Floyd, Esquire 408 Long Avenue Post Office Drawer 950 Port St. Joe, Florida 32456 Honorable Jimmy Nichols Mayor, City of Apalachicola Post Office Box 10 Apalachicola, Florida 32320 Apalachicola Planning and Zoning Commission Post Office Box 10 Apalachicola, Florida 32320
The Issue The issue for determination is whether the Florida Department of Labor and Employment Security illegally rejected Petitioner's bid as nonresponsive.
Findings Of Fact Fred Boozer, Sr., (Boozer), the Petitioner, owns Boozer Properties, a family business which includes a building at 2235 South Babcock Street, Melbourne, Brevard County, Florida. The building is currently occupied by staff of the Florida Department of Labor and Employment Security (LES) and other tenants. In south Brevard, LES staff also occupies another building in Palm Bay. Because of staff expansion and the need to co-locate its offices, LES issued a Request for Proposal (RFP) for Lease No. 540:0904 on January 28, 1992. The RFP had been previously advertised but was successfully challenged on issues unrelated to the issues in this proceeding. The January 1992 RFP sought approximately 11,474 to 11,818 square feet of office space. The RFP also specified that 95 off-street parking spaces be provided for the exclusive use of LES employees and clients. The spaces were to be suitably paved and lined, and under the control of the bidder. The RFP advertised a pre-proposal conference on February 4, 1992. No bidder attended, and no objections to the RFP were filed. Six responses were received on the February 28th deadline, one of which was immediately determined to be nonresponsive. The remaining bid proposals were evaluated, and Boozer's bid, offering his Babcock Street site, and 95 parking spaces, received the highest points from the evaluation committee. During a recent LES bidding process for office space in West Palm Beach, a problem arose with a bidder's ability to provide the required parking spaces. Cognizant of this, the LES leasing manager contacted the City of Melbourne to determine whether the apparent bid winner, Boozer, could meet his obligation to provide 95 spaces. The written response dated March 20, 1992, from Dominic Mauriello, a Melbourne city planner, provides his estimation that, for the various uses in the Babcock Street building, 207 parking spaces would be required. The memo states that a site plan on file at the city planning office reflects that there are 165 spaces. The site plan attached to Boozer's bid proposal submitted to LES indicates that 175 spaces are available. LES staff person, Lynne Mobley, telephoned Fred Boozer on March 24, 1992, informing him of the memorandum from the city. He responded with a request that he be allowed twenty-four hours to provide additional information. By March 27, 1992, the LES leasing office had not received further information from Boozer. The RFP had advertised a 30-day deadline for the bid award, which deadline fell on a weekend. The agency considered that it needed to make the award on Friday, the 27th. After contacting the City of Palm Bay to assure that the next highest rated response could deliver the requisite parking spaces, a letter was sent notifying Woodlake S.W. No. 1, Ltd., (Woodlake) of its award. In a letter dated March 27, 1992, LES notified Boozer that its bid was determined nonresponsive based on the outcome of investigation and consultation with the city regarding his inability to produce the required 95 exclusive spaces. In the meantime, Fred Boozer had contacted Peggy Bray, the City's Planning and Zoning Administrator, who provided an amended estimation stating that 190 spaces would be required for the Babcock Street site, and that the site currently includes 184 parking spaces. Ms. Bray's letter, dated March 27, 1992, states that in order to provide 95 spaces for the Department of Labor, 1800 square feet of office space would need to remain vacant. The Bray letter was immediately sent by facsimile transmission to LES, and was received the afternoon of March 27th, after the award and rejection notices were sent. Boozer's building is approximately 39,000 square feet. Several tenants are month to month lessees, and another tenant is expected to move prior to the beginning of the LES lease term. Boozer is willing to keep vacant the 1800 square feet and contemplated that necessity when he submitted his bid proposal. He did not include this agreement in his written bid response, but neither did LES specifically ask, either in the bid form or at the time of the committee's site walk-through prior to the bid award. Boozer contends that he responded on the bid proposal that he would provide 95 exclusive spaces and he remains willing to provide those spaces. At hearing, Boozer disclosed that 20 additional parking spaces are located adjacent to the subject property and are available for use by HRS' County Health Services, another tenant in the Babcock Street building. The spaces would reduce by 20 the spaces required by the city code, but their existence was not disclosed in the bid proposal as they are not part of the attached site plan. Boozer's onsite parking spaces range from one-half to one foot short of the eleven-feet width required by the city code. No evidence was presented with regard to any pending or contemplated enforcement action, and LES did not base its decision on this defect. LES did base its decision on a good-faith reliance on the communication by a member of the City of Melbourne planning staff. Even when that initial communication was corrected by the planning administrator, the number of spaces available were still less than needed for LES purposes and to comply with the City's code. LES did not anticipate, nor was it informed prior to bid award, of Boozer's ability and willingness to keep space vacant to comply with his commitment to provide 95 parking spaces to LES.
Recommendation Based on the foregoing, it is hereby, recommended that a final order be entered dismissing Petitioner's protest of intended bid award. RECOMMENDED this 18th day of June, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2372BID The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings of Fact Adopted in paragraphs 2, 3 and 4. Adopted in paragraphs 4 and 9. Adopted in paragraph 6. Adopted in substance in paragraph 7. Rejected as unnecessary. The testimony of Ms. Mobley is that she did not receive the message. Adopted in paragraph 10. Adopted in paragraphs 8 and 9. Adopted in paragraphs 10 and 13. Rejected as unnecessary. 10-13. Adopted in paragraph 11. Rejected as unsubstantiated by competent evidence. Adopted by implication in paragraph 5. Rejected as irrelevant, except as to Intervenor's spaces, which is adopted in paragraph 8. 1718. Rejected as unnecessary and irrelevant. Respondent's Proposed Findings of Fact 1. Adopted in paragraph 3. 2. Adopted in paragraph 1. 3. Adopted in paragraph 2. 4-5. Adopted in paragraph 4. 6-7. Adopted in paragraph 5. 8. Adopted in paragraph 6. 9. Adopted in paragraph 7. 10-11. Adopted in paragraph 8. 12. Adopted in paragraph 10. 13. Adopted in paragraph 12. 14. Adopted in paragraph 9. Intervenor's Proposed Findings of Fact 1-2. Adopted in substance in paragraph 3. 3. Rejected as unnecessary. 4-5. Adopted in paragraph 4. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 11. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 10. Adopted in paragraph 9. 15-16. Adopted in paragraph 8. Rejected as unnecessary. Adopted in Preliminary Statement. 19-28. Rejected as unnecessary. COPIES FURNISHED: Howard M. Swerbilow, Esquire Post Office Box 541271 Merritt Island, FL 32954-1271 Edward A. Dion, Esquire Department of Labor and Employment Security Suite 307, Hartman Building 2012 Capital Circle Southeast Tallahassee, FL 32399-2189 Jack Spira, Esquire 5205 Babcock Street N.E. Palm Bay, FL 32905 Alan Taylor Elizabethan Development Corporation 245 Avenue O S.W. Winter Haven, FL 33880 Frank Scruggs, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle S.E. Tallahassee, FL 32399-2152 Cecilia Renn Chief Legal Counsel Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle S.E. Tallahassee, FL 32399-2152
