Findings Of Fact Petitioner, Joyce Reams, is the licensed real estate broker for her company, Petitioner, Joyce Reams Realtor. In October and November 1984, the company employed Julie Krause as a real estate sales associate. Krause had not been employed very long in the real estate business before October 1984. In October 1984, Krause showed Petitioners, Rubin and Doris Bush, real property which Respondent, David Michael Davis, had in the real estate multiple listing service. The Bushes, who are black, liked the property and decided to make an offer. (All other persons identified in these Findings of Fact are white.) Krause, on behalf of the Bushes, took the Bushes' offer to the office of the listing realtor, Respondent, Burnes Realty. Burnes Realty is owned and operated by its real estate broker, Respondent, Ann Burnes. Burnes also happens to be the mother of Davis. As Davis was looking over the offer and preparing a counter offer, he asked Krause vague questions intended to provide him with information whether the buyers were, among other things, black. Burnes, who also was there but did not know, made no comment. Krause, showing her inexperience, attempted to assure Davis that the Bushes were "regular people," just like everyone else who was in the office at the time. Davis interpreted Krause's answer to mean that the Bushes were white. At the Burnes Realty office on October 20, 1984, Davis made a counter-offer which the Bushes accepted. The closing of the transaction scheduled for October 31 was postponed until November 16. At the scheduled closing on November 16, Davis saw the Bushes for the first time. Davis became extremely upset partly because the Bushes are black but even more because he thought Krause had lied to him. In the presence of his mother, Davis stated he would not close the transaction and strongly criticized Krause for allegedly lying to him and for not revealing that the Bushes were black in response to his questions on October 20. Davis also threatened to tell his family, friends and acquaintances not to deal with Joyce Reams Realtor or its employees. (But there is no evidence that Davis carried through with this threat.) Davis also stated that it could have made a difference if he had known the fact of the buyers because he could have counter-offered with terms and conditions that were beyond their means. During these heated discussions on November 16, Ann Burnes was relatively quiet and mostly was trying to calm down her son, Krause and another real estate sales associate representing the Bushes, Debbie D'Errico. In doing so, Burnes mentioned something about "common courtesy" but the evidence is not clear that she considered it "common courtesy among brokers to let each other know (whether prospective buyers were black)." She also mentioned that the Bushes probably would have wanted to know if they were about to move to a place where they were not wanted. Eventually, Davis asked Krause and D'Errico to present to the Bushes his request for an extension of time to close the transaction. When the Bushes, who were not present during the heated conversations, learned of the request for an extension of time and began to inquire of the reasons for the request, they reached the conclusion that Davis did not want to close the transaction because of their race. At some point, the Bushes and Davis began discussing the possibility of settling the matter by Davis paying the Bushes their costs to cancel the contract. After Davis had calmed down, his mother took him aside and privately advised him that it was illegal for him to discriminate against the Bushes on account of their race and that he had entered into a contract to which he was bound regardless of the Bushes' race. After further discussions on November 16, the parties agreed not to settle the matter at that time but agreed to an extension of time to close the transaction to give Davis an opportunity to speak to a lawyer. After the aborted closing on November 16, Krause and D'Errico reported to Joyce Reams, who telephoned Burnes and informed her of the possible consequences of discriminatory actions by a realtor. Three days later, on November 19, 1986, the parties closed the real estate transaction as contracted on October 20.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, and in view of the settlement of the Bushes' complaint in Case No. 85-3355, it is recommended that the Director of the Office of Equal Opportunity for Hillsborough County dismiss both Case No. 85-3355 and Case No. 85-3356. RECOMMENDED this 14th day of May, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1986. COPIES FURNISHED: Robert Nutter, Esquire 610 Azeele Street Tampa, Florida 33606 Jeanette L. Fenton Equal Opportunity Assistant Hillsborough County Equal Opportunity Office Post Office Box 1110 Tampa, Florida 33601 Rubin and Doris Bush Route 10, Box 5 Boaman Road Springhill, Florida 33526 Joyce Reams and. Joyce Reams Realtor 138 North Moon Avenue Brandon, Florida 33511 Amelia G. Brown, Esquire Hillsborough County Equal Opportunity Office Post Office Box 1110 Tampa, Florida 33601 Robert W. Saunders, Director Equal Opportunity Assistant Hillsborough County Equal Opportunity Office. Post Office Box 1110 Tampa, Florida 33601 APPENDIX Rulings On Findings Of Fact Proposed By Intervenor, Hillsborough County Equal Opportunity Office. Proposed findings of fact 1, 2, 4, 5 and 6 are accepted. Proposed finding of fact 3 is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Proposed finding of fact 7 is rejected, in part as conclusions of law, in part as not proved by the evidence and in part as irrelevant. Respondent's Proposed Findings of Fact. Respondents did not make specific proposed findings of fact and are not entitled to specific rulings. The proposed findings of fact that might be interspersed in Respondent Recommendation To The Hearing Examiner served on March 25, 1986 have been considered and are fairly addressed by the Findings Of Fact. Petitioner's Proposed Findings of Fact. None were submitted.
The Issue The issues to be determined in this case are whether Respondent discriminated against Petitioner based upon a disability in violation of section 760.10(a), Florida Statutes (2017); and, if so, what remedies are appropriate.
Findings Of Fact The original complaint filed with FCHR states in pertinent part: “I am a disabled female. I have been discriminated against based on disability. On 8/17/2017, I told my CEO (Mr. David Yokeum) that I had to leave the office due to my disability. I was feeling dizzy and needed to take my medication. . . . Respondent knew I had a previous injury on my arm/hand and that I couldn’t use my hand in an excessive amount. I re-injured my hand while cleaning and went to the Emergency Room. I was placed on medical leave until I was cleared by Hand Surgeon. . . . I was told I was no longer needed because I couldn’t clean. The Petition for Relief filed after the FCHR’s Determination of No Cause states in pertinent part: “discriminated, treated unfairly due to anxiety disorder; wrongfully demoted to cleaning person resulting in further aggravation of an injury.” No mention of the anxiety disorder appears in the original complaint. Melissa Bruno is a single mother with two sons. Her father, Thomas Tegenkamp, owns a local business in the Sunrise area. Mr. Tegenkamp has enjoyed a long-standing friendship with David Yokeum, the chief executive officer of WCA USA, Inc. (WCA). There was little, if any, evidence presented about WCA, except that Mr. Yokeum was the chief executive officer and that, at the time of Petitioner’s employment, there were approximately 25 employees. At some point, Mr. Yokeum mentioned to Mr. Tegenkamp that his company was looking for an employee for the office.1/ Mr. Tegenkamp told Mr. Yokeum that his daughter was looking for a job. No evidence was presented regarding her qualifications for the job at WCA-–her past training and job experience was as a cosmetologist. It appears from the evidence that she was hired primarily because of her father’s friendship with Mr. Yokeum. Petitioner was hired by WCA in July 2014 as a receptionist. Initially, her duties included answering the phone and the door, ordering supplies, and helping around the office. Her position was a salaried, as opposed to an hourly, position. About four months after Petitioner was hired, she was given responsibility for the UPS program. The UPS program is a billing function that needed to be completed each week, and involved downloading approximately 20,000 lines of data regarding shipping charges, separating the lines by “members,” and invoicing those members for their shipping costs. Matthew West is the regional director of North America for WCA, and has been with the company for approximately six years. He performed the duties related to the UPS program previously, in addition to several other responsibilities, and performed these duties after Petitioner’s departure. He believes that the UPS program can be completed by one person and is not a full-time job. He was not informed by Petitioner or anyone else that Petitioner had any type of disability. Sudkhanueng Bynoe has worked for WCA for 16 years in a variety of capacities, and currently serves as the company’s office manager. She participated in Petitioner’s hiring, and performs the company’s human resources functions. She remembered that, at some point, Petitioner told her that Petitioner had G.A.D. (generalized anxiety disorder), but she was not familiar with the acronym, and Petitioner did not explain what G.A.D. meant. Petitioner did not ask for any modification of her work based on her anxiety. She acknowledged that she did not advise Ms. Bynoe that her generalized anxiety disorder limited her ability to perform tasks, and did not ask for an accommodation. Both Petitioner’s brother and father testified at hearing. When asked at hearing, neither identified any disability from which Petitioner suffered while working at WCA. Both knew she took medication, but did not know what kind of medication or the basis for taking it. Neither identified any activity of daily life that was impaired by any type of disability. In late 2014, Petitioner was arrested for driving under the influence (DUI). She claimed that the reason for the arrest was that she was overmedicated for her anxiety disorder. She notified her employer about the DUI, and had a conference with Mr. Yokeum and Ms. Bynum about the legal requirements she needed to fulfill with respect to the DUI. None of the documents related to the DUI were admitted into evidence, and the specific requirements were not identified. However, it is undisputed that WCA allowed her time off to attend whatever court dates she had, and that she was allowed to come in late and leave early for an unspecified length of time because she needed to get a ride from her father to and from work. Mr. West described Petitioner as someone who tried very hard, and put in a lot of hours. However, her performance was not up to par. The UPS program needed to be completed each week, and her timeline for completion was way too long. She was often as much as a week behind. He recalled her having a couple of “meltdowns” while with the company, but was never informed that she had a disability. In addition to the length of time that it took Petitioner to complete her work each week, she developed a problem with attendance. When she did come to work, she was frequently late, and took lengthy breaks during the day. Mr. West testified that employees started with five vacation days at the beginning of employment, which would progress to ten days. He testified that there was no specific time allotted for personal time in addition to the vacation days. Ms. Bynoe indicated that employees were allotted ten days each year for vacation, and ten PTO (personal time off) days. Respondent believed that she had ten days for vacation and ten days for PTO, for a total of 20 days each year. Assuming that the attendance policy in fact allowed both vacation days and PTO days, Petitioner’s absences exceeded what was allowed. For example, in 2015, Ms. Bruno took nine days of sick leave, 15.5 days of PTO, and nine days of vacation, for a total of 33.5 days. She was allowed to work from home an additional five days, although working from home meant that someone else had to perform her receptionist duties. In 2016, she took 14 days of sick leave, 10.5 of PTO, and nine days of vacation, again for a total of 33.5 days. She came in after 10:00 a.m. an additional six days and worked from home an additional three days (two full days and two half days).2/ Petitioner had hand surgery in June 2016, which accounted for at least some of her absences. In 2017, from January 1 until August 31, Petitioner took six days of sick leave, 6.5 days of personal leave, and one day of vacation. She worked from home on 8.5 days, and was late (coming in after 10:00 a.m.) 13 times. She was also absent from the office an additional 11 days, of which ten were attributed to her suspension as of August 17, 2017. There were two occasions, although the dates were not specified, where Petitioner did not come into work and did not call to say that she would not be coming in. In short, Petitioner was late or absent more times than anyone else in the company. Because of her absenteeism, there was a meeting at some point in 2017 with Ms. Bynoe and another employee, where Ms. Bynoe requested that Petitioner sign in when she came to work and sign out when she left. She was the only employee required to sign in and out, but the procedure was implemented because of her excessive absences that other employees did not share. Petitioner’s absences were related to a variety of problems, including her mother’s passing, an anxiety disorder, dental work, hand surgery in June 2016, a partial hysterectomy, and ovarian cysts. Petitioner also had some issues with one of her sons, which increased her stress. However, the greater weight of the evidence does not indicate that she had a disability as is contemplated under the Americans with Disabilities Act. The evidence also does not establish that Petitioner ever asked for an accommodation based upon a disability. The greater weight of the testimony established that WCA made several attempts to assist her, by having people help her with carrying supplies and allowing her to occasionally work from home, even though that impeded her ability to perform her receptionist duties. In 2017, issues related to Petitioner’s performance came to a head. Mr. West had several discussions with Petitioner during the last six months of her employment, because she was often as much as a week late completing each week’s invoices. She was also often late in the mornings, and while she testified that when she came in after 10:00 a.m., it was because she was picking up supplies for the office, she did not notify her supervisor at the time that that was what she was doing. As noted above, she was allowed to work from home several times during her last year of employment. A few months before her termination, Petitioner came to work with a cast on her arm, and told Mr. West that she had dropped a couch on it at home. She had broken her wrist. However, she did not ask for a less strenuous job because of her hand, and did not ask for help with the UPS program. Other employees helped her with carrying supplies and other manual tasks. Petitioner was aware that she was behind in her work. On August 16, 2017, she spoke directly with Mr. Yokeum and told him she needed additional help. The next morning Petitioner reported to work, but had to leave for the day shortly after she started, because she was dizzy and “twitching,” and was afraid it would evolve into a panic attack. Once again, Petitioner texted Mr. Yokeum to advise him of her absence and the reason she had to leave the office. Mr. Yokeum was not her direct supervisor. On August 17, 2017, Petitioner was advised by letter from Mark Mairowitz, WCA’s Executive Vice President, that she was being suspended from the office until at least September 1, 2017, due to her office attendance. The letter she received states in part: Hello Melissa David Yokeum called me to his office this morning to express his displeasure at your office attendance record as he has grown very concerned. Because of his relationship with your father, he has asked me, as WCA Executive Vice President, to interact with you and to let you know that you are NOT to contact David from now on. He has no desire to hurt your family and so he has turned all matters regarding your employment over to me. Again, you are NOT to contact David in any way. Doing so will jeopardize your continued employment at WCA. You are only to deal with me from this day forward. Your attendance record has been examined by David and myself and we find a disturbing pattern of absence, with far more days/hours out of the office than other WCA employees. We are concerned for your health and your safety in getting to and from the office and before you can return to the office, you will be required to undergo a complete medical evaluation/examination and obtain a “clean bill of health” letter from a physician before you can return to work. Furthermore, as David will be out of the office until September 1st, he prefers you NOT be in the office until his return. So, consider yourself on suspension until that date. Mr. Mairowitz’s letter also requested that Ms. Bruno return her office computer and cell phone until she was reinstated, and advised her that her salary would be unaffected by the suspension. However, it is unclear from the letter what health issue Mr. Mairowitz is referencing. In early September 2017, Ms. Bruno returned to the office. At this time, she was relieved of her responsibilities related to the UPS program and reassigned to cleaning in addition to stocking the office and breakroom. The cleaning consisted of vacuuming, mopping the floor, and taking out the trash. From management’s point of view, this assignment would allow her to have flexible hours and less responsibility, while not suffering any reduction in pay. From Petitioner’s point of view, the change in job responsibilities was demeaning and humiliating, and meant to embarrass her. Ms. Bruno cleaned the office once, over Labor Day weekend, and did not do so again. She testified that after cleaning the office that weekend, she experienced significant pain in her hand and had to go to the emergency room to have it examined. While she testified that the emergency room sent her home with a work release for two days or until cleared by her hand surgeon, no documentation from the emergency room was submitted at hearing, and no evidence was submitted to demonstrate that the emergency room records were provided to WCA.3/ Ms. Bruno advised Mark (presumably Mark Mairowitz) that she hurt her hand and could not clean the office the way it needed to be cleaned. She did not report back to work at WCA. There was some testimony that the office was closed for a period in September related to a hurricane that hit the area, but there was no evidence as to how many days the office was closed. Petitioner’s employment was terminated as of September 29, 2017. Petitioner saw her hand surgeon on or about September 26, 2017. She submitted documentation from the Vanguard Aesthetic Plastic Surgery which is, for the most part, illegible, but is clear enough to confirm that she was seen as a patient and received some instructions. She did not report to Ms. Bynoe that she had gone to the emergency room, and did not inform her that she was unable to perform work cleaning and organizing the office because of her hand or because of any other disability. Petitioner did not testify that she was unable to perform the duties of cleaning and organizing the office because of her G.A.D. Petitioner did not establish by the greater weight of the evidence that she has a disability. However, she did establish that toward the end of her employment, WCA perceived her as having some sort of disability, as evidenced by Mr. Mairowitz’s letter to her requesting that she get a doctor’s clearance to return to work. Despite evidence that there were concerns, it is not at all clear whether WCA’s perception is based upon problems with her hand or problems caused by her anxiety disorder. Petitioner did not establish by the greater weight of the evidence that she requested an accommodation from her employer based on a disability. Likewise, she did not establish that WCA ever denied a request from Petitioner for an accommodation. Petitioner did not establish that WCA treated persons without a disability differently. No evidence was presented regarding any employee with a similar position and a similar attendance history, much less that such a person was treated differently than Petitioner. If anything, the evidence supports the view that WCA went to great lengths to accommodate Petitioner, in large part because of her father’s relationship with Mr. Yokeum.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner’s Petition for Relief be dismissed. DONE AND ENTERED this 30th day of January, 2019, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 2019.
The Issue The issue in this bid protest matter is whether Respondent, Florida Housing Finance Corporation’s, intended award of funding under Request for Applications 2018-112 was contrary to its governing statutes, rules, or the solicitation specifications.
Findings Of Fact Florida Housing is a public corporation created pursuant to section 420.504, Florida Statutes. Its purpose is to provide and promote public welfare by administering the governmental function of financing affordable housing in the State of Florida. For purposes of this administrative proceeding, Florida Housing is considered an agency of the State of Florida. Hawthorne Park, Amelia Court, and Durham Place are all properly registered business entities in Florida and engage in the business of providing affordable housing. The low-income housing tax credit program (commonly referred to as “tax credits” or “housing credits”) was enacted to incentivize the private market to invest in affordable rental housing. The affordable housing industry relies heavily on public funding, subsidies, and tax credits to develop projects that are financially sustainable in light of the sub-market rents they charge. Because tax credits allow developers to reduce the amount necessary to fund a housing project, they can (and must) offer the tax credit property at lower, more affordable rents. Developers also agree to maintain rental prices at affordable levels for periods of 30 to 50 years. Florida Housing has been designated as the housing credit agency for the state of Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code. As such, Florida Housing is authorized to establish procedures to distribute low-income housing tax credits and to exercise all powers necessary to administer the allocation of those credits. § 420.5099, Fla. Stat. Florida Housing uses a competitive solicitation process to award low-income housing tax credits. Florida Housing initiates the solicitation process by issuing a request for applications (“RFA”). §§ 420.507(48) and 420.5087(1), Fla. Stat.; and Fla. Admin. Code R. 67-60.009(4). The RFA at issue in this matter is RFA 2018-112, entitled “Housing Credit Financing for Affordable Housing Developments Located in Broward, Duval, Hillsborough, Orange, Palm Beach, and Pinellas Counties.” The purpose of RFA 2018-112 is to distribute funding to create affordable housing developments in the State of Florida. Through RFA 2018-112, Florida Housing intends to provide an estimated $17,314,387.00 of housing tax credits. This bid protest concerns Florida Housing’s intended award of tax credits to Hawthorne Park for its proposed housing development in Orange County, Florida. Amelia Court, the second ranked developer, challenges Florida Housing’s determination of eligibility and award to Hawthorne Park. Durham Place, the third-place developer, challenges Florida Housing’s ranking of Amelia Court. Florida Housing issued RFA 2018-112 on September 6, 2018.6/ Applications were due to Florida Housing by November 13, 2018. Florida Housing received 23 applications for housing credits under RFA 2018-112. Hawthorne Park, Amelia Court, and Durham Place all timely applied for funding to assist in the development of multi-family housing in Orange County, Florida. RFA 2018-112 set forth certain information which each applicant was required to submit with the application. RFA 2018-112, Section Five, A.1, expressly stated that “[o]nly Applications that meet all of the following Eligibility Items will be eligible for funding and considered for funding selection.” Thereafter, Section Five, A.1, listed 45 separate Eligibility Items. Pertinent to these bid protests, one Eligibility Item required each applicant to demonstrate that its housing project “[q]ualifies for Local Government Support.” An applicant satisfied this requirement by submitting a Florida Housing Local Government Verification of Contribution Form (a “Contribution Form”) as referenced in RFA 2018-112, Sections Four, A.11.a.(3), and A.11.b. Failure to show evidence of Local Government Support would render an application ineligible for funding. In addition, RFA 2018-112, Section Four, A.3.c.(1), required each applicant to “state the name of each Developer, including all co-Developers” of the planned housing project. The application was also to include a “Principals of the Applicant and Developer(s) Disclosure Form.” See Fla. Admin. Code R. 67-48.002(93). A total of six applicants applied for funding for Orange County. Upon receipt of the applications, Florida Housing assigned each applicant a lottery number. Hawthorne Park was given a lottery number of 1. Amelia Court was assigned a lottery number of 24. Durham Place received a lottery number of 3. Thereafter, Florida Housing selected a Review Committee from amongst its staff to score each application. The Review Committee reviewed, deemed eligible or ineligible, scored, and ranked applications pursuant to the terms of RFA 2018-112, as well as Florida Administrative Code Chapters 67-48 and 67-60, and applicable federal regulations. The Review Committee met on January 22, 2019, to discuss their scores. The Review Committee found that Hawthorne Park’s application satisfied all mandatory eligibility requirements for funding and awarded it 10 out of 10 Total Points. Amelia Court was also found to have satisfied all eligibility requirements for funding, and also received a score of 10 out of 10 Total Points. Finally, the Review Committee concluded that Durham Place satisfied the eligibility requirements for funding, and it too was given a score of 10 out of 10 Total Points. On February 1, 2019, the Review Committee presented its recommendation of preliminary rankings and allocations to Florida Housing’s Board of Directors. The Board of Directors also found that Hawthorne Park, Amelia Court, and Durham Place all satisfied the mandatory and eligibility requirements for funding in Orange County. Thereafter, per RFA 2018-112, Section Five, B.2., and Section Six, the Board of Directors selected Hawthorne Park to receive tax credits for its affordable housing development in Orange County. The Board of Directors chose Hawthorne Park based on the Review Committee’s recommendation, RFA 2018-112’s funding selection criteria, as well as the fact that Hawthorne Park held the lowest lottery number of 1. The Board of Directors ranked Amelia Court’s application the next highest based on the selection criteria. Durham Place’s application placed third. Durham Place held a lower lottery number than Amelia Court. However, as addressed below, Amelia Court’s application included Local Government Support in the form of Local Government Areas of Opportunity Funding (“Areas of Opportunity Funding”), as opposed to Local Government Contribution funding. Under the provisions of RFA 2018-112, applicants who obtained Areas of Opportunity Funding were given a ranking preference. Of the six applications for Orange County, only Hawthorne Park and Amelia Court claimed Areas of Opportunity Funding. The Board of Directors approved $2,300,000 in annual federal tax credits to help finance Hawthorne Park’s 120-unit, Garden Apartment complex in Orange County. AMELIA COURT’S CHALLENGE OF HAWTHORNE PARK: Amelia Court protests Florida Housing’s selection of Hawthorne Park instead of its own development. Amelia Court specifically challenges Florida Housing’s determination that Hawthorne Park submitted a valid Contribution Form.7/ Amelia Court seeks an allocation of $2,375,000 in tax credits to help finance its affordable housing project in the City of Orlando. If Amelia Court successfully demonstrates that Florida Housing erred in accepting, then scoring, Hawthorne Park’s application, Amelia Court, by virtue of qualifying for Areas of Opportunity Funding, as well as holding the next lowest lottery number, stands in line to be selected for funding instead of Hawthorne Park. As indicated above, RFA 2018-112, section Four, A.11, required applicants to provide evidence of Local Government Support for their proposed housing development. This support could come in the form of a grant, loan, fee waiver and/or a fee deferral from the local government entity. Florida Housing did not intend for this local funding to serve as the primary financial support for the housing project. Instead, Florida Housing established a contribution threshold amount which could be used to gauge the local government’s interest in the proposed development. An applicant could satisfy the Local Government Support requirement in two ways. An applicant could obtain either 1) a Local Government Contribution (Section Four, A.11.a.); or 2) Areas of Opportunity Funding (Section Four, A.11.b.). RFA 2018-112 established the minimum financial commitment for the Local Government Contribution at $75,000. Areas of Opportunity Funding contemplated much larger support from the local government. RFA 2018-112, Section Four, A.11.b., called for a cash loan and/or a cash grant in a minimum qualifying amount ranging from $472,000 to $747,000 depending on the building and construction type. Consequently, as set forth in RFA 2018-112, Section Five, B.3.e., and Section Six, Areas of Opportunity Funding enabled an application to receive a preference in the selection process. To substantiate the receipt of Local Government Support, applicants were instructed to include with their applications a properly executed Contribution Form. With respect to Areas of Opportunity Funding, RFA 2018-112, Section Four, A.11.b., stated: In order to be eligible to be considered Local Government Areas of Opportunity Funding, the cash loans and/or cash grants must be demonstrated via one or both of the Florida Housing Local Government Verification of Contribution forms (Form Rev. 08-16), called “Local Government Verification of Contribution – Loan” form and/or the “Local Government Verification of Contribution – Grant” form. Both the Local Government Verification of Contribution – Loan form (the “Contribution Form – Loan”) and the Local Government Verification of Contribution – Grant form (the “Contribution Form – Grant”) directed an applicant to include certain information. First, the loan or grant must be dedicated to the specific RFA at issue (RFA 2018-112 in this matter). Next, the Contribution Form must explicitly record the face amount or value of the Local Government Contribution, as well as the source of the local government loan or grant. In addition, the funds could not come from a prohibited source. Finally, the Contribution Form had to be signed by a representative of the local government who certified the correctness of the loan amount and source. The Contribution Form expressed: This certification must be signed by the chief appointed official (staff) responsible for such approvals, Mayor, City Manager, County Manager/Administrator/Coordinator, Chairperson of the City Council/Commission or Chairperson of the Board of County Commissioners. . . . The Applicant will not receive credit for this contribution if the certification is improperly signed. RFA 2018-112, Section Four, A.11.b., also required that “funding . . . shall be paid in full by the local jurisdiction no later than 90 days following the date the proposed Development is placed in-service. Hawthorne Park, to establish its Areas of Opportunity Funding, included both a Contribution Form - Loan, as well as a Contribution Form – Grant, for a combined Local Government Support amount of $567,500. Hawthorne Park’s Contribution Form - Loan represented that Orange County had agreed to provide Hawthorne Park a reduced interest rate loan in the amount of $317,500. This loan, by itself, was not large enough to meet the Areas of Opportunity Funding threshold. However, Hawthorne Park’s Contribution Form - Grant identified an additional $250,000 from Orange County in the form of a State Housing Initiative Partnership (“SHIP”)8/ grant. The combined loan and grant (if both are valid) established sufficient Local Government Support to qualify Hawthorne Park for the Areas of Opportunity Funding ranking preference. Amelia Court alleges that the SHIP grant Hawthorne Park identified on its Contribution Form – Grant is illegal or invalid.9/ To formally contest Orange County’s SHIP grant, Atlantic Housing Partners, LLLP (“Atlantic Housing”), the developer of the Amelia Court housing project, sued Orange County and Wendover Housing Partners, LLC (“Wendover”), in the Circuit Court of the Ninth Judicial Circuit in Orange County, Florida, in a case entitled Atlantic Housing Partners, LLLP v. Orange County, Florida, and Wendover Housing Partners, LLC, Case No. 2018-CA-12227-O. (The suit identifies Wendover as the developer of the Hawthorne Park housing project.) In the circuit court action, Amelia Court specifically alleges that Orange County failed to follow its local housing assistance plan (“Assistance Plan”) prior to offering the SHIP grant to Hawthorne Park. Amelia Court claims that the Assistance Plan required Orange County to initiate a competitive solicitation process (request for proposals) before awarding SHIP funds.10/ Orange County undisputedly did not do so prior to issuing the SHIP grant to Hawthorne Park. Based on Orange County’s failure to comply with its Assistance Plan, Amelia Court charges that Hawthorne Park’s Contribution Form – Grant is invalid. On January 21, 2019, the circuit court issued a Temporary Injunction. Agreeing with Atlantic Housing/Amelia Court, the circuit court held that “Orange County deviated from the requirements of its [Assistance Plan].” The circuit court found that, “[b]y the plain terms of its own [Assistance Plan], Orange County was required to conduct an [request for proposals] to award SHIP funds to Wendover.” Through the Temporary Injunction, the circuit court enjoined Orange County from conveying the SHIP funds to Wendover for the Hawthorne Park development. The circuit court specifically ruled that Orange County and Wendover: are temporarily enjoined, pending a final adjudication and the granting or [sic] permanent relief, from awarding SHIP funds to Wendover as [Areas of Opportunity Funding] for Orange County related to Hawthorne Park and the 2018 RFA. The circuit court concluded that, “Wendover should not be permitted to compete given its illegal award of SHIP funds as an [Areas of Opportunity Funding] from Orange County in the first place.” Florida Housing, however, was not joined as a party to the circuit court action. Commenting on this fact, the circuit court inserted a footnote stating: Inasmuch as [Florida Housing] is not a party to these proceedings, necessarily, this injunction does not enjoin any activity of [Florida Housing]. On January 22, 2019, Orange County and Wendover appealed the Temporary Injunction to the Fifth District Court of Appeal. The appeal is pending as of the date of this Recommended Order. In the meantime, on January 31, 2019, the circuit court entered an Order Granting Motion to Vacate Stay. Consequently, the terms of the Temporary Injunction remain in effect pending the outcome of the appeal. Based on the Temporary Injunction, at this time, Orange County is not authorized to distribute the $250,000 SHIP grant to Hawthorne Park to help fund its housing project. Without the SHIP grant, Hawthorne Park does not qualify for the Areas of Opportunity Funding selection preference. As a result, Amelia Court contends that Florida Housing should invalidate Hawthorne Park’s Areas of Opportunity Funding, and select Amelia Court as the top ranked applicant for tax credits for Orange County. In response to Amelia Court’s challenge, Florida Housing takes the position that the Temporary Injunction is a preliminary determination, not a final adjudication. Consequently, the Temporary Injunction does not conclusively establish that the SHIP grant from Orange County is tainted by fraud or illegality, or is in some manner invalid. Therefore, the Contribution Form - Grant that Hawthorne Park provided with its application complied with the express terms of RFA 2018-112, and Hawthorne Park’s application remains eligible for tax credit funding. In support of its position, Florida Housing presented the testimony of Marisa Button, Florida Housing’s Director of Multi-family Allocations. In her job, Ms. Button oversees Florida Housing’s RFA process. Ms. Button disagreed with Amelia Court’s argument that Florida Housing should reject the Contribution Form - Grant based on the circuit court’s Temporary Injunction. Ms. Button testified that, as a rule, Florida Housing assumes the correctness of a properly executed Contribution Form. Because Hawthorne Park’s Contribution Form – Grant included the required information and signatory, Florida Housing did not question its underlying validity when scoring the applications. Ms. Button further explained that Florida Housing does not have the authority to independently determine whether a local government followed the appropriate procedures to award a grant or loan. Therefore, Florida Housing defers to the local government’s exercise of its own ordinances and processes. Similarly, Ms. Button maintained that the circuit court is the proper venue to determine the validity of the Orange County SHIP grant. Ms. Button declared that Florida Housing will be bound by the circuit court’s ultimate ruling on the issue, whenever that decision becomes final.11/ However, until the $250,000 SHIP grant is found invalid or otherwise prohibited, Florida Housing considers its initial decision to award tax credits to Hawthorne Park to be appropriate and correct. On the other hand, Ms. Button conveyed that if a court does rule that Orange County’s SHIP grant is invalid or illegal, Florida Housing will deem Hawthorne Park’s Contribution Form – Grant as though it contained a material error. In other words, Florida Housing would treat the Contribution Form – Grant as nonresponsive, or as if it was left blank. Consequently, if Hawthorne Park’s remaining Local Government Support (the $317,500 loan from Orange County) did not reach the financial threshold to qualify for Areas of Opportunity Funding, Hawthorne Park would not receive a scoring preference. Regarding the question of how Florida Housing will treat Hawthorne Park’s application while the $250,000 SHIP grant is temporarily enjoined, Ms. Button testified that Florida Housing would reevaluate the situation in its credit underwriting process. Ms. Button explained that after its Board of Directors selects an application, Florida Housing invites the applicant (Hawthorne Park) into credit underwriting. During that stage, the application is reexamined to ensure that it complies with all RFA eligibility requirements, including the obligation to secure sufficient Local Government Support.12/ If Hawthorne Park has the necessary Areas of Opportunity Funding to ultimately finance its housing development, the award of tax credits proceeds. If an award is determined inappropriate based on the circumstances, then Florida Housing would likely not advance its efforts to fund Hawthorne Park’s development.13/ That being said, Ms. Button stressed that, at this time, no court has conclusively invalidated the $250,000 SHIP grant to Hawthorne Park. Furthermore, the circuit court expressly stated that the Temporary Injunction “does not enjoin any activity” of Florida Housing. Therefore, Florida Housing takes the position that Hawthorne Park has not been formally disqualified from consideration under RFA 2018-112. Neither is Florida Housing prohibited from proceeding with an award of tax credits to Hawthorne Park. In response to Amelia Court’s challenge, Hawthorne Park concurs with Florida Housing that the Temporary Injunction is not a final judgment. Therefore, the Temporary Injunction does not preclude Florida Housing from awarding tax credits under RFA 2018-112 for Hawthorne Park’s development. Hawthorne Park points out that the Temporary Injunction is a provisional decision by the circuit court. The purpose of the Temporary Injunction is to maintain the status quo by temporarily enjoining Orange County from releasing SHIP funds for the Hawthorne Park housing project. However, the Temporary Injunction, without more, does not automatically void Orange County’s selection of Wendover/Hawthorne Park for the SHIP grant. Therefore, the Contribution Form – Grant that Hawthorne Park submitted with its application remains in effect unless and until the circuit court issues a final ruling. Furthermore, Hawthorne Park insists that Orange County’s allocation of SHIP funds does not violate any law or local ordinance. Hawthorne Park declares that the circuit court issued the Temporary Injunction based on a misunderstanding of the Orange County Assistance Plan. Hawthorne Park fully intends to fight Atlantic Housing/Amelia Court’s allegations in circuit court where it will have a full opportunity to present its case. DURHAM PLACE’S CHALLENGE OF AMELIA COURT: Durham Place responded to RFA 2018-112 seeking an allocation of $2,375,000 in tax credits to help finance its housing development in Orange County. Durham Place received the same score as Hawthorne Park and Amelia Court (10 out of 10 Total Points). For its application, Durham Place secured Local Government Support in the amount of $75,000. This funding was sufficient to satisfy the Local Government Contribution eligibility requirements under RFA 2018-112, Section Four, A.11.a. However, this funding amount was not large enough to receive a selection preference as Areas of Opportunity Funding. Therefore, Durham Place’s application fell behind Hawthorne Park and Amelia Court in RFA 2018-112’s sorting methodology under RFA 2018-112, Section Five, B.2. Nevertheless, if the evidence shows that Florida Housing should disqualify Hawthorne Park’s Areas of Opportunity Funding, and the evidence further demonstrates that Amelia Court’s application was nonresponsive or ineligible, then Durham Place would be entitled to an award of tax credits as the third ranked qualified applicant.14/ Durham Place contests two aspects of Amelia Court’s application. First, Durham Place claims that (similar to Hawthorne Park) Amelia Court did not qualify for the Areas of Opportunity Funding selection preference under RFA 2018-112, Section Four, A.11.b. With its application, Amelia Court provided a Contribution Form - Grant from the City of Orlando purporting to commit $625,750 to its housing project. The Contribution Form - Grant identifies the source of the grant as the “City of Orlando Community Redevelopment Agency (CRA).” The Contribution Form Grant was signed by Byron Brooks as the Chief Administrative Officer of the City of Orlando. Durham Place questions whether Mr. Brooks is the proper signatory to certify a grant from the CRA. Durham Place implies that the CRA does not employ Mr. Brooks. Therefore, he is not “the chief appointed official (staff) responsible for such approvals” who could certify the legitimacy of CRA’s grant to the Amelia Court housing project. Second, RFA 2018-112, Section Four, A.3.c.(1), required each applicant to “state the name of each Developer, including all co-Developers” of the housing project. Durham Place alleges that Amelia Court failed to list all the developers or co-developers of its housing project. In support of its argument, Durham Place points to a Condominium Purchase Agreement that Amelia Court included with its Site Control Certification Form to demonstrate its site control under RFA 2018-112, Section Four, A.7. The Condominium Purchase Agreement identified “Amelia Court Developers, LLC” (“Amelia Court Developers”) as a “Developer” of its proposed housing site. Durham Place argues that Amelia Court did not list Amelia Court Developers in its application as either a developer, co-developer, or principal. By failing to disclose either Amelia Court Developers as a co-developer of the project or list the names of the officers of Amelia Court Developers as principals, Durham Place asserts that Amelia Court failed to include a mandatory Eligibility Item. Amelia Court refutes Durham Place’s allegations. Regarding its Local Government Support, Amelia Court claims that the CRA is a valid source for its Areas of Opportunity Funding. Amelia Court’s retort was essentially unrebutted. At the final hearing, Durham Place did not present any evidence showing that Mr. Brooks was not authorized to represent the CRA on the Contribution Form – Grant. No party called Mr. Brooks to testify. Regarding Amelia Court’s developers or co-developers, Amelia Court introduced the testimony of Scott Culp. Mr. Culp asserted that Atlantic Housing is the sole developer of the Amelia Court tax credit project. As the developer, Atlantic Housing will manage the work on the condominium building, the professionals who will design it, as well as the contractor who will construct the affordable housing units. Mr. Culp declared that no other entity or individual will participate in the project as either a developer or co-developer. Regarding the role of Amelia Court Developers, Mr. Cole explained that Amelia Court Developers is the leasehold owner pursuant to a ground lease, as well as created the legal structure of the condominium in which the Amelia Court project will be located. Amelia Court Developers hired Atlantic Housing to develop the Amelia Court housing community. However, Amelia Court Developers does not have the same roster of principals as Atlantic Housing. Neither will Amelia Court Developers play any other role in Amelia Court’s application for tax credits under RFA 2018-112. Ms. Button testified that, to date, Florida Housing is not aware of any evidence supporting Durham Place’s claim that Mr. Brooks is not authorized to sign Amelia Court’s Contribution Form on behalf of the CRA. Furthermore, as with Hawthorne Park’s Contribution Form - Grant, Ms. Button did not believe that Florida Housing has the authority to make an independent determination whether the CRA failed to comply with the appropriate procedures to award $625,750 to the Amelia Court housing project. Therefore (as with Hawthorne Park’s application), after Florida Housing determined that Amelia Court’s Contribution Form – Grant was properly executed, Florida Housing accepted it as valid on its face, and scored it accordingly. At the final hearing, Ms. Button maintained that, until Florida Housing receives some evidence that the Contribution Form - Grant is invalid, or tainted by fraud, illegality, or corruption, Amelia Court’s second place ranking is appropriate. Florida Housing reached a similar conclusion regarding Durham Place’s allegation that Amelia Court did not identify all of its housing project’s developers or co-developers. Ms. Button testified that, while Florida Housing did observe that Amelia Court Developers was connected to the proposed development through the Condominium Purchase Agreement, Florida Housing is not aware of any evidence indicating that Amelia Court Developers will serve as a developer or co-developer for Amelia Court’s housing project. Based on the evidence and testimony presented at the final hearing, Amelia Court did not establish, by a preponderance of the evidence, that Florida Housing’s decision to consider, then rank, Hawthorne Park’s application was clearly erroneous, contrary to competition, arbitrary, or capricious. Accordingly, Amelia Court did not meet its burden of proving that Florida Housing’s proposed action to award tax credit funding to Hawthorne Park under RFA 2018-112 was contrary to its governing statutes, rules or policies, or the provisions of RFA 2018-112. Similarly, Durham Place failed to demonstrate that Florida Housing’s consideration of Amelia Court’s application was contrary to its governing statutes, rules or policies, or the solicitation specifications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Housing Finance Corporation enter a final order dismissing the protests of both Amelia Court and Durham Place. It is further recommended that the Florida Housing Finance Corporation select Hawthorne Park as the recipient of tax credit funding for Orange County under RFA 2018-112. DONE AND ENTERED this 7th day of June, 2019, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 7th day of June, 2019.
The Issue The issue in this cause is whether petitioners are entitled to either an agricultural classification of their land under F.S. 193.461 or a reduced assessment of their land under F.S. 193.011 for purposes of ad valorem taxation. More specifically, the issue is whether the change made by the Palm Beach County Board of Tax Adjustment in the property appraiser's assessment of petitioners' property lacked legal sufficiency or whether the evidence presented was insufficient to overcome the appraiser's presumption of correctness. In accordance with F.S. 193.122(1) and the case of Hollywood Jaycees v. State Department of Revenue, 306 So. 2d 109 (Fla. 1975), the evidence and argument adduced at the hearing was limited to the scope of the record established before the Palm Beach County Board of Tax Adjustment (BTA).
Findings Of Fact Upon consideration of the pleadings, evidence introduced at the hearing and the oral argument presented by the parties, the following pertinent facts are found: Petitioners are the owners of approximately 300 acres of real property located in Palm Beach County. As of January 1, 1974, the subject property was used for agricultural purposes and had been so used by petitioners or their predecessor for some fifty years prior to 1974. Prior to 1974, the subject land had been assessed at $600.00 per acre and had not been reassessed in approximately six years. Prior to and including 1974, petitioners did not file an application for agricultural classification of their land. For the year 1974, the property appraiser assessed the subject property at $3,000.00 per acre under the provisions of F.S. 193.011. Petitioners appealed to the Palm Beach County BTA which found that the appraiser's presumption of correctness had been overcome and that petitioners should be allowed to retain the prior years' assessment on the property ($600.00 per acre). In support of this decision, the BTA found that it had the authority to extend the time for filing an application for agricultural classification and that it had the authority "in light of AGO 71-81 dated April 28, 1971, to grant the continuance of a prior years assessment where the facts and circumstances surrounding the subject property have not changed and are not expected to change." The BTA notified the respondent of the change in assessment pursuant to F.S. 193.122. The respondent's staff recommended that the BTA's action in this case be invalidated on the ground that the evidence presented to the BTA was insufficient to overcome the property appraiser's presumption of correctness. The petitioners requested a hearing to review the staff recommendation, the respondent's Executive Director requested the Division of Administrative Hearings to conduct the hearing and the undersigned was assigned as the Hearing Officer. Due to the fact that there was no court reporter present at the hearing, the parties stipulated that their respective positions would be reduced to writing by the submission of written memoranda. To date, no such memorandum has been received from petitioners.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the action of the Palm Beach County Board of Tax Adjustment in granting an agricultural classification and in reducing the assessment of petitioners' property for the tax year 1974 be invalidated. Respectfully submitted and entered this 3rd day of March, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1976.
The Issue Whether Respondent, a licensed real estate salesman, is guilty, as charged, of fraud, misrepresentation, culpable negligence or breach of trust in violation of Section 475.25(1)(b), Florida Statutes.
Findings Of Fact I. At all times material to the charges, Respondent was a licensed Florida real estate salesman associated with Woodlake Realty, Inc., in Melbourne, Florida. He obtained his real estate salesman's license in 1982. On March 14, 1985, became a licensed real estate broker and now operates his own business under the name of Peter Frontiero Realty. His office is located in his residence at 3247 West New Haven Avenue, Melbourne, Florida. II. On or about April 7, 1983, while employed as a real estate salesman at Apollo Realty, Inc., Mary E. Sousa obtained a listing on a tract of land owned by John and Janet Biansco. In connection with the listing, an Exclusive Right of Sale Contract was executed. This contract contained the following legal description of the tract to be sold: Parcel of land lying in the County of Brevard in the southwest 1/4 of Sec 11, TW 28 South Range 36E more particularly described as follows: S 2/3 of the following tract: commence at SE corner of W 1/2 of Sec 11 TW 28 South Range 36E, thence along south line of said Sec 11, 589-54-14 West for 30 feet., thence north 1- 17-00E for [sic] 43 feet to the point of beginning thence south 89-54-14 west along the north R/W line Melbourne Tillman Drainage district canal #63 for 297.43 feet, thence north 1-15-49 east for 353 feet, thence north 89-54-14 east for 297.55 feet, to the west R/W line of Arizona Street; thence south 1 17-00 West along R/W line for 353.00 feet, to the point of beginning. (P-4, Admissions No. 5, 6) As so described, this tract of land measures 235.34' x 297.47' and contains approximately 1.61 acres. (Admission No. 7) Mary E. Sousa and her broker, Peter Sergis, however, incorrectly determined that the legal description described a tract of land measuring 297' x 353' feet, containing 2.4 acres. (They determined this by examining the legal description attached to the Listing Contract and relying on Mr. Biansco's representation that the tract contained 2.4 acres.) Mary E. Sousa then had the property listed in the Melbourne Multiple Listing Service (MLS) on or about April 26, 1983. The MLS listing reflected the incorrect measurements and size of the tract, as submitted by Ms. Sousa. (P-3, Admission No. 8) III. During May, 1983, Karen Dunn-Frehsee and Paul Winkler (her fiance), contacted Respondents, a real estate salesman associated with Woodlake Realty, Inc., about purchasing a home. After Respondent showed them a house they were interested in, Ms. Dunn-Frehsee and Mr. Winkler decided that what they really wanted was to buy land on which they could build a residence. They told Respondent that they would need a minimum of two acres since they had two horses: local zoning requirements required at least one acre of land per horse. (Admission No. 10, Testimony of Dunn-Frehsee) Respondent checked MLS and found the listing (containing the incorrect measurements and size) of the Biansco property. He showed the land to Ms. Dunn- Frehsee and Mr. Winkler, who liked it and decided to make an offer. (At that time, Respondent was unaware that the MLS listing erroneously described the tract to be 297' x 353', containing 2.4 acres, when in fact it was 297.47' x 235.34', containing approximately 1.61 acres.) On or about May 5, 1983, Respondent prepared a "Contract for Sale and Purchase" containing the offer of Ms. Dunn-Frehsee. After she signed it, it was presented to the Bianscos, who subsequently accepted it. (Admission No. 12, P- 1) The Contract for Sale and Purchase contained, on the attached addendum--a correct legal description of the tracts as the description was taken from the listing agreement, not the erroneous MLS listing. Prior to closing, Respondent contacted Ms. Dunn-Frehsee several times to advise her regarding efforts being made by Lawyers Title Insurance Company to locate the prior owner of the property and secure a quitclaim deed covering a 30-foot strip of land bordering Arizona Street on the east side of the property. He was still unaware of the discrepancy between dimensions of the property contained on the MLS listing and the Contract of Sale. He did not tell Ms. Dunn-Frehsee that he had personally measured the property, or that he had confirmed the accuracy of the listing information. He was concerned only with the problem of obtaining access to the property through the 30-foot strip bordering Arizona Street. Although he told Ms. Dunn-Frehsee that he thought she was getting 2.7 or 3.0 acres by virtue of the additional strip of land which was to be quitclaimed to her at no additional cost, this belief was based on his reasonable assumption that the original tract contained 2.4 acres, as represented by the listing agents (Mary Sousa and Peter Sergis of Apollo Realty) and reflected in the Multiple Listing Book. Respondent also contacted Mr. Winkler, but similarly, did not represent to him that he (Respondent) had personally measured the property or confirmed the MLS information. (Testimony of Respondent) Prior to the closing, Respondent discussed with Ms. Dunn-Frehsee the need to order a survey of the property. She then ordered a survey, which was completed a week and a half before closing. After picking it up, Respondent telephoned Ms. Dunn-Frehsee. There is conflicting testimony about the conversation which ensued. Respondent testifies that he telephoned her and asked if she would like him to deliver the survey to her house or mail it to her, or if she would like to pick it up at his office. (TR-30) Ms. Dunn- Frehsee, on the other hand, testified that Respondent telephoned her stating that he had looked the survey over and there was no reason for her to drive out to his office to pick it up, that he would bring it to the closing. (TR-48) Neither version is more plausible or believable than the other. Both Respondent and Ms. Dunn-Frehsee have a discernible bias: Respondent faces charges which could result in the revocation of his professional license; Ms. Dunn-Frehsee has sued Respondent for damages resulting from her purchase of a tract of land which was smaller than what she was led to believe. Since the burden of proof lies with the Departments, the conflicting testimony is resolved in Respondent's favor as it has not been shown with any reliable degree of certainty that Respondent told Ms. Dunn-Frehsee that he had looked the survey over and that there was no need for her to examine it before closing. Both witnesses agree, however, and it is affirmatively found that Ms. Dunn-Frehsee agreed that Respondent should bring the survey with him to the closing, which was imminent. The surveys prepared by Hugh Smith, a registered land surveyors correctly showed the property to be approximately 235.33' x 297.43', but did not indicate the size by acreage. (Admission No. 20, P-2) At closings on or about June 23, 1983, Respondent showed the survey to Ms. Dunn-Frehsee. Ms. Dunn- Frehsee questioned the measurements as not being the same as she recalled being on the MLS listing. Neither Ms. Sousa nor Respondent, both of whom were in attendance, had a copy of the MLS listing so that the measurements on the two documents were not compared. (Admission No. 22-23) Ms. Dunn-Frehsee chose to close the transaction anyway after her questions regarding the property were apparently resolved to her satisfaction by Kathleen Van Mier, the agent for Lawyers Title Insurance Company which was handling the closing. Ms. Dunn-Frehsee signed a contingency statement indicating that all contract contingencies had been satisfied and that she wished to proceed with the closing. (TR-4O-41; 77-78) Respondent was misinformed regarding the dimensions and size of the property by the listing agents, Mary Sousa and Peter Sergis of Apollo Realty, who had provided inaccurate information to the Multiple Listing Service. Respondent reasonably relied upon the listing information and the representations of the listing agents concerning the size of the property. In his discussions with Ms. Dunn-Frehsee and Mr. Winkler, he drew reasonable inferences from such (incorrect) representations. He did not intentionally mislead anyone. It has not been shown that, under the circumstances, he failed to exercise due care or that degree of care required of a licensed real estate salesman. Nor has it been shown that he violated any professional standard of care adhered to by real estate salesmen and established by qualified expert testimony at hearing.
Recommendation Based on the foregoing it is RECOMMENDED: That the administrative complaint, and all charges against Respondent be DISMISSED for failure of proof. DONE and ORDERED this 11th day of October, 1985, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1985.
The Issue Whether Respondent failed or refused to provide the legal representation to which Petitioner was entitled because of Petitioner’s race or in retaliation for Petitioner’s prior charges against Respondent.
Findings Of Fact At all times relevant to this proceeding, Petitioner, a black male, was employed by Miami-Dade County as a correctional officer. At all times relevant to this proceeding, Respondent was a public employees bargaining unit established pursuant Chapter 447, Florida Statutes (2004).1 At all times relevant to this proceeding, Petitioner was a dues-paying member of Respondent and was entitled to all rights and benefits of such membership. Prior to March 1, 2002, Petitioner filed a complaint with the EEOC alleging that Respondent had discriminated against him in an unrelated matter. That complaint was resolved in Respondent’s favor. Petitioner was notified by his employer on March 1, 2002, that his employment was being terminated for reasons that are irrelevant to this proceeding. Petitioner immediately requested legal representation from Respondent. On March 4, 2002, Respondent, through Tyrone W. Williams (Respondent’s then general counsel), advised Petitioner as follows: We have completed our review of your request for legal assistance of March 4, 2002. Based upon the information provided, it has been determined that a conflict in representation has arisen. Accordingly, this matter has been assigned to the Law Offices of Slesnick & Casey. . . . . We have provided the Law Office of Slesnick & Casey with a copy of your file for their immediate reference. Please contact the Law Office of Slesnick & Casey upon receipt of this correspondence. At the times relevant to this proceeding, the Law Offices of Slesnick & Casey was a private law firm that had contracted with Respondent to provide conflict representation to its members. Thereafter, the Law Office of Slesnick & Casey undertook Petitioner’s representation at Respondent’s expense. The procedures followed by Respondent in determining that a conflict existed and in assigning the Law Office of Slesnick & Casey to this representation were consistent with Respondent’s bylaws and written policies. Petitioner was not satisfied with the representation of Slesnick & Casey and asked Respondent for other counsel. On June 24, 2002, Blanca Greenwood (Respondent’s then general counsel) notified Petitioner that if he did not want the assigned representation, Respondent would give him $500.00 towards his legal fees and he could retain any lawyer he wished. Petitioner was also told he would have to absolve Respondent of any liability regarding his representation by private counsel, which Petitioner refused to do. Petitioner thereafter filed the complaint with EEOC and, following its dismissal, the Petition for Relief that underpins this proceeding. The evidence presented by Petitioner failed to establish that Respondent discriminated against him by assigning the Law Office of Slesnick & Casey to represent him or by offering to pay $500.00 towards his legal fees for a private lawyer. There was no evidence that Mr. Williams (who is a black male) or any other representative of Respondent discriminated against Petitioner on the basis of his race. There was no evidence that Mr. Williams or any other representative of Respondent discriminated against Petitioner because he had filed an unrelated EEOC against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 24th day of February, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 24th day of February, 2005.
Findings Of Fact Petitioner Robert Landers was employed by Broward County from February 10, 1987, until August 4, 1987, as a probationary employee in the County's Utilities Division. His job classification was Engineering Inspector II. Prior to his employment, he submitted a resume to Broward County. That resume represented that his health was "excellent". On the Broward County employment application form he represented that he had "fully recovered" from an automobile accident in 1963. He successfully passed Broward County's standard pre- employment physical examination. Petitioner is proud of the fact that he possesses a Broward County Master Plumber Certificate. The position of Engineering Inspector II in the Broward County Utilities Division does not require such a certificate. Petitioner served his six-month probationary period under the successive supervision of three field supervisors -- Robert Harper, John Graham, and Patrick Sweet. At the end of his probationary period each of these three supervisors individually evaluated Petitioner's job performance as unsatisfactory. At the midpoint of his probationary period, Petitioner was counseled regarding his performance and was advised that he needed to get along with people better, that he needed to get out of his vehicle in order to make inspections at the job sites, and that he needed to use the required Broward County Specifications Manual rather than relying on his past knowledge of various plumbing codes. Petitioner's job required use of engineering code concepts, and Petitioner did not gain sufficient familiarity with the Broward County Specifications Manual to properly perform his job. During the six-month probationary period, Petitioner failed to follow proper procedures and failed to properly perform his job duties on several occasions. He went home without permission; he allowed a contractor to lay defective piping; he verbalized his reluctance to utilize the Broward County Specifications Manual and took the position that his way of doing things was better; he obtained permission to go to a medical appointment in advance and then changed the appointment time without notifying anyone that he would be going at a time other than a time for which he had permission so that no other employee covered his duties while he was absent; he complained about specific assignments and questioned the necessity of doing tasks assigned to him; he kept his paper work in the wrong location; and his claims for overtime overstated the actual amount of overtime worked on two occasions. Petitioner was terminated from his employment with Broward County at the end of his probationary period for his failure to meet minimum requirements for his job classification. Petitioner has not applied for any other employment positions with Broward County following his termination. During his probationary period, Petitioner was diagnosed as having diabetes. Petitioner does not walk with an observable limp.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that a Final Order be entered finding that Respondent Broward County has not committed an unlawful employment practice against Petitioner and dismissing the Petition for Relief from an Unlawful Employment Practice filed in this cause. DONE and ENTERED this 22nd day of August, 1989, at Tallahassee, Florida. LINDA M. RIGOT 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 22nd day of August, 1989. APPENDIX TO RECOMMENDED ORDER IN DOA NO. 88-4908 Petitioner's Proposed Findings of Fact numbered 1-3, 5, and 7 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's Proposed Findings of Fact numbered 4 and 10 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony or conclusions of law. Petitioner's Proposed Findings of Fact numbered 6, 8, and 9 have been rejected as being contrary to the weight of the evidence in this cause. Respondent's Proposed Findings of Fact numbered 1-8 have been adopted either verbatim or in substance in this Recommended Order. Respondent's Proposed Finding of Fact numbered 9 has been rejected as not constituting a finding a fact but rather as constituting conclusions of law. COPIES FURNISHED: James Thomas, Esquire Governmental Center Suite 423 115 South Andrews Fort Lauderdale, FL 33301 Robin L. Kozin, Esquire 8101 Biscayne Boulevard Suite 500 Miami, FL 33138 Donald A. Griffin, Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 =================================================================
